Pennington v. Zurich American Insurance Company

Filing 7

STIPULATION and PROTECTIVE ORDER re DISCOVERY signed by Magistrate Judge Carolyn K. Delaney on 2/19/13. (Kaminski, H)

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HARDY R. MURPHY, CA Bar No. 187149
[e-mail]
LAUREN M. COOPER, CA Bar No. 254580
[e-mail]
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone:
213.239.9800
Facsimile:
213.239.9045
Attorneys for Defendant
ZURICH AMERICAN INSURANCE COMPANY

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL PENNINGTON,

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Plaintiff,

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vs.
ZURICH AMERICAN INSURANCE
COMPANY, et al.,

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Defendants.

Case No. 2:12-CV-03038-MCE-CKD
STIPULATION AND [PROPOSED]
PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY
INFORMATION AND DOCUMENTS
Action Filed:
Trial Date:

July 18, 2012
None Set

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Case No. 2:12-CV-03038-MCE-CKD
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STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY INFORMATION AND DOCUMENTS

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This Stipulated Protective Order is entered into by and between plaintiff Paul Pennington

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(“Plaintiff”), on the one hand, and defendant Zurich American Insurance Company (“Defendant”),

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on the other hand, by and through their respective counsel of record, with reference to the

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following facts.

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RECITALS

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A.

Defendant has in its possession, custody or control certain information or documents

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that is/are private, proprietary or confidential. Defendant considers this information and these

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documents to be “Confidential Information” or “Highly Confidential Information,” as those terms

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are defined below.

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B.

Defendant desires to protect the Confidential Information and Highly Confidential

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Information, and ensure that said information shall only be produced, used and submitted in

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connection with the litigation of this action, subject to this Stipulated Protective Order.

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C.

No part of this Stipulated Protective Order shall apply to or have any effect or

limitation on the Court or the Court’s officers or personnel.

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STIPULATION
Defendant and Plaintiff (collectively, the “Parties”), stipulate and ask that the Court order

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as follows:

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1.

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Definitions.
a.

“Confidential Information” means based on Defendant’s contention, any (1)

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non-public, private or privileged personnel or personal information; and/or (2) trade secrets or

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other non-public proprietary, confidential, strategic, privileged, financial, business or commercial

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information, data or research. All Confidential Information produced pursuant to this Stipulated

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Protective Order shall be used solely for the purposes of this litigation, or for purposes of enforcing

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an order, judgment, and/or award made in this litigation, as permitted by this Stipulated Protective

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Order.

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b.

“Highly Confidential Information” means, based on Defendant’s contention,

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“Confidential Information,” as that term is defined above, that is extremely sensitive, the disclosure

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of which to Plaintiff or to a nonparty would create a substantial risk of serious injury that cannot be
Case No. 2:12-CV-03038-MCE-CKD

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STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY INFORMATION AND DOCUMENTS

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avoided by less restrictive means. The Parties agree that Highly Confidential Information shall be

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for “Attorney Eyes Only” and, accordingly, disclosed to and reviewed only by Plaintiff’s attorneys

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of record who have appeared on his behalf as of the date of this Stipulation. Plaintiff may

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announce additional attorneys of record on his behalf by providing Defendant with notice of the

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same, and Defendant may make like announcements with notice to Plaintiff.

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c.

“Document” and “Documents” mean all written, recorded, or graphic

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material, in hard copy or electronic format, including, but not limited to, emails, and further

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including, without limitation, deposition transcripts and exhibits, trial and hearing transcripts and

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exhibits, pleadings, motions, affidavits, and briefs that may quote, summarize, or contain

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Confidential Information or Highly Confidential Information. The term “Documents” further

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includes all original documents and copies or derivatives of those Documents.

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d.

“Producing Party” means a party that produces Confidential Information or

Highly Confidential Information in this litigation pursuant to this Stipulated Protective Order.
e.

“Recipient” means a named party in this litigation (including that named

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party’s Counsel of Record or said counsel’s agents) who receives Confidential Information or

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Highly Confidential Information in this litigation pursuant to this Stipulated Protective Order.

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f.

“Qualified Persons” means:

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(1)

The named parties to this action;

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(2)

Counsel of Record in this action and said counsel’s employees

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(3)

In house counsel or any such persons who are responsible for the

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handling of legal matters on Defendant’s behalf, including said

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person’s employees;

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(4)

Vendors or contractors who have been or are retained by Counsel of

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Record or by In House Counsel and, further, who have been or are

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actively engaged in the conduct of this litigation;

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(5)

Experts, investigators or litigation consultants engaged by Counsel of
Record to assist in this litigation; and

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STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
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(6)

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Fact witnesses providing testimony by deposition or at any trial
proceeding in this case.

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Designation, of Confidential Information or Highly Confidential Information. To

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designate Documents as Confidential Information or Highly Confidential Information, the

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Producing Party shall place a legend or stamp on the Document in such a way that it brings either

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designation to the attention of a reasonable examiner, or otherwise puts the Recipient on reasonable

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notice that the Document contains Confidential Information or Highly Confidential Information,

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e.g., by stamping the Document “Confidential” or “Highly Confidential Information - Attorney

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Eyes Only,” or words to either effect. To designate Confidential Information or Highly

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Confidential Information in testimony (or in exhibits referred to therein), the Producing Party shall

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(a) make an oral statement to that effect on the record, or (b) notify the Recipient in writing at any

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time up to and until twenty (20) days after receipt of the transcript, and, upon such notice, (c) make

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arrangements with the reporter to bind the confidential portions of the transcript separately and to

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label that bound material accordingly. Further, during depositions or arbitral proceedings, any

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Producing Party claiming confidentiality with respect to information that is to be disclosed or upon

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which questions are based may exclude from the room any party or person who is not a Qualified

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Person, as that term is defined above in Section 1(f).

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3.

Permissible Uses of Confidential Information and Highly Confidential Information.

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Confidential Information disclosed to a Recipient’s attorneys, shall be used by the Recipient or the

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Recipient’s attorneys solely for the prosecution or defense of the claims in this litigation, and shall

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not be used by the Recipient or the Recipient’s attorneys in any other legal action, or for any

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business, commercial, financial, competitive, personal, personnel, publicity, media or other

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purpose, except that nothing herein shall preclude Defendant (or its affiliates) from pursuing legal

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or personnel actions in discovered instances of misconduct as to its own employees or vendors

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which are necessary to ensure that its employees, vendors or policies are acting or being applied in

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accordance with the law. No Recipient or other person to whom Confidential Information or

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All Confidential Information obtained by a Recipient in discovery in this litigation, and all Highly

Highly Confidential Information is disclosed, and no attorney for a Recipient to whom Highly
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STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
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Confidential Information is disclosed, shall copy, transcribe, or otherwise reproduce or distill in

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written or any other form any part or portion of any Confidential Information or Highly

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Confidential Information except as necessary for purposes of the litigation.

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Permissible Disclosure of Confidential Information or Highly Confidential

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Information. The Recipient of Confidential Information or the Recipient’s attorneys who have

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received Highly Confidential Information shall disclose that information only to Qualified Persons,

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and, with respect to certain of these Qualified Persons, only under these conditions:

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a.

Any Recipient of Confidential Information or any attorney for a Recipient

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who has received Highly Confidential Information shall not reveal that information to nor discuss

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that information with any person who is not entitled to receive that information, except as set forth

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in this Stipulated Protective Order.

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b.

Prior to disclosure of Confidential Information to persons described in

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paragraphs 1(f)(l) or 1(f)(4)-(6) of this Stipulated Protective Order, the Recipient shall advise that

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person that, pursuant to this Stipulated Protective Order, he or she may not divulge that information

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to other individuals and, accordingly, the Recipient shall obtain from that person, prior to any such

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disclosure, a signed and dated acknowledgment substantially in the form attached as Exhibit “A”

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(the “Disclosure Agreement”).

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c.

Any person who receives Confidential Information pursuant to paragraphs

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1(f)(1) or 1(f)(4)-(6) of this Stipulated Protective Order, shall read this Stipulated Protective Order

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and undertake in writing to be bound by its terms, to maintain that information designated as

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Confidential Information in confidence, not to use or disclose information designated as

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Confidential Information to anyone other than to a Qualified Person, and not to use Confidential

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Information except in connection with the instant action. Such persons shall indicate their

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agreement to be bound by the terms of this Stipulated Protective Order by signing and dating the

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Disclosure Agreement attached as Exhibit “A”. Before reviewing Defendant’s confidential

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documents, Plaintiff or any other person who receives Confidential Information pursuant to

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paragraphs 1(f)(1) or 1(f)(4)-(6) shall sign that Disclosure Agreement. Each original, executed

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Case No. 2:12-CV-03038-MCE-CKD

STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY INFORMATION AND DOCUMENTS

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Disclosure Agreement shall be maintained in the files of the Recipient and shall be available for

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review by all counsel and Parties upon reasonable notice.

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d.

Highly Confidential Information may be disclosed only to the Qualified

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Persons identified in paragraphs 1(f)(2)-(3). Accordingly, if persons to whom Highly Confidential

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Information may not be disclosed are present during times in which that Highly Confidential

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Information is being disclosed, the Producing Party shall request that said persons leave the

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location where that Highly Confidential Information is being or will be disclosed.

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e.

Nothing shall prevent disclosure beyond the terms of this Stipulated

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Protective Order if the Producing Party of Confidential Information or Highly Confidential

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Information consents in writing to that disclosure prior to the disclosure of that information.

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5.

Challenging Confidential Information or Highly Confidential Information

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Designations. In the event the Recipient disputes or Recipient’s attorneys disputes the Producing

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Party’s designation of individual documents or a category of documents or information as

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Confidential Information or Highly Confidential Information, the Recipient shall notify the

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Producing Party in writing of such dispute. In an effort to settle such dispute without judicial

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intervention, the Parties shall meet and confer to determine whether the restrictions imposed by this

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Stipulated Protective Order are warranted with respect to such disputed information, but if

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resolution of the dispute cannot be reached, the Recipient may apply to the Court for an appropriate

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determination.

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6.

Inadvertent or Improper Disclosure.
a.

A Producing Party’s inadvertent failure to designate Confidential

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Information or Highly Confidential Information shall not be construed as a waiver, in whole or in

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part, and may be corrected by the Producing Party by written notification to the Recipient or

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Recipient’s attorneys promptly upon discovery of the failure to designate.

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b.

If a Recipient discloses Confidential Information or a Recipient’s attorneys

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immediately and in writing notify the Producing Party of all pertinent facts relating to such

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disclose Highly Confidential Information in a manner not authorized herein, the Recipient must

disclosure and, without prejudice to other rights and remedies of the Producing Party, make every
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Case No. 2:12-CV-03038-MCE-CKD
STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY INFORMATION AND DOCUMENTS

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effort to prevent further disclosure by the Recipient, the Recipient’s attorneys, or by the person to

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whom the Recipient or Recipient’s attorneys disclosed such information. These efforts include

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obtaining a signed and dated Disclosure Agreement from any person who was inadvertently

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exposed to Confidential or Highly Confidential Information.

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Return or Destruction of Confidential Information or Highly Confidential

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Information. Within thirty (30) business days after the conclusion of this litigation, by adjudication

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(including appeals) or otherwise, the Recipient shall return to the Producing Party all Confidential

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Information and shall cause his, her or its attorney to return all Highly Confidential Information, all

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copies of such information, and any Documents incorporating such information. Alternatively, at

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the request of the Producing Party, the Recipient shall destroy all such materials and certify in

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writing that all such materials have been destroyed.

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8.

Litigation or Arbitral Proceedings Involving or Requiring Confidential Information

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or Highly Confidential Information. With respect to trial proceedings involving Confidential

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Information or Highly Confidential Information, the Parties will comply with the provisions of

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Rule 26 of the Federal Rules of Civil Procedure and Local Rule 141 of the Eastern District of

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California.

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apply to:

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Exceptions. The restrictions set forth in this Stipulated Protective Order shall not

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Information that was, is or becomes public knowledge through its authorized

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release by a person or entity who rightfully obtained and possesses such information during the

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normal course of business, and not in violation of this Stipulated Protective Order; or

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b.

Defendant (or its affiliates), with respect to its own information or

information received or created during the normal course of its own businesses.
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Discoverability and Admissibility of Documents. Nothing in this Stipulated

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information, document, recording or thing, nor shall any named party’s entry into this Stipulated

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Protective Order be deemed to waive either that party’s right to object to the disclosure or

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Protective Order shall be construed to affect either the discoverability or admissibility of any

production of information, documents, recordings or things on appropriate grounds, or to move to
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STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY INFORMATION AND DOCUMENTS

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compel the production of information, documents, recordings or things wrongfully withheld from

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production.

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No waiver. Nothing in this Stipulated Protective Order shall be deemed to be a limit

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or waiver of the attorney-client privilege, the work product privilege, or any other relevant

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privilege. Further, inadvertent production of privileged information shall not waive the privilege.

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If privileged information is inadvertently produced, the Recipient agrees that, upon request from

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the Producing Party, it shall promptly return all copies of Documents containing the privileged

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information, delete any versions of the Documents containing the privileged information on any

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database or computer filing system it maintains, and make no use of the privileged information. In

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the event any Recipient of Confidential Information or Highly Confidential Information is served

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with a subpoena or other actual or potentially legally enforceable request or order for records or

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information, any of which may require the production of such Confidential Information or Highly

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Confidential Information, that Recipient must give notice to the Producing Party within five (5)

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days of receiving the subpoena. No Confidential or Highly Confidential Information may be

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produced in response to a subpoena until such notice is given to the Producing Party and the

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Producing Party has been given an opportunity to move to quash or object to the production of the

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Confidential or Highly Confidential Information.

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12.

Not a Contract. This Stipulation and Protective Order shall not be construed or

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argued or interpreted as creating a contract between the Parties or between their counsel or between

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the Parties and their counsel.

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Jurisdiction. At the election of the party who claims a violation of this Stipulated

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Protective Order, the United States District Court for the Eastern District of California shall retain

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jurisdiction, both before and after the entry of final judgment in this case, whether by settlement or

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adjudication, to construe, enforce, and amend the provisions of this Stipulated Protective Order.

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The Parties consent to jurisdiction in said court to resolve any disputes or requested relief arising

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under this Stipulated Protective Order.

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Case No. 2:12-CV-03038-MCE-CKD

STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY INFORMATION AND DOCUMENTS

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DATED:

LAW OFFICE OF ARKADY ITKIN

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By:
Arkady Itkin

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Attorneys for Plaintiff Paul Pennington

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DATED:

OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.

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By:

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Hardy R. Murphy / Lauren M. Cooper

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Attorneys for Defendant Zurich American
Insurance Company

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ORDER
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Based upon the foregoing Stipulation and Protective Order regarding Confidentiality of
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Discovery Information and Documents, and good cause appearing therefore, it is so ordered.
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DATED: 2/19/2013

/s/ Carolyn K. Delaney
The Honorable Carolyn K. Delaney
EASTERN DISTRICT OF CALIFORNIA

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Case No. 2:12-CV-03038-MCE-CKD

STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY INFORMATION AND DOCUMENTS

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EXHIBIT A

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DECLARATION OF “QUALIFIED PERSON”

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I, _____________________ declare that I have read the Stipulated Protective Order entered

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in the action entitled Paul Pennington v. Zurich American Insurance Company., et al., United

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States District Court for the Eastern District of California, Case No. 2:12-cv-03038-MCE-CKD,

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and agree to be bound by its terms, to maintain that information designated as Confidential

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Information in confidence, not to use or disclose information designated as Confidential

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Information to anyone other than to a Qualified Person, and not to use Confidential Information

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except in connection with the litigation or preparation for litigation of this proceeding, provided

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that nothing shall prevent disclosure beyond the terms of this Stipulated Protective Order if the

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party that designated the document as containing Confidential Information consents in writing prior

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to disclosure. I further agree to submit to the jurisdiction of the United States and venue in the

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Eastern District of California, for any actions necessary or required to enforce this Stipulated

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Protective Order as it pertains to me and my agreement herein.

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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this Declaration is executed on ____________________

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Signature of Declarant

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Print name:

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Affiliation:

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Business Address:

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Home Address:

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14396397.1 (OGLETREE)

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Case No. 2:12-CV-03038-MCE-CKD

STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY INFORMATION AND DOCUMENTS