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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 WAWGD, INC. DBA FORESIGHT SPORTS, a California Corporation, 16 17 ORDER GRANTING THIRD JOINT MOTION FOR STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL DOCUMENTS Plaintiff, 14 15 Case No.: 16cv2917 CAB (BGS) v. SENTINEL INS. COMPANY, LTD., a Connecticut corporation, and DOES 1100, inclusive, [ECF No. 19] Defendants. 18 19 20 On July 14, 2017, the parties submitted a Third Joint Motion for Stipulated 21 Protective Order Re: Confidential Documents. (ECF No. 19.) The Court previously denied 22 two prior joint motions for stipulated protective orders due to failure to comply with the 23 Court’s Chambers’ Rules. (ECF Nos. 16, 18.) 24 Having reviewed and considered the instant motion, and good cause appearing, the 25 Court GRANTS the Third Joint Motion for Stipulated Protective Order Re: Confidential 26 Documents (ECF No. 19) as follows: 27 1. 28 PURPOSES AND LIMITATIONS Pursuant to the Parties’ Stipulation, discovery in this action is likely to involve 1 16cv2917 CAB (BGS) 1 production of confidential, proprietary, or private information for which special protection 2 from public disclosure and from use for any purpose other than prosecuting this litigation 3 may be warranted. As the parties acknowledge, the Court notes that this Order does not 4 confer blanket protections on all disclosures or responses to discovery and that the 5 protection it affords from public disclosure and use extends only to the limited information 6 or items that are entitled to confidential treatment under the applicable legal principles. The 7 Court further notes, as set forth in Section 13.3, below, that this Stipulated Protective Order 8 does not entitle the Parties to file confidential information under seal; instead, the Civil 9 Local Rules sets forth the procedures that must be followed and the standards that will be 10 applied when a party seeks permission from the court to file material under seal. 11 2. GOOD CAUSE STATEMENT 12 Pursuant to the Parties’ Stipulation and counsel’s representations to the Court 13 therein, this action is likely to involve the discovery of confidential, proprietary, and trade 14 secret policies, procedures, manuals, guidelines, and/or standards regarding the handling 15 of insurance claims for which special protection from public disclosure and from use for 16 any purpose other than prosecution of this action is warranted. Such confidential and 17 proprietary materials and information consist of, among other things, confidential business 18 information, information regarding confidential business practices, or other confidential 19 commercial information, information otherwise generally unavailable to the public, or 20 which may be privileged or otherwise protected from disclosure under state or federal 21 statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of 22 information, to facilitate the prompt resolution of disputes over confidentiality of discovery 23 materials, to adequately protect information the parties are entitled to keep confidential, to 24 ensure that the parties are permitted reasonable necessary uses of such material in 25 preparation for and in the conduct of trial, to address their handling at the end of the 26 litigation, and serve the ends of justice, a protective order for such information is justified 27 in this matter. It is the intent of the parties that information will not be designated as 28 confidential for tactical reasons and that nothing be so designated without a good faith 2 16cv2917 CAB (BGS) 1 belief that it has been maintained in a confidential, non-public manner, and there is good 2 cause why it should not be part of the public record of this case. 3 3. 4 5 6 7 8 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 9 is generated, stored or maintained) or tangible things that qualify for protection under 10 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement. 11 3.4 Counsel: Outside Counsel of Record (as well as their support staff). 12 3.5 Designating Party: a Party or Non-Party that designates information or items 13 14 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 3.6 Disclosure or Discovery Material: all items or information, regardless of the 15 medium or manner in which it is generated, stored, or maintained (including, among other 16 things, testimony, transcripts, and tangible things), that are produced or generated in 17 disclosures or responses to discovery in this matter. 18 3.7 Expert: a person with specialized knowledge or experience in a matter 19 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 20 expert witness or as a consultant in this Action. 21 22 23 3.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 3.9 Outside Counsel of Record: attorneys who are not employees of a party to 24 this Action but are retained to represent or advise a party to this Action and have appeared 25 in this Action on behalf of that party or are affiliated with a law firm that has appeared on 26 behalf of that party, including support staff. 27 28 3 16cv2917 CAB (BGS) 1 3.10 Party: any party to this Action, including all of its officers, directors, 2 employees, representatives, consultants, retained experts, and Outside Counsel of Record 3 (and their support staffs). 4 5 3.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 6 3.12 Professional Vendors: persons or entities that provide litigation support 7 services 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 9 their employees and subcontractors. 10 11 (e.g., photocopying, videotaping, translating, preparing exhibits or 3.13 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 12 3.14 Receiving Party: a Party that receives Disclosure or Discovery Material from 13 a Producing Party. 14 4. SCOPE 15 The protections conferred by this Order cover not only Protected Material (as 16 defined above), but also (1) any information copied or extracted from Protected Material; 17 (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 18 testimony, conversations, or presentations by Parties or their Counsel that might reveal 19 Protected Material. 20 Any use of Protected Material at trial shall be governed by the orders of the trial 21 judge. This Order does not govern the use of Protected Material at trial. 22 5. DURATION 23 Once a case proceeds to trial, all of the court-filed information to be introduced that 24 was previously designated as confidential or maintained pursuant to this protective order 25 becomes public and will be presumptively available to all members of the public, including 26 the press, unless compelling reasons supported by specific factual findings to proceed 27 otherwise are made to the trial judge in advance of the trial. See Kamakana v. City and 28 County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” 4 16cv2917 CAB (BGS) 1 showing for sealing documents produced in discovery from “compelling reasons” standard 2 when merits-related documents are part of court record). Accordingly, the terms of this 3 protective order do not extend beyond the commencement of the trial. 4 6. 5 DESIGNATING PROTECTED MATERIAL 6.1 Exercise of Restraint and Care in Designating Material for Protection. Each 6 Party or Non-Party that designates information or items for protection under this Order 7 must take care to limit any such designation to specific material that qualifies under the 8 appropriate standards. The Designating Party must designate for protection only those parts 9 of material, documents, items, or oral or written communications that qualify so that other 10 portions of the material, documents, items, or communications for which protection is not 11 warranted are not swept unjustifiably within the ambit of this Order. 12 Mass, indiscriminate, or routinized designations are prohibited. Designations that 13 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., 14 to unnecessarily encumber the case development process or to impose unnecessary 15 expenses and burdens on other parties) may expose the Designating Party to sanctions. 16 If it comes to a Designating Party’s attention that information or items that it 17 designated for protection do not qualify for protection, that Designating Party must 18 promptly notify all other Parties that it is withdrawing the inapplicable designation. 19 6.2 Manner and Timing of Designations. Except as otherwise provided in this 20 Order (see, e.g., second paragraph of section 6.2(a) below), or as otherwise stipulated or 21 ordered, Disclosure or Discovery Material that qualifies for protection under this Order 22 must be clearly so designated before the material is disclosed or produced. 23 Designation in conformity with this Order requires: 24 (a) for information in documentary form (e.g., paper or electronic documents, 25 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 26 Producing Party affix, at a minimum, the legend “CONFIDENTIAL”, along with the name 27 and case number of this case (hereinafter “CONFIDENTIAL legend”), to each page that 28 contains protected material. If only a portion or portions of the material on a page qualifies 5 16cv2917 CAB (BGS) 1 for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 2 by making appropriate markings in the margins). 3 A Party or Non-Party that makes original documents available for inspection need 4 not designate them for protection until after the inspecting Party has indicated which 5 documents it would like copied and produced. During the inspection and before the 6 designation, all of the material made available for inspection shall be deemed 7 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 8 copied and produced, the Producing Party must determine which documents, or portions 9 thereof, qualify for protection under this Order. Then, before producing the specified 10 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page 11 that contains Protected Material. If only a portion or portions of the material on a page 12 qualifies for protection, the Producing Party also must clearly identify the protected 13 portion(s) (e.g., by making appropriate markings in the margins). 14 15 (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. 16 (c) for information produced in some form other than documentary and for any 17 other tangible items, that the Producing Party affix in a prominent place on the exterior of 18 the container or containers in which the information is stored the legend 19 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, 20 the Producing Party, to the extent practicable, shall identify the protected portion(s). 21 6.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 22 to designate qualified information or items does not, standing alone, waive the Designating 23 Party’s right to secure protection under this Order for such material. Upon timely correction 24 of a designation, the Receiving Party must make reasonable efforts to assure that the 25 material is treated in accordance with the provisions of this Order. 26 7. 27 28 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. 6 16cv2917 CAB (BGS) 1 7.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 2 process under the Civil Local Rules and Hon. Judge Skomal’s Chambers Rules. Any 3 discovery motion must strictly comply with said procedures. 4 7.3 Burden. The burden of persuasion in any such challenge proceeding shall be 5 on the Designating Party. Frivolous challenges, and those made for an improper purpose 6 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose 7 the Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn 8 the confidentiality designation, all parties shall continue to afford the material in question 9 the level of protection to which it is entitled under the Producing Party’s designation until 10 the Court rules on the challenge. 11 8. 12 ACCESS TO AND USE OF PROTECTED MATERIAL 8.1 Basic Principles. A Receiving Party may use Protected Material that is 13 disclosed or produced by another Party or by a Non-Party in connection with this Action 14 only for prosecuting, defending, or attempting to settle this Action. Such Protected Material 15 may be disclosed only to the categories of persons and under the conditions described in 16 this Order. When the Action has been terminated, a Receiving Party must comply with the 17 provisions of section 14 below (FINAL DISPOSITION). 18 Protected Material must be stored and maintained by a Receiving Party at a location 19 and in a secure manner that ensures that access is limited to the persons authorized under 20 this Order. 21 8.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 22 ordered by the Court or permitted in writing by the Designating Party, a Receiving Party 23 may disclose any information or item designated “CONFIDENTIAL” only to: 24 25 (a) any Receiving Party who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A to Parties’ Stipulation); 26 (b) the Receiving Party’s Outside Counsel of Record in this Action, as well as 27 employees of said Outside Counsel of Record to whom it is reasonably necessary to 28 disclose the information for this Action; 7 16cv2917 CAB (BGS) 1 2 (c) the officers, directors, and employees of the Receiving Party to whom disclosure is reasonably necessary for this Action; 3 (d) Experts (as defined in this Order) of the Receiving Party to whom disclosure 4 is reasonably necessary for this Action and who have signed the “Acknowledgment and 5 Agreement to Be Bound” (Exhibit A to Parties’ Stipulation); 6 (e) the Court and its personnel; 7 (f) court reporters and their staff; 8 (g) professional jury or trial consultants, mock jurors, and Professional Vendors 9 to whom disclosure is reasonably necessary for this Action and who have signed the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A to Parties’ Stipulation); 11 12 (h) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 13 (i) during their depositions, witnesses, and attorneys for witnesses, in the Action 14 to whom disclosure is reasonably necessary provided: (1) the deposing party requests that 15 the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted 16 to keep any confidential information unless they sign the “Acknowledgment and 17 Agreement to Be Bound” (Exhibit A to Parties’ Stipulation), unless otherwise agreed by 18 the Designating Party or ordered by the Court. Pages of transcribed deposition testimony 19 or exhibits to depositions that reveal Protected Material may be separately bound by the 20 court reporter and may not be disclosed to anyone except as permitted under this Stipulated 21 Protective Order; and 22 (j) any mediator or settlement officer, and their supporting personnel, mutually 23 agreed upon by any of the parties engaged in settlement discussions. 24 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED 25 PRODUCED IN OTHER LITIGATION 26 If a Party is served with a subpoena or a court order issued in other litigation that 27 compels disclosure of any information or items designated in this Action as 28 “CONFIDENTIAL,” that Party must: 8 16cv2917 CAB (BGS) 1 2 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 3 (b) promptly notify in writing the party who caused the subpoena or order to 4 issue in the other litigation that some or all of the material covered by the subpoena or order 5 is subject to this Protective Order. Such notification shall include a copy of this Stipulated 6 Protective Order; and 7 8 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 9 If the Designating Party timely seeks a protective order, the Party served with the 10 subpoena or court order shall not produce any information designated in this action as 11 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 12 issued, unless the Party has obtained the Designating Party’s permission. The Designating 13 Party shall bear the burden and expense of seeking protection in that court of its 14 confidential material and nothing in these provisions should be construed as authorizing or 15 encouraging a Receiving Party in this Action to disobey a lawful directive from another 16 court. 17 10. 18 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 19 (a) The terms of this Order are applicable to information produced by a Non- 20 Party in this Action and designated as “CONFIDENTIAL.” Such information produced by 21 Non-Parties in connection with this litigation is protected by the remedies and relief 22 provided by this Order. Nothing in these provisions should be construed as prohibiting a 23 Non-Party from seeking additional protections. 24 (b) In the event that a Party is required, by a valid discovery request, to produce 25 a Non-Party’s confidential information in its possession, and the Party is subject to an 26 agreement with the Non-Party not to produce the Non-Party’s confidential information, 27 then the Party shall: 28 9 16cv2917 CAB (BGS) 1 (1) promptly notify in writing the Requesting Party and the Non-Party that 2 some or all of the information requested is subject to a confidentiality agreement with a 3 Non-Party; 4 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 5 Order in this Action, the relevant discovery request(s), and a reasonably specific 6 description of the information requested; and 7 8 (3) make the information requested available for inspection by the Non-Party, if requested. 9 (c) If the Non-Party fails to seek a protective order from this Court within 14 10 days of receiving the notice and accompanying information, the Receiving Party may 11 produce the Non-Party’s confidential information responsive to the discovery request. If 12 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any 13 information in its possession or control that is subject to the confidentiality agreement with 14 the Non-Party before a determination by the Court. Absent a court order to the contrary, 15 the Non-Party shall bear the burden and expense of seeking protection in this Court of its 16 Protected Material. 17 11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 19 Protected Material to any person or in any circumstance not authorized under this 20 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the 21 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all 22 unauthorized copies of the Protected Material, (c) inform the person or persons to whom 23 unauthorized disclosures were made of all the terms of this Order, and (d) request such 24 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is 25 attached as Exhibit A to the Parties’ Stipulation. 26 27 28 10 16cv2917 CAB (BGS) 1 12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 2 PROTECTED MATERIAL 3 When a Producing Party gives notice to Receiving Parties that certain inadvertently 4 produced material is subject to a claim of privilege or other protection, the obligations of 5 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). 6 This provision is not intended to modify whatever procedure may be established in an e- 7 discovery order that provides for production without prior privilege review. Pursuant to 8 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the 9 effect of disclosure of a communication or information covered by the attorney-client 10 privilege or work product protection, the parties may incorporate their agreement in the 11 stipulated protective order submitted to the Court. 12 13. 13 14 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. 15 13.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 16 Order, no Party waives any right it otherwise would have to object to disclosing or 17 producing any information or item on any ground not addressed in this Stipulated 18 Protective Order. Similarly, no Party waives any right to object on any ground to use in 19 evidence of any of the material covered by this Protective Order. 20 13.3 Filing Protected Material. A Party that seeks to file under seal any Protected 21 Material must comply with the Civil Local Rules. Protected Material may only be filed 22 under seal pursuant to a court order authorizing the sealing of the specific Protected 23 Material at issue; good cause must be shown in the request to file under seal. If a Party’s 24 request to file Protected Material under seal is denied by the Court, then the Receiving 25 Party may file the information in the public record unless otherwise instructed by the Court. 26 14. FINAL DISPOSITION 27 14.1 After the final disposition of this Action, within 60 days of a written request 28 by the Designating Party, each Receiving Party must return all Protected Material to the 11 16cv2917 CAB (BGS) 1 Producing Party or destroy such material. As used in this subdivision, “all Protected 2 Material” includes all copies, abstracts, compilations, summaries, and any other format 3 reproducing or capturing any of the Protected Material. Whether the Protected Material is 4 returned or destroyed, the Receiving Party must submit a written certification to the 5 Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 6 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 7 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any 8 copies, abstracts, compilations, summaries or any other format reproducing or capturing 9 any of the Protected Material. Producing Party shall provide said written certification for 10 execution to the Receiving Party. Notwithstanding this provision, counsel are entitled to 11 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 12 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, 13 attorney work product, and consultant and expert work product, even if such materials 14 contain Protected Material. Any such archival copies that contain or constitute Protected 15 Material remain subject to this Protective Order as set forth in Section 5 (DURATION). 16 14.2 Any violation of this Order may be punished by any and all appropriate 17 measures including, without limitation, contempt proceedings and/or monetary sanctions. 18 14.3 Any action by the Court must be preceded by an ex parte motion for an order 19 authorizing the return of all Confidential and Attorneys’ Eyes Only Material to the party 20 that produced the information or the destruction thereof. 21 15. PROVISIONS PURSUANT TO JUDGE SKOMAL’S CHAMBERS 22 RULES 23 Pursuant to Hon. Judge Skomal’s Chambers Rules, it is further ordered as follows: 24 15.1 What the Court shall do with confidential or sealed documents after the case 25 is closed: see Section 14. Pursuant to Section 14.3, any action by the Court must be 26 preceded by an ex parte motion for an order authorizing the return of all Confidential and 27 Attorneys’ Eyes Only Material to the party that produced the information or the destruction 28 thereof. 12 16cv2917 CAB (BGS) 1 15.2 Modification of the Protective Order by the Court. The Court may modify the 2 terms and conditions of this Order for good cause, or in the interest of justice, or on its own 3 order at any time in these proceedings. 4 5 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. 6 15.4 Filing documents under seal. No document shall be filed under seal unless 7 counsel secures a court order allowing the filing of a document under seal. An application 8 to file a document under seal shall be served on opposing counsel, and on the person or 9 entity that has custody and control of the document, if different from opposing counsel. If 10 opposing counsel, or the person or entity who has custody and control of the document, 11 wishes to oppose the application, he/she must contact the chambers of the judge who will 12 rule on the application, to notify the judge’s staff that an opposition to the application will 13 be filed. 14 15 IT IS SO ORDERED. Dated: July 17, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 13 16cv2917 CAB (BGS) 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _________________________ [print or type full name], of 5 __________________________________________ [print or type full address], declare 6 under penalty of perjury that I have read in its entirety and understand the Stipulated 7 Protective Order that was issued by the United States District Court for the Southern 8 District of California on July 17, 2017 in the case of WAWGD, Inc. v. Sentinel Ins. Co., 9 Ltd., S.D. Cal., Case No. 3:16-cv-02917-CAB-BGS. I agree to comply with and to be 10 bound by all the terms of this Stipulated Protective Order and I understand and 11 acknowledge that failure to so comply could expose me to sanctions and punishment in the 12 nature of contempt. I solemnly promise that I will not disclose in any manner any 13 information or item that is subject to this Stipulated Protective Order to any person or entity 14 except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for the 16 Southern District of California for the purpose of enforcing the terms of this Stipulated 17 Protective Order, even if such enforcement proceedings occur after termination of this 18 action. I hereby appoint _________________________ [print or type full name] of 19 __________________________________________ [print or type full address and 20 telephone number] as my California agent for services of process in connection with this 21 action or any proceedings related to enforcement of this Stipulated Protective Order. 22 23 24 Date: ______________________________ 25 City and State where sworn and signed: ______________________________ 26 Printed Name: ______________________________ 27 Signature ______________________________ 28 14 16cv2917 CAB (BGS)

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