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)

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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: (510) 595-7900 Facsimile: (510) 595-9049 4 Email: 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: (702) 385-2500 Facsimile: (702) 385-2086 10 Email: 11 Email: 12 Attorneys for Plaintiff Colony Insurance Company 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 16 COLONY INSURANCE COMPANY, 17 18 JOINT STIPULATION AND ORDER FOR CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER Plaintiff, vs. 19 20 21 CASE NO. 2:17-cv-00888-RFB-PAL NATIONAL FIRE AND MARINE INSURANCE COMPANY; FIREMANS FUND INSURANCE COMPANY; and DOES 1 through 10, inclusive, 22 23 24 Defendants. Plaintiff Colony Insurance Company (“Colony”) and defendants National Fire & Marine 25 26 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 28 1 Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 2 of 8 1 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 5 produced or otherwise disclosed by the Parties in this coverage action as follows: 6 1. The Parties anticipate that they may produce or may be required to produce 7 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 10 information from public disclosure. 11 12 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. 16 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 17 18 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 22 collectively as the “Underlying Actions”). 23 (a) A document or information contained in a document or discovery response given 24 25 or filed in this lawsuit may be designated “Confidential” by stamping or 26 otherwise marking (in such manner as will not interfere with the legibility of the 27 28 2 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 1 2 the word “CONFIDENTIAL.” Any copies or reproductions, excerpts, summaries 3 or other documents or media that paraphrase, excerpt or contain Confidential 4 information shall also be treated as Confidential pursuant to this Stipulated 5 Protective Order. 6 7 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 10 statement on the record at the time when such testimony is given or upon subsequent written 11 12 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. 14 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 16 out of, or related to, this coverage action, and for no other purpose. Unless and until the Court 17 18 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: 22 (a) Named Parties; 23 (b) Attorneys for Named Parties; 24 25 26 (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 27 28 3 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 1 action. 2 3 5. After the court enters this protective order, the Parties may share the protected 4 confidential information with the additional following individuals. 5 (a) Independent experts or consultants retained by a Party or an attorney for purposes 6 of this coverage litigation; 7 8 (b) Deponents; 9 (c) The Court and Court personnel, stenographic reporters, videographers at 10 depositions, mediators, arbitrators or any judges in any case, mediation, or 11 arbitration arising out of, or related to, this case, subject to the protections of any 12 13 Stipulated Protective Order the Court subsequently enters to further preserve the 14 confidentiality of documents used at trial. 15 16 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 17 18 protective order 5(a)-(c), that person shall be advised by counsel making such dissemination of 19 the terms of this Stipulated Protective Order. 20 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 22 motion seeking a Stipulated Protective Order permitting the document to be filed under seal; 23 alternatively, the Parties can stipulate to the information as being designated “Confidential” and 24 25 filed under seal. 26 27 28 4 Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 5 of 8 1 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 5 respond without causing a delay in the proceeding. 6 9. This Stipulated Protective Order shall remain in full force and effect until 7 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. 10 10. Nothing herein shall impose any confidentiality obligation upon information 11 12 13 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. 16 12. Each Party receiving material which has been designated as “Confidential” shall 17 18 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 22 system. Notwithstanding anything in this Stipulated Protective Order to the contrary, counsel 23 for the respective Parties may retain one copy of the materials designated “Confidential” in his 24 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. 27 28 5 Further, the Parties may disclose the Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 6 of 8 1 “Confidential” materials to other of their attorneys, auditors, accountants, tax preparers, 2 insurers, reinsurers, and retrocessionaires, if any. 3 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 5 from a final judgment entered herein, all documents designated “Confidential” and copies 6 thereof shall be returned to the Producing Party, other than that which is contained in pleadings, 7 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 10 information derived from documents designated confidential within the time period upon 11 12 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 16 materials from their filing system. 17 18 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. 21 22 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 23 24 25 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 27 28 6 Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 7 of 8 1 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. 5 17. During the time this stipulation is under review by the Court and pending the 6 Court’s approval of this stipulation, all Parties agree they will abide by the terms of this 7 8 stipulation. 9 IT IS SO STIPULATED. 10 DATED this 2nd day of August, 2017. DATED this 2nd day of August, 2017. HUTCHISON & STEFFEN, PLLC LAW OFFICES OF SEMHA ALWAYA, APC 11 12 13 /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: (702) 385-2500 18 19 20 Attorneys for Plaintiff 21 Colony Insurance Company 22 / / / 23 / / / 24 /// 25 26 /// 27 / / / 28 7 /s/ Trelawney Kitchen ____________________________________ Trelawney Kitchen (10374) 2000 Powell Street, Suite 125 Emeryville, California 94608 Telephone: (510) 595-7900 Attorney for Plaintiff Colony Insurance Company Case 2:17-cv-00888-RFB-PAL Document 24 Filed 08/02/17 Page 8 of 8 1 DATED this 2nd day of August, 2017. DATED this 2nd day of August, 2017. 2 SHIVES & ASSOCIATES LIMITED ALVERSON TAYLOR MORTENSEN & SANDERS 3 4 /s/ Martin L. Shives ____________________________________ 5 Martin L. Shives (7910) Timothy P. Kitt (11828) 6 7473 West Lake Mead Drive, Suite 100 7 Las Vegas, Nevada 89128 Telephone: (702) 662-8188 8 9 10 Attorneys for Defendant National Fire & Marine Insurance Company 11 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: (702) 384-7000 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 17 Irvine, CA 92614 18 Telephone: (714) 426-4600 19 20 Attorneys for Defendant Fireman’s Fund Insurance Company 21 22 23 IT IS SO ORDERED. 24 25 26 ____________________________________ UNITED STATES DISTRICT JUDGE MAGISTRATE JUDGE 27 August 7, 2017 Dated:_______________________________ 28 8

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