Radevska et al v. Noble Americas Energy Solutions, LLC et al

Filing 36

PROTECTIVE ORDER 35 Entered Pursuant to Joint Motion - As Modified by the Court. Signed by Magistrate Judge Ruben B. Brooks on 1/5/16. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TAMARA RADEVSKA, an
individual, ALI ROCK, an
individual, on behalf of themselves
and all others similarly situated,
Plaintiff,

No. 15CV271 GPC RBB
PROTECTIVE ORDER ENTERED
PURSUANT TO JOINT MOTION
[ECF NO. 35] – AS MODIFIED BY
THE COURT

vs.

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NOBLE AMERICAS ENERGY
SOLUTIONS, LLC, a California
limited liability company; NOBLE
AMERICAS CORP., a Delaware
corporation, NOBLE AMERICAS'
CIGNA HEALTH CARE OPEN
ACCESS PLUS PLAN, an ERISA
medical benefits plan; CIGNA
CORPORATION, a Connecticut
corporation; and CIGNA
HEALTHCARE OF CALIFORNIA,
Inc., a California Corporation.,

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Defendants.

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Magistrate Judge Ruben B. Brooks

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Plaintiffs Tamara Radevska (“Radevska”) and Ali Rock (“Rock”) (together,

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“Plaintiffs”), defendants Cigna Corporation and Cigna Healthcare of California

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Inc., (collectively, the “Cigna Defendants”), and defendants Noble Americas

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Energy Solutions, LLC, Noble Americas Corp., and Noble Americas’ Cigna
PROTECTIVE ORDER

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Healthcare Open Access Plus Plan (together, the “Noble Defendants’) (Plaintiffs,

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the Cigna Defendants, and Noble Defendants are collectively referred to as the

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“Parties”), jointly stipulate and move for a protective order as follows:

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1.

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PURPOSES AND LIMITATIONS
1.1

Purpose: Disclosure and discovery activity in this action are likely to

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involve production of confidential, proprietary, or private information for which

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special protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Confidentiality

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Agreement Protective Order (“this Protective Order”).
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Good Cause Statement: Defendants Cigna Corporation (“Cigna

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Corporation”) and Cigna Healthcare of California, Inc. (“CHC-CA”) (collectively,

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the “Cigna Defendants”) petition the court to enter this Protective Order to prevent

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public disclosure of its trade secrets and confidential proprietary business

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information. The parties also seek to prevent public disclosure of Protected Health

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Information (“PHI”) as defined in the Health Insurance Portability and

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Accountability Act (“HIPAA”). The Cigna Defendants seek to designate as

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confidential documents that contain commercially-sensitive payment terms and

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trade secrets regarding the Cigna Defendants’ business operations, including its

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agreements with defendant Noble Americas Corp., which contain broad

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confidentiality provision to protect the Cigna Defendants’ proprietary business

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information. Public disclosure of this information would put the Cigna Defendants

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at a competitive disadvantage. The Cigna Defendants therefore seek to designate

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the Administrative Services Only (“ASO”) Agreement, along with other documents

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as discovery progresses, as confidential. Additionally, Cigna anticipates that it may

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be required to produce private health information relating to Tamara Radevska or

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Ali Rock.

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PROTECTIVE ORDER

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1.3

Confidentiality Agreement: The Parties agree to comply with the

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terms of this agreement regardless of whether the Court formally enters a protective

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order.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Protective Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things the party designating or

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producing it reasonably believes contains or reflects information subject to

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protection, including without limitation: (1) information protected under the federal

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Health Insurance Portability and Accountability Act and the California Medical

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Information Act, (2) information in the nature of a trade secret or other research,

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investigation, development, commercial or operational information of a confidential

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or proprietary nature; (3) financial, marketing, planning, strategic, investigative, or

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other internal information, data, analyses, or specifications of a proprietary,

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confidential or competitive nature; (4) information deemed confidential or non-

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public by any regulatory body; (5) information otherwise protected by law from

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disclosure; and/or (6) any other information with respect to which there is a

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compelling need for confidentiality. Documents designated as “CONFIDENTIAL”

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shall be limited to documents that have not been made public, which the disclosing

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party in good faith believes will, if disclosed, have the effect of causing harm to its

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business or competitive position; or in the case of individuals, shall be limited to

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documents that reveal personal information, such as contact information, social

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security numbers, or Protected Health Information (as defined in 45 CFR §

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160.103).

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2.3

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Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).

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PROTECTIVE ORDER

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2.4

Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.

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2.6

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.
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House Counsel: attorneys who are employees of a party to this action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a

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party to this action but are retained to represent or advise a party to this action and

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have appeared in this action on behalf of that party or are affiliated with a law firm

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which has appeared on behalf of that party.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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PROTECTIVE ORDER

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and their employees and subcontractors.

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2.13 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”

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2.14 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Protective Order cover not only Protected

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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material. However, the protections conferred

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by this Protective Order do not cover the following information: (a) any information

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that is in the public domain at the time of disclosure to a Receiving Party or

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becomes part of the public domain after its disclosure to a Receiving Party as a

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result of publication not involving a violation of this Protective Order, including

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becoming part of the public record through trial or otherwise; and (b) any

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information known to the Receiving Party prior to the disclosure or obtained by the

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Receiving Party after the disclosure from a source who obtained the information

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lawfully and under no obligation of confidentiality to the Designating Party. Any

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use of Protected Material at trial shall be governed by a separate agreement or

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order.

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4.

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DURATION
Final disposition shall be deemed (1) dismissal of all claims and defenses in

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this action, with or without prejudice; or (2) if there is a trial, after completion of

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post-trial briefing.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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PROTECTIVE ORDER

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Protective Order.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party shall

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promptly notify all other Parties that it is withdrawing the mistaken designation.
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Manner and Timing of Designations. Except as otherwise provided in

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this Protective Order (see, e.g., second paragraph of section 5.2(a) below), or as

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otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for

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protection under this Protective Order must be clearly so designated before the

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material is disclosed or produced.

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Designation in conformity with this Protective Order requires:
(a) for information in documentary form (e.g., paper or electronic

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documents, including discovery responses, but excluding transcripts of depositions

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or other pretrial or trial proceedings), that the Producing Party affix the legend

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“CONFIDENTIAL” to each page that contains protected material. If only a portion

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or portions of the material on a page qualifies for protection, the Producing Party

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also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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A Party or Non-Party that makes original documents or materials

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available for inspection need not designate them for protection until after the

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inspecting Party has indicated which material it would like copied and produced.

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During the inspection and before the designation, all of the material made available

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PROTECTIVE ORDER

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for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL” legend to each page that contains Protected Material.

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If only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial

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proceedings, that the Designating Party either: (i) identify the protected testimony

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on the record, before the close of the deposition, hearing, or other proceeding; or (ii)

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send a letter to all counsel within the time permitted for the review and signing of

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the deposition by the witness (in the event of a deposition) or within 45 days of

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receipt of the transcript of the hearing (in the event of a hearing) identifying the

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protected testimony.

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(c) for information produced in some form other than documentary and

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for any other tangible items, that the Producing Party affix in a prominent place on

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the exterior of the container or containers in which the information or item is stored

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the legend “CONFIDENTIAL.” If only a portion or portions of the information or

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item warrant protection, the Producing Party, to the extent practicable, shall identify

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the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Protective Order for

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such material. Upon timely correction of a designation, the Receiving Party must

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make reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Protective Order.

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PROTECTIVE ORDER

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality but must do so within the discovery period set by the

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Court. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary

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economic burdens, or a significant disruption or delay of the litigation, a Party does

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not waive its right to challenge a confidentiality designation by electing not to

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mount a challenge promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging

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and describing the basis for each challenge. To avoid ambiguity as to whether a

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challenge has been made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of this

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Protective Order. The parties shall attempt to resolve each challenge in good faith

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and must begin the process by conferring directly (in voice to voice dialogue; other

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forms of communication are not sufficient). In conferring, the Challenging Party

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must explain the basis for its belief that the confidentiality designation was not

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proper and must give the Designating Party an opportunity to review the designated

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material, to reconsider the circumstances, and, if no change in designation is

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offered, to explain the basis for the chosen designation. A Challenging Party may

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proceed to the next stage of the challenge process only if it has engaged in this meet

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and confer process first or establishes that the Designating Party is unwilling to

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participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Parties shall file and serve a Joint Stipulation. The

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Stipulation must be accompanied by a competent declaration affirming that the

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PROTECTIVE ORDER

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Parties complied with the meet and confer requirements imposed in the preceding

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paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions.

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If the Parties need to file the Joint Stipulation under seal, the Parties may file

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a stipulation to that effect or the moving party may file an ex parte application

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making the appropriate request. The Parties must set forth good cause in the

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stipulation or ex parte application as to why the Joint Stipulation or portions thereof

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should be filed under seal.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may only use Protected Material

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that is disclosed or produced by another Party or by a Non-Party in connection with

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this case for prosecuting, defending, or attempting to settle this litigation. Protected

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Material may not be used for any other purpose whatsoever. Protected Material may

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be disclosed only to the categories of persons and under the conditions described in

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this Protective Order. When the litigation has been terminated, a Receiving Party

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must comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Protective Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as

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PROTECTIVE ORDER

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation;

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(b) the officers, directors, and employees (including House Counsel) of

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the Receiving Party to whom disclosure is reasonably necessary for this litigation;

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(c) Experts (as defined in this Protective Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants,

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mock jurors, and Professional Vendors to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered

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by the court. Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material must be separately bound by the court reporter and may not

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be disclosed to anyone except as permitted under this Protective Order.

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.3

Court Hearings. If any party or Non-Party bound by this Protective

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Order intends to disclose, discuss or otherwise refer to any Protected Material in

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open court at any hearing or trial, that person must notify the Court, the party that

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designated the Protected Material, and all other parties in the action of its intention

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to do so.

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7.4

Filings with the Court. If confidential material is included in any

papers to be filed in Court, such papers shall be accompanied by an application to

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PROTECTIVE ORDER

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file the papers – or the confidential portion thereof – under seal; the application

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must demonstrate good cause for the under seal filing. No items will be filed under

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seal without a prior application to, and order from, the judge presiding over the

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hearing or trial. Only when the judge presiding over the hearing or trial permits

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filing an item or items under seal may confidential material be filed with the Court

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under seal. Whenever the Court grants a party permission to file an item under

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seal, a duplicate disclosing all nonconfidential information shall be filed and made

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part of the public record. The item may be redacted to eliminate confidential

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material from the public document. The public document shall be titled to show

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that it corresponds to an item filed under seal, e.g., “Redacted Copy of Sealed

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Declaration of John Smith in Support of Motion for Summary Judgment.” The

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public redacted documents shall be filed within twenty-four hours of the Court

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order authorizing the filing of a document under seal.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order

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to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall include

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a copy of this Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

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PROTECTIVE ORDER

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action

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to disobey a lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Protective Order are applicable to information

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produced by a Non-Party in this action and designated as “CONFIDENTIAL.”

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Such information produced by Non-Parties in connection with this litigation is

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protected by the remedies and relief provided by this Protective Order. Nothing in

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these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and

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(3) make the information requested available for inspection by the
Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this

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court within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its Protected

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Material.

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10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Protective Order, the Receiving Party must immediately (a) notify in writing the

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Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material, (c) inform the person or persons

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to whom unauthorized disclosures were made of all the terms of this Protective

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Order, and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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12.

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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Protective Order abridges the

right of any person to seek its modification by the court in the future.

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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Protective Order. Similarly, no Party waives any right to object on any ground to

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use in evidence of any of the material covered by this Protective Order.

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13.

FINAL DISPOSITION

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Within 30 days after the final disposition of this action, as defined in

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paragraph 4 or the entry of a final judgment, each Receiving Party must return all

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Protected Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving

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Party must submit a written certification to the Producing Party (and, if not the

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same person or entity, to the Designating Party) by the 30 day deadline that (1)

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identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and (2) affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such archival

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copies that contain or constitute Protected Material remain subject to this Protective

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Order.

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THEREFORE, the Parties hereby stipulate to the entry of this Protective
Order and Confidentiality Agreement:

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Dated: December 31, 2015

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/s/ Jack B. Winters________________
Jack B. Winters, Esq.
Attorneys for Plaintiff Tamara Radevska

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WINTERS & ASSOCIATES

Dated: December 31, 2015

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THE BUTLER FIRM

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/s/ Matthew B. Butler
Matthew B. Butler, Esq.

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Attorneys for Plaintiff Ali Rock

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Dated: December 31, 2015

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/s/ Craig S. Rutenberg
John M. LeBlanc, Esq.
Craig S. Rutenberg, Esq.
Luke L. Punnakanta, Esq.

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Attorneys for Defendants
Cigna Corporation and Cigna Healthcare of
California, Inc.

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MANATT, PHELPS & PHILLIPS, LLP

Dated: December 31, 2015

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MINTZ LEVIN COHN FERRIS
GLOVSKY AND POPEO, P.C.
/s/ Jennifer B. Rubin
Jennifer B. Rubin, Esq.

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Attorneys for Defendants
Noble Americas Energy Solutions, LLC,
Noble Americas Corp., and Noble Americas’
Cigna Healthcare Open Access Plus Plan

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IT IS SO ORDERED.
Dated: January 5, 2016

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PROTECTIVE ORDER

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_____________________________________ [print or type full address], declare

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under penalty of perjury that I have read in its entirety and understand this

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Protective Order issued by the United States District Court for the Southern District

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of California in the case of Tamara Radevska, et al. v. Noble Americas Energy

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Solutions, LLC,. et al., Case No. 15CV271 GPC RBB.

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I agree to comply with and to be bound by all the terms of this Protective

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Order and I understand and acknowledge that failure to so comply could expose me

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to sanctions and punishment in the nature of contempt. I solemnly promise that I

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will not disclose in any manner any information or item that is subject to this

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Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court

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for the Southern District of California for the purpose of enforcing the terms of this

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Protective Order, even if such enforcement proceedings occur after termination of

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this action.

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Date: ______________________________________

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City and State where signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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PROTECTIVE ORDER