Colony Insurance Company v. National Fire and Marine Insurance Company et al

Filing 29

ORDER Granting 24 Stipulation for Confidentiality Agreement and Protective Order. Signed by Magistrate Judge Peggy A. Leen on 8/7/17. (Copies have been distributed pursuant to the NEF - ADR)

Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 1 of 8

Trelawney Kitchen (10374)
1 LAW OFFICES OF SEMHA ALWAYA, APC
2 2000 Powell Street, Suite 125
Emeryville, California 94608
3 Telephone: [phone]
Facsimile: [phone]
4 Email: [e-mail]
5 AND
L. Kristopher Rath (5749)
6 Cynthia G. Milanowski (5652)
HUTCHISON & STEFFEN, PLLC
7
Peccole Professional Park
8 10080 W. Alta Drive, Suite 200
Las Vegas, Nevada 89145
9 Telephone: [phone]
Facsimile: [phone]
10
Email: [e-mail]
11 Email: [e-mail]
12 Attorneys for Plaintiff
Colony Insurance Company
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA

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COLONY INSURANCE COMPANY,

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JOINT STIPULATION AND ORDER
FOR CONFIDENTIALITY
AGREEMENT AND PROTECTIVE
ORDER

Plaintiff,
vs.

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CASE NO. 2:17-cv-00888-RFB-PAL

NATIONAL FIRE AND MARINE
INSURANCE COMPANY; FIREMANS
FUND INSURANCE COMPANY; and
DOES 1 through 10, inclusive,

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Defendants.
Plaintiff Colony Insurance Company (“Colony”) and defendants National Fire & Marine

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Insurance Company (“NF&M”), Firemans Fund Insurance Company (“FFIC”) and Does 1

27 through 10 (each a “Party” and collectively, the “Parties”), by and through their undersigned
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Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 2 of 8

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counsel, hereby stipulate, request and jointly move the court to enter into this Stipulated

2 Confidentiality Agreement and Protective Order (the “Stipulated Protective Order”) pursuant to
3 FRCP 26(c)(1). The Parties have agreed and stipulated to the entry of this Stipulated Protective
4 Order for the protection of certain information, confidential records, and related information
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produced or otherwise disclosed by the Parties in this coverage action as follows:
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1.
The Parties anticipate that they may produce or may be required to produce
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8 documents, information, or evidence that relates to non-public information that a Party alleges
9 is proprietary or confidential. This Stipulated Protective Order is designed to protect such
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information from public disclosure.

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2.

Any Party may designate certain documents, testimony, or other discovery

13 material, and all copies thereof, as “Confidential” pursuant to the terms of this Stipulated
14 Protective Order. Should any Party disagree with such designation, any other Party may seek
15 judicial relief from same.
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Documents subject to this Stipulated Protective Order shall include

only such material that a Party reasonably believes not to be in the public domain and that

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contains any confidential information regarding two underlying construction defect actions

19 titled Alstatt, et al. v. Centex Homes, et al., Clark County District Court Case No. A-13-68317320 D (“Alstatt Action”), and Ceccarelli Revocable Living Trust, et al. v. Centex Homes, Clark
21 County District Court Case No. A-15-722350-D (“Ceccarelli Action”) (hereinafter referred to
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collectively as the “Underlying Actions”).
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(a)
A document or information contained in a document or discovery response given
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or filed in this lawsuit may be designated “Confidential” by stamping or

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otherwise marking (in such manner as will not interfere with the legibility of the

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Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 3 of 8

document) each page of a document containing Confidential information with

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the word “CONFIDENTIAL.” Any copies or reproductions, excerpts, summaries

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or other documents or media that paraphrase, excerpt or contain Confidential

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information shall also be treated as Confidential pursuant to this Stipulated

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Protective Order.

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3.

Any inadvertent failure to designate a document of information “Confidential”

8 during production may be corrected by prompt written notification to all counsel of record.
9 Deposition or hearing testimony may be designated as “Confidential” by an appropriate
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statement on the record at the time when such testimony is given or upon subsequent written

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notification to all counsel of record upon review of the transcript. Exhibits which are deemed

13 “Confidential” shall be so designated by stamping the exhibit accordingly.
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4.

All “Confidential” material shall be used solely for the prosecution or defense of

15 the claims being litigated in this coverage action, or in any case, mediation, or arbitration arising
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out of, or related to, this coverage action, and for no other purpose. Unless and until the Court

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rules that documents or information designated as “Confidential” shall not be treated as

19 “Confidential,” persons who receive documents or information so designated shall use and
20 treat it as such, and shall not under any circumstances disclose it to anyone except to the
21 following persons:
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(a)
Named Parties;
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(b)
Attorneys for Named Parties;
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(c)

Persons employed by the Named Parties or working under the direction of
attorneys for the Named Parties, including secretaries and legal assistants, to the

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Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 4 of 8

extent necessary to perform specific duties in connection with this coverage

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action.

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5.

After the court enters this protective order, the Parties may share the protected

4 confidential information with the additional following individuals.
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(a)
Independent experts or consultants retained by a Party or an attorney for purposes
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of this coverage litigation;
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(b)

Deponents;

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(c)

The Court and Court personnel, stenographic reporters, videographers at

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depositions, mediators, arbitrators or any judges in any case, mediation, or

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arbitration arising out of, or related to, this case, subject to the protections of any

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Stipulated Protective Order the Court subsequently enters to further preserve the

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confidentiality of documents used at trial.

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6.

Prior to dissemination of documents or information designated “Confidential,” or

the contents thereof, to a person described in paragraphs 4(a)-(c), and after the court issues its

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protective order 5(a)-(c), that person shall be advised by counsel making such dissemination of

19 the terms of this Stipulated Protective Order.
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7.

Subsequent to the entry of the Court’s Protective Order, any Party who seeks to

21 make any document or information designated “Confidential” a part of the record shall file a
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motion seeking a Stipulated Protective Order permitting the document to be filed under seal;
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alternatively, the Parties can stipulate to the information as being designated “Confidential” and
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25 filed under seal.
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Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 5 of 8

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8.

A Party seeking to seal documents shall submit a separate memorandum of points

2 and authorities seeking such a court order. Any application to seal documents shall be served
3 on opposing counsel together with the documents proposed to be filed under seal. Such service
4 on opposing counsel shall be made timely so as to allow opposing counsel ample time to
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respond without causing a delay in the proceeding.
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9.
This Stipulated Protective Order shall remain in full force and effect until
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8 modified, superseded, or terminated by written consent of the Parties or by order of the Court,
9 and shall survive the termination of this action.
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10.

Nothing herein shall impose any confidentiality obligation upon information

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which was already in the public domain.
11.

Should any Party violate the protective order entered upon this agreement, upon

14 noticed motion by the Party affected, the court may consider the appropriate sanctions to be
15 imposed.
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12.

Each Party receiving material which has been designated as “Confidential” shall

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destroy or return all such materials upon the conclusion of this action and any appeals arising

19 therefrom.

This requirement shall not apply to Insurance Carriers that have a regulatory

20 requirement and/or company policy to maintain insurance claim files following the conclusion
21 of litigation and/or otherwise are not reasonably able to delete the materials from their filing
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system. Notwithstanding anything in this Stipulated Protective Order to the contrary, counsel
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for the respective Parties may retain one copy of the materials designated “Confidential” in his
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25 or her stored files for archival purposes, but may not use or disseminate such materials except as
26 required by legal process, court order or law.
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Further, the Parties may disclose the

Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 6 of 8

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“Confidential” materials to other of their attorneys, auditors, accountants, tax preparers,

2 insurers, reinsurers, and retrocessionaires, if any.
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13.

If the Alstatt Action has not concluded at the conclusion of this coverage action,

4 within thirty (30) days after the conclusion of this coverage action, including any appeals taken
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from a final judgment entered herein, all documents designated “Confidential” and copies
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thereof shall be returned to the Producing Party, other than that which is contained in pleadings,
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8 correspondence, and deposition transcripts. Counsel for the Parties shall either return to that
9 Party or destroy any and all notes, extracts, summaries, and other materials that contain
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information derived from documents designated confidential within the time period upon

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consent of the Party who provided the information and certify in writing within thirty (30) days

13 that the documents have been destroyed. This section shall not apply to Insurance Carriers that
14 have a regulatory requirement and/or company policy to maintain insurance claim files
15 following the conclusion of litigation and/or otherwise are not reasonably able to delete the
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materials from their filing system.

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14.

The Parties may execute and acknowledge this Stipulated Protective Order in

19 multiple counterparts, and if executed in such manner, it shall be valid and binding as if all
20 Parties had executed the same original.
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15.

Nothing in this Stipulated Protective Order shall be construed as a waiver by any

Party to assert confidentiality as a basis for refusing to produce documents requested or

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objecting to the admissibility of any document previously produced.
16.

This stipulation, which is executed by the Parties who have appeared in this

26 case at this present point in the litigation, shall be binding on all Parties who subsequently
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Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 7 of 8

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appear in this coverage action. All newly appearing parties shall be required to execute an

2 acknowledgment that they have read this stipulation and agree to all of its terms. Without
3 such executed acknowledgment, a party subsequently appearing in this case shall not receive
4 and will not be provided with any confidential documents, absent a court order to the contrary.
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17.
During the time this stipulation is under review by the Court and pending the
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Court’s approval of this stipulation, all Parties agree they will abide by the terms of this
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8 stipulation.
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IT IS SO STIPULATED.

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DATED this 2nd day of August, 2017.

DATED this 2nd day of August, 2017.

HUTCHISON & STEFFEN, PLLC

LAW OFFICES OF SEMHA ALWAYA, APC

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/s/ Cynthia G. Milanowski
14 ____________________________________
L. Kristopher Rath (5749)
15
Cynthia G. Milanowski (5652)
16 Peccole Professional Park
10080 W. Alta Drive, Suite 200
17 Las Vegas, Nevada 89145
Telephone: [phone]
18
[e-mail]
19 [e-mail]
20 Attorneys for Plaintiff
21 Colony Insurance Company
22 / / /
23 / / /
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///

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///

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/s/ Trelawney Kitchen
____________________________________
Trelawney Kitchen (10374)
2000 Powell Street, Suite 125
Emeryville, California 94608
Telephone: [phone]
[e-mail]
Attorney for Plaintiff
Colony Insurance Company

Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 8 of 8

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DATED this 2nd day of August, 2017.

DATED this 2nd day of August, 2017.

2 SHIVES & ASSOCIATES LIMITED

ALVERSON TAYLOR MORTENSEN &
SANDERS

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4 /s/ Martin L. Shives
____________________________________
5 Martin L. Shives (7910)
Timothy P. Kitt (11828)
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7473 West Lake Mead Drive, Suite 100
7 Las Vegas, Nevada 89128
Telephone: [phone]
8 [e-mail]
[e-mail]
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10 Attorneys for Defendant
National Fire & Marine Insurance Company
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nd
12 DATED this 2 day of August, 2017.

/s/ Karie N. Wilson
__________________________________
J. Bruce Alverson (1339)
Karie N. Wilson (7957)
6605 Grand Montecito Pkwy, Suite 200
Las Vegas, NV 89149
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants
Fireman’s Fund Insurance Company

13 HAIGHT BROWN & BONESTEEL LLP
14 /s/ Kristian Moriarty
15 __________________________________
Michael Leahy (Cal. Bar No. 82247)
16 Kristian Moriarty (Cal. Bar No. 291557)
2050 Main Street, Suite 600
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Irvine, CA 92614
18 Telephone: [phone]
[e-mail]
19 [e-mail]
20 Attorneys for Defendant
Fireman’s Fund Insurance Company
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IT IS SO ORDERED.

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____________________________________
UNITED STATES DISTRICT JUDGE
MAGISTRATE JUDGE

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August 7, 2017
Dated:_______________________________

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