Landmark American Insurance Company v. Liberty Surplus Insurance Corporation

Filing 25

STIPULATION and PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 9/8/2017 APPROVING the parties stipulated protective order, except that: 1) Paragraph 10 is DISAPPROVED. The parties must comply with the provisions of Local Rules 140 a nd 141, as well as the district judge's scheduling order with respect to sealing or redaction requests; 2) Nothing in this order limits the testimony of parties or non-parties; and 3) Pursuant to Local Rule 141.1(f) the court will not retain jurisdiction over enforcement of the terms of this stipulated protective order after the action is terminated. (Donati, J)

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Susan J. Gill, Bar No. 131890
Julie Rhoades, Bar No. 138027
GILL & RHOADES LLP
1660 Union Street, Suite 401
San Diego, CA 92101
Tel: [phone] Ext.302
Fax: [phone]
[e-mail]

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Attorneys for Plaintiff, Landmark American Insurance Company

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UNITED STATE DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LANDMARK AMERICAN INSURANCE
COMPANY, an Oklahoma Corporation

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CASE NO. 2:17-cv-00061-KJM-KJN
STIPULATION AND PROTECTIVE
ORDER AND ORDER THEREON

Plaintiff,
v.
LIBERTY SURPLUS INSURANCE
CORPORATION, a New Hampshire
corporation, QBE SPECIALTY INSURANCE
COMPANY and DOES 1 through
50,Inclusive,
Defendants.

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IT IS HEREBY STIPULATED by and among Plaintiff Landmark American Insurance

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Company (hereinafter referenced as "Landmark”), Defendant Liberty Surplus Insurance

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Corporation (hereinafter referenced as "Liberty"), and Defendant QBE Specialty Insurance

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Company (hereinafter referenced as “QBE”), and which parties are collectively referenced

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herein as the “Parties”, by and through their respective counsels of record, that in order to

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facilitate the exchange of information and documents which may be subject to confidentiality

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limitations on disclosure due to federal laws, state laws, and privacy rights, the Parties stipulate

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to the following for the Discovery Process only:

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STIPULATION AND PROTECTIVE ORDER AND ORDER THEREON

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1. Any Party producing documents shall have the right to designate as “Confidential” the
attorney's fees, expert fees, defense costs, or indemnity costs related to the defense and
indemnity of River City Caulking and/or Howard S. Wright in the matter entitled The Regents of

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the University of California v. Howard S. Wright Construction Co., et. al., Yolo County Superior

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Court No. CV13-1911 (the “Underlying Action”), that the Party, in good faith believes to

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contain non-public information that is entitled to confidential treatment under applicable law.

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2. All Confidential materials shall not be disclosed to any person or entity except in
accordance with the terms, conditions and instructions of this Stipulation and Protective Order.
3. The entry of this Stipulation and Protective Order and the production of documents
pursuant hereto, does not prejudice, alter, waive, modify or abridge any right, privilege or
protection otherwise available to any Party with respect to the discovery of matters, including but
not limited to, any Party’s right to assert the attorney-client privilege, the attorney work product
doctrine, or other privileges, or any Party’s right to contest any such assertion. In addition, the
production of documents does not waive any privilege that applies to such documents.
4. Access to and/or disclosure of Confidential materials shall be permitted only to the
following persons:
a.

the Court;

b.

any mediator, special master, arbitrator or other person conducting another

alternative dispute resolution process in this Proceeding;
c.

(i) attorneys of record in this Proceeding and their affiliated attorneys,

paralegals, clerical and secretarial staff employed by such attorneys who are actively involved in
this Proceeding and are not employees of any Party and (ii) the Parties’ in-house counsel, and
such other persons regularly employed by the Parties, who are involved in or consulted with
respect to the prosecution or defense of this Proceeding or handling the underlying claims,
including claims representatives of any Party; provided, however, that each non-lawyer given
access to Confidential materials shall be advised that such materials are being disclosed pursuant
to, and are subject to, the terms of this Stipulation and Protective Order and that they may not be
disclosed other than pursuant to its terms;

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STIPULATION AND PROTECTIVE ORDER AND ORDER THEREON

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d.

insurers, reinsurers, retrocessionaires, accountants, regulators, auditors,

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and any other person to whom the Parties have a contractual, regulatory or statutory obligation to

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report; provided, however, that each such person given access to Confidential materials shall be

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advised that such materials are being disclosed pursuant to, and are subject to, the terms of this

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Stipulation and Protective Order and that they may not be disclosed other than pursuant to its

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terms;

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e.

any deposition witness in this Proceeding provided, however, that each

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such person given access to Confidential materials shall be advised that such materials are being

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disclosed pursuant to, and are subject to, the terms of this Stipulation and Protective Order and

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that they may not be disclosed other than pursuant to its terms;

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f.

outside experts or consultants consulted by the undersigned Parties or their

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counsel in connection with this Proceeding, whether or not retained to testify at any oral hearing;

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provided, however, that prior to the disclosure of Confidential materials to any such expert or

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consultant, counsel for the Party making the disclosure shall deliver a copy of this Stipulation

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and Protective Order to such person, shall explain its terms to such person, and verify they will

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comply with its terms. It shall be the obligation of counsel, upon learning of any breach or

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threatened breach of this Stipulation and Protective Order by any such expert or consultant, to

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promptly notify counsel for the designating Party of such breach or threatened breach;

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h.

court reporters in this Proceeding (whether at depositions, hearings or any

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other proceedings) and other persons involved in recording depositions, hearings or any other

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proceedings;

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and

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i. any other person that the designating Party agrees to in writing.

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5.

Confidential materials shall be used by the persons receiving them only for the

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purposes of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or

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defending this Proceeding — including any mediation, arbitration or other alternative dispute

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resolution process connected with this Proceeding — and not for any business or other purpose

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STIPULATION AND PROTECTIVE ORDER AND ORDER THEREON

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whatsoever. Nothing in this Stipulation and Protective Order, however, restricts the use that a

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Party may make of any Documents or Information Disclosed by it.

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6.

The inadvertent production by any Party to this Proceeding of any Document, or

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category of documents during discovery in this Proceeding without a “Confidential” designation,

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shall be without prejudice to any claim that such item, document category (i.e. attorney invoices)

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is “Confidential” and such Party shall not be held to have waived any rights by such inadvertent

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production. In the event that any Document, that is subject to a “Confidential” designation is

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inadvertently produced without such designation, the Party that inadvertently produced the

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document shall give written notice of such inadvertent production within twenty-one (21) days of

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discovery of the inadvertent production, together with a further copy of the subject Document,

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designated as “Confidential” (the “Inadvertent Production Notice”).

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Inadvertent Production Notice, the Party that received the inadvertently produced Document,

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shall promptly segregate and maintain as “Confidential” pending further proceedings set forth in

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Paragraph 7 below the inadvertently produced Document, Testimony, Information or Discovery

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Response and all copies thereof. This provision is not intended to apply to any inadvertent

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production of any Document, Response protected by attorney-client or work product privileges.

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In the event that this provision conflicts with any applicable law regarding waiver of

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confidentiality through the inadvertent production of Documents, Testimony or Information,

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such law shall govern.

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7.

Upon receipt of such

In the event that counsel for a Party receiving Documents in discovery designated

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as “Confidential” objects to such designation with respect to any or all of such items, said

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counsel shall advise counsel for the designating Party, in writing, of such objections, the specific

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Document, to which each objection pertains, and the specific reason and support for such

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objections (the “Designation Objections”). Counsel for the designating Party shall have thirty

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(30) days from receipt of the written Designation Objections to either (a) agree in writing to de-

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designate the Document, Testimony, Information or Discovery Response pursuant to any or all

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of the Designation Objections; and/or (b) file a motion with the Court seeking to uphold any or

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all designations on the Document, Testimony, Information or Discovery Response addressed by

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STIPULATION AND PROTECTIVE ORDER AND ORDER THEREON

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the Designation Objections (the “Designation Motion”). Pending a resolution of the Designation

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Motion by the Court, any and all existing designations on the Document, Testimony, Information

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or Discovery Response at issue in such Motion shall remain in place. The designating Party

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shall have the burden on any Designation Motion of establishing the applicability of its

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“Confidential” designation. In the event that the Designation Objections are neither timely

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agreed to nor timely addressed in the Designation Motion, then such Document, Testimony,

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Information or Discovery Response shall be de-designated in accordance with the Designation

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Objection applicable to such material.

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8.

Any Party to this Proceeding (or other person subject to the terms of this

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Stipulation and Protective Order) may ask the Court, after appropriate notice to the other Parties

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to the Proceeding, to modify or grant relief from any provision of this Stipulation and Protective

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Order.

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9.

Nothing in this Stipulation and Protective Order shall be construed to preclude

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any Party from asserting in good faith that certain Confidential Materials require additional

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protection. The Parties shall meet and confer to agree upon the terms of such additional

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protection.

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10.

If Confidential materials are submitted to or otherwise disclosed to the Court in

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connection with any motions, discovery motions and proceedings, the same shall be separately

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filed under seal with the clerk of the Court in an envelope marked: “CONFIDENTIAL – FILED

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UNDER SEAL PURSUANT TO PROTECTIVE ORDER AND WITHOUT ANY FURTHER

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SEALING ORDER REQUIRED.”

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The Parties shall attempt to agree upon procedures to protect at any hearing the

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confidentiality of Documents, filed under seal, as well as for use of Confidential materials at

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trial, and shall move the Court for entry of an appropriate order, if necessary.

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13.

This Stipulation and Protective Order shall continue to be binding after the

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conclusion of the Proceeding and all subsequent proceedings arising from the Proceeding,

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including any appeal or retrial, except that a Party may seek the written permission of the

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designating Party or may move the Court for relief from the provisions of this Stipulation and

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STIPULATION AND PROTECTIVE ORDER AND ORDER THEREON

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Protective Order. To the extent permitted by law, the Court shall retain jurisdiction to enforce,

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modify, or reconsider this Stipulation and Protective Order, even after this Proceeding is

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terminated.

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14.

Upon written request made within thirty (30) days after the settlement or other

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termination of this Proceeding, the undersigned Parties shall have thirty (30) days to either (a)

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promptly return to counsel for each designating Party all Confidential Materials and all copies

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thereof (except that counsel for each Party may maintain in its files, in continuing compliance

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with the terms of this Stipulation and Protective Order, all work product, and one copy of each

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pleading filed with the Court and one copy of each deposition together with the one copy of each

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exhibit marked at the deposition; and to the extent a Party needs to retain Confidential Material

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for legitimate business reasons, it may do so but such Confidential Material shall remain subject

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to this Order); (b) agree with counsel for the Designating Party upon appropriate methods and

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certification of destruction or other disposition of such Confidential Materials; (c) agree to keep

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all Confidential Materials confidentially and to dispose of same pursuant to the Party’s document

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retention policy or (d) as to any Documents, Testimony, Information or Discovery Response not

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addressed by sub-paragraphs (a) (b) and (c), file a motion seeking a Court order regarding proper

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preservation of such Materials. To the extent permitted by law the Court shall retain continuing

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jurisdiction to review and rule upon the motion referred to in sub-paragraph (d) herein.

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15.

After this Stipulation and Protective Order has been signed by counsel for all

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Parties, it shall be presented to the Court for entry. In the event that the Court modifies this

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Stipulation and Protective Order, or in the event that the Court enters a different Protective

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Order, the Parties and counsel agree to be bound by this Stipulation and Protective Order until

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such time as the Court may enter such a different Order. It is the Parties’ intent to be bound by

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the terms of this Stipulation and Protective Order pending its entry so as to allow for immediate

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production of Confidential materials under the terms herein.

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STIPULATION AND PROTECTIVE ORDER AND ORDER THEREON

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This Stipulation and Protective Order may be executed in counterparts.

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IT IS HEREBY STIPULATED BY:

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Dated: August 31 , 2017

GILL & RHOADES LLP

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By: __/s/ Julie Rhoades, Esq.
Julie Rhoades
Susan J. Gill
Attorneys for Plaintiff, Landmark American Insurance
Company

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Dated: August 31, 2017

BURNHAM BROWN

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By: _____/s/ David H. Waters, Esq.
David H. Waters
B. Natalie Vu
Attorneys for Defendant, Liberty Surplus Insurance
Corporation

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Dated: August 31 , 2017

YARON & ASSOCIATES

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By: __/s/ Jenna Eve Settino, Esq.
George D. Yaron
Jenna Eve Settino
Attorneys for Defendant,
QBE Specialty Insurance Corporation

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STIPULATION AND PROTECTIVE ORDER AND ORDER THEREON

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ORDER
The parties’ stipulated protective order is APPROVED, except that:

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1. Paragraph 10 is DISAPPROVED. The parties are not authorized to automatically file
documents with the court under seal. The parties shall comply with the provisions of
Local Rules 140 and 141, as well as the district judge’s scheduling order (ECF No.

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23, Section VII) with respect to sealing or redaction requests.
2. Nothing in this order limits the testimony of parties or non-parties, or the use of

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certain documents, at any court hearing or trial—such determinations will only be
made by the court at the hearing or trial, or upon an appropriate motion.
3. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over
enforcement of the terms of this stipulated protective order after the action is
terminated.
IT IS SO ORDERED.
Dated: September 8, 2017

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STIPULATION AND PROTECTIVE ORDER AND ORDER THEREON