Beazer Homes Corp v. National Grange Mutual Insurance Company et al
Filing
284
CONSENT CONFIDENTIALITY ORDER AS TO PRODUCTION OF CERTAIN DOCUMENTS BY CINCINNATI INSURANCE COMPANY, SCOTTSDALE INSURANCE COMPANY, AND WESTERN WORLD INSURANCE COMPANY. Signed by Honorable R Bryan Harwell on 2/19/2013.(hcic, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
)
)
)
Plaintiff,
)
)
v.
)
)
HARTFORD FIRE INSURANCE
)
COMPANY; NATIONWIDE MUTUAL
)
FIRE INSURANCE COMPANY; NGM
)
INSURANCE COMPANY; AMERICAN
)
EMPIRE SURPLUS LINES INSURANCE
)
COMPANY; CLARENDON AMERICA
)
INSURANCE; USF INSURANCE
)
COMPANY; ALEA LONDON, LTD.;
)
CERTAIN INTERESTED
)
UNDERWRITERS AT LLOYD’S,
)
LONDON; CINCINNATI INSURANCE
)
COMPANY; DISCOVER PROPERTY &
)
CASUALTY INSURANCE COMPANY;
)
ESSEX INSURANCE COMPANY;
SCOTTSDALE INSURANCE COMPANY; )
SELECTIVE INSURANCE COMPANY OF )
SOUTH CAROLINA; UNION INSURANCE )
)
COMPANY; and WESTERN WORLD
)
INSURANCE COMPANY,
)
)
Defendants.
)
BEAZER HOMES CORP.,
Case No.: 4:10-cv-02419-RBH
CONSENT CONFIDENTIALITY ORDER
AS TO PRODUCTION OF
CERTAIN DOCUMENTS BY
CINCINNATI INSURANCE COMPANY,
SCOTTSDALE INSURANCE COMPANY,
AND WESTERN WORLD
INSURANCE COMPANY
Whereas, the parties to this Consent Confidentiality Order, Plaintiff Beazer Homes Corp.
(“Beazer”), Defendant Cincinnati Insurance Company (“Cincinnati”), Defendant Scottsdale
Insurance Company (“Scottsdale”), and Defendant Western World Insurance Company
(“Western World”) (hereinafter collectively “parties”), disagree whether certain discovery
material shall be treated as confidential but have agreed to the terms of the Order, it is this 19th
day of February, 2013, ORDERED:
1.
Scope.
The parties agree that this Order shall only apply to documents
designated “CONFIDENTIAL,” as set forth herein, that are produced after the effective date of
this Order. This Order does not apply to discovery responses and documents previously
produced by any party or non-party in this action, including pursuant to subpoena. Rates may be
redacted in Cincinnati, Scottsdale, and/or Western World’s underwriting files or guidelines, but
no rates or premiums for additional insured coverage or premium shall be redacted. Beazer
contends, upon information and belief, that the documents to be produced under this Order are
not privileged, confidential or proprietary. Beazer's consent to enter into this Confidentiality
Order is without prejudice to Beazer's rights to subsequently assert that the documents are not
privileged, confidential or proprietary.
2.
Form and Timing of Designation.
Confidential documents shall be so
designated by placing or affixing the word “CONFIDENTIAL” on the document in a manner
which will not interfere with the legibility of the document and which will permit complete
removal of the Confidential designation. Documents shall be designated CONFIDENTIAL prior
to, or contemporaneously with, the production or disclosure of the documents. Inadvertent or
unintentional production of documents without prior designation as confidential shall not be
deemed a waiver, in whole or in part, of the right to designate documents as confidential as
otherwise allowed by this Order.
3.
Documents Which May be Designated Confidential. Any party may designate
documents as confidential but only after review of the documents by an attorney1 who has, in
good faith, determined that the documents contain information protected from disclosure by
1
The attorney who reviews the documents and certifies them to be CONFIDENTIAL must be admitted
to the Bar of at least one state but need not be admitted to practice in the District of South Carolina and
need not apply for pro hac vice admission. By signing the certification, counsel submits to the jurisdiction
of this court in regard to the certification.
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statute, sensitive personal information, trade secrets, or confidential research, development, or
commercial information. The certification shall be made concurrently with the disclosure of the
documents, using the form attached hereto at Attachment A which shall be executed subject to
the standards of Rule 11 of the Federal Rules of Civil Procedure. Information or documents
which are available in the public sector may not be designated as confidential.
4.
Depositions.
Portions of depositions shall be deemed confidential only if
designated as such when the deposition is taken or within seven business days after receipt of the
transcript. Such designation shall be specific as to the portions to be protected.
5.
Protection of Confidential Material.
a.
General Protections. Documents designated CONFIDENTIAL under this Order
shall not be used or disclosed by the parties or counsel for the parties or any other persons
identified below (¶ 5.b.) for any purposes whatsoever other than preparing for and
conducting the litigation in which the documents were disclosed (including any appeal of
that litigation). The parties shall not disclose documents designated as confidential to
putative class members not named as plaintiffs in putative class litigation unless and until
one or more classes have been certified.
b.
Limited Third Party Disclosures. The parties and counsel for the parties shall
not disclose or permit the disclosure of any documents designated CONFIDENTIAL
under the terms of this Order to any other person or entity except as set forth in
subparagraphs (1)-(5) below, and then only after the person to whom disclosure is to be
made has executed an acknowledgment (in the form set forth at Attachment B hereto),
that he or she has read and understands the terms of this Order and is bound by it. Subject
to these requirements, the following categories of persons may be allowed to review
3
documents which have been designated CONFIDENTIAL pursuant to this Order:
(1)
counsel and employees of counsel for the parties who have responsibility
for the preparation and trial of the lawsuit;
(2)
parties and employees of a party to this Order but only to the extent
counsel shall certify that the specifically named individual party or employee’s
assistance is necessary to the conduct of the litigation in which the information is
disclosed2;
(3)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of documents;
(4)
consultants, investigators, or experts (hereinafter referred to collectively as
“experts”) employed by the parties or counsel for the parties to assist in the
preparation and trial of the lawsuit; and
(5)
other persons only upon consent of the producing party or upon order of
the court and on such conditions as are agreed to or ordered.
c.
Control of Documents. Counsel for the parties shall take reasonable efforts to
prevent unauthorized disclosure of documents designated as Confidential pursuant to the
terms of this order.
Counsel shall maintain a record of those persons, including
employees of counsel, who have reviewed or been given access to the documents along
with the originals of the forms signed by those persons acknowledging their obligations
under this Order.
d.
Copies. All copies, duplicates, extracts, summaries or descriptions (hereinafter
2
At or prior to the time such party or employee completes his or her acknowledgment of review of this
Order and agreement to be bound by it (Attachment B hereto), counsel shall complete a certification in
the form shown at Attachment C hereto. Counsel shall retain the certification together with the form
signed by the party or employee.
4
referred to collectively as “copies”), of documents designated as Confidential under this
Order or any portion of such a document, shall be immediately affixed with the
designation “CONFIDENTIAL” if the word does not already appear on the copy. All
such copies shall be afforded the full protection of this Order.
6.
Filing of Confidential Materials. In the event a party seeks to file any material
that is subject to protection under this Order with the court, that party shall take appropriate
action to insure that the documents receive proper protection from public disclosure including:
(1) filing a redacted document with the consent of the party who designated the document as
confidential; (2) where appropriate (e.g. in relation to discovery and evidentiary motions),
submitting the documents solely for in camera review; or (3) where the preceding measures are
not adequate, seeking permission to file the document under seal pursuant to the procedural steps
set forth in Local Civil Rule 5.03, DSC, or such other rule or procedure as may apply in the
relevant jurisdiction. Absent extraordinary circumstances making prior consultation impractical
or inappropriate, the party seeking to submit the document to the court shall first consult with
counsel for the party who designated the document as confidential to determine if some measure
less restrictive than filing the document under seal may serve to provide adequate protection.
This duty exists irrespective of the duty to consult on the underlying motion. Nothing in this
Order shall be construed as a prior directive to the Clerk of Court to allow any document be filed
under seal. The parties understand that documents may be filed under seal only with the
permission of the court after proper motion pursuant to Local Civil Rule 5.03.
7.
Greater Protection of Specific Documents. No party may withhold information
from discovery on the ground that it requires protection greater than that afforded by this Order
unless the party moves for an Order providing such special protection.
5
8.
Challenges to Designation as Confidential. Any CONFIDENTIAL designation
is subject to challenge. The following procedures shall apply to any such challenge.
a.
The burden of proving the necessity of a Confidential designation remains with
the party asserting confidentiality.
b.
A party who contends that documents designated CONFIDENTIAL are not
entitled to confidential treatment shall give written notice to the party who affixed the
designation of the specific basis for the challenge. The party who so designated the
documents shall have fifteen (15) days from service of the written notice to determine if
the dispute can be resolved without judicial intervention and, if not, to move for an Order
confirming the Confidential designation.
c.
Notwithstanding any challenge to the designation of documents as confidential,
all material previously designated CONFIDENTIAL shall continue to be treated as
subject to the full protections of this Order until one of the following occurs:
(1)
the party who claims that the documents are confidential withdraws such
designation in writing;
(2)
the party who claims that the documents are confidential fails to move
timely for an Order designating the documents as confidential as set forth in
paragraph 8.b. above; or
(3)
the court rules that the documents should no longer be designated as
confidential information.
d.
Challenges to the confidentiality of documents may be made at any time and are
not waived by the failure to raise the challenge at the time of initial disclosure or
designation.
6
9.
Treatment on Conclusion of Litigation.
a.
Order Remains in Effect. All provisions of this Order restricting the use of
documents designated CONFIDENTIAL shall continue to be binding after the conclusion
of the litigation unless otherwise agreed or ordered.
b.
Return of CONFIDENTIAL Documents. Within thirty (30) days after the
conclusion of the litigation, including conclusion of any appeal, all documents treated as
confidential under this Order, including copies as defined above (¶5.d.) shall be returned
to the producing party unless: (1) the document has been entered as evidence or filed
(unless introduced or filed under seal); (2) the parties stipulate to destruction in lieu of
return; or (3) as to documents containing the notations, summations, or other mental
impressions of the receiving party, that party elects destruction. Notwithstanding the
above requirements to return or destroy documents, counsel may retain attorney work
product including an index which refers or relates to information designated
CONFIDENTIAL so long as that work product does not duplicate verbatim substantial
portions of the text of confidential documents.
This work product continues to be
Confidential under the terms of this Order. An attorney may use his or her work product
in a subsequent litigation provided that its use does not disclose the confidential
documents.
10.
Order Subject to Modification. This Order shall be subject to modification on
motion of any party or any other person who may show an adequate interest in the matter to
intervene for purposes of addressing the scope and terms of this Order. The Order shall not,
however, be modified until the parties shall have been given notice and an opportunity to be
heard on the proposed modification.
7
11.
No Judicial Determination. This Order is entered based on the representations
and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall
be construed or presented as a judicial determination that any specific document or item of
information designated as CONFIDENTIAL by counsel is subject to protection under Rule 26(c)
of the Federal Rules of Civil Procedure or otherwise until such time as a document-specific
ruling shall have been made.
12.
Date for Production of Documents: The documents shall be produced on or
before February 20, 2013 at the offices of Koeller, Nebeker, Carlson & Haluck, LLP, 225
Broadway, 21st Floor, San Diego, California 92101.
13.
Persons Bound. This Order shall take effect when entered and shall be binding
upon: (1) counsel who signed below and their respective law firms; and (2) their respective
clients.
IT IS SO ORDERED.
s/R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Dated: February 19, 2013
Florence, South Carolina
WE CONSENT:
s/Aaron J. Hayes
Aaron J. Hayes
Sweeny, Wingate & Barrow, P.A.
1515 Lady Street (29201)
Post Office Box 12129
Columbia, South Carolina 29211
Telephone: (803) 256-2233
ajh@swblaw.com
Counsel for Cincinnati Insurance Company
s/LFranklin Elmore
L. Franklin Elmore (Fed. ID # 718)
Kimila L. Wooten (Fed. ID # 5525)
Elmore Goldsmith, PA
55 Beattie Place, Suite 1050 (29601)
Post Office Box 1887
Greenville, South Carolina 29602
Telephone: (864) 255-9500
Facsimile: (864) 255-9505
felmore@elmoregoldsmith.com
kwooten@elmoregoldsmith.com
Attorneys for Plaintiff Beazer Homes Corp.
8
s/Jason M. Imhoff
Jason M. Imhoff
The Ward Law Firm, P.A.
233 S. Pine Street
Post Office Box 5663
Spartanburg, South Carolina 29304
Telephone: (864) 582-3075
jimhoff@wardfirm.com
Counsel for Scottsdale Insurance Company
s/John E. Cuttino
John E. Cuttino
Turner Padget Graham & Laney, P.A.
Post Office Box 1473
1901 Main Street, Suite 1700
Columbia, South Carolina 29201
Telephone: (803) 227-4271
jcuttino@turnerpadget.com
Counsel for Western World Insurance
Company
9
ATTACHMENT A
CERTIFICATION BY COUNEL OF DESIGNATION
OF INFORAMTION AS CONFIDENTIAL
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
) Case No.: 4:10-cv-02419-RBH
)
)
Plaintiff,
)
)
v.
) Certification by Counsel of Designation
of Information as Confidential
)
HARTFORD FIRE INSURANCE
)
COMPANY; NATIONWIDE MUTUAL
)
FIRE INSURANCE COMPANY; NGM
)
INSURANCE COMPANY; AMERICAN
)
EMPIRE SURPLUS LINES INSURANCE
)
COMPANY; CLARENDON AMERICA
)
INSURANCE; USF INSURANCE
)
COMPANY; ALEA LONDON, LTD.;
)
CERTAIN INTERESTED
)
UNDERWRITERS AT LLOYD’S,
)
LONDON; CINCINNATI INSURANCE
)
COMPANY; DISCOVER PROPERTY &
)
CASUALTY INSURANCE COMPANY;
)
ESSEX INSURANCE COMPANY;
SCOTTSDALE INSURANCE COMPANY; )
SELECTIVE INSURANCE COMPANY OF )
SOUTH CAROLINA; UNION INSURANCE )
)
COMPANY; and WESTERN WORLD
)
INSURANCE COMPANY,
)
)
Defendants.
)
BEAZER HOMES CORP.,
Documents produced herewith [whose bates numbers are listed below (or) which are
listed on the attached index] have been marked as CONFIDENTIAL subject to the Consent
Protective Order entered in this action which Order is dated February 19, 2013.
By signing below, I am certifying that I have personally reviewed the marked documents
and believe, based on that review, that they are properly subject to protection under the terms of
Paragraph 3 of the Consent Protective Order.
Check and complete one of the two options below.
❑
I am a member of the Bar of the United States District Court for the District of
South Carolina. My District Court Bar number is [District Court Bar #].
❑
I am not a member of the Bar of the United States District Court for the District of
South Carolina but am admitted to the bar of one or more states. The state in
which I conduct the majority of my practice is [state in which I practice most]
where my Bar number is [that state's Bar #]. I understand that by completing this
certification I am submitting to the jurisdiction of the United States District Court
for the District of South Carolina as to any matter relating to this certification.
Date: [date attachment A signed]
[Signature of Counsel [s/name]]
Signature of Counsel
[Printed Name of Counsel [A]]
Printed Name of Counsel
2
ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
) Case No.: 4:10-cv-02419-RBH
)
)
Plaintiff,
)
)
v.
Acknowledgment of Understanding
)
and
)
HARTFORD FIRE INSURANCE
Agreement To Be Bound
)
COMPANY; NATIONWIDE MUTUAL
)
FIRE INSURANCE COMPANY; NGM
)
INSURANCE COMPANY; AMERICAN
)
EMPIRE SURPLUS LINES INSURANCE
)
COMPANY; CLARENDON AMERICA
)
INSURANCE; USF INSURANCE
)
COMPANY; ALEA LONDON, LTD.;
)
CERTAIN INTERESTED
)
UNDERWRITERS AT LLOYD’S,
)
LONDON; CINCINNATI INSURANCE
)
COMPANY; DISCOVER PROPERTY &
)
CASUALTY INSURANCE COMPANY;
)
ESSEX INSURANCE COMPANY;
SCOTTSDALE INSURANCE COMPANY; )
SELECTIVE INSURANCE COMPANY OF )
SOUTH CAROLINA; UNION INSURANCE )
)
COMPANY; and WESTERN WORLD
)
INSURANCE COMPANY,
)
)
Defendants.
)
BEAZER HOMES CORP.,
The undersigned hereby acknowledges that he or she has read the Consent Protective
Order dated February 19, 2013, in the above captioned action, understands the terms thereof, and
agrees to be bound by such terms. The undersigned submits to the jurisdiction of the United
States District Court for the District of South Carolina in matters relating to the Consent
Protective Order and understands that the terms of said Order obligate him/her to use discovery
materials designated CONFIDENTIAL solely for the purposes of the above-captioned action,
and not to disclose any such confidential information to any other person, firm or concern.
The undersigned specifically acknowledges that under no circumstance without the prior
written approval of the Plaintiff or prior Order of this Court, shall the undersigned disclose,
distribute or disseminate such documents designated as CONFIDENTIAL to any attorney,
insurance adjuster, or other individual involved in the underlying St. Andrews Action.
The undersigned acknowledges that violation of the Consent Protective Order may result
in penalties for contempt of court.
Name:
[undersigned name [att B]]
Job Title:
[Job Title [att B]]
Employer:
[Employer [att B]]
Business Address:
[Business Address [att B]]
Date: [date attachment B signed]
[Signature [attachment B]]
Signature
2
ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
) Case No.: 4:10-cv-02419-RBH
)
)
Plaintiff,
)
)
v.
Certification of Counsel
)
of Need for Assistance of Party/Employee
)
HARTFORD FIRE INSURANCE
)
COMPANY; NATIONWIDE MUTUAL
)
FIRE INSURANCE COMPANY; NGM
)
INSURANCE COMPANY; AMERICAN
)
EMPIRE SURPLUS LINES INSURANCE
)
COMPANY; CLARENDON AMERICA
)
INSURANCE; USF INSURANCE
)
COMPANY; ALEA LONDON, LTD.;
)
CERTAIN INTERESTED
)
UNDERWRITERS AT LLOYD’S,
)
LONDON; CINCINNATI INSURANCE
)
COMPANY; DISCOVER PROPERTY &
)
CASUALTY INSURANCE COMPANY;
)
ESSEX INSURANCE COMPANY;
SCOTTSDALE INSURANCE COMPANY; )
SELECTIVE INSURANCE COMPANY OF )
SOUTH CAROLINA; UNION INSURANCE )
)
COMPANY; and WESTERN WORLD
)
INSURANCE COMPANY,
)
)
Defendants.
)
BEAZER HOMES CORP.,
Pursuant to the Consent Protective Order entered in this action, most particularly the
provisions of Paragraph 5(b)(2), I certify that the assistance of [name of assistant [att C]] is
reasonably necessary to the conduct of this litigation and that this assistance requires the
disclosure to this individual of information which has been designated as CONFIDENTIAL.
I have explained the terms of the Consent Protective Order to the individual named above
and will obtain his or her signature on an “Acknowledgment of Understanding and Agreement to
be Bound” prior to releasing any confidential documents to the named individual and I will
release only such confidential documents as are reasonably necessary to the conduct of the
litigation.
The individual named above is:
❑
A named party;
❑
An employee of named party [employee of named party]. This employee’s job
title is [employee's job title] and work address is [employee's work address].
Date: [date attachment C signed]
[Signature [attachment C]]
Signature
2
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