Reaper v. ACE American Insurance Company

Filing 62

ORDER by Judge Haywood S. Gilliam, Jr. Granting 58 Stipulated Protective Order Governing Confidential Information. (ndr, COURT STAFF) (Filed on 9/19/2022)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA – OAKLAND DIVISION 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 ) ) CASE NO. 4:21-CV-05876-HSG ) Plaintiff, ) [PROTECTIVE ORDER ) vs. ) ) ACE AMERICAN INSURANCE ) COMPANY, a Pennsylvania corporation; and ) DOES 1 through 10, inclusive, ) ) Defendant. ) ) ) RED REAPER a.k.a. BRETT C. HUSKA, 19 After having reviewed the Stipulation of the Parties Regarding Confidentiality of 20 Documents and Things, and good cause appearing, this Court orders as follows: 21 1. PURPOSES AND LIMITATIONS 22 Disclosure and discovery activity in this action are likely to involve production of 23 confidential, proprietary, or private information for which special protection from public 24 disclosure and from use for any purpose other than prosecuting this litigation may be 25 warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the 26 following Stipulated Protective Order. The parties acknowledge that this Order does not 27 confer blanket protections on all disclosures or responses to discovery and that the protection 28 it affords from public disclosure and use extends only to the limited information or items that LEGAL\55515266\1 1 are entitled to confidential treatment under the applicable legal principles. The parties further 2 acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does 3 not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth 4 the procedures that must be followed and the standards that will be applied when a party 5 seeks permission from the court to file material under seal. 6 2. 7 8 9 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 10 generated, stored or maintained) or tangible things that qualify for protection under Federal 11 Rule of Civil Procedure 26(c). 12 13 14 15 16 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.5 Disclosure or Discovery Material: all items or information, regardless of the 17 medium or manner in which it is generated, stored, or maintained (including, among other 18 things, testimony, transcripts, and tangible things), that are produced or generated in 19 disclosures or responses to discovery in this matter. 20 2.6 Expert: a person with specialized knowledge or experience in a matter 21 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 22 witness or as a consultant in this action. 23 24 25 26 27 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.9 28 Outside Counsel of Record: attorneys who are not employees of a party to this 2 LEGAL\55515266\1 1 action but are retained to represent or advise a party to this action and have appeared in this 2 action on behalf of that party or are affiliated with a law firm which has appeared on behalf 3 of that party. 2.10 4 Party: any party to this action, including all of its officers, directors, 5 employees, consultants, retained experts, and Outside Counsel of Record (and their support 6 staffs). 2.11 7 8 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.12 9 Professional Vendors: persons or entities that provide litigation support 10 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, 11 and organizing, storing, or retrieving data in any form or medium) and their employees and 12 subcontractors. 2.13 13 14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.14 15 Receiving Party: a Party that receives Disclosure or Discovery Material from a 16 Producing Party. 17 3. SCOPE 18 The protections conferred by this Stipulation and Order cover not only Protected 19 Material (as defined above), but also (1) any information copied or extracted from Protected 20 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) 21 any testimony, conversations, or presentations by Parties or their Counsel that might reveal 22 Protected Material. However, the protections conferred by this Stipulation and Order do not 23 cover the following information: (a) any information that is in the public domain at the time 24 of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to 25 a Receiving Party as a result of publication not involving a violation of this Order, including 26 becoming part of the public record through trial or otherwise; and (b) any information known 27 to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the 28 3 LEGAL\55515266\1 1 disclosure from a source who obtained the information lawfully and under no obligation of 2 confidentiality to the Designating Party. Any use of Protected Material at trial shall be 3 governed by a separate agreement or order. 4 4. DURATION 5 Even after final disposition of this litigation, the confidentiality obligations imposed 6 by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a 7 court order otherwise directs. Final disposition shall be deemed to be the later of (1) 8 dismissal of all claims and defenses in this action, with or without prejudice; and (2) final 9 judgment herein after the completion and exhaustion of all appeals, rehearings, remands, 10 trials, or reviews of this action, including the time limits for filing any motions or 11 applications for extension of time pursuant to applicable law. 12 5. 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 14 Party or Non-Party that designates information or items for protection under this Order must 15 take care to limit any such designation to specific material that qualifies under the 16 appropriate standards. The Designating Party must designate for protection only those parts 17 of material, documents, items, or oral or written communications that qualify – so that other 18 portions of the material, documents, items, or communications for which protection is not 19 warranted are not swept unjustifiably within the ambit of this Order. 20 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 21 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 22 unnecessarily encumber or retard the case development process or to impose unnecessary 23 expenses and burdens on other parties) expose the Designating Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that it designated for 25 protection do not qualify for protection, that Designating Party must promptly notify all other 26 Parties that it is withdrawing the mistaken designation. 27 5.2 28 Manner and Timing of Designations. Except as otherwise provided in this 4 LEGAL\55515266\1 1 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 2 ordered, Disclosure or Discovery Material that qualifies for protection under this Order must 3 be clearly so designated before the material is disclosed or produced. 4 Designation in conformity with this Order requires: 5 (a) for information in documentary form (e.g., paper or electronic documents, but 6 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 7 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If 8 only a portion or portions of the material on a page qualifies for protection, the Producing 9 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 10 markings in the margins). 11 A Party or Non-Party that makes original documents or materials available for inspection 12 need not designate them for protection until after the inspecting Party has indicated which 13 material it would like copied and produced. During the inspection and before the 14 designation, all of the material made available for inspection shall be deemed 15 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied 16 and produced, the Producing Party must determine which documents, or portions thereof, 17 qualify for protection under this Order. Then, before producing the specified documents, the 18 Producing Party must affix the “CONFIDENTIAL” legend to each page that contains 19 Protected Material. If only a portion or portions of the material on a page qualifies for 20 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by 21 making appropriate markings in the margins). 22 (b) for testimony given in deposition or in other pretrial or trial proceedings, that 23 the Designating Party identify on the record, before the close of the deposition, hearing, or 24 other proceeding, all protected testimony. 25 (c) for information produced in some form other than documentary and for any 26 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 27 container or containers in which the information or item is stored the legend 28 5 LEGAL\55515266\1 1 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant 2 protection, the Producing Party, to the extent practicable, shall identify the protected 3 portion(s). 4 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 5 designate qualified information or items does not, standing alone, waive the Designating 6 Party’s right to secure protection under this Order for such material. Upon timely correction 7 of a designation, the Receiving Party must make reasonable efforts to assure that the material 8 is treated in accordance with the provisions of this Order. 9 6. 10 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 11 confidentiality at any time. Unless a prompt challenge to a Designating Party’s 12 confidentiality designation is necessary to avoid foreseeable, substantial unfairness, 13 unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party 14 does not waive its right to challenge a confidentiality designation by electing not to mount a 15 challenge promptly after the original designation is disclosed. 16 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 17 process by providing written notice of each designation it is challenging and describing the 18 basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the 19 written notice must recite that the challenge to confidentiality is being made in accordance 20 with this specific paragraph of the Protective Order. The parties shall attempt to resolve each 21 challenge in good faith and must begin the process by conferring directly (in voice to voice 22 dialogue; other forms of communication are not sufficient) within 14 days of the date of 23 service of notice. In conferring, the Challenging Party must explain the basis for its belief 24 that the confidentiality designation was not proper and must give the Designating Party an 25 opportunity to review the designated material, to reconsider the circumstances, and, if no 26 change in designation is offered, to explain the basis for the chosen designation. A 27 Challenging Party may proceed to the next stage of the challenge process only if it has 28 6 LEGAL\55515266\1 1 engaged in this meet and confer process first or establishes that the Designating Party is 2 unwilling to participate in the meet and confer process in a timely manner. 6.3 3 Judicial Intervention. If the Parties cannot resolve a challenge without court 4 intervention, the Designating Party shall file and serve a motion to retain confidentiality 5 under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) 6 within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that 7 the meet and confer process will not resolve their dispute, whichever is earlier. Each such 8 motion must be accompanied by a competent declaration affirming that the movant has 9 complied with the meet and confer requirements imposed in the preceding paragraph. Failure 10 by the Designating Party to make such a motion including the required declaration within 21 11 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for 12 each challenged designation. In addition, the Challenging Party may file a motion 13 challenging a confidentiality designation at any time if there is good cause for doing so, 14 including a challenge to the designation of a deposition transcript or any portions thereof. 15 Any motion brought pursuant to this provision must be accompanied by a competent 16 declaration affirming that the movant has complied with the meet and confer requirements 17 imposed by the preceding paragraph. 18 The burden of persuasion in any such challenge proceeding shall be on the 19 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to 20 harass or impose unnecessary expenses and burdens on other parties) may expose the 21 Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality 22 designation by failing to file a motion to retain confidentiality as described above, all parties 23 shall continue to afford the material in question the level of protection to which it is entitled 24 under the Producing Party’s designation until the court rules on the challenge. 25 7. 26 27 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this case only 28 7 LEGAL\55515266\1 1 for prosecuting, defending, or attempting to settle this litigation. Such Protected Material 2 may be disclosed only to the categories of persons and under the conditions described in this 3 Order. When the litigation has been terminated, a Receiving Party must comply with the 4 provisions of section 13 below (FINAL DISPOSITION). 5 Protected Material must be stored and maintained by a Receiving Party at a location 6 and in a secure manner that ensures that access is limited to the persons authorized under this 7 Order. 7.2 8 9 10 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: 11 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 12 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose 13 the information for this litigation and who have signed the “Acknowledgment and 14 Agreement to Be Bound” that is attached hereto as Exhibit A; (b) 15 the officers, directors, and employees (including House Counsel) of the 16 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 17 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 19 reasonably necessary for this litigation and who have signed the “Acknowledgment and 20 Agreement to Be Bound” (Exhibit A); 21 (d) the court and its personnel; 22 (e) court reporters and their staff, professional jury or trial consultants, mock 23 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this 24 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 25 A); 26 27 (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be 28 8 LEGAL\55515266\1 1 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the 2 court. Pages of transcribed deposition testimony or exhibits to depositions that reveal 3 Protected Material must be separately bound by the court reporter and may not be disclosed 4 to anyone except as permitted under this Stipulated Protective Order. (g) 5 the author or recipient of a document containing the information or a 6 custodian or other person who otherwise possessed or knew the information. 7 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 8 OTHER LITIGATION 9 If a Party is served with a subpoena or a court order issued in other litigation that 10 compels disclosure of any information or items designated in this action as 11 “CONFIDENTIAL,” that Party must: (a) 12 13 promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 14 (b) promptly notify in writing the party who caused the subpoena or order to issue 15 in the other litigation that some or all of the material covered by the subpoena or order is 16 subject to this Protective Order. Such notification shall include a copy of this Stipulated 17 Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by 18 19 the Designating Party whose Protected Material may be affected. 20 If the Designating Party timely seeks a protective order, the Party served with the 21 subpoena or court order shall not produce any information designated in this action as 22 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 23 issued, unless the Party has obtained the Designating Party’s permission. The Designating 24 Party shall bear the burden and expense of seeking protection in that court of its confidential 25 material – and nothing in these provisions should be construed as authorizing or encouraging 26 a Receiving Party in this action to disobey a lawful directive from another court. 27 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 28 9 LEGAL\55515266\1 IN THIS LITIGATION 1 2 (a) The terms of this Order are applicable to information produced by a Non-Party 3 in this action and designated as “CONFIDENTIAL.” Such information produced by Non- 4 Parties in connection with this litigation is protected by the remedies and relief provided by 5 this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from 6 seeking additional protections. 7 (b) In the event that a Party is required, by a valid discovery request, to produce a 8 Non-Party’s confidential information in its possession, and the Party is subject to an 9 agreement with the Non-Party not to produce the Non-Party’s confidential information, then 10 the Party shall: 11 (1) promptly notify in writing the Requesting Party and the Non-Party that 12 some or all of the information requested is subject to a confidentiality agreement with a Non- 13 Party; 14 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 15 Order in this litigation, the relevant discovery request(s), and a reasonably specific 16 description of the information requested; and (3) make the information requested available for inspection by the Non-Party. 17 18 (c) If the Non-Party fails to object or seek a protective order from this court 19 within 14 days of receiving the notice and accompanying information, the Receiving Party 20 may produce the Non-Party’s confidential information responsive to the discovery request. If 21 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any 22 information in its possession or control that is subject to the confidentiality agreement with 23 the Non-Party before a determination by the court. Absent a court order to the contrary, the 24 Non-Party shall bear the burden and expense of seeking protection in this court of its 25 Protected Material. 26 10. 27 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 28 10 LEGAL\55515266\1 1 Protected Material to any person or in any circumstance not authorized under this Stipulated 2 Protective Order, the Receiving Party must immediately (a) notify in writing the Designating 3 Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized 4 copies of the Protected Material, (c) inform the person or persons to whom unauthorized 5 disclosures were made of all the terms of this Order, and (d) request such person or persons 6 to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as 7 Exhibit A. 8 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 9 MATERIAL 10 When a Producing Party gives notice to Receiving Parties that certain inadvertently 11 produced material is subject to a claim of privilege or other protection, the obligations of the 12 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 13 provision is not intended to modify whatever procedure may be established in an e-discovery 14 order that provides for production without prior privilege review. Pursuant to Federal Rule of 15 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 16 of a communication or information covered by the attorney-client privilege or work product 17 protection, the parties may incorporate their agreement in the stipulated protective order 18 submitted to the court. 19 12. 20 21 22 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 23 Order no Party waives any right it otherwise would have to object to disclosing or producing 24 any information or item on any ground not addressed in this Stipulated Protective Order. 25 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 26 material covered by this Protective Order. 27 12.3 28 Filing Protected Material. Without written permission from the Designating 11 LEGAL\55515266\1 1 Party or a court order secured after appropriate notice to all interested persons, a Party may 2 not file in the public record in this action any Protected Material. A Party that seeks to file 3 under seal any Protected Material must comply with Civil Local Rule 79-5. Protected 4 Material may only be filed under seal pursuant to a court order authorizing the sealing of the 5 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will 6 issue only upon a request establishing that the Protected Material at issue is privileged, 7 protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving 8 Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is 9 denied by the court, then the Receiving Party may file the information in the public record 10 pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 11 13. FINAL DISPOSITION 12 Within 60 days after the final disposition of this action, as defined in paragraph 4, 13 each Receiving Party must return all Protected Material to the Producing Party or destroy 14 such material. As used in this subdivision, “all Protected Material” includes all copies, 15 abstracts, compilations, summaries, and any other format reproducing or capturing any of the 16 Protected Material. Whether the Protected Material is returned or destroyed, the Receiving 17 Party must submit a written certification to the Producing Party (and, if not the same person 18 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, 19 where appropriate) all the Protected Material that was returned or destroyed and (2) affirms 20 that the Receiving Party has not retained any copies, abstracts, compilations, summaries or 21 any other format reproducing or capturing any of the Protected Material. Notwithstanding 22 this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, 23 trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and 24 trial exhibits, expert reports, attorney work product, and consultant and expert work product, 25 even if such materials contain Protected Material. Any such archival copies that contain or 26 constitute Protected Material remain subject to this Protective Order as set forth in Section 4 27 (DURATION). 28 12 LEGAL\55515266\1 1 PURSUANT TO STIPULATION, IT IS SO ORDERED. 2 3 DATED: 9/19/2022 4 _____________________________________ HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 LEGAL\55515266\1 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ [print or 4 type full address], declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the Northern 6 District of California on [date] in the case of Red Reaper a.k.a. Brett C. Huska, Plaintiff, vs. Ace 7 American Insurance Company, Defendant, Case No.: 4:21-cv-05876-HSG. I agree to comply with 8 and to be bound by all the terms of this Stipulated Protective Order and I understand and 9 acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of 10 contempt. I solemnly promise that I will not disclose in any manner any information or item that is 11 subject to this Stipulated Protective Order to any person or entity except in strict compliance with the 12 provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the Northern 14 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even 15 if such enforcement proceedings occur after termination of this action. 16 I 17 _______________________________________ [print or type full address and telephone number] as 18 my California agent for service of process in connection with this action or any proceedings related 19 to enforcement of this Stipulated Protective Order. hereby appoint __________________________ [print or type full name] 20 21 Date: ______________________________________ 22 23 City and State where sworn and signed: ______________________________________________ 24 25 Printed name: _______________________________ 26 27 Signature: __________________________________ 28 14 LEGAL\55515266\1 of

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