Philadelphia Indemnity Insurance Company v. Gotham Management, LLC et al

Filing 34

ORDER Granting 33 Joint Motion for Protective Order-Confidential Designation Only. Signed by Magistrate Judge Nita L. Stormes on 4/5/2017. (dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PHILADELPHIA INDEMNITY
INSURANCE COMPANY, a
12 Pennsylvania corporation,
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)
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Plaintiff,
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vs.
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GOTHAM MANAGEMENT, LLC, a
New York corporation; and DOES 1
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through 10,
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Defendants.
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AND RELATED COUNTER-ACTION )
)

CASE NO.: 16-CV-00673 NLS JMA
ORDER GRANTING JOINT
MOTION FOR PROTECTIVE
ORDER-CONFIDENTIAL
DESIGNATION ONLY
[Dkt. No. 33]

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The Court, having read the Stipulation and Proposed Protective Order

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regarding

Confidential

Designation

Only

entered

into

by

counsel

for

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PHILADELPHIA INDEMNITY INSURANCE COMPANY and GOTHAM

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MANAGEMENT, LLC, cause appearing therefore,

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IT IS HEREBY ORDERED:

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The following stipulated protective order is approved and is hereby adopted as

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the Order of this Court:
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IT IS HEREBY STIPULATED by and between the undersigned parties

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(collectively, the “Parties” or individually as a “Party”), by and through their

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respective counsel of record, that in order to facilitate the exchange of information

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and documents which may be subject to confidentiality limitations on disclosure due

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to federal laws, state laws, and privacy rights, the Parties stipulate as follows:

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1.

have the following meanings:
a.

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In this Stipulation and Protective Order, the words set forth below shall

“Proceeding” means the above-entitled proceeding, Case No. 16-

CV-00673 NLS JMA.
b.

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“Court” means the Hon. Nita L. Stormes, or any other judge to

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which this Proceeding may be assigned, including Court staff participating in such

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proceedings.

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c.

“Confidential” means any information which is in the possession

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of a Designating Party who believes in good faith that such information is entitled to

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confidential treatment under applicable law.

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d.

“Confidential Materials” means any Documents, Testimony or

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Information as defined below designated as “Confidential” pursuant to the provisions

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of this Stipulation and Protective Order.

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e.

“Designating Party” means the Party that designates Materials as

“Confidential.”
f.

“Disclose” or “Disclosed” or “Disclosure” means to reveal,

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divulge, give, or make available Materials, or any part thereof, or any information

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contained therein.

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g.

“Documents”

means

(i)

any

“Writing,”

“Original,”

and

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“Duplicate” as those terms are defined by Federal Rules of Evidence, Rule 1001 (a)

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and Federal Rule of Civil Procedure 34, which have been produced in discovery in

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this Proceeding by any person, and (ii) any copies, reproductions, or summaries of all

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or any part of the foregoing.
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h.

“Information” means the content of Documents or Testimony.

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i.

“Testimony” means all depositions, declarations or other

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testimony taken or used in this Proceeding.
2.

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The Designating Party shall have the right to designate as

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“Confidential” any Documents, Testimony or Information that the Designating Party

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in good faith believes to contain non-public information that is entitled to

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confidential treatment under applicable law.
3.

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The entry of this Stipulation and Protective Order does not alter, waive,

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modify, or abridge any right, privilege or protection otherwise available to any Party

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with respect to the discovery of matters, including but not limited to any Party’s right

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to assert the attorney-client privilege, the attorney work product doctrine, or other

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privileges, or any Party’s right to contest any such assertion.
4.

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Any Documents, Testimony or Information to be designated as

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“Confidential” must be clearly so designated before the Document, Testimony or

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Information is Disclosed or produced. The parties may agree that the case name and

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number are to be part of the “Confidential” designation. The “Confidential”

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designation should not obscure or interfere with the legibility of the designated

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Information.
a.

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For Documents (apart from transcripts of depositions or other

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pretrial or trial proceedings), the Designating Party must affix the legend

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“Confidential” on each page of any Document containing such designated

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Confidential Material.
b.

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For Testimony given in depositions the Designating Party may

either:
i.

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identify on the record, before the close of the deposition, all

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“Confidential” Testimony, by specifying all portions of the Testimony that qualify as

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“Confidential;” or

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ii.

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designate the entirety of the Testimony at the deposition as

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“Confidential” (before the deposition is concluded) with the right to identify more

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specific portions of the Testimony as to which protection is sought within 30 days

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following receipt of the deposition transcript. In circumstances where portions of the

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deposition Testimony are designated for protection, the transcript pages containing

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“Confidential” Information may be separately bound by the court reporter, who must

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affix to the top of each page the legend “Confidential,” as instructed by the

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Designating Party.
c.

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For Information produced in some form other than Documents,

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and for any other tangible items, including, without limitation, compact discs or

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DVDs, the Designating Party must affix in a prominent place on the exterior of the

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container or containers in which the Information or item is stored the legend

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“Confidential.” If only portions of the Information or item warrant protection, the

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Designating Party, to the extent practicable, shall identify the “Confidential”

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portions.

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5.

The inadvertent production by any of the undersigned Parties or non-

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Parties to the Proceedings of any Document, Testimony or Information during

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discovery in this Proceeding without a “Confidential” designation, shall be without

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prejudice to any claim that such item is “Confidential” and such Party shall not be

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held to have waived any rights by such inadvertent production. In the event that any

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Document, Testimony or Information that is subject to a “Confidential” designation

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is inadvertently produced without such designation, the Party that inadvertently

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produced the document shall give written notice of such inadvertent production

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within twenty (20) days of discovery of the inadvertent production, together with a

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further copy of the subject Document, Testimony or Information designated as

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“Confidential” (the “Inadvertent Production Notice”). Upon receipt of such

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Inadvertent Production Notice, the Party that received the inadvertently produced

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Document, Testimony or Information shall promptly destroy the inadvertently
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produced Document, Testimony or Information and all copies thereof, or, at the

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expense of the producing Party, return such together with all copies of such

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Document, Testimony or Information to counsel for the producing Party and shall

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retain only the “Confidential” designated Materials. Should the receiving Party

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choose to destroy such inadvertently produced Document, Testimony or Information,

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the receiving Party shall notify the producing Party in writing of such destruction

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within ten (10) days of receipt of written notice of the inadvertent production. This

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provision is not intended to apply to any inadvertent production of any Information

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protected by attorney-client or work product privileges. In the event that this

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provision conflicts with any applicable law regarding waiver of confidentiality

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

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law shall govern.

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6.

In the event that counsel for a Party receiving Documents, Testimony or

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Information in discovery designated as “Confidential” objects to such designation

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with respect to any or all of such items, said counsel shall advise counsel for the

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Designating Party, in writing, of such objections, the specific Documents, Testimony

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or Information to which each objection pertains, and the specific reasons and support

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for such objections (the “Designation Objections”). Counsel for the Designating

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Party shall have thirty (30) days from receipt of the written Designation Objections

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to either (a) agree in writing to de-designate Documents, Testimony or Information

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pursuant to any or all of the Designation Objections and/or (b) file a motion with the

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Court seeking to uphold any or all designations on Documents, Testimony or

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Information addressed by the Designation Objections (the “Designation Motion”).

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Pending a resolution of the Designation Motion by the Court, any and all existing

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designations on the Documents, Testimony or Information at issue in such Motion

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shall remain in place. The Designating Party shall have the burden on any

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Designation Motion of establishing the applicability of its “Confidential”

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designation. In the event that the Designation Objections are neither timely agreed to
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nor timely addressed in the Designation Motion, then such Documents, Testimony or

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Information shall be de-designated in accordance with the Designation Objection

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applicable to such material.

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7.

Access to and/or Disclosure of Confidential Materials designated as

“Confidential” shall be permitted only to the following persons:

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a.

the Court;

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b.

(1) Attorneys of record in the Proceedings and their affiliated

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attorneys, paralegals, clerical and secretarial staff employed by such attorneys who

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are actively involved in the Proceedings and are not employees of any Party. (2) In-

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house counsel to the undersigned Parties and the paralegal, clerical and secretarial

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staff employed by such counsel. Provided, however, that each non-lawyer given

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access to Confidential Materials shall be advised that such Materials are being

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

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Order and that they may not be Disclosed other than pursuant to its terms;

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c.

those officers, directors, partners, members, employees and

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agents of all non-designating Parties that counsel for such Parties deems necessary to

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aid counsel in the prosecution and defense of this Proceeding; provided, however,

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that prior to the Disclosure of Confidential Materials to any such officer, director,

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partner, member, employee or agent, counsel for the Party making the Disclosure

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shall deliver a copy of this Stipulation and Protective Order to such person, shall

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explain that such person is bound to follow the terms of such Order, and shall secure

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the signature of such person on a statement in the form attached hereto as Exhibit A;

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d.

court reporters in this Proceeding (whether at depositions,

hearings, or any other proceeding);
e.

any deposition, trial or hearing witness in the Proceeding who

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previously has had access to the Confidential Materials, or who is currently or was

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previously an officer, director, partner, member, employee or agent of an entity that

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has had access to the Confidential Materials;
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f.

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any deposition or non-trial hearing witness in the Proceeding who

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previously did not have access to the Confidential Materials; provided, however, that

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each such witness given access to Confidential Materials shall be advised that such

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Materials are being Disclosed pursuant to, and are subject to, the terms of this

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Stipulation and Protective Order and that they may not be Disclosed other than

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pursuant to its terms;
g.

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mock jury participants, provided, however, that prior to the

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Disclosure of Confidential Materials to any such mock jury participant, counsel for

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the Party making the Disclosure shall deliver a copy of this Stipulation and

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Protective Order to such person, shall explain that such person is bound to follow the

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terms of such Order, and shall secure the signature of such person on a statement in

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the form attached hereto as Exhibit A.
h.

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outside experts or expert consultants consulted by the

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undersigned Parties or their counsel in connection with the Proceeding, whether or

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not retained to testify at any oral hearing; provided, however, that prior to the

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Disclosure of Confidential Materials to any such expert or expert consultant, counsel

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for the Party making the Disclosure shall deliver a copy of this Stipulation and

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Protective Order to such person, shall explain its terms to such person, and shall

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secure the signature of such person on a statement in the form attached hereto as

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Exhibit A. It shall be the obligation of counsel, upon learning of any breach or

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

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expert consultant, to promptly notify counsel for the Designating Party of such

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breach or threatened breach; and
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any other person that the Designating Party agrees to in writing.

Confidential Materials shall be used by the persons receiving them only

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

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prosecuting and/or defending the Proceeding, and not for any business or other

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purpose whatsoever.
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9.

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

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

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other Parties to the Proceeding, to modify or grant relief from any provision of this

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Stipulation and Protective Order.

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10.

Entering into, agreeing to, and/or complying with the terms of this

Stipulation and Protective Order shall not:
a.

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operate as an admission by any person that any particular

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Document, Testimony or Information marked “Confidential” contains or reflects

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trade secrets, proprietary, confidential or competitively sensitive business,

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commercial, financial or personal information; or
b.

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prejudice in any way the right of any Party (or any other person

subject to the terms of this Stipulation and Protective Order):
i.

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to seek a determination by the Court of whether any

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particular Confidential Material should be subject to protection as “Confidential”

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under the terms of this Stipulation and Protective Order; or
ii.

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to seek relief from the Court on appropriate notice to all

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other Parties to the Proceeding from any provision(s) of this Stipulation and

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Protective Order, either generally or as to any particular Document, Material or

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Information.

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11.

Any Party to the Proceeding who has not executed this Stipulation and

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Protective Order as of the time it is presented to the Court for signature may

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thereafter become a Party to this Stipulation and Protective Order by its counsel’s

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signing and dating a copy thereof and filing the same with the Court, and serving

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copies of such signed and dated copy upon the other Parties to this Stipulation and

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Protective Order.

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12.

Any Information that may be produced by a non-Party witness in

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discovery in the Proceeding pursuant to subpoena or otherwise may be designated by

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such non-Party as “Confidential” under the terms of this Stipulation and Protective
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Order, and any such designation by a non-Party shall have the same force and effect,

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and create the same duties and obligations, as if made by one of the undersigned

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Parties hereto. Any such designation shall also function as a consent by such

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producing Party to the authority of the Court in the Proceeding to resolve and

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conclusively determine any motion or other application made by any person or Party

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with respect to such designation, or any other matter otherwise arising under this

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Stipulation and Protective Order.

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13.

If any person subject to this Stipulation and Protective Order who has

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custody of any a subpoena or other process (“Subpoena”) from any government or

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other person or entity demanding production of Confidential Materials, the recipient

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of the Subpoena shall promptly give notice of the same by electronic mail

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transmission, followed by either express mail or overnight delivery to counsel of

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record for the Designating Party, and shall furnish such counsel with a copy of the

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Subpoena. Upon receipt of this notice, the Designating Party may, in its sole

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discretion and at its own cost, move to quash or limit the Subpoena, otherwise

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oppose production of the Confidential Materials, and/or seek to obtain confidential

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treatment of such Confidential Materials from the subpoenaing person or entity to the

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fullest extent available under law. The recipient of the Subpoena may not produce

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any Documents, Testimony or Information pursuant to the Subpoena prior to the date

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specified for production on the Subpoena.

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14.

Nothing in this Stipulation and Protective Order shall be construed to

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preclude either Party from asserting in good faith that certain Confidential Materials

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require additional protection. The Parties shall meet and confer to agree upon the

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terms of such additional protection.

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15.

If, after execution of this Stipulation and Protective Order, any

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Confidential Materials submitted by a Designating Party under the terms of this

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Stipulation and Protective Order is Disclosed by a non-Designating Party to any

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person other than in the manner authorized by this Stipulation and Protective Order,
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the non-Designating Party responsible for the Disclosure shall bring all pertinent

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facts relating to the Disclosure of such Confidential Materials to the immediate

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attention of the Designating Party.
16.

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This Stipulation and Protective Order is entered into without prejudice

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to the right of any Party to knowingly waive the applicability of this Stipulation and

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Protective Order to any Confidential Materials designated by that Party. If the

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Designating Party uses Confidential Materials in a non-Confidential manner, then the

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Designating Party shall advise that the designation no longer applies.
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Where any Confidential Materials, or Information derived from

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Confidential Materials, is included in any motion or other proceeding governed by

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Civil Local Rule 79.2, the party shall follow those rules. With respect to discovery

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motions or other proceedings not governed by Civil Local Rule 79.2, the following

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shall apply: If Confidential Materials or Information derived from Confidential

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Materials are submitted to or otherwise disclosed to the Court in connection with

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discovery motions and proceedings, the same shall be separately filed under seal with

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the clerk of the Court in an envelope marked: “CONFIDENTIAL – FILED UNDER

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SEAL PURSUANT TO PROTECTIVE ORDER AND WITHOUT ANY FURTHER

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SEALING ORDER REQUIRED.”
18.

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The Parties shall meet and confer regarding the procedures for use of

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Confidential Materials at trial and shall move the Court for entry of an appropriate

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order.

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19.

Nothing in this Stipulation and Protective Order shall affect the

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admissibility into evidence of Confidential Materials, or abridge the rights of any

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person to seek judicial review or to pursue other appropriate judicial action with

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respect to any ruling made by the Court concerning the issue of the status of

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Protected Material.

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20.

This Stipulation and Protective Order shall continue to be binding after

the conclusion of this Proceeding and all subsequent proceedings arising from this
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Proceeding, except that a Party may seek the written permission of the Designating

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

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

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enforce, modify, or reconsider this Stipulation and Protective Order, even after the

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Proceeding is terminated.

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21.

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

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other termination of the Proceeding, the undersigned Parties shall have thirty (30)

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days to either (a) promptly return to counsel for each Designating Party all

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Confidential Materials and all copies thereof (except that counsel for each Party may

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maintain in its files, in continuing compliance with the terms of this Stipulation and

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Protective Order, all work product, and one copy of each pleading filed with the

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Court and one copy of each deposition together with the exhibits marked at the

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deposition, (b) agree with counsel for the Designating Party upon appropriate

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methods and certification of destruction or other disposition of such Confidential

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Materials, or (c) as to any Documents, Testimony or other Information not addressed

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

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

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continuing jurisdiction to review and rule upon the motion referred to in sub-

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paragraph (c) herein.

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22.

After this Stipulation and Protective Order has been signed by counsel

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for all Parties, it shall be presented to the Court for entry. Counsel agree to be bound

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by the terms set forth herein with regard to any Confidential Materials that have been

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produced before the Court signs this Stipulation and Protective Order.

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23.

The Parties and all signatories to the Certification attached hereto as

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Exhibit A agree to be bound by this Stipulation and Protective Order pending its

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approval and entry by the Court. In the event that the Court modifies this Stipulation

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

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Order, the Parties agree to be bound by this Stipulation and Protective Order until
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such time as the Court may enter such a different Order. It is the Parties’ intent to be

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bound by the terms of this Stipulation and Protective Order pending its entry so as to

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allow for immediate production of Confidential Materials under the terms herein.

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24.

Finally, pursuant to Magistrate Judge Storme’s Civil Case Procedures,

the parties agree to the following two mandatory provisions:
a.

Filing Under Seal. Nothing shall be filed under seal, and the

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Court shall not be required to take any action, without separate prior order by the

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Judge before whom the hearing or proceeding will take place, after application by the

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affected party with appropriate notice to opposing counsel. The parties shall follow

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and abide by applicable law, including Civ.L.R. 79.2, ECF Administrative Policies

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and Procedures, Section II.j, and the chambers’ rules, with respect to filing

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documents under seal.

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b.

Modifications. The Court may modify the protective order in the

interests of justice or for public policy reasons.
This Stipulation and Protective Order may be executed in counterparts.

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Dated: April 5, 2017

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EXHIBIT A

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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 under penalty of perjury

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that I have read in its entirety and understand the Stipulated Protective Order that

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was issued by the United States District Court for the Southern District of California

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on [date] in the case of ___________ [insert formal name of the case and the number

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and initials assigned to it by the court]. I agree to comply with and to be bound by all

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the terms of this Stipulated Protective Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any information

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or item that is subject to this Stipulated Protective Order to any person or entity

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except in strict compliance with the provisions of this Order. I further agree to submit

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to the jurisdiction of the United States District Court for the Southern District of

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California for enforcing the terms of this Stipulated Protective Order, even if such

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enforcement proceedings occur after termination of this action. I hereby appoint

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__________________________

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Stipulated Protective

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Order.

[print

or

type

full

name]

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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of