WAWGD, INC. v. Sentinel Insurance Company, LTD. et al

Filing 20

ORDER Granting Third Joint Motion for Stipulated Protective Order Re: Confidential Documents [ECF No. 19 ]. Signed by Magistrate Judge Bernard G. Skomal on 7/17/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WAWGD, INC. DBA FORESIGHT
SPORTS, a California Corporation,

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ORDER GRANTING THIRD JOINT
MOTION FOR STIPULATED
PROTECTIVE ORDER RE:
CONFIDENTIAL DOCUMENTS

Plaintiff,

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Case No.: 16cv2917 CAB (BGS)

v.
SENTINEL INS. COMPANY, LTD., a
Connecticut corporation, and DOES 1100, inclusive,

[ECF No. 19]

Defendants.

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On July 14, 2017, the parties submitted a Third Joint Motion for Stipulated

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Protective Order Re: Confidential Documents. (ECF No. 19.) The Court previously denied

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two prior joint motions for stipulated protective orders due to failure to comply with the

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Court’s Chambers’ Rules. (ECF Nos. 16, 18.)

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Having reviewed and considered the instant motion, and good cause appearing, the

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Court GRANTS the Third Joint Motion for Stipulated Protective Order Re: Confidential

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Documents (ECF No. 19) as follows:

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1.

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PURPOSES AND LIMITATIONS
Pursuant to the Parties’ Stipulation, discovery in this action is likely to involve
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production of confidential, proprietary, or private information for which special protection

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from public disclosure and from use for any purpose other than prosecuting this litigation

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may be warranted. As the parties acknowledge, the Court notes that this Order does not

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confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited information

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or items that are entitled to confidential treatment under the applicable legal principles. The

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Court further notes, as set forth in Section 13.3, below, that this Stipulated Protective Order

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does not entitle the Parties to file confidential information under seal; instead, the Civil

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Local Rules sets forth the procedures that must be followed and the standards that will be

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applied when a party seeks permission from the court to file material under seal.

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2.

GOOD CAUSE STATEMENT

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Pursuant to the Parties’ Stipulation and counsel’s representations to the Court

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therein, this action is likely to involve the discovery of confidential, proprietary, and trade

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secret policies, procedures, manuals, guidelines, and/or standards regarding the handling

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of insurance claims for which special protection from public disclosure and from use for

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any purpose other than prosecution of this action is warranted. Such confidential and

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proprietary materials and information consist of, among other things, confidential business

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information, information regarding confidential business practices, or other confidential

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commercial information, information otherwise generally unavailable to the public, or

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which may be privileged or otherwise protected from disclosure under state or federal

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statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of

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information, to facilitate the prompt resolution of disputes over confidentiality of discovery

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materials, to adequately protect information the parties are entitled to keep confidential, to

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ensure that the parties are permitted reasonable necessary uses of such material in

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preparation for and in the conduct of trial, to address their handling at the end of the

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litigation, and serve the ends of justice, a protective order for such information is justified

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in this matter. It is the intent of the parties that information will not be designated as

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confidential for tactical reasons and that nothing be so designated without a good faith
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belief that it has been maintained in a confidential, non-public manner, and there is good

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cause why it should not be part of the public record of this case.

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3.

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DEFINITIONS
3.1

Action: WAWGD, Inc. v. Sentinel Ins. Co. Ltd., S.D. Cal., Case No. 3:16-cv-

02917-CAB-BGS.
3.2

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

information or items under this Order.
3.3

“CONFIDENTIAL” Information or Items: information (regardless of how it

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is generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement.

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Counsel: Outside Counsel of Record (as well as their support staff).

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3.5

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

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that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
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Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other

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things, testimony, transcripts, and tangible things), that are produced or generated in

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disclosures or responses to discovery in this matter.

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3.7

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an

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expert witness or as a consultant in this Action.

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3.8

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 party to

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this Action but are retained to represent or advise a party to this Action and have appeared

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in this Action on behalf of that party or are affiliated with a law firm that has appeared on

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behalf of that party, including support staff.

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3.10 Party:

any party to this Action, including all of its officers, directors,

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employees, representatives, consultants, retained experts, and Outside Counsel of Record

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(and their support staffs).

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3.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this Action.

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3.12 Professional Vendors: persons or entities that provide litigation support

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services

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

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their employees and subcontractors.

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(e.g.,

photocopying,

videotaping,

translating,

preparing

exhibits

or

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

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3.14 Receiving Party: a Party that receives Disclosure or Discovery Material from

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a Producing Party.

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4.

SCOPE

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The protections conferred by this Order cover not only Protected Material (as

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

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(2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any

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testimony, conversations, or presentations by Parties or their Counsel that might reveal

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Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the trial

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judge. This Order does not govern the use of Protected Material at trial.

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5.

DURATION

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Once a case proceeds to trial, all of the court-filed information to be introduced that

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was previously designated as confidential or maintained pursuant to this protective order

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becomes public and will be presumptively available to all members of the public, including

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the press, unless compelling reasons supported by specific factual findings to proceed

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otherwise are made to the trial judge in advance of the trial. See Kamakana v. City and

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County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
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showing for sealing documents produced in discovery from “compelling reasons” standard

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when merits-related documents are part of court record). Accordingly, the terms of this

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protective order do not extend beyond the commencement of the trial.

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6.

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DESIGNATING PROTECTED MATERIAL
6.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or Non-Party that designates information or items for protection under this Order

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must take care to limit any such designation to specific material that qualifies under the

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appropriate standards. The Designating Party must designate for protection only those parts

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of material, documents, items, or oral or written communications that qualify so that other

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portions of the material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

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to unnecessarily encumber the case development process or to impose unnecessary

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expenses and burdens on other parties) may expose the Designating Party to sanctions.

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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 must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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6.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 6.2(a) below), or as otherwise stipulated or

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents,

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but excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix, at a minimum, the legend “CONFIDENTIAL”, along with the name

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and case number of this case (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion or portions of the material on a page qualifies
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for protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,

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by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents available for inspection need

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not designate them for protection until after the inspecting Party has indicated which

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documents it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order. Then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

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that contains Protected Material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).

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(b) for testimony given in depositions that the Designating Party identify the
Disclosure or Discovery Material on the record, before the close of the deposition.

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

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other tangible items, that the Producing Party affix in a prominent place on the exterior of

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the container or containers in which the information is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s).

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6.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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

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Party’s right to secure protection under this Order for such material. Upon timely correction

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of a designation, the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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7.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

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

of confidentiality at any time that is consistent with the Court’s Scheduling Order.
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7.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process under the Civil Local Rules and Hon. Judge Skomal’s Chambers Rules. Any

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discovery motion must strictly comply with said procedures.

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7.3

Burden. The burden of persuasion in any such challenge proceeding shall be

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on the 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 expose

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the Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

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the confidentiality designation, all parties shall continue to afford the material in question

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the level of protection to which it is entitled under the Producing Party’s designation until

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the Court rules on the challenge.

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8.

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ACCESS TO AND USE OF PROTECTED MATERIAL
8.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this Action

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only for prosecuting, defending, or attempting to settle this Action. Such Protected Material

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

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this Order. When the Action has been terminated, a Receiving Party must comply with the

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provisions of section 14 below (FINAL DISPOSITION).

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

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

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this Order.

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8.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the Court or permitted in writing by the Designating Party, a Receiving Party

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may disclose any information or item designated “CONFIDENTIAL” only to:

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(a) any Receiving Party who has signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A to Parties’ Stipulation);

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(b) the Receiving Party’s Outside Counsel of Record in this Action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this Action;
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(c) the officers, directors, and employees of the Receiving Party to whom
disclosure is reasonably necessary for this Action;

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(d) Experts (as defined in this Order) of the Receiving Party to whom disclosure

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is reasonably necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A to Parties’ Stipulation);

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(e) the Court and its personnel;

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(f) court reporters and their staff;

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(g) professional jury or trial consultants, mock jurors, and Professional Vendors

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

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

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(h) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;

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(i) during their depositions, witnesses, and attorneys for witnesses, in the Action

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to whom disclosure is reasonably necessary provided: (1) the deposing party requests that

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the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted

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to keep any confidential information unless they sign the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A to Parties’ Stipulation), unless otherwise agreed by

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the Designating Party or ordered by the Court. Pages of transcribed deposition testimony

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or exhibits to depositions that reveal Protected Material may be separately bound by the

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court reporter and may not be disclosed to anyone except as permitted under this Stipulated

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Protective Order; and

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(j) any mediator or settlement officer, and their supporting personnel, mutually

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agreed upon by any of the parties engaged in settlement discussions.

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9.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

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PRODUCED IN OTHER LITIGATION

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

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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;

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(b) promptly notify in writing the party who caused the subpoena or order to

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

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is subject to this Protective Order. Such notification shall include a copy of this Stipulated

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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.

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If the Designating Party timely seeks a protective order, the Party served with the

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

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“CONFIDENTIAL” before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party’s permission. The Designating

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Party shall bear the burden and expense of seeking protection in that court of its

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confidential material and nothing in these provisions should be construed as authorizing or

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encouraging a Receiving Party in this Action to disobey a lawful directive from another

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court.

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10.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a Non-

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Party in this Action and designated as “CONFIDENTIAL.” Such information produced by

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Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as prohibiting a

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Non-Party from seeking additional protections.

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

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a Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential information,

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then the Party shall:

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

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

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Non-Party;

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

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Order in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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

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(c) If the Non-Party fails to seek a protective order from this Court within 14

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days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request. If

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the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

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information in its possession or control that is subject to the confidentiality agreement with

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

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the Non-Party shall bear the burden and expense of seeking protection in this Court of its

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Protected Material.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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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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Stipulated 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 all

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

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unauthorized disclosures were made of all the terms of this Order, and (d) request such

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person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is

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attached as Exhibit A to the Parties’ Stipulation.

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12.

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 inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of

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the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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This provision is not intended to modify whatever procedure may be established in an e-

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discovery order that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the

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effect of disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the Court.

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13.

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MISCELLANEOUS
13.1 Right to Further Relief. Nothing in this Order abridges the right of any person

to seek its modification by the Court in the future.

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

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Order, no Party waives any right it otherwise would have to object to disclosing or

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

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

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

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13.3 Filing Protected Material. A Party that seeks to file under seal any Protected

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Material must comply with the Civil Local Rules. Protected Material may only be filed

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under seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue; good cause must be shown in the request to file under seal. If a Party’s

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request to file Protected Material under seal is denied by the Court, then the Receiving

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Party may file the information in the public record unless otherwise instructed by the Court.

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14.

FINAL DISPOSITION

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14.1 After the final disposition of this Action, within 60 days of a written request

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by the Designating Party, each Receiving Party must return all Protected Material to the
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Producing Party or destroy such material. As used in this subdivision, “all Protected

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Material” includes all copies, abstracts, compilations, summaries, and any other format

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reproducing or capturing any of the Protected Material. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification to the

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Producing Party (and, if not the same person or entity, to the Designating Party) by the 60

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day deadline that (1) identifies (by category, where appropriate) all the Protected Material

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that was 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 capturing

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any of the Protected Material. Producing Party shall provide said written certification for

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execution to the Receiving Party. Notwithstanding this provision, counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports,

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attorney work product, and consultant and expert work product, even if such materials

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contain Protected Material. Any such archival copies that contain or constitute Protected

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Material remain subject to this Protective Order as set forth in Section 5 (DURATION).

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14.2 Any violation of this Order may be punished by any and all appropriate

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measures including, without limitation, contempt proceedings and/or monetary sanctions.

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14.3 Any action by the Court must be preceded by an ex parte motion for an order

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authorizing the return of all Confidential and Attorneys’ Eyes Only Material to the party

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that produced the information or the destruction thereof.

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15.

PROVISIONS PURSUANT TO JUDGE SKOMAL’S CHAMBERS

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RULES

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Pursuant to Hon. Judge Skomal’s Chambers Rules, it is further ordered as follows:

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15.1 What the Court shall do with confidential or sealed documents after the case

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is closed: see Section 14. Pursuant to Section 14.3, any action by the Court must be

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preceded by an ex parte motion for an order authorizing the return of all Confidential and

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Attorneys’ Eyes Only Material to the party that produced the information or the destruction

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thereof.
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15.2 Modification of the Protective Order by the Court. The Court may modify the

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terms and conditions of this Order for good cause, or in the interest of justice, or on its own

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order at any time in these proceedings.

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15.3 Relation to any court or local rules. This Order and the Parties’ Stipulation
do not change, amend, or circumvent any court rule or local rule.

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15.4 Filing documents under seal. No document shall be filed under seal unless

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counsel secures a court order allowing the filing of a document under seal. An application

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to file a document under seal shall be served on opposing counsel, and on the person or

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entity that has custody and control of the document, if different from opposing counsel. If

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

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

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

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be filed.

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IT IS SO ORDERED.
Dated: July 17, 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

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

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

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District of California on July 17, 2017 in the case of WAWGD, Inc. v. Sentinel Ins. Co.,

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Ltd., S.D. Cal., Case No. 3:16-cv-02917-CAB-BGS. I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment in the

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

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information 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.

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

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

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

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action. I hereby appoint _________________________ [print or type full name] of

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__________________________________________ [print or type full address and

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

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

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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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