Midwest Transport, Inc. v. FCE Benefit Administrators, Inc.

Filing 64

ORDER re 63 granting Stipulated Protective Order. Signed by Judge Claudia Wilken on 12/5/08. (scc, COURT STAFF) (Filed on 12/5/2008)

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ROBERT D. EASSA, Bar No. 107970 [e-mail] SABRINA R. KARELS, Bar No. 248080 [e-mail] FILICE BROWN EASSA & MCLEOD LLP 1999 Harrison Street, Suite 1800 Oakland, California 94612-3520 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant FCE BENEFIT ADMINISTRATORS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

MIDWEST TRANSPORT, INC. , Plaintiff, v. FCE BENEFIT ADMINISTRATORS, INC. , Defendant. 1.

Case No. 07-04408 CW STIPULATED PROTECTIVE ORDER

PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. The parties further acknowledge, as set forth in Section 10 below, that this Stipulated Protective Order creates no entitlement to file confidential information under seal; Civil Local rule 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied when a party seeks permission from the Court to file material under seal.
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2.

DEFINITIONS 2.1 Party: any party to this action, including all of its officers, directors,

employees, consultants, retained experts, and outside counsel (and their support staff). 2.2 Disclosure or Discovery Material: all items or information, regardless of

the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery in this matter. 2.3 "Confidential" Information or Items: information (regardless of how

generated, stored or maintained) or tangible things that qualify for protection under standards developed under F.R.Civ.P.26(c). 2.4 Receiving Party: a Party that receives Disclosure or Discovery Material

from a Producing Party. 2.5 Producing Party: a Party or non-party that produces Disclosure or

Discovery Material in this action. 2.6 Designating Party: a Party or non-party that designates information or

items that it produces in disclosures or in responses to discovery as "Confidential." 2.7 Protected Material: any Disclosure or Discovery Material that is

designated as "Confidential." 2.8 Outside Counsel: attorneys who are not employees of a Party but who are

retained to represent or advise a Party in this action. 2.9 2.10 House Counsel: attorneys who are employees of a Party. Counsel (without qualifier): Outside Counsel and House Counsel (as well

as their support staffs). 2.11 Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action and who is not a past or current employee of an opposing Party. This definition includes a professional jury or trial consultant retained in connection with this litigation. -2STIPULATED PROTECTIVE ORDER USDC 07-04408 CW

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2.12

Professional Vendors: persons or entities that provide litigation support

services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their employees and subcontractors. 3. SCOPE

The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Material. 4. DURATION

Even after the termination of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Materials for Protection.

Each Designating Party must take care to limit any "Confidential" designation to specific material that qualifies under the appropriate standards. A Designating Party also must take care to limit "Confidential" designations to only those parts of material, documents, items or oral or written communications that qualify ­ so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation. 5.2 Manner and Timing Designations. Except as otherwise provided in this Order (see e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, material that qualifies for protection under this Order must be clearly so designated before the -3STIPULATED PROTECTIVE ORDER USDC 07-04408 CW

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material is disclosed or produced. This provision is meant to apply to any documents produced prior to the date of this Order which were indicated to have been produced in a confidential manner, including, but not limited to documents previously produced by FCE Benefit Administrators, Inc. and affixed with the label "CONFIDENTIAL." Designation in conformity with this Order requires: (a) for information in documentary form (apart from transcripts of depositions or other pretrial or trial proceedings), that the Designating Party affix the legend "CONFIDENTIAL," at the top or bottom of the front page of each document that contains protected material in a fashion that is easily identifiable. If only a portion or portions of the material on a page qualifies for protection, the Designating Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). A Producing Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed Confidential. After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order, then, before producing the specified documents, the Producing/Designating Party must affix the appropriate legend "CONFIDENTIAL" at the top of each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Party or non-party offering or sponsoring the testimony identify on the record, before the close of deposition, hearing, or other proceeding, that testimony is entitled to protection. The Party or non-party that sponsors, offers, or gives the testimony may invoke on the record (before the deposition or proceeding is concluded) a right to have up to 30 days to identify the specific portions of the testimony as to which protection is sought. Only those portions of the -4STIPULATED PROTECTIVE ORDER USDC 07-04408 CW

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testimony that are appropriately designated for protection within the 30 days shall be covered by the provisions of this Stipulated Protective Order. Transcript pages containing Protected Material must be separately bound by the court reporter, who must affix to the top of each page the legend "CONFIDENTIAL," or as instructed by the Party or non-party offering or sponsoring the witness or presenting the testimony. (c) for information produced in some form other than documentary, and for any other tangible things, that the Producing/Designating Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend "CONFIDENTIAL." If only portions of the information or item warrant protection, the Producing/Designating Party, to the extent practicable, shall identify the protected portions. 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items as "CONFIDENTIAL" does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. If material is appropriately designated as "CONFIDENTIAL" after the material was initially produced, the Receiving Party, on timely notification of the designation, must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Unless a prompt challenge to a Designating

Party's confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. 6.2 Meet and Confer. A Party that elects to initiate a challenge to a

Designating Party's confidentiality designation must do so in good faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) with counsel for the Designating Party. In conferring, the challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give -5STIPULATED PROTECTIVE ORDER USDC 07-04408 CW

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the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first. 6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality

designation after considering the justification offered by the Designating Party may file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) that identifies the challenged material and sets forth in detail the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms that the movant has complied with the meet and confer requirements imposed in the preceding paragraph and that sets forth with specificity the justification for the confidentiality designation that was given by the Designating Party in the meet and confer dialogue. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Until the court rules on the challenge, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation. 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is

disclosed or produced by a Designating Party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the litigation has been terminated, a Receiving Party must comply with the provisions of section 11, below (FINAL DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise

ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated CONFIDENTIAL only to: -6STIPULATED PROTECTIVE ORDER USDC 07-04408 CW

1 2 3 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 information. 8.

(a)

the Receiving Party's Outside Counsel of record in this action, as

well as employees of said Counsel to whom it is reasonably necessary to disclose the information for this litigation, who by signature of their counsel of record hereto agree to be bound by the provisions of this Order; (b) the officers, directors, and House Counsel of the Receiving Party to

whom disclosure is reasonably necessary for this litigation, who by this signature of their counsel of record hereto agree to be bound by the provisions of this Order; other employees of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); (c) experts (as defined in this Order) of the Receiving Party to whom

disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); (d) (e) the Court and its personnel; court reporters, their staffs, and professional vendors to whom

disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure

is reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. (g) the author of the document or the original source of the

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

OTHER LITIGATION If a Receiving Party is served with a subpoena or an order issued in other litigation that would compel disclosure of any information or items designated in this action as "CONFIDENTIAL," the Receiving Party must so notify the Designating Party, in writing (by fax, if -7STIPULATED PROTECTIVE ORDER USDC 07-04408 CW

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possible) immediately and in no event more than three court days after receiving the subpoena or order. Such notification must include a copy of the subpoena or court order. The Receiving Party also must immediately inform in writing the Party who caused the subpoena or order to issue in the other litigation that some or all the material covered by the subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that caused the subpoena or order to issue. The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. The Designating Party shall bear the burdens and the expenses of seeking protection in that court of its confidential material - and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court. 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A. 10. FILING PROTECTED MATERIAL

Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. If a Party receives or has received Protected Material from a source other than in connection with this litigation, then the Receiving Party is not required to treat such information -8STIPULATED PROTECTIVE ORDER USDC 07-04408 CW

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received from such other source as Protected Material, provided that the other source disclosing such information was not in violation of this Order and the Receiving Party has no knowledge or reason to have knowledge of such violation. Notwithstanding the foregoing, nothing in this Order shall be construed to affect any confidentiality obligation under applicable federal or state law. 11. FINAL DISPOSITION

Unless otherwise ordered or agreed in writing by the Designating Party, within sixty days after the final termination of this action, each Receiving Party must return all Protected Material to the Designating Party. As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries or any other form of reproducing or capturing any of the Protected Material, except for Protected Material covered by the attorney-client privilege or the attorney work product doctrine, pleadings filed in this action, transcriptions, deposition, trial or hearing exhibits and discovery responses which shall remain subject to the Protective Order as set forth in Section 4 (DURATION) above. With permission in writing from the Designating Party, the Receiving Party may destroy some or all of the Protected Material instead of returning it. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Designating Party by the sixty day deadline that identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and that affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of reproducing or capturing any of the Protected Material except as otherwise allowed in this Section. 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this

Protective Order no Party or non-party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Stipulated -9STIPULATED PROTECTIVE ORDER USDC 07-04408 CW

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Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: November 25, 2008

CARMODY MACDONALD P.C.

By:

/s/ David P. Stoeberl____________________ DAVID P. STOEBERL Attorneys for Plaintiffs MIDWEST TRANSPORT, INC.

Dated: November 25, 2008

FILICE BROWN EASSA & McLEOD LLP

By:

/s/ Sabrina Karels ROBERT D. EASSA SABRINA R. KARELS Attorneys for Defendant FCE BENEFITS ADMINSTRATORS, INC.

Dated: November 25, 2008

MANNING & MARDER, ET AL.

By:

/s/ Michael Smith____________________ MICHAEL L. SMITH Attorneys for Defendant and Cross-Claimant CALIFIA DEVELOPMENT CORPORATION D/B/A CDC INSURANCE SERVICES

PURSUANT TO STIPULATION, IT IS SO ORDERED. Dated: 12/5/08 THE HONORABLE CLAUDIA WILKEN

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EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO E BOUND I, ____________________________ [print or type full name], of ________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Northern District of California on [date] in the case of Midwest Transport, Inc. v. FCE Benefit Administrators, Inc., et al., USDC Case No. C07-4408 CW. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint __________________________ of ______________________________ as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order.

Date: City and State where Sworn and Signed: Printed Name: Signature:

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