Lennar Mare Island, LLC v. Steadfast Insurance Company

Filing 78

STIPULATION and ORDER re CONFIDENTIALITY AGREEMENT signed by Magistrate Judge Kendall J. Newman on 01/18/17. (Benson, A)

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1 2 3 4 5 6 7 8 9 10 PENNINGTON LAWSON LLP Ryan L. Werner (State Bar No. 112181) 44 Montgomery Street, Suite 2400 San Francisco, CA 94104 Tel: (415) 484-4343 Counsel for Plaintiff, LENNAR MARE ISLAND, LLC NEWMEYER & DILLION LLP Gregory L. Dillion (State Bar No. 93712) Alan H. Packer (State Bar No. 124724) 1333 N. California Blvd., Suite 600 Walnut Creek, CA 94596 Tel: (925) 988-3200 Co-Counsel for Plaintiff, LENNAR MARE ISLAND, LLC 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 SACRAMENTO DIVISION 14 15 LENNAR MARE ISLAND, LLC, 16 17 18 Plaintiff, CASE No. 2:12-cv-02182-KJM-KJN CASE No. 2:16-CV-00291-KJM-KJN vs. STEADFAST INSURANCE COMPANY, STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER Defendant. 19 20 21 AND RELATED COUNTERCLAIMS. 22 23 24 25 26 LENNAR MARE ISLAND, LLC, Plaintiff, vs. STEADFAST INSURANCE COMPANY, Defendant. 27 28 STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER Page 1 CONFIDENTIALITY AGREEMENT 1 2 1. Plaintiff and Counterdefendant Lennar Mare Island, LLC (“LMI”), Defendant, 3 Counterclaimant and Counterdefendant Steadfast Insurance Company (“Steadfast”), 4 Counterdefendant and Counterclaimant CH2M HILL Constructors, Inc. (“CH2M HILL”), and 5 Intervenor United States of America (“United States”) enter into this Confidentiality Agreement for 6 the purpose of assuring the confidentiality and protection of certain information that may be disclosed 7 by Steadfast. 8 9 2. As used in this Confidentiality Agreement (“Agreement”), the following terms have the following meanings for the purposes of this Agreement: 10 a. “Confidential Information” means those portions of the material or 11 information from the Production that are designated Steadfast as confidential pursuant to this 12 Agreement; 13 b. “Party” or “Parties” means one or more of the parties to this litigation; 14 c. “Production” means only those documents that are produced by Steadfast in 15 this litigation in response to LMI’s Requests for Inspection Nos. 44 and 45 to the Fifth Set of 16 Requests for Inspection served by LMI on November 3, 2015, in response to LMI’s Request for 17 Inspection No. 125 to the Sixth Set of Requests for Inspection served by LMI on September 29, 18 2016, and all documents Steadfast has identified on its privilege log as responsive to requests for 19 inspection but withheld or redacted on grounds of “reinsurance information.” 20 21 22 23 24 3. Steadfast contends that the Production contains confidential commercial information of a proprietary nature. 4. The purpose of this agreement is to protect confidential information contained in the Production. 5. To designate any page of the Production as Confidential Information subject to 25 protection under this Agreement, Steadfast shall mark that page with the word CONFIDENTIAL at 26 the time of production. 27 28 6. The Receiving Parties shall keep Confidential Information in a manner reasonably calculated to preserve the confidentiality of that material. STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER PAGE 1 1 7. 2 litigation: 3 Confidential Information that is disclosed by Steadfast during the course of this a. shall only be used by the Receiving Parties, their counsel, any independent 4 expert witnesses, advisors and consultants retained by a Party in connection with the prosecution and 5 defense of this litigation and for no other purpose; 6 b. shall not be published to the general public in any form by any Party, their 7 counsel, or any independent expert witnesses, advisors and consultants retained by a Party to this 8 litigation, nor used by any Party, their counsel, or any independent expert witnesses, advisors and 9 consultants retained by a Party for any business or commercial purpose; and 10 11 12 c. may be disclosed by counsel for any of the Parties only to the following persons insofar as it is reasonably necessary to the prosecution or defense of this litigation: i. attorneys for any of the Parties, including in-house counsel who are 13 participating or assisting in the conduct of this litigation, and their employees 14 and contractors who are working under such attorneys’ supervision; 15 ii. any current or former director, officer, employee, or agent of a Party who is 16 involved in the prosecution or defense of this litigation, including anyone 17 responsible for the supervision or settlement of this litigation; 18 iii. Party or independent expert witnesses, advisors and consultants retained by a 19 Party in connection with this litigation, and their employees and contractors 20 who are working under their supervision; 21 iv. 22 Party witnesses whose statement or testimony (whether at deposition or trial) is taken in this action, including during preparation for giving testimony; 23 v. the Court, its personnel, and any trier of fact; 24 vi. court reporters or stenographers engaged to record deposition testimony, and 25 26 their employees; vii. deposition witnesses at the time of deposition, in which case the Party seeking 27 to use the Confidential Information must take appropriate measures to ensure 28 that the relevant portions of the deposition and deposition exhibits are marked STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER PAGE 1 1 Confidential; 2 viii. witnesses at trial; 3 ix. commercial photocopy, imaging, and document management services, solely 4 to the extent reasonably necessary for the prosecution or defense of this 5 action; and 6 x. such other persons as may be authorized by agreement of the parties or by the 7 Court upon motion of any Party pursuant to the provisions of Paragraph 10, 8 below; 9 however, nothing in this Agreement shall preclude a disclosure of Confidential Information to any 10 person who offered, prepared, previously had legal access to, was an addressee of, received a copy of 11 such information prior to the date of this Agreement, or participated in the creation, compilation or 12 production of such information. 13 8. The United States agrees to protect the Confidential Information to the full extent 14 allowed by federal law. The United States shall use the Confidential Information only for purposes 15 of this lawsuit, except that nothing in this Agreement shall affect the law enforcement, police and/or 16 regulatory powers of the United States, including, without limitation, any rights, powers, claims or 17 defenses the United States may have under federal or other law, including, without limitation, 18 criminal, tax, fraud, antitrust, labor, False Claims Act, or environmental laws. 19 9. If any Party disputes the designation of information as “Confidential,” the Party 20 disputing the designation shall serve counsel for Steadfast a written notice specifically identifying the 21 challenged designation and the factual and legal basis for the challenge. Steadfast shall have 10 22 business days from the date of receipt of the notification to respond to the challenge. If Steadfast 23 does not respond in writing to the written notice of challenge of designation, then the Party seeking to 24 remove the designation may request relief from the Court upon notice to counsel for all parties. Until 25 the Court resolves the dispute, all materials designated as “Confidential” shall be treated according to 26 their designation. The party in whose favor such application or motion is resolved by the Court may, 27 in the Court’s discretion, be entitled to recover attorneys’ fees and costs incurred in connection with 28 such application or motion; except that, with respect to the United States, attorneys’ fees against the STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER PAGE 1 1 2 United States may only be awarded in accordance with applicable federal law. 10. In the event that any Party desires that information designated as “Confidential” be 3 disclosed, communicated, discussed, or made available to any person not otherwise authorized by this 4 Confidentiality Agreement, the Party wishing to disclose, communicate, discuss, or make available 5 such information must submit to counsel for Steadfast a written notice specifically identifying the 6 information to be disclosed, and the name, title, and business relationship of the persons to whom 7 counsel wishes to make such disclosure. Steadfast shall have 10 business days from the date of 8 receipt of the notification to object to the disclosure to any person identified therein. If Steadfast does 9 not respond in writing to the written notice of disclosure within 10 business days after receipt thereof, 10 the persons named in the notice, subject to the terms and conditions of this Confidentiality 11 Agreement, shall be entitled to receive the information specified in the notice, but no other materials 12 subject to this Confidentiality Agreement. If Steadfast responds and objects to the disclosure request, 13 and the parties subsequently are unable to agree on the terms and conditions of the requested 14 disclosure, the Party seeking disclosure may file a motion with the Court, served on counsel for all 15 other Parties, setting forth the basis for seeking such disclosure, in which case, the requested 16 disclosure shall only be made upon such terms as the Court shall provide. 17 11. A copy of this Agreement, together with the Acknowledgment agreeing to be bound by its 18 terms in the form annexed hereto as Exhibit A, shall be delivered to each person identified in Paragraphs 7 19 and 10 above to whom disclosure of Confidential Information will be made. The provisions of this 20 Agreement shall be binding upon each such person to whom disclosure is made. Counsel disclosing the 21 information to an authorized person under Paragraphs 7 and 10 above shall obtain and retain a signed 22 copy of said Acknowledgement before any such person receives any Confidential Information. 23 12. A Receiving Party shall not use any Confidential Information for any purpose not 24 set forth in this Agreement without Steadfast’s express prior written consent. The provisions of this 25 Agreement, specifically including Paragraph 7, shall not be construed as preventing any disclosure or 26 use of Confidential Information by Steadfast in any way. 27 28 13. Before filing with the Court any pleading, motion, application, memorandum of law, or other paper that in any manner quotes, paraphrases, attaches as an exhibit or otherwise discloses STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER PAGE 1 1 information that has been designated by Steadfast as Confidential Information pursuant to this 2 Agreement, the Party that intends to file such pleading, motion, application, memorandum of law or 3 other paper, shall do so under seal or provide counsel for Steadfast 10 days prior written notice 4 specifically identifying the Confidential Information intended to be disclosed so that Steadfast may 5 make a sealing application to the Court if Steadfast deems that necessary. 6 14. The inadvertent production of information or documents by Steadfast to any Party for 7 inspection and copying shall not itself be deemed to waive any claim of attorney-client privilege, or 8 attorney work product protection that might exist with respect to such document or other documents 9 or communication, written or oral, including without limitation, other communications referred to in 10 11 the documents or information produced. 15. In the event any Party is served with a subpoena or order requiring the disclosure of 12 Confidential Information, the recipient of the subpoena or order will provide immediate notice to 13 Steadfast through their counsel. The recipient of the subpoena or order shall not object to Steadfast’s 14 appearance to protect its interest in maintaining the information as confidential. The recipient of the 15 subpoena or order will not respond to any such subpoena or order until Steadfast has a reasonable 16 opportunity to seek appropriate relief from the Court, including but not limited to, a motion for a 17 protective order; however, nothing in this paragraph shall preclude the recipient of a subpoena from 18 complying with the subpoena or a court order to produce should Steadfast not secure relief from the 19 Court by the last day the recipient has to comply with the subpoena or order. 20 16. The Parties recognize that agencies of the United States, including the Navy and the 21 Department of Justice, are subject to the provisions of the Freedom of Information Act (“FOIA”), 5 22 U.S.C. § 552, and its associated regulations, and may receive a request for information or documents 23 pursuant thereto. Agencies of the United States may also receive requests from Congress. Pursuant 24 to 28 C.F.R. § 16.8, the Department of Justice agrees to notify Steadfast of any FOIA request in 25 which the disclosure of Confidential Information may be compelled, and to afford Steadfast the 26 timely opportunity to seek a protective order or to take such other legal action to preserve the 27 confidentiality of Confidential Information as Steadfast may deem appropriate. 28 17. Upon Steadfast’s request, all materials designated as “Confidential,” and all copies STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER PAGE 1 1 thereof, shall be either destroyed or returned to Steadfast, per Steadfast’s instructions, within 120 2 days after the conclusion of this litigation, including any appeals (the “Destruction Period”). Counsel 3 for the Receiving Parties shall certify in writing to counsel for Steadfast that said materials have been 4 destroyed or returned per Steadfast’s instructions, or otherwise disposed of as ordered by the Court, 5 within thirty (30) days after the Destruction Period. 6 18. Steadfast may waive a previously-made Confidential Information designation by 7 notifying all Receiving Parties in writing in a manner that reasonably identifies the material at issue 8 and providing each of the Receiving Parties new copies of the material with the CONFIDENTIAL 9 designation removed. The Receiving Parties shall then destroy the materials originally produced and 10 11 replace them with the new copies. [Signature Page to Follow] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER PAGE 1 1 Dated: January 13, 2017 AGREED: 2 /s/ Ryan L. Werner Ryan Werner PENNINGTON LAWSON LLP Attorneys for Lennar Mare Island, LLC 3 4 5 6 7 Dated: January 13, 2017 AGREED: 8 /s/ Dale H. Oliver as authorized 1/13/2017 Dale H. Oliver QUINN EMANUEL URQUHART & SULLIVAN, LLP Attorneys for Steadfast Insurance Company 9 10 11 12 13 14 Dated: January 13, 2017 AGREED: 15 /s/ Amanda Hairston as authorized 1/13/2017 Amanda Hairston FARELLA BRAUN + MARTEL LLP Attorneys for CH2M HILL Constructors, Inc. 16 17 18 19 20 21 22 23 24 Dated: January 13, 2017 AGREED: /s/ J. Taylor McConkie as authorized 1/13/2017 J. Taylor McConkie UNITED STATES DEPARTMENT OF JUSTICE Attorneys for the United States 25 26 27 28 STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER PAGE 1 ORDER 1 2 IT IS SO ORDERED: 3 Dated: January 18, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED CONFIDENTIALITY AGREEMENT; PROPOSED ORDER PAGE 1

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