American States Ins. Co. v. Insurance Co. of the State of Pennsylvania
Filing
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PROTECTIVE ORDER signed by Magistrate Judge Allison Claire on 2/20/15. (Mena-Sanchez, L)
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LISA L. PAN, SBN: 188442
THE BIERNAT LAW GROUP
1633 Bayshore Hwy, Suite 133
Burlingame, California 94010
Telephone: 650-689-5160
Facsimile: 650-689-5587
Attorneys for Plaintiff
AMERICAN STATES INSURANCE
COMPANY
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SACRAMENTO DIVISION
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AMERICAN STATES INSURANCE
COMPANY, an Indiana Corporation
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Plaintiff,
v.
Case No. 2:12-CV-01489-MCE-AC
(Related With Case No:
2:11-CV-00346-MCE-JFM)
DISCOVERY MATTER
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INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA, a
Pennsylvania Corporation
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PROTECTIVE ORDER
Defendant.
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This matter came before the undersigned upon the Motion of American States
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Insurance Company (“ASIC”) for a Protective Order. Insurance Company of Pennsylvania
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(“ISOP”) agreed to certain provisions in ASIC’s Proposed Protective Order but opposed
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certain proposed provisions and proposed certain additional language. The court has
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reviewed the following documents:
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1. Notice and Motion for Protective Order
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2. Joint Statement
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PROTECTIVE ORDER
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3. Declarations of Jerry Strawn, Rhonda Cully, Brenda Bissett, Lisa Pan, James
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Drake and Frank Kaplan, and exhibits (if any) thereto.
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The court also heard oral argument on January 7, 2015. On January 14, 2015, the
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Honorable Magistrate Judge Allison Claire issued an Order on the motion, a copy of which
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is attached hereto and labeled Exhibit B. Based upon said Order, the court issues the
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following Protective Order binding the parties hereto:
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The court finds that “good cause” exists for the issuance of this Protective Order,
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specifically, a court order is necessary in order to facilitate the exchange of information
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through discovery and other means, to protect potentially confidential information from
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being disseminated or used for purposes outside this case, and to avoid inadvertent waiver
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of applicable privileges;
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ASIC and ISOP (“The Parties”) shall be bound by the following Protective Order:
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Definitions
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1.
The term “Related Action” shall refer to that lawsuit titled Sierra Pacific
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Industries v. American States Insurance Company, United States District Court, Eastern
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District of California, Case No. 2:11-cv-00346-MCE-JFM (Related Case Order filed July
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19, 2012, Docket Entry #88) .
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2.
The term “Moonlight Fire Lawsuits” shall refer to the lawsuits identified in
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paragraphs 22, 23, 30 to 33 of ASIC’s Third Amended Complaint herein (Docket Entry
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#41)
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3.
The term “Confidential Information” will mean and include information
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contained or disclosed in any materials that is designated as Confidential Information by
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the producing Party, including documents, portions of documents, answers to
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interrogatories, responses to requests for admissions, trial testimony, deposition testimony,
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and transcripts of trial testimony and depositions, including data, summaries, and
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compilations derived therefrom. Confidential Information may include, but is not limited
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to: internal claims handling guidelines and procedures; underwriting files; pricing models
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PROTECTIVE ORDER
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and calculations; account strategy; and an individual’s personal, health, or financial
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information. Confidential Information may also include documents, materials or
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information relating to Sierra Pacific Industries’ (“SPI’s”) litigation strategy or substantive
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claims or defenses in the underlying Moonlight Fire Lawsuits and information and
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documents obtained by any Party through the Related Action that were designated as
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Confidential Information under the Protective Order entered in the Related Action.
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4.
The term “materials” shall mean and include, without limitation, any and all
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“documents” and other items identified in and within the scope of FED. R. CIV. P. 34(a) and
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the 1970 Advisory Committee Note thereto, and all forms of “writings” and “recordings”
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as defined in FED. R. EVID. 1001(1), including, but not limited to: documents;
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correspondence; memoranda; bulletins; telegrams; letters; statements; guidelines and
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policies; cancelled checks; contracts; invoices; drafts; books of account; worksheets; notes
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of conversations; desk diaries; appointment books; expense accounts; recordings;
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photographs; motion pictures; compilations from which information can be obtained and
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translated into reasonably usable form through detection devices; sketches; drawings;
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notes; reports; instructions; disclosures; and other writings.
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5.
The term “Counsel” will mean either Party’s outside counsel, and other
attorneys, paralegals, secretaries, and other support staff employed in those law firms.
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The terms “Employee” and “Employees” shall refer to the respective officers,
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directors and employees of the Parties or any affiliates of the Parties, including but not
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limited to the Parties’ or their affiliates’ claims personnel, employed counsel, technical
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personnel, clerical personnel, or support staff.
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General Rules
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Each Party to this litigation that produces or discloses any materials or
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information that the producing Party believes constitutes Confidential Information that
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should be subject to this Protective Order may designate the same as “CONFIDENTIAL
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PURSUANT TO PROTECTIVE ORDER” only if it contains or consists of (i) trade secrets
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PROTECTIVE ORDER
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or competitively sensitive technical, financial, marketing or other commercial information;
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(ii) information potentially prejudicial to SPI’s litigation strategy or substantive claims or
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defenses in the underlying Moonlight Fire Lawsuits; or (iii) information obtained through
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the Related Action and which is designated as Confidential Information and subject to the
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Protective Order in place in the Related Action. The producing Party may designate
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material “confidential” by clearly marking each page “CONFIDENTIAL PURSUANT TO
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PROTECTIVE ORDER.” Material produced without such a marking is not confidential
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and is not protected by this Order.
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2.
Whenever a deposition taken on behalf of any Party involves a disclosure of
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Confidential Information of any Party or of SPI, the deposition or portions of the
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deposition must be designated as containing Confidential Information subject to the
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provisions of this Order; such designation must be made on the record whenever possible,
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but a Party may designate portions of depositions as containing Confidential Information
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after transcription of the proceedings; a Party will have until fourteen (14) days after
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receipt of the deposition transcript to inform the other Party or Parties to the action of the
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portions of the transcript to be designated “CONFIDENTIAL PURSUANT TO
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PROTECTIVE ORDER.” Original deposition transcripts and all copies of the deposition
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must bear the legend “CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER” as
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appropriate.
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3.
Information designated “CONFIDENTIAL PURSUANT TO
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PROTECTIVE ORDER” shall be viewed only by Counsel (as defined in paragraph 5) of
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the receiving Party, the Employees (as defined in paragraph 6) of the receiving Party, and
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by the additional individuals listed below, provided each such additional individual listed
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below has read this Order in advance of disclosure and has agreed in writing to be bound by
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its terms by signing the agreement attached hereto as Exhibit A:
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(a)
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testify in connection with this case; and
Independent experts retained by the Parties or their counsel to consult or
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PROTECTIVE ORDER
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(b)
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between the Parties. To the extent that either Party has a disclosure obligation to
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regulators, auditors, reinsurers and/or accountants and any one of those identified
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individuals requests access to the other Party’s Confidential Information disclosed
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in this case, then such information shall be provided without the individual needing
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to execute Exhibit A hereto.
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4.
Any other person or entity identified by a written agreement or stipulation
With respect to material designated “CONFIDENTIAL PURSUANT TO
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PROTECTIVE ORDER,” any person indicated on the face of the document to be its
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originator, author or a recipient of a copy of the document, may be shown the same without
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signing Exhibit A.
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Without a Court order or written permission from the producing Party, a
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Party that desires to submit Confidential Information to the Court must file it under seal in
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accordance with Local Rule 141.
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6.
At any stage of these proceedings, any Party may object to a designation of
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materials as “CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER.” The Party
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objecting to the confidentiality designation must notify Counsel for the designating Party
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of the objected-to materials and the grounds for the objection. If the dispute is not resolved
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between the Parties within seven (7) days of receipt of such a notice of objections, the
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objecting Party may move the Court for a ruling on the objection. The Party designating
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material as “CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER” bears the
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burden of proof. The materials at issue must be treated as “CONFIDENTIAL
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PURSUANT TO PROTECTIVE ORDER” pursuant to the terms of this Protective Order,
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until the Court has ruled on the objection or the matter has been resolved by agreement of
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the Parties.
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7.
All Confidential Information must be held in confidence by those inspecting
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or receiving it, and must be used only for purposes of litigating this action or adjusting the
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underlying claims. Counsel for each Party, and each person receiving Confidential
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PROTECTIVE ORDER
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Information, must take reasonable precautions to prevent the unauthorized or inadvertent
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disclosure of such information.
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8.
If Confidential Information is disclosed by a Party other than the producing
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Party to any person other than a person authorized by this Order, the Party responsible for
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the unauthorized disclosure must, within seven (7) days of discovering the unauthorized
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disclosure, (1) notify the unauthorized recipient that the disclosed material is confidential
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pursuant to the terms of this Order; (2) provide the unauthorized recipient with a copy of
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this Order; (3) request that the unauthorized recipient immediately destroy all copies of the
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Confidential Information in his or her possession and refrain from disclosing the
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Confidential Information to anyone else; and (4) notify the producing Party of the
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unauthorized disclosure and the completion of steps 1, 2 and 3 above.
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9.
Nothing in this Order authorizes discovery that is otherwise improper under
the Federal Rules of Civil Procedure.
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Upon final termination of this action, including any appeals, the Parties, their
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respective Counsel and Employees (as defined in paragraphs 5 and 6, respectively), and
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any other person to whom Confidential Information has been provided in accordance with
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paragraph 3 above, will continue to be bound by this Order with respect to all Confidential
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Information.
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11.
SPI billings and invoices for attorneys’ fees, expert fees and other litigation
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expenses shall be marked “CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER”
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and subject to this Order. These materials disclose attorney work-product and
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attorney-client privileged communications, of which the disclosure to third parties could
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result in claims of waiver of the privilege and potentially result in disclosure of sensitive
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litigation strategy to SPI’s litigation opponents in the Moonlight Fire Lawsuits.
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12.
All documents marked “ATTORNEY-CLIENT PRIVILEGED,”
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“WORK-PRODUCT PROTECTION,” “,” OR “CONFIDENTIAL,” in the Related Action
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shall be similarly designated or designated “CONFIDENTIAL PURSUANT TO
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PROTECTIVE ORDER
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PROTECTIVE ORDER” in this action and subject to this Order. The extension of
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confidentiality of these documents to this action is necessary to protect the parties against
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claims of waiver of privilege and potential disclosure of sensitive litigation strategy to
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SPI’s litigation opponents in the Moonlight Fire Lawsuits.
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13.
To protect the confidentiality of the settlements and avoid jeopardizing SPI’s
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ongoing defense in the Moonlight Fire Lawsuits, the settlement agreements between ASIC
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and SPI, and between ISOP and SPI, shall be marked “CONFIDENTIAL PURSUANT TO
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PROTECTIVE ORDER” and subject to the provisions of this Order.
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14.
In lieu of producing individual checks, as evidence of payments made by
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either of them, the Parties may produce computerized payment screens or payment ledgers
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showing payments made by them towards SPI’s defense fees and costs in the Moonlight
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Fire Lawsuits.
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15.
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within this Order.
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Transmission by email or facsimile is acceptable for all notification purposes
The Parties may modify this Order by agreement, subject to Court approval.
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SO ORDERED.
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Dated: February 20, 2015
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PROTECTIVE ORDER
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THE BIERNAT LAW GROUP
LISA L. PAN, SBN: 188442
1633 Bayshore Hwy, Suite 133
Burlingame, California 94010
Telephone: 650-689-5160
Facsimile: 650-689-5587
Attorneys for Plaintiff
AMERICAN STATES INSURANCE
COMPANY
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SACRAMENTO DIVISION
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AMERICAN STATES INSURANCE
COMPANY, an Indiana Corporation
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Plaintiff,
Case No. 2:12-CV-01489-MCE-CKD
(Related With Case No:
2:11-CV-00346-MCE-JFM)
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v.
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INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA, a
Pennsylvania Corporation
EXHIBIT A: DECLARATION OF
____________ CONFIRMING
COMPLIANCE WITH STIPULATED
PROTECTIVE ORDER
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Defendant.
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I, ____________________, declare the following:
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1.
I have read and I understand the Stipulated Protective Order entered in
American States Insurance Company v. Insurance Company of the State of
Pennsylvania, United States District Court, Easter District of California, Case No.
2:12-CV-01489-MCE-CKD, and I agree to be bound by its terms.
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2.
In addition, I consent to the jurisdiction of the Eastern District Court of
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California with respect to any actions of any kind whatsoever relative to the
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enforcement of the Stipulated Protective Order, recognizing that in doing so I
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subject myself to the full powers of that Court, including the power of imposing
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sanctions for contempt.
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My address is :
___________________________
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___________________________
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___________________________
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My telephone number is: __________________.
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I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
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Executed on ________, 201_, at ______________, State of _________.
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__________________________________
(Signature)
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PROTECTIVE ORDER
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