Premier Construction and Remode, Inc. v. Mesa Underwriters Special Insurance Company ( 2019 )

1 James C. Nielsen (Bar No. 111889) Stephen W. Cusic (Bar No. 111353) 2 Stuart E. Jones (Bar No. 104566) NIELSEN, HALEY & ABBOTT LLP 3 100 Smith Ranch Road, Suite 350 San Rafael, CA 94903 4 (415) 693-0900/FAX: (415) 693-9674 jnielsen@nielsenhaley.com 5 tkhuu@nielsenhaley.com sjones@nielsenhaley.com 6 Attorneys for defendant 7 MESA UNDERWRITERS SPECIALTY 8 INSURANCE COMPANY 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION 12 13 PREMIER CONSTRUCTION AND Case No. 5:18-cv-02582-JGB (KKx) 14 REMODEL, INC., a California corporation, and ROBERT DEVILLE, an individual, 15 STIPULATION AND PROPOSED Plaintiffs, PROTECTIVE ORDER 16 v. 17 Trial Date: March 24, 2020 MESA UNDERWRITERS SPECIALTY 18 INSURANCE COMPANY, a New Jersey corporation; and DOES 1 through 100, inclusive, 19 Defendant. 20 21 22 1. PURPOSES AND LIMITATIONS 23 Discovery in this action is likely to involve production of confidential, proprietary or 24 private information for which special protection from public disclosure and from use for any 25 purpose other than pursuing this litigation may be warranted. Accordingly, the parties hereby 26 stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties 27 acknowledge that this Order does not confer blanket protections on all disclosures or responses to 28 - 1 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 discovery and that the protection it affords from public disclosure and use extends only to the 2 limited information or items that are entitled to confidential treatment under the applicable legal 3 principles. 4 5 2. GOOD CAUSE STATEMENT 6 For example, Plaintiffs have formally requested production of the claims manuals that were 7 operative and used by Defendant Mesa Underwriters Specialty Insurance Company (“Mesa”) 8 across the pendency of the underlying claim. Mesa has identified those manuals, and represents: 9  That the manuals were prepared by an affiliated insurance company, Selective Insurance 10 Company of America, Inc. (“SICA”). 11  That both Mesa and SICA are members of the Selective Insurance Group of insurance 12 companies. 13  That SICA has been delegated the administrative function of preparing and updating the 14 claims manual for use by the other member insurers. 15  That the claims manual is meant as an online reference for claims personal. 16  That manual is continually updated and is republished periodically to include changes, and 17 that it was republished as effective on certain dates, four times in 2016, four times in 2017, 18 and five times in 2018. 19  That the versions operative across 2016 through 2018 run between 340 and 355 pages each. 20  That the drafting, maintenance, updating and republishing of this claims manual constitutes 21 a significant undertaking. 22  That Selective Group of insurers consider it to be and treat it as a trade secret and a 23 confidential document, and that the first page of the manual, each time it is updated and 24 republished, states just below the title that it is “NOT INTENDED FOR DISTRIBUTION.” 25 26 Such confidential and proprietary materials and information may be privileged or otherwise 27 protected from disclosure under state or federal statutes, court rules, case decisions, or common 28 law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of - 2 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 disputes over confidentiality of discovery materials, to adequately protect information the parties 2 are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses 3 of such material in preparation for and in the conduct of trial, to address their handling at the 4 end of the litigation, and serve the ends of justice, a protective order for such information is 5 justified in this matter. It is the intent of the parties that information will not be designated as 6 confidential for tactical reasons and that nothing be so designated without a good faith belief that it 7 has been maintained in a confidential, non-public manner, and there is good cause why 8 it should not be part of the public record of this case. 9 10 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 11 The parties further acknowledge, as set forth in Section 14.3, below, that this Stipulated Protective 12 Order does not entitle them to file confidential information under seal; Local Civil Rule 79-5 sets 13 forth the procedures that must be followed and the standards that will be applied when a party 14 seeks permission from the court to file material under seal. There is a strong presumption that the 15 public has a right of access to judicial proceedings and records in civil cases. In connection with 16 non-dispositive motions, good cause must be shown to support a filing under seal. See Kamakana 17 v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 18 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 19 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause showing), and a 20 specific showing of good cause or compelling reasons with proper evidentiary support and legal 21 justification, must be made with respect to Protected Material that a party seeks to file under seal. 22 The parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 23 without the submission of competent evidence by declaration, establishing that the material sought 24 to be filed under seal qualifies as confidential, privileged, or otherwise protectable—constitute 25 good cause. 26 Further, if a party requests sealing related to a dispositive motion or trial, 27 then compelling reasons, not only good cause, for the sealing must be shown, and the relief sought 28 shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific - 3 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, 2 document, or thing sought to be filed or introduced under seal, the party seeking protection must 3 articulate compelling reasons, supported by specific facts and legal justification, for the requested 4 sealing order. Again, competent evidence supporting the application to file documents under seal 5 must be provided by declaration. 6 Any document that is not confidential, privileged, or otherwise protectable in its entirety will not 7 be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a 8 redacted version for public viewing, omitting only the confidential, privileged, or otherwise 9 protectable portions of the document, shall be filed. Any application that seeks to file documents 10 under seal in their entirety should include an explanation ofwhy redaction is not feasible. 11 12 4. DEFINITIONS 13 4.1 Action: PREMIER CONSTRUCTION AND REMODEL, INC., a California 14 corporation, and ROBERT DEVILLE, an individual, Plaintiffs, v. MESA UNDERWRITERS 15 SPECIALTY INSURANCE COMPANY, a New Jersey corporation; and DOES 1 through 100, 16 inclusive, Defendant, Case No. 5:18-cv-02582-JGB (KKx). 17 4.2 Challenging Party: a Party or Non-Party that challenges the designation of information 18 or items under this Order. 19 4.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is 20 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 21 Civil Procedure 26(c), and as specified above in the Good Cause Statement. 22 4.4 Counsel: Counsel of Record OR House Counsel (as well as their support staff). 23 4.5 Designating Party: a Party or Non-Party that designates information or items that it 24 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 25 4.6 Disclosure or Discovery Material: all items or information, regardless of the medium or 26 manner in which it is generated, stored, or maintained (including, among other things, testimony, 27 transcripts, and tangible things), that are produced or generated in disclosures or responses to 28 discovery. - 4 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 4.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the 2 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 3 consultant in this Action. 4 4.8 House Counsel: attorneys who are employees of a party to this Action. House Counsel 5 does not include Outside Counsel of Record or any other outside counsel. 6 4.9 Non-Party: any natural person, partnership, corporation, association or other legal entity 7 not named as a Party to this action. 8 4.10 Outside Counsel of Record: attorneys who are not employees of a party to this Action 9 but are retained to represent a party to this Action and have appeared in this Action on behalf of 10 that party or are affiliated with a law firm that has appeared on behalf of that party, and includes 11 support staff. 12 4.11 Party: any party to this Action, including all of its officers, directors, employees, 13 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 14 4.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material 15 in this Action. 16 4.13 Professional Vendors: persons or entities that provide litigation support services (e.g., 17 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 18 storing, or retrieving data in any form or medium) and their employees and subcontractors. 19 4.14 Protected Material: any Disclosure or Discovery Material that is designated as 20 “CONFIDENTIAL.” 21 4.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a 22 Producing Party. 23 24 5. SCOPE 25 The protections conferred by this Stipulation and Order cover not only Protected Material 26 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all 27 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 28 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. - 5 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 Any use of Protected Material at trial shall be governed by the orders of the trial judge and 2 other applicable authorities. This Order does not govern the use of Protected Material at trial. 3 4 6. DURATION 5 Once a case proceeds to trial, information that was designated as CONFIDENTIAL or maintained 6 pursuant to this protective order used or introduced as an exhibit at trial becomes public and will be 7 presumptively available to all members of the public, including the press, unless compellingreasons 8 supported by specific factual findings to proceed otherwise are made to the trial judge in advance 9 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing 10 documents produced in discovery from “compelling reasons” standard when merits-related 11 documents are part of court record). Accordingly, the terms of this protective order do not extend 12 beyond the commencement of the trial. 13 14 7. DESIGNATING PROTECTED MATERIAL 15 7.1 Exercise of Restraint and Care in Designating Material for Protection. 16 Each Party or Non-Party that designates information or items for protection under this 17 Order must take care to limit any such designation to specific material that qualifies under the 18 appropriate standards. The Designating Party must designate for protection only those parts of 19 materials, documents, items or oral or written communications that qualify so that other portions of 20 the material, documents, items or communications for which protection is not warranted are not 21 swept unjustifiably within the ambit of this Order. 22 Mass, indiscriminate or routinized designations are prohibited. Designations that are shown 23 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 24 encumber the case development process or to impose unnecessary expenses and burdens on other 25 parties) may expose the Designating Party to sanctions. 26 If it comes to a Designating Party’s attention that information or items that it designated for 27 protection do not qualify for protection, that Designating Party must promptly notify all other 28 Parties that it is withdrawing the inapplicable designation. - 6 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 7.2 Manner and Timing of Designations. Except as otherwise provided in this Order, or as 2 otherwise stipulated or ordered, Disclosure of Discovery Material that qualifies for protection 3 under this Order must be clearly so designated before the material is disclosed or produced. 4 Designation in conformity with this Order requires: 5 (a) for information in documentary form (e.g., paper or electronic documents, but excluding 6 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix at a 7 minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page 8 that contains protected material. If only a portion of the material on a page qualifies for protection, 9 the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 10 markings in the margins). 11 A Party or Non-Party that makes original documents available for inspection need not 12 designate them for protection until after the inspecting Party has indicated which documents it 13 would like copied and produced. During the inspection and before the designation, all of the 14 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 15 Party has identified the documents it wants copied and produced, the Producing Party must 16 determine which documents, or portions thereof, qualify for protection under this Order. Then, 17 before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL 18 legend” to each page that contains Protected Material. If only a portion of the material on a page 19 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 20 (e.g., by making appropriate markings in the margins). 21 (b) for testimony given in depositions that the Designating Party identifies the Disclosure or 22 Discovery Material on the record, before the close of the deposition all protected testimony. 23 (c) for information produced in some form other than documentary and for any other 24 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 25 or containers in which the information is stored the legend “CONFIDENTIAL.” If only a portion 26 or portions of the information warrants protection, the Producing Party, to the extent practicable, 27 shall identify the protected portion(s). 28 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate - 7 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 qualified information or items does not, standing alone, waive the Designating Party’s right to 2 secure protection under this Order for such material. Upon timely correction of a designation, the 3 Receiving Party must make reasonable efforts to assure that the material is treated in accordance 4 with the provisions of this Order. 5 6 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 7 8.1. Timing of Challenges. Any Party or Non-Party may challenge a designation of 8 confidentiality at any time that is consistent with the Court’s Scheduling Order. 9 8.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 10 under Local Rule 37-1 et seq. 11 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint stipulation 12 pursuant to Local Rule 37-2. 13 8.4 The burden of persuasion in any such challenge proceeding shall be on the Designating 14 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 15 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 16 Unless the Designating Party has waived or withdrawn the confidentiality designation, all parties 17 shall continue to afford the material in question the level of protection to which it is entitled under 18 the Producing Party’s designation until the Court rules on the challenge. 19 20 9. ACCESS TO AND USE OF PROTECTED MATERIAL 21 9.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 22 produced by another Party or by a Non-Party in connection with this Action only for prosecuting, 23 defending or attempting to settle this Action. Such Protected Material may be disclosed only to the 24 categories of persons and under the conditions described in this Order. When the Action has been 25 terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL 26 DISPOSITION). 27 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 28 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any - 8 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 information or item designated “CONFIDENTIAL” only to: 2 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees of 3 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 4 this Action; 5 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party 6 to whom disclosure is reasonably necessary for this Action; 7 (c) Experts of the Receiving Party to whom disclosure is reasonably necessary for this 8 Action; 9 (d) the court and its personnel; 10 (e) court reporters and their staff; 11 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom 12 disclosure is reasonably necessary for this Action; 13 (g) the author or recipient of a document containing the information or a custodian or other 14 person who otherwise possessed or knew the information; 15 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom 16 disclosure is reasonably necessary provided: (1) the deposing party requests that the witness agree 17 on the record that they will not be permitted to keep any confidential information 18 (i) any mediators or settlement officers and their supporting personnel, mutually agreed 19 upon by any of the parties engaged in settlement discussions. 20 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 21 LITIGATION 22 If a Party is served with a subpoena or a court order issued in other litigation that compels 23 disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party 24 must: 25 (a) promptly notify in writing the Designating Party. Such notification shall include a copy 26 of the subpoena or court order; 27 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 28 other litigation that some or all of the material covered by the subpoena or order is subject to this - 9 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 2 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 3 Designating Party whose Protected Material may be affected. If the Designating Party timely seeks 4 a protective order, the Party served with the subpoena or court order shall not produce any 5 information designated in this action as “CONFIDENTIAL” before a determination by the court 6 from which the subpoena or order issued, unless the Party has obtained the Designating Party’s 7 permission. The Designating Party shall bear the burden and expense of seeking protection in that 8 court of its confidential material and nothing in these provisions should be construed as authorizing 9 or encouraging a Receiving Party in this Action to disobey a lawful directive from another court. 10 11 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 12 BE PRODUCED IN THIS LITIGATION 13 (a) The terms of this Order are applicable to information produced by a Non-Party in this 14 Action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 15 connection with this litigation is protected by the remedies and relief provided by this Order. 16 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 17 additional protections. 18 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 19 Party’s confidential information in its possession, and the Party is subject to an agreement with the 20 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 21 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of 22 the information requested is subject to a confidentiality agreement with a Non-Party; 23 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 24 Action, the relevant discovery request(s), and a reasonably specific description of the information 25 requested; and 26 (3) make the information requested available for inspection by the Non-Party, if requested. 27 (c) If the Non-Party fails to seek a protective order from this court within 14 days of 28 receiving the notice and accompanying information, the Receiving Party may produce the Non- - 10 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks 2 a protective order, the Receiving Party shall not produce any information in its possession or 3 control that is subject to the confidentiality agreement with the Non-Party before a determination 4 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense 5 of seeking protection in this court of its Protected Material. 6 7 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 8 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 9 Material to any person or in any circumstance not authorized under this Stipulated Protective 10 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 11 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 12 Protected Material, and (c) inform the person or persons to whom unauthorized disclosures were 13 made of all the terms of this Order. 14 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 15 PROTECTED MATERIAL 16 When a Producing Party gives notice to Receiving Parties that certain inadvertently 17 produced material is subject to a claim of privilege or other protection, the obligations of the 18 Receiving Parties are those set forth in Federal Rule of Civil\ Procedure 26(b)(5)(B). This 19 provision is not intended to modify whatever procedure may be established in an e-discovery order 20 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 21 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 22 communication or information covered by the attorney-client privilege or work product protection, 23 the parties may incorporate their agreement in the stipulated protective order submitted to the 24 court. 25 14. MISCELLANEOUS 26 14.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 27 its modification by the Court in the future. 28 14.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order, - 11 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 no Party waives any right it otherwise would have to object to disclosing or producing any 2 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 3 Party waives any right to object on any ground to use in evidence of any of the material covered 4 by this Protective Order. 5 14.3 Filing Protected Material. A Party that seeks to file under seal any Protected Material 6 must comply with Local Civil Rule 79-5. Protected Material may only be filed under seal pursuant 7 to a court order authorizing the sealing of the specific Protected Material. If a Party’s request to file 8 Protected Material under seal is denied by the court, then the Receiving Party may file the 9 information in the public record unless otherwise instructed by the court. 10 11 15. FINAL DISPOSITION 12 After the final disposition of this Action, as defined in paragraph 6, within 60 days of a 13 written request by the Designating Party, each Receiving Party must return all Protected Material 14 to the Producing Party or destroy such material. As used in this subdivision, “all Protected 15 Material” includes all copies, abstracts, compilations, summaries, and any other format 16 reproducing or capturing any of the Protected Material. Whether the Protected Material is returned 17 or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if 18 not the same person or entity, to the Designating Party) by the 60-day deadline that (1) identifies 19 (by category, where appropriate) all the Protected Material that was returned or destroyed and (2) 20 affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or 21 any other format reproducing or capturing any of the Protected Material. Notwithstanding this 22 provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, 23 deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, 24 expert reports, attorney work product, and consultant and expert work product, even if such 25 materials contain Protected Material. Any such archival copies that contain or constitute Protected 26 Material remain subject to this Protective Order as set forth in Section 6 (DURATION). 27 16. VIOLATION 28 Any violation of this Order may be punished by appropriate measures including, without - 12 - STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx) 1 || limitation, contempt proceedings and/or monetary sanctions. 2 | IT IS SOSTIPULATED, THROUGH COUNSEL OF RECORD. 5 || DATED: August 13, 2019 /S/ Benjamin C. Wolhfeil Benjamin C. Wohlfeil 6 Attorneys for Plaintiffs, PREMIER CONSTRUCTION AND REMODEL, 7 INC. and ROBERT DEVILLE 10 11 | DATED: August 13, 2019 /S/_ Stephen W. Cusick Stephen W. Cusick 12 Attorneys for Defendant, MESA UNDERWRITERS SPECIALITY 13 INSURANCE COMPANY 14 15 16 17 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 || DATED: _ August 14, 2019 19 20 i ™ P| Hor®rable Kenly Riya Fato 21 United States Magistgiite Judge 22 23 24 25 26 27 28 -13- STIPULATION TO PROTECTIVE ORDER AND PROPOSED ORDER 5:18-cvg-02582-JGB (KKx)