Ivy Hotel San Diego, LLC et al v. Houston Casualty Company

Filing 41

ORDER granting 40 Joint Motion for Protective Order; (2) Protective Order as Modified By The Court. Signed by Magistrate Judge Bernard G. Skomal on 5/19/2011. (All non-registered users served via U.S. Mail Service)(mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IVY HOTEL SAN DIEGO, LLC, a
California limited liability company, and
KELLY HOSPITALITY, LLC, a
California limited liability company,
Plaintiffs,

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v.

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ORDER: (1) GRANTING JOINT MOTION
FOR PROTECTIVE ORDER; (2)
PROTECTIVE ORDER AS MODIFIED BY
THE COURT
[Doc. No. ]

HOUSTON CASUALTY COMPANY,
Defendant.

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CV NO. 10cv2183-L(BGS)

AND RELATED COUNTERCLAIMS.

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This matter has come before the Court on a joint motion of the parties. The parties

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anticipate that, during the course of this proceeding and any related appeals, the parties and

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potentially certain non-parties may disclose certain trade, financial, business and litigation

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information that may be of a confidential and/or proprietary nature, and/or may otherwise be

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privileged. The parties also have agreed and asserted that they seek entry of this Protective Order

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(“Order”) in order to protect the confidentiality of such information and documents, and to

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thereby ensure that the parties can obtain and pursue discovery with a minimum of delay and

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expense.

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Based on the parties joint submission, the Court finds that there is good cause for

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restricting the disclosure and use of documents identified in this Order as “Confidential Material,”

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as defined below.

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Accordingly, IT IS HEREBY ORDERED as follows:

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DEFINITIONS
1.

“Confidential Material” means all documents and/or information which (a) are

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designated as “confidential” by the Designating Party (as defined below) in good faith, (b) have

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not been disseminated or made public previously in a manner inconsistent with a claim of

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confidentiality, and (c) the Designating Party reasonably and in good faith believes contain or

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comprise information that (i) is protected under applicable law, (ii) represents trade secrets,

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proprietary or confidential business information or (iii) the disclosure of which would violate a

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personal, financial or other interest protected by law and would cause serious harm that outweighs

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the public interest in the disclosure of the information.

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2.

“Producing Party” means any party or non-part who produces documents and/or

information in connection with this litigation.
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“Designating Party” means (i) any Producing Party who identifies any documents

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and/or information this it produced as Confidential Material and/or (ii) any party that identifies, as

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Confidential Material, any documents and/or information provided to it by others, including other

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parties to this litigation, for use in this litigation.

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DESIGNATION OF CONFIDENTIAL MATERIAL
4.

This Order provides for the confidential treatment of Confidential Material

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produced during discovery in this action. Designation of material as Confidential Material shall

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constitute a certification by the Designating Party that the Designating Party has a reasonable,

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good-faith belief that the designated material meets the definition of “Confidential Material” set

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forth in Paragraph 1 above.

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5.

Material that may be designated Confidential Material includes all documents,

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tangible things, testimony or other information produced or made available in the course of

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discovery in this action, including: (a) documents produced in response to requests for the
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production of documents or subpoenas; (b) responses to requests for admissions; (c) responses to

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interrogatories, including documents used in preparing such responses; (d) transcripts of

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depositions, trial testimony and excerpts thereof, including exhibits thereto; (e) other responses or

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affidavits in connection with discovery requests, motions, or other filings in this action;

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(f) excerpts or summaries of any of (a) – (e) above and all copies thereof; and (g) all pleadings,

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briefs, memoranda.

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6.

a.

With respect to 2 (a)-(f) above, the Designating Party shall designate a

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document as Confidential Material by stamping or otherwise marking each page of documents as

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“confidential” and/or by marking the documents or information with some other similar legend

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(the “Confidentiality Notation”). If any documents are produced prior to the entry of this Order,

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marking such documents “confidential” and notifying all other parties of the “confidential”

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marking shall be considered sufficient to designate the documents as Confidential Material. The

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Designating Party shall make such designations at the time it first produces or otherwise

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disseminates such document to the parties. Documents that are only made available for

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inspection in response to a request for production need not be marked with the Confidentiality

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Notation. However, a Designating Party shall mark with the Confidentiality Notation those

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documents that are confidential or contain confidential information that are copied for an

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opposing party following an inspection.

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b.

If a Designating Party identifies as Confidential Material information or

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documents provided by others, that Designating Party will provide notice in writing within thirty

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(30) days following receipt of the information or documents. That notice shall identify, by page

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number, bates-label, or other appropriate means, the information or documents designated as

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Confidential Material. In addition, the Designating Party shall provide copies of the newly

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designated Confidential Material that bear the Confidentiality Notation to all other parties or non-

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parties who had received such material without the Confidentiality Notation.

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c.

Designation of deposition transcripts or portions of a deposition transcript,

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including exhibits, that contain Confidential Material shall be made by a statement to such effect

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on the record in the course of the deposition or by written notification by the Designating Party to
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the court reporter and to all parties within fourteen (14) days following receipt of the transcript of

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such deposition and/or the exhibits thereto by the Designating Party (or later with leave of Court).

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If any deposition transcript or portion thereof, including exhibits, is designated as Confidential

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Material, the Confidentiality Notation shall be placed by the reporter on the original and each

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copy of the transcript, and the transcript shall identify the pages of the deposition and/or the

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exhibits designated as Confidential Material.

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d.

If all or part of a videotaped deposition is designated as Confidential

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Material within the time periods referenced above, both the transcript and the video cassette or

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other videotape container shall be labeled with the Confidentiality Notation.

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INADVERTENT PRODUCTION OF A PRIVILEGED DOCUMENT
7.

If a Producing Party discovers that it inadvertently produced information or

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documents that it considered to be privileged, work product, and/or otherwise protected from

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production in whole or in part (“privileged material”), the producing party or non-party may

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retrieve such privileged material or parts thereof as follows:

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a.

The Producing Party must give written notice to all counsel for the other

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parties that the producing party claims said document, in whole or in part, to be privileged

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material and must state the nature of the privilege; and, if only a portion of said document is

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claimed to be privileged, the Producing Party shall designate the privileged portion(s). If said

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document was produced on CD-ROM, the Producing Party shall provide a copy of the CD-ROM

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without images of said document.

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b.

Upon receipt of such notice, all parties who have received copies of the

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documents identified in the notice shall either (1) promptly return the CD-ROM containing

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images of the document (if applicable) and all copies of the document, or destroy the CD-ROM

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and all copies of the document, and send a written response to the Producing Party confirming

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that all copies in their possession and control have been either returned to the Producing Party or

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destroyed, and not make any use of the contents of the allegedly privileged material, or (2) within

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10 days of receipt of said notice advise all parties and any affected non-party in writing that they

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are disputing the claim of privilege and provide the basis for the dispute.
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c.

Within ten (10) days after written notice of a dispute is provided, the

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parties and any affected non-party, if applicable, shall meet and confer to discuss the assertion of

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privilege and attempt to arrive at a consensual resolution.

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d.

Should the parties and any affected non-party, if applicable, be unable to

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reach a resolution, the Producing Party shall, within three (3) days of the conclusion of the meet

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and confer process, follow the Court’s Chambers’ Rules regarding discover disputes and set up a

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joint call to discuss the dispute with the research attorney assigned to the case. Failure to bring

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such a dispute to the Court’s attention within three (3) days constitutes a waiver of the claim of

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privilege unless the parties agree otherwise in writing to a longer time period. The meet and

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confer process shall be deemed concluded upon written notice from any affected party or non-

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party that they are terminating the meet and confer process---but in no event may the meet and

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confer process take more than 21 days from the date written notice of the dispute is provided.

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e.

The inadvertent production of a document subject to a privilege or

protection shall not operate as a waiver of the applicable privilege or protection.

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INADVERTENT PRODUCTION WITHOUT A DESIGNATION AS

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CONFIDENTIAL MATERIAL

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8.

If a Designating Party inadvertently produces documents and/or information that it

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considers to be Confidential Material without having designated the documents and/or

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information as such, the production of such documents and/or information shall not operate as a

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waiver of confidentiality. Within fourteen (14) days of the date of discovery of the inadvertent

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production of such material (or later with leave of Court), the Designating Party must give written

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notice to all parties that the Designating Party claims that the material is confidential, in whole or

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in part. Upon receipt of this notice, all parties who have received a copy of these materials shall

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mark them as Confidential Material in accordance with Paragraph 6 of this Order and shall

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thereafter treat these materials as subject to this Order.

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USE AND DISCLOSURE OF CONFIDENTIAL MATERIAL
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Confidential Material shall be used or disclosed solely in connection with this

action and in accordance with the terms of this Order.
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10.

Except upon the prior written consent of the Designating Party, parties to whom

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Confidential Material is disclosed shall not disclose Confidential Material except as expressly

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authorized in this Order.

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11.

Confidential Material shall not be disclosed to any persons other than the

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following, to whom it may be disclosed only in connection with this action, and only in

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accordance with the provisions of Paragraph 12 below:

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a.

b.

employees, committee members, court-appointed representatives, and agents;

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A party’s officers, directors, in-house counsel, employees, former

support staff;

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Counsel to the parties in this action and their associates, paralegals, and

c.

Experts or consultants (including their employees, associates and support

staff) retained by a party in connection with this action;

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d.

Deponents and witnesses, but only during or in discussion of possible

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examination of such persons, and in connection with preparation therefore, and court reporters

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and their personnel;

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e.

A third party to whom a party is legally obligated or to whom it has a

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preexisting contractual obligation in the ordinary course of business to make disclosure of the

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information or documents designated as Confidential Material, except for the entities listed in (f)

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below;

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f.

Defendant HCC with regard to the policy at issue in this action;

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g.

Commercial photocopying firms used by a party to this action to assist in

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The Court and its personnel.

discovery; and

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Insurers, reinsurers, reinsurance intermediaries, and/or retrocessionaires of

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Confidential Material shall not be disclosed to the persons or entities described in

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Paragraphs 11(c), (e), and (f) unless and until such parties agree in writing to be bound by this

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Order by executing the “Confidentiality Agreement” attached to this Order as Exhibit A, and only

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if the party or attorney disclosing the Confidential Material retains the executed “Confidentiality
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Agreement” so that the Agreement may be submitted to the Court for an in camera inspection in

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the event of a dispute between the parties regarding the disclosure of Confidential Material. Prior

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to the disclosure of Confidential Material to the persons or entities described in Paragraphs 11(a),

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(b), and (d), and (g), the disclosing party shall inform such persons or entities of the terms of this

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Order, provide them with a copy of this Order, inform them that they are bound by the terms of

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this Order, and inform them that the Confidential Material may not be disclosed, except as

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provided in this Order, without the written permission of the Designating Party that produced the

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Confidential Material in this proceeding.

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13.

Briefs, affidavits, and other documents constituting, containing, referring to,

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summarizing or quoting (collectively, “revealing”) Confidential Material shall bear the

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Confidentiality Notation on the face thereof and on each internal page revealing Confidential

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Material. No party shall file such materials with the Court unless the Designating Party has had

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the opportunity to seek Court permission to file such materials under seal, and no document shall

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be filed under seal unless counsel secures a court order allowing the filing of a document under

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seal. An application to file a document under seal shall be served on opposing counsel, and on

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the person or entity that has custody and control of the document, if different from opposing

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counsel. If opposing counsel, or the person or entity who has custody and control of the

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document, wishes to oppose the application, he/she must contact the chambers of the judge who

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will rule on the application, to notify the judge’s staff that an opposition to the application will be

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filed. If an application to seal is granted, documents filed under seal must be in a sealed envelope

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marked with the caption of the case, the title of the document, and the Confidentiality Notation as

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described above. Within three (3) business days of a party’s filing documents under seal, the

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party shall also file on the public record a copy of the documents in which the Confidential

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Material is redacted. Alternatively, if the redactions are so extensive as to render the documents

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useless to the reader, the party shall file in the public record a notice of the filing of the

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documents under seal in their entirety. Nothing in this paragraph shall prevent a Designating

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Party from filing, in the public record, material that it designated as Confidential Material;

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provided, however, that if a
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Designating Party does so, the Confidential Material will cease to be Confidential Material under

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this Order.

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All redactions to public copies of documents shall be made solely to the extent

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necessary to preserve the confidentiality of the Confidential Material and in accordance with

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(a) the public policy in favor of public access of judicial records and documents and (b) any

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directions by the Court in the order(s) granting the application to seal.

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15.

If any party disputes the designation by any Designating Party of any document or

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information as Confidential Material, the disputing party shall serve a written notice of objection

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to such designation upon the Designating Party, with copies to every other party, no later than

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fourteen (14) days after receiving the document marked Confidential. Such notice shall identify

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specifically the material or information that the disputing party contends does not qualify as

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Confidential Material, and the notice shall set forth the reasons for that contention. The

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Designating Party and the disputing party(ies) shall attempt to resolve by agreement the question

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of whether or on what terms the document or information is entitled to treatment as Confidential

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Material. If the parties are unable to agree, within two weeks after the notice, as to whether the

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Designating Party should have designated the document or information as Confidential Material,

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the disputing party may seek a court order determining whether, or on what terms, the document

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or information is entitled to confidential treatment. The fact that the party disputing the

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designation has the burden of initially seeking a court order does not alter or affect the burden of

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persuasion on the ultimate issue of whether the document or information is entitled to confidential

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treatment. The designated materials in question shall continue to be treated as Confidential

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Material subject to the terms of this Order until the Court acts on the motion.

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16.

Any party may request permission to disclose Confidential Material to a person

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other than those permitted by Paragraph 11 by serving a written request upon counsel for the

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Designating Party, setting forth the information or materials the party wishes to disclose, the

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person to whom the party wishes to disclose the information or materials, and the reason for the

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proposed disclosure. If consent is withheld, or the party seeking to make disclosure and the

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Designating Party are unable to agree on the terms and conditions of disclosure, the party seeking
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to make disclosure may submit the matter to the Court for resolution. The designated

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Confidential Materials shall not be disclosed until the Court acts on the motion.

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17.

Nothing in this Order shall be construed in any way to control the use,

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dissemination, publication, or disposition (a) by a party of its own documents or information,

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(b) by a party of documents or information existing in the files of that party prior to the date of

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the Order, or (c) by a party of documents or information received at any time by that party outside

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the course of this litigation. The privileged or confidential status, if any, of such documents or

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information shall not be determined by the terms of this Order.

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18.

Nothing in this Order shall operate to require the production of information or

documents that are privileged or otherwise protected from discovery.
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A party’s designation of materials as Confidential Material, its failure to designate

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material as Confidential Material, or its failure to object to another party or non-party’s

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designation of materials as Confidential Material, shall not operate as an admission that any

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particular document or information is or is not (a) confidential, (b) privileged, or (c) admissible in

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evidence at trial.

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EFFECT AND DURATION OF ORDER
20.

This Order shall survive the termination of this action and expiration of all rights

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of appeal and shall continue in full force and effect thereafter. Upon the termination of this action

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and the expiration of any and all appeals from this action, all persons or entities that have

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received Confidential Material shall within thirty (30) days: (a) return to counsel for the

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Designating Party all such Confidential Material, including all copies, prints, summaries and

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other reproductions of such information, (b) destroy all Confidential Material, including all

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copies, prints, summaries and other reproductions of such information, and certify to counsel for

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the Designating Party that they have destroyed all unreturned Confidential Material. To the

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extent that a party is dismissed from this action prior to the entry of a final order, such party shall

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comply with the requirements set forth in (a) or (b) above within thirty (30) days after the

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expiration of any and all appeals from such party’s dismissal. All parties shall have the right to

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maintain a set of correspondence, pleadings, depositions, trial transcripts, exhibits and one copy
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of all documents produced in this matter so long as such materials are stored, and the

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confidentiality of such materials is preserved, in conformity with this Order. Where a party has

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provided Confidential Material to a retained expert or consultant or any other person or entity, it

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shall be the responsibility and obligation of both the party and the person or entity to whom the

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Confidential Material was provided to return or destroy the Confidential Material, if requested to

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do so by the Designating Party. This paragraph does not apply to the copies of Confidential

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Material that have been submitted to and are in the possession of the Court. The Court will retain

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jurisdiction for 120 days after the termination of this action to enforce the terms of this Order.

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21.

Within thirty (30) days after this action has been closed, copies of Confidential

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Material that have been submitted to and/or are in the possession of the Court shall be destroyed.

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Any such action by the Court pursuant to this paragraph must be preceded by an ex parte motion

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for an order authorizing the destruction of all Confidential Material.

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22.

In the event disclosure of any Confidential Material is sought from anyone subject

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to this Order pursuant to a lawful subpoena, demand by governmental authority, court order or

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any other legal process, such person or entity shall, upon receipt of such request, notify the

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Designating Party by electronic mail or facsimile, of the request for disclosure. Under no

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circumstances may production take place before notice is sent. The Designating Party may then

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seek to prevent disclosure by filing a motion for protective order or by taking another appropriate

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action within seven (7) days of the notice. If the Designating Party takes such action, the

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Confidential Material shall not be disclosed until the motion or other action is resolved.

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the interest of justice, or on its own order at any time in this action.

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The Court may modify the terms and conditions of this Order for good cause, or in

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This Order shall not act as a shield for any person or entity to refuse to disclose

any information that it is, by law or rule, obligated to disclose.

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Without a separate court order, this Order does not change, amend, or circumvent

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any court rule or local rule.

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26.

The requirements of this Order shall apply to any materials produced in this action

before and after the date that this Order is entered.

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DATED: May 19, 2011
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HONORABLE BERNARD G. SKOMAL
United States Magistrate Judge
United States District Court

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EXHIBIT A
CONFIDENTIALITY AGREEMENT

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I have reviewed the Protective Order (“Order”) entered by the United States District Court

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for the Southern District of California in Ivy Hotel San Diego, LLC v. Houston Casualty Co.,

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Case No. 10cv2183-L(BGS) (S.D. Cal.). I understand that pursuant to the Order, materials

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produced through discovery in the above litigation that have been designated “Confidential” may

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not be used or disclosed except as expressly authorized in the Order. I hereby agree to abide by

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the terms of the Order and to refrain from using or disclosing materials that have been designated

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“Confidential” except as expressly authorized in the Order.

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Date: ________________________________

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Signature: ____________________________

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Printed Name: _________________________

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