The Cavallo Corporation v. American Zurich Insurance Company
Judge George A. O'Toole, Jr: ORDER entered. Stipulated Agreement and Protective Order for Confidentiality of Information entered. Counsel should note changes to paragraphs 14 and 16(Halley, Taylor)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
THE CAVALLO CORPORATION,
CIVIL ACTION NO. 1:19-cv-10245
AMERICAN ZURICH INSURANCE
STIPULATED AGREEMENT AND PROTECTIVE
ORDER FOR CONFIDENTIALITY OF INFORMATION
By and through their counsel of record in the above-captioned matter (the “Action”), The
Cavallo Corporation and American Zurich Insurance Company (individually, a “Party”, and
collectively, the “Parties”) hereby stipulate and agree to the following Stipulated Agreement and
Protective Order (the “Agreement”) to protect and preserve certain confidential, proprietary,
and/or privileged information and documents that may be disclosed in this Action from use or
disclosure outside of this Action. The provisions of this Agreement shall apply to testimony,
documents, or information provided by a non-party in discovery proceedings who agrees to be
bound by the terms of this Agreement or as may be agreed by the Parties or designated by a
Party as set forth herein. Reference to a “Party” or the “Parties” herein shall also include such
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
Parties agree that the following provisions shall govern the handling of confidential, proprietary,
and/or privileged information, documents, and testimony in this Action.
Covered Material. This Action concerns an insurance coverage dispute involving
interpretation of several policy terms and these discovery proceedings will necessarily involve
the production of certain information and/or documents that the disclosing Party believes to be
privileged or confidential, sensitive and/or proprietary commercial, financial or business
information (collectively, “Confidential Material”). This Agreement shall apply to all documents
produced, all information disclosed, and all testimony provided by any Party to this Action in the
course of discovery in this Action (including electronically stored information or “ESI”) which
constitute Confidential Material. Confidential Material shall not include any information or
documents which are now or become in the future publicly available.
Confidential Material. Confidential Material shall be designated as Confidential
by conspicuously stamping or otherwise labeling any document, ESI or other tangible item
produced with the legend “CONFIDENTIAL – SUBJECT TO CONFIDENTIALITY
AGREEMENT” or the legend “CONFIDENTIAL”.
In the case of depositions and the information and testimony contained in depositions
(including exhibits), a Party may designate such testimony, information and exhibits as
Confidential Material on the record that it considers Confidential, or a Party may so designate
such testimony or exhibit(s) by giving written notice to opposing counsel within thirty (30) days
of receipt of the transcript. The following legend shall be placed on the front of the original
deposition transcript and each copy of the transcript containing Confidential Material:
“CONFIDENTIAL – SUBJECT TO CONFIDENTIALITY AGREEMENT” or the legend
“CONFIDENTIAL” and each page of the transcript containing designated Confidential Material.
ESI, to the extent produced in native or like format, may be designated as Confidential Material
by specifically identifying such ESI as CONFIDENTIAL on the material itself, by including the
terms “CONF” as a parenthetical suffix to the native file name (e.g., “ABC-000001 (CONF)”
and describing such convention when producing documents.
Use of Confidential Material. All Confidential Material shall be used solely for
the prosecution or defense of this Action. The Parties recognize and agree that this Agreement is
not intended to prevent, nor shall it prevent, the good faith prosecution or defense of the Action
by any Party in any manner whatsoever.
Disclosure of Confidential Material.
Without limiting the generality of the
foregoing paragraph, Confidential Material may be disclosed only in support of the prosecution
or defense of this Action and only to the following persons:
a) the Parties, including all officers, directors, employees, agents and
representatives (including in-house counsel) of the Parties;
b) outside counsel for any Party to this Action, including all secretaries,
paralegals, and clerical personnel employed by outside counsel and all
independent photocopying, document handling, or ESI vendors hired by a
Party or outside counsel;
c) independent experts or consultants retained by a Party or its counsel for the
purposes of assisting with the prosecution or defense of the Action, subject to
the provisions of Paragraph 5 herein;
d) the Court in which this Action is pending, that Court’s clerks and other staff,
and any certified court reporter, stenographer, typist, or videographer who
transcribes or records testimony in the Action or at a deposition;
e) persons or entities noticed for depositions and/or their counsel for the
purposes of examination or to the extent reasonably and in good faith deemed
necessary by counsel to prepare such deponents or witnesses to testify who
have been advised of the need to keep the information confidential and agree
to do so in writing in the form of the Acknowledgement and Consent to be
Bound (the “Acknowledgement”), attached hereto as Exhibit A;
f) reinsurers, insurers, third-party auditors, insurance adjusters, and/or entities to
whom a Party has any contractual obligations to provide information about
g) any government department or agency or other regulatory authority to the
extent necessary to comply with the requirements of or obligations owing by a
Party to said department, agency, or regulatory agency;
h) a Party’s third-party claim handling agents, insurance adjusters and/or thirdparty administrators; and
i) any other person or entity agreed to by the Parties in writing.
Terms of Disclosure for Experts and Consultants.
Material is shown, disclosed, or otherwise communicated to any person referenced in Paragraph
4(c), such person shall be provided with a copy of this Agreement and such person shall execute
the Acknowledgement. A copy of the Acknowledgement, as executed by such person, shall be
maintained by counsel for the receiving Party and shall be available for inspection by counsel for
the disclosing Party upon request and upon a showing of good cause.
Filing of Confidential Material; Use of Confidential Material at Trial. A Party
may file and use without limitation Confidential Material in support of motions, briefs, or other
papers filed in this Action, or in connection with any hearing or other proceeding before the
Court, subject to the Parties’ agreement to seek to impound, seal, or otherwise protect from
public disclosure, to the extent possible and practical, any Confidential Material or by Motion or
as allowed by the Court. Confidential Material used in support of motions, briefs, or other
papers, or at a hearing or trial, shall not lose its confidential, proprietary, and/or privileged status
as a result of such use. This Agreement shall apply to pre-trial proceedings only. If this Action
proceeds to trial, the Parties shall meet and confer in good faith to determine a procedure for
maintaining the confidential, proprietary, and/or privileged status of all Confidential Material
disclosed during the course of this Action to the extent possible and shall seek necessary input
and/or authorization of the Court as may be necessary for protecting Confidential Material
during and after trial.
Copying and Abstracting Confidential Material. Nothing in this Agreement shall
restrict a qualified recipient from making working copies, abstracts, digests, and analyses of
Confidential Material for use in connection with this Action. Such working copies, abstracts,
digests, and analyses shall be deemed to have the same level of protection as the Confidential
Material from which they were taken. Further, a qualified recipient may convert or translate
such Confidential Material into machine-readable form for incorporation into a data retrieval
system used in connection with this Action provided that access to such information, in whatever
form stored or reproduced, shall be limited to the recipients identified in Paragraph 4 of this
Failure to Designate Confidential Material.
If a Party inadvertently or
unintentionally produces a document containing Confidential Material without an appropriate
Confidential stamp or label, it shall notify the other Party of the disclosure as soon as reasonably
practical. To the extent necessary, the Party that made the inadvertent disclosure shall provide a
replacement version with an appropriate stamp or legend, and the Party receiving the disclosure
shall return or destroy all unmarked copies of the document. Upon written notification from a
Party, the document shall be treated as Confidential Material.
No Waiver of Privilege. If any information subject to a claim of attorney-client
privilege, work product protection, or any other legal privilege or protection protecting
information from discovery is inadvertently produced to a Party in discovery in this Action, such
production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any
claim of privilege, work product protection, or other privilege or ground for withholding
production to which a Party or other producing person otherwise may or would be entitled. If a
claim of inadvertent production is made pursuant to this Paragraph 9, with respect to information
then in the custody of another Party, such Party promptly shall return to counsel for the claiming
Party all such material and all copies or reproductions thereof as to which the claim of
inadvertent production has been made, shall destroy all notes or other work product reflecting the
contents of such material and shall delete such material from any litigation-support or other
database, and shall not file or reference such material in any filings with the Court or disclose
such material to any other person or entity. Nothing herein shall limit any rights any Party may
have with respect to applicable privileges or work-product or other protection against disclosure.
Maintenance of Confidential Material.
The receiving Party shall maintain
Confidential Material in a secure, safe area and shall exercise the same standard of due and
proper care with respect to the storage, custody, use, and/or dissemination of such information as
is exercised by the recipient with respect to its own confidential, proprietary, and/or privileged
Termination of Action. This Agreement shall survive the termination of this
Action. Upon the termination of this Action, each Party and any recipient of Confidential
Material shall return, destroy or maintain in accordance with Paragraph 10 of this Agreement any
Confidential Material, consistent with any applicable document retention policies employed by
the receiving Party or other requirements under law or otherwise. Notwithstanding anything
contained in this paragraph, a receiving party of Confidential Materials shall have the right after
termination of this lawsuit to destroy such Confidential Materials.
Use of Parties’ Own Confidential Material. Nothing in this Agreement shall
prevent a Party from using or disclosing its own Confidential Material as it deems appropriate,
including in any publicly available Court filings.
This Agreement shall not apply to any
Confidential Material used or disclosed by a Party in any publicly available court filings..
Compulsory Process. If a Party is served with a subpoena, discovery request in
another action, or any other request seeking by legal process the production of documents,
things, information or other materials produced and designated as Confidential Material in this
Action, such Party shall promptly notify the other Party so as to provide the other Party a
reasonable opportunity to object to the production and/or protect its interests and provide notice
to the requesting party of this Agreement and provide a copy thereof.
No Prejudice. Nothing in this Agreement shall prevent any Party from seeking, by written
agreement of the Parties subject to Court approval or by Court Order, further, greater, or lesser
protection with respect to the disclosure and/or use of any Confidential Material in connection with the Action.
Nothing in this Agreement constitutes a finding or
admission that any of the Confidential Material covered hereby is in fact confidential,
proprietary, and/or privileged, nor does any Party receiving such Confidential Material waive
any right to later contest that any of the Confidential Material is not confidential, proprietary,
and/or privileged. Nothing in this Agreement shall prevent any receiving Party from raising
objections on any ground whatsoever to the admission or admissibility of any Confidential
Material and/or information in proceedings before the Court or at trial.
Amendment of this Agreement. This Agreement may be amended only by
written stipulation that has been approved by the Court and this provision may not be orally
THE CAVALLO CORPORATION
AMERICAN ZURICH INSURANCE
By its Attorneys,
By its Attorneys,
Mark C. O’Connor
Nathaniel C. Donoghue BBO# 694274
Rich May, P.C.
176 Federal Street
Boston, MA 02110
/s/Scarlett M. Rajbanshi__________________
Allen N. David, BBO#11500
Scarlett M. Rajbanshi, BBO#666103
Lincoln A. Rose, BBO#691797
Peabody & Arnold LLP
Federal Reserve Plaza
600 Atlantic Avenue
Boston, MA 02210
Dated: October 11, 2019
It is SO ORDERED.
/s/ George A. O’Toole Jr.
Senior United States District Judge
CONSENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Stipulated Agreement and
Protective Order for Confidentiality of Information (the “Agreement”) by and between The
Cavallo Corporation and American Zurich Insurance Company, a copy of which is attached
hereto, understands the terms thereof, and agrees to be bound thereby. The undersigned
understands that the terms of the Agreement obligate him/her to use and disclose Confidential
Material only in accordance with the Agreement. The undersigned represents that he/she/it
received Confidential Material from ___________________________________ on _______
Dated this ____ day of ______________, 2019.
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