Kivlin v. Hartford Life and Accident Insurance Company

Filing 14

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER signed by Magistrate Judge Dale A. Drozd on 7/29/14 13 . (Meuleman, A)

1
2
3
4
5
6
7
8
9
10
11

GLENN R. KANTOR (SBN 122643)
E-Mail: [e-mail]
BETH A. DAVIS (SBN 277560)
E-Mail: [e-mail]
KANTOR & KANTOR, LLP
19839 Nordhoff Street
Northridge, CA 91324
Tel: [phone]; Fax: [phone]
Attorneys for Plaintiff/Counterdefendant Holly Kivlin
MELISSA M. COWAN (SBN 175326)
E-Mail: [e-mail]
KEIKO J. KOJIMA (SBN 206595)
E-MAIL: [e-mail]
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite 2400
Los Angeles, CA 90071-2953
Tel: [phone]; Fax: [phone]
Attorneys for Defendant/Counterclaimant
Hartford Life and Accident Insurance Company

12

UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO DIVISION

14
15

HOLLY KIVLIN,

16

Plaintiff,

17

v.

18
19

STIPULATED CONFIDENTIALITY
AGREEMENT AND PROTECTIVE
ORDER

HARTFORD LIFE AND
ACCIDENT INSURANCE
COMPANY,

20

No. 2:14-cv-00017-KJM-DAD

Defendant.

21
22
23

HARTFORD LIFE AND
ACCIDENT INSURANCE
COMPANY,
Counterclaimant,

24
25
26

v.
HOLLY KIVLIN,
Counterdefendant.

27
28
B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

-1-

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER
SCHEDULING CONFERENCE

1

Plaintiff and Counterdefendant Holly Kivlin (“Plaintiff” or “Kivlin”) and

2

Defendant and Counterclaimant Hartford Life and Accident Insurance Company

3

(“Defendant” or “Hartford”), by and through their respective counsel of record,

4

hereby stipulate to the following protective order:

5

1.

Scope of Order. The purpose of this Stipulated Protective Order is to

6

protect against the unnecessary disclosure of confidential, trade secret and/or

7

proprietary information by parties and non-parties. All such documents and

8

information protected by this Stipulated Protective Order will hereafter be referred

9

to as “Protected Information.” The Protected Information shall be used solely in

10

connection with the litigation and trial of this case, and for no other purpose or in

11

any other case.

12

2.

Definitions. Materials and information protected by this Stipulated

13

Protective Order shall mean any documents, materials, items, or information

14

designated by Plaintiff, Defendant or any third party (including but not limited to

15

Sun Life Assurance Company of Canada (“Sun Life”)) as “Confidential,” including

16

information derived therefrom, and produced in response to a party’s requests for

17

production of documents, interrogatories, stipulation, subpoena, motion or

18

deposition. “Protected Information” is confidential, trade secret and/or proprietary

19

information (A) contained in or derived from Defendant’s manuals, guidelines,

20

instructions, policies and procedures or training materials used in connection with

21

handling, processing or adjusting long term disability claims; (B) relating to

22

Defendant’s finances or business operations; (C) that Defendant is required to keep

23

confidential by statute, regulation or other law; (D) relating to Plaintiff’s financial

24

accounts or that may allow for the identification or misuse by third parties of

25

Plaintiff’s personal financial information; (E) the settlement agreement entered into

26

between Plaintiff and Sun Life; and (F) such other documents to be designated as

27

subject to this Order. However, to the extent that redaction of Plaintiff’s personal

28

information pursuant to Fed.R.Civ.Proc. 5.2 and Eastern District L.R. 140 prevents

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

-2-

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1

identification of Plaintiff’s private financial information, the entire document

2

containing such redaction does not need to be marked “Confidential,” does not need

3

to be filed under seal and is not subject to the terms of this Stipulated Protective

4

Order.

5

Protection of information in Categories (A), (B), and (F) is required because

6

this proprietary, commercially-sensitive information is a product of Defendant’s

7

experience and expertise in the insurance industry, and is not generally

8

disseminated to the general public or to Defendant’s insureds. Disclosure of

9

information in this category would give Defendant’s competitors an unfair business

10
11

advantage and harm Defendant’s competitive position.
Protection of information in Category (C) is required because Defendant

12

would violate statutes, regulations and/or other laws if it was required to produce

13

the information in the absence of a Protective Order.

14

Protection of information in Category (D) is required to protect Plaintiff’s

15

rights of privacy and to prevent misuse by third parties of Plaintiff’s identity and/or

16

identity theft.

17

Protection of information in Category (E) is required to protect the

18

confidentiality of the settlement agreement entered into between Plaintiff and Sun

19

Life in the dismissed action Holly Kivlin v. Sun Life Assurance Company of

20

Canada, USDC Case No. 2-10-cv-03123-KJM-KJN.

21

The parties assert that the “Protected Information” should be protected by a

22

Court order rather than by a private agreement because the entry of a protective

23

order would carry the weight of the Court’s imprimatur and authorize the exercise

24

of its contempt power over any potential violations of this protective order. A

25

private agreement between the parties would not serve to fully protect the

26

confidential nature of the “Protected Information” from unwarranted disclosure,

27

would not be as strong of a deterrent against such disclosure, and would not provide

28

sufficient remedies in the event of disclosure.

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

-3-

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1

3.

Category of Protection. There shall be only one category of

2

protection. Documents or other material may be designated as “Confidential” by a

3

party or a producing nonparty if they contain information of the type referred to in

4

Paragraph 2 of this Stipulated Protective Order. Confidential Material may not be

5

photocopied, reproduced or duplicated in any manner, whether in hard copy or

6

electronic format, subject to the explicit exceptions contained in this Order.

7

4.

Qualified Persons. Protected Information as designated above shall

8

be used only for the purposes of conducting this litigation and shall be disclosed

9

only to “Qualified Persons” which, as used herein, shall mean:

10

A.

Outside counsel who have made an appearance in this litigation and

11

outside counsel for any third party required to produce documents or give testimony

12

in this lawsuit and secretarial, clerical, litigation support and paralegal personnel

13

regularly employed by such outside counsel to whom it is necessary that the

14

Protected Information be shown for purposes of this litigation.

15

B.

Bonafide outside consultants and experts and their clerical and support

16

staff specifically engaged by counsel or the parties to assist in this litigation,

17

provided such experts are not a competitor of any party to or third party required to

18

produce documents or give testimony in this litigation.

19
20
21
22
23

C.

Officers, in-house counsel, or other employees of any party or any

third party required to produce documents or give testimony in this lawsuit.
D.

The Court, other court personnel (including court reporters in the

courtroom) and the jury or other trier of fact.
E.

Factual witnesses who agree to comply with and be bound by the

24

requirements of this Order and whose role as a witness is such that they have a

25

genuine need to know the content of the Protected Information.

26
27
28

F.

Court reporters (except court reporters in the courtroom),

videographers and their employees.
G.

Any other person as to whom the producing party or third party agrees

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

-4-

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1

in writing.

2

5.

Use and Dissemination of Protected Information. Information

3

designated as “Confidential” information shall not be disclosed or made available

4

by the receiving party to anyone other than a Qualified Person.

5

6.

Disclosure to Third Parties. The Qualified Persons listed in

6

Paragraph 4 shall not distribute, disclose or otherwise publish or make available the

7

Protected Information to any third persons unless consented to in writing by the

8

party designating that material as Protected Information under this Stipulated

9

Protective Order, or permitted to do so by the Court. Further, before disclosure of

10

Protected Information to any person under this Stipulated Protective Order except

11

as provided in Paragraph 4(D), each such person shall be provided with a copy of

12

this Stipulated Protective Order and shall execute a Non-Disclosure Agreement

13

(Exhibit A). Persons listed in Paragraph 4(D) shall not be bound by the terms of

14

this Stipulated Protective Order except to the extent of normal Court procedures

15

and applicable laws for Court-ordered sealed documents, such that Court

16

administration is not unduly impeded.

17

7.

Party’s Right to Use Information. Nothing in this Order shall

18

prevent a party from using its own Protected Information in any manner it sees fit

19

or from revealing its own Protected Information to a person other than those

20

designated in Paragraph 4 without prior consent of any other person, entity or this

21

Court.

22

8.

Disclosure to Government. No party who has received Protected

23

Information, or persons acting on such party’s behalf, may voluntarily disclose any

24

Protected Information to any state or federal law enforcement or regulatory agency,

25

or any employee agent thereof, except as otherwise commanded by law or provided

26

in this Stipulated Protective Order and may do so only after providing reasonable

27

notice to the attorneys for the party who produced the Protected Information so that

28

it may act upon or object to such disclosure. Notwithstanding anything to the

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

-5-

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1

contrary in this Paragraph, Defendant’s disclosure of Protected Information to a

2

state or federal law enforcement or regulatory agency, or any employee agent

3

thereof pursuant to an investigation conducted by such entity shall not be deemed a

4

violation of this Stipulated Protective Order and no advance notice to the attorneys

5

for the party who produced the Protected Information shall be required.

6
7

9.
A.

Deposition Procedures.
Deposition transcripts or portions thereof which contain or refer to

8

Protected Information may be designated as “Confidential” before or during the

9

deposition, in which case the transcript of the testimony and exhibits designated as

10

“Confidential” shall be bound in a separate volume and marked with the word

11

“Confidential” by the reporter, as the party seeking to designate the Protected

12

Information as confidential may direct. The parties agree that the disclosure of

13

Protected Information, testimony and/or exhibits containing or referring to

14

Protected Information to court reporters, videographers and/or their staff shall not

15

change the confidential status of Protected Information and shall not be deemed a

16

waiver of privileges asserted as to the Protected Information.

17

B.

Where testimony or documents are designated as Protected

18

Information at a deposition, the parties hereto may exclude from the deposition all

19

persons other than those to whom the Protected Information may be disclosed under

20

paragraph 4 of this Stipulated Protective Order.

21

C.

Any party may mark Protected Information, or information derived or

22

obtained therefrom, as a deposition exhibit and examine any witness thereon,

23

provided that the deposition witness is a qualified person to whom the exhibit may

24

be disclosed under paragraph 5 of this Stipulated Protective Order and that the

25

exhibit and related transcript pages receive the same confidentiality designation as

26

the original Protected Information.

27
28

D.

Notwithstanding all of the foregoing, to eliminate the need for marking

Protected Information and documents containing information derived or obtained

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

-6-

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1

therefrom in a deposition, the parties shall strive to reach agreement to refer to such

2

documents by control or Bates-stamp number, and agree that, to the extent a

3

witness might authenticate a document at a deposition, with the document attached,

4

he or she can do so similarly if the document is not attached, but is sufficiently

5

described by control or Bates-stamp number.

6

10.

Rights Preserved. Nothing in this Order shall be deemed to preclude

7

any party or third party from seeking or obtaining, on the appropriate showing,

8

additional protection with respect to the confidentiality of documents or

9

information. Nor shall any provision of this order be deemed to preclude any party

10

from challenging the validity of the confidentiality of any materials so designated

11

(in the manner specified in Paragraph 9 below), or from requesting the Court to

12

amend or modify this Order with respect to any particular matter. Nothing in this

13

Order shall be deemed a waiver of any party’s right to object to the admissibility of

14

any documents produced pursuant to this Stipulated Protective Order at trial or any

15

other court proceeding on the of relevance, materiality, privilege, overbreadth or

16

any other recognized objection to discovery.

17

11.

Objections to Designation. A party that elects to initiate a challenge

18

to a Designating Party’s confidentiality designation must do so in good faith and

19

begin the process by conferring directly with counsel for the designating party. In

20

conferring, the challenging party must explain the basis for its belief that the

21

confidentiality designation was not proper and must give the designating party an

22

opportunity to review the designated material, to reconsider the circumstances, and,

23

if not change in designation is offered, to explain the basis for the chosen

24

designation. A challenging party may proceed to the next stage of the challenge

25

process only if it has engaged in this meet and confer process first. A party that

26

elects to press a challenge to a confidentiality designation after considering the

27

justification offered by the Designating Party may file and serve a motion that

28

identifies the challenged material and sets forth in detail the basis for the challenge.

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

-7-

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1

Each such motion must be accompanied by a competent declaration that affirms

2

that the movant has complied with the meet and confer requirements imposed in the

3

preceding paragraph and sets forth with specificity the justification for the

4

confidentiality designation that was given by the designating party in the meet and

5

confer dialogue. .

6

12.

Filing Under Seal. In the event a party wishes to use any Protected

7

Information in any affidavits, briefs, memoranda of law, or other papers filed in

8

Court in this litigation, such Protected Information must be of the type set forth in

9

Paragraph 2 and 3 of this Stipulated Protective Order and must satisfy the criteria

10

set forth in Local Rule 141. The party wishing to file such Protected Information

11

shall request that the Court recognize the information as “Protected Information”

12

and shall fully comply with all rules and procedures set forth by Fed. R.Civ.P. 5.2,

13

26 and Local Rule 141 and any other applicable rules governing the request to file

14

documents under seal.

15

13.

Consent to Disclosure. Nothing shall prevent disclosure beyond the

16

terms of this Stipulated Protective Order if all parties consent to such disclosure, or

17

if the Court, after notice and opportunity to be heard to all parties, permits such

18

disclosure or refuses to allow the filing of documents under seal. Specifically, if and

19

to the extent any party wishes to disclose any Protected Information beyond the

20

terms of this Stipulated Protective Order, that party shall provide the other party

21

with reasonable notice in writing of its request to so disclose the materials.

22

14.

Inadvertent Disclosure. The inadvertent production or disclosure of

23

any Protected Information (including physical objects) to the receiving party shall

24

not constitute a waiver of the attorney-client privilege and/or work product doctrine

25

if the producing party sends to each receiving party a request for return of any such

26

inadvertently produced documents to the producing party within 30 days of such

27

inadvertent production or disclosure. Upon receiving such a request by the

28

producing party, the receiving party immediately shall return to the producing party

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

-8-

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1

all copies of such documents, and shall immediately confirm in writing that all

2

electronic copies of the documents have been deleted from electronic records. Upon

3

a reasonable request by the receiving party as to whether a document was

4

inadvertently produced, the producing party shall have fifteen calendar days to

5

respond. The producing party's response shall: (A) state whether the document was

6

or was not inadvertently produced, (B) if applicable, designate the document as

7

within the attorney-client privilege and/or work product immunity, and (C) state

8

whether return of the document is requested. In the event the receiving party

9

challenges the propriety of the attorney-client privilege and/or work product

10

immunity designation, the party asserting privilege may file an appropriate motion

11

with the Court. In such a motion, the burden of establishing privilege shall remain

12

on the party asserting the privilege. If a document or information has been used

13

during a deposition, used at a hearing, identified in a pleading filed with the Court,

14

identified in a pretrial order or interrogatory response, identified for use at trial, or

15

disclosed to the Court, no claim of inadvertent production may be made unless such

16

claim is made within fifteen (15) calendar days of such use, identification or

17

disclosure.

18

15.

Court Retains Final Authority. The Court retains final authority to

19

determine what is or is not “Protected Information” as defined by Paragraph 2 and 3

20

of this Stipulated Protective Order and to remove the “Confidential” designation

21

from any document governed by this Stipulated Protective Order as necessary to

22

protect the public interest. Further, and notwithstanding any provisions stated in

23

Paragraph 11, should the Court determine that documents may not be filed under

24

seal, the parties are permitted to file documents containing Protected Information

25

without limitation.

26

16.

Conclusion of Litigation. Within sixty (60) days after the

27

termination of this litigation and any appeal thereof, all Protected Information

28

produced by a party or third party, including originals and copies (including

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

-9-

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1

electronic copies), that are in the possession of any of the persons who are Qualified

2

Persons pursuant to Paragraph 4, except those in Paragraph 4(D), shall be returned

3

to the producing party or third party, except as this Court may otherwise order.

4

Following termination of this litigation, the provisions of this Stipulated Protective

5

Order relating to the confidentiality of Protected Information shall continue to be

6

binding, except with respect to documents and information which are no longer

7

Protected Information.

8
9

17.

Violation of Order. Willful violation by any person of any provision

of this Order may be punishable as contempt of Court. Further, any party hereto

10

may pursue any and all civil remedies available to him or it for breach of the terms

11

of this Order.

12
13
14

18. This Stipulated Protective Order shall be effective and enforced
according to its terms from and after entry of the Order by this Court.
IT IS SO STIPULATED.

15
16

Dated: July 28, 2014

17

KANTOR & KANTOR, LLP
Glenn R. Kantor
Beth A. Davis

18
By: s/Glenn R. Kantor
as authorized on 7/28/14
Glenn R. Kantor
Attorneys for Plaintiff/Counterdefendant
Holly Kivlin]

19
20
21
22

Dated: July 29, 2014

23

BURKE, WILLIAMS & SORENSEN, LLP
Melissa M. Cowan
Keiko J. Kojima

24
By: s/Melissa M. Cowan
Melissa M. Cowan
Attorneys for Defendant/Counterclaimant
Hartford Life and Accident Insurance
Company

25
26
27
28
B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

- 10 -

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1
2
3

ORDER
Pursuant to the parties’ agreement, IT IS SO ORDERED.
Dated: July 29, 2014

4
5
6
7

Ddad1\orders.civil
kivlin0017.stip.prot.ord.doc

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

- 11 -

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER

1

EXHIBIT A

2

NON-DISCLOSURE AGREEMENT

3

I,

4

entered by the Court in Holly Kivlin v. Hartford Life Insurance Company, Case

5

No.: 2:14-CV-00017-KJM-DAD, and I have had an opportunity to review it and

6

seek independent counsel about its contents. Having read the Stipulated Protective

7

Order, understanding its contents, including the obligations and duties it imposes

8

upon me, and agreeing to abide by it, I voluntarily, knowingly, and by my own

9

hand execute this Non-Disclosure Agreement, which obligates me to adhere to the

10

, have reviewed the Stipulated Protective Order

terms of the Stipulated Protective Order.

11
12

EXECUTED this day of

, 2014.

13
14

____________________________________________
Signature of Qualified Person

15
16
17
18
19
20
21
22
23
24
25
26
27
28
B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4818-0832-9243 v2

- 12 -

CASE NO. 2:14-CV-00017-KJM-DAD
STIPULATED CONFIDENTIALTY AGREEMENT;
PROPOSED ORDER