Gregory McDonald v. Travelers Commercial Insurance Company ( 2024 )

1 WESTON & AGNESS LLP Aaron C. Agness (State Bar No. 221943) 2 Karen D. Ruiz (State Bar No. 336254) 1960 East Grand Avenue, Suite 400 3 El Segundo, CA 90245 Telephone: (213) 596-8000 4 Facsimile: (213) 596-8039 E-mail: aagness@westonagnesslaw.com 5 kruiz@westonagnesslaw.com 6 Attorneys for Defendant TRAVELERS COMMERCIAL INSURANCE COMPANY 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 GREGORY and LINDA MCDONALD, ) Case No. 2:22-cv-00781-MWF (RAOx) 11 ) 12 Plaintiff, ) ) STIPULATED PROTECTIVE 13 ) ORDER 14 v. ) ) 15 ) 16 TRAVELERS COMMERCIAL ) INSURANCE COMPANY, a ) 17 Connecticut corporation; LEACH ) Action Filed: December 30, 2021 18 DESIGN-BUILD, LP, and DOES 1 ) Trial Date: June 18, 2024 through 10, ) 19 ) 20 Defendants. ) ) 21 ) 22 ) 23 24 1. A. PURPOSES AND LIMITATIONS 25 Discovery in this action is likely to involve production of confidential, 26 proprietary or private information for which special protection from public 27 disclosure and from use for any purpose other than prosecuting this litigation may 1 enter the following Stipulated Protective Order. The parties acknowledge that this 2 Order does not confer blanket protections on all disclosures or responses to 3 discovery and that the protection it affords from public disclosure and use extends 4 only to the limited information or items that are entitled to confidential treatment 5 under the applicable legal principles. 6 B. GOOD CAUSE STATEMENT 7 This action is likely to involve trade secrets, confidential personal, business, 8 proprietary information and other valuable research, development, commercial, 9 financial, technical and/or proprietary information for which special protection from 10 public disclosure and from use for any purpose other than prosecution of this action 11 is warranted. This case involves claims for breach of contract, breach of the implied 12 covenant of good faith and fair dealing, and financial elder abuse filed by Plaintiffs 13 Gregory and Linda McDonald (“Plaintiffs”) against Defendant Travelers 14 Commercial Insurance Company (“Travelers”) pertaining to an insurance claim 15 made by Plaintiffs under an insurance policy issued by Travelers following damage 16 caused to a Malibu home by the 2018 Woolsey Fire. Parties and third parties (both 17 individual and corporate) may possess potentially discoverable information. Such 18 confidential and proprietary materials and information consist of, among other 19 things, confidential business or financial information, information regarding 20 confidential business practices, or other confidential research, development, or 21 commercial information (including information implicating privacy rights of third 22 parties), information otherwise generally unavailable to the public, or which may be 23 privileged or otherwise protected from disclosure under state or federal statutes, 24 court rules, case decisions, or common law. Accordingly, to expedite the flow of 25 information, to facilitate the prompt resolution of disputes over confidentiality of 26 discovery materials, to adequately protect information the parties are entitled to keep 27 confidential, to ensure that the parties are permitted reasonable necessary uses of 1 at the end of the litigation, and serve the ends of justice, a protective order for such 2 information is justified in this matter. It is the intent of the parties that information 3 will not be designated as confidential for tactical reasons and that nothing be so 4 designated without a good faith belief that it has been maintained in a confidential, 5 non-public manner, and there is good cause why it should not be part of the public 6 record of this case. 7 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 8 SEAL 9 The parties further acknowledge, as set forth in Section 12.3, below, that this 10 Stipulated Protective Order does not entitle them to file confidential information 11 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 12 and the standards that will be applied when a party seeks permission from the court 13 to file material under seal. 14 There is a strong presumption that the public has a right of access to judicial 15 proceedings and records in civil cases. In connection with non-dispositive motions, 16 good cause must be shown to support a filing under seal. See Kamakana v. City and 17 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, 19 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 20 require good cause showing), and a specific showing of good cause or compelling 21 reasons with proper evidentiary support and legal justification, must be made with 22 respect to Protected Material that a party seeks to file under seal. The parties’ mere 23 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 24 without the submission of competent evidence by declaration, establishing that the 25 material sought to be filed under seal qualifies as confidential, privileged, or 26 otherwise protectable—constitute good cause. 27 Further, if a party requests sealing related to a dispositive motion or trial, then 1 relief sought shall be narrowly tailored to serve the specific interest to be protected. 2 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 3 each item or type of information, document, or thing sought to be filed or introduced 4 under seal in connection with a dispositive motion or trial, the party seeking 5 protection must articulate compelling reasons, supported by specific facts and legal 6 justification, for the requested sealing order. Again, competent evidence supporting 7 the application to file documents under seal must be provided by declaration. 8 Any document that is not confidential, privileged, or otherwise protectable in 9 its entirety will not be filed under seal if the confidential portions can be redacted. 10 If documents can be redacted, then a redacted version for public viewing, omitting 11 only the confidential, privileged, or otherwise protectable portions of the document 12 shall be filed. Any application that seeks to file documents under seal in their 13 entirety should include an explanation of why redaction is not feasible. 14 2. DEFINITIONS 15 2.1 Action: this pending federal lawsuit—Case No. 2:22-cv-00781-MWF 16 (RAOx). 17 2.2 Challenging Party: a Party or Non-Party that challenges the 18 designation of information or items under this Order. 19 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 20 how it is generated, stored or maintained) or tangible things that qualify for 21 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 22 the Good Cause Statement. 23 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 24 their support staff). 25 2.5 Designating Party: a Party or Non-Party that designates information or 26 items that it produces in disclosures or in responses to discovery as 27 “CONFIDENTIAL.” 1 of the medium or manner in which it is generated, stored, or maintained (including, 2 among other things, testimony, transcripts, and tangible things) that are produced or 3 generated in disclosures or responses to discovery in this matter. 4 2.7 Expert: a person with specialized knowledge or experience in a matter 5 pertinent to the litigation who has been retained by a Party or its counsel to serve as 6 an expert witness or as a consultant in this Action. 7 2.8 House Counsel: attorneys who are employees of a party to this Action. 8 House Counsel does not include Outside Counsel of Record or any other outside 9 counsel. 10 2.9 Non-Party: any natural person, partnership, corporation, association or 11 other legal entity not named as a Party to this action. 12 2.10 Outside Counsel of Record: attorneys who are not employees of a 13 party to this Action but are retained to represent or advise a party to this Action and 14 have appeared in this Action on behalf of that party or are affiliated with a law firm 15 that has appeared on behalf of that party, and includes support staff. 16 2.11 Party: any party to this Action, including all of its officers, directors, 17 employees, consultants, retained experts, and Outside Counsel of Record (and their 18 support staffs). 19 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 20 Discovery Material in this Action. 21 2.13 Professional Vendors: persons or entities that provide litigation 22 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 23 demonstrations, and organizing, storing, or retrieving data in any form or medium) 24 and their employees and subcontractors. 25 2.14 Protected Material: any Disclosure or Discovery Material that is 26 designated as “CONFIDENTIAL.” 27 2.15 Receiving Party: a Party that receives Disclosure or Discovery 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of the 8 trial judge. This Order does not govern the use of Protected Material at trial. 9 4. DURATION 10 Even after final disposition of this litigation, the confidentiality obligations 11 imposed by this Order shall remain in effect until a Designating Party agrees 12 otherwise in writing or a court order otherwise directs. Final disposition shall be 13 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 14 or without prejudice; and (2) final judgment herein after the completion and 15 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 16 including the time limits for filing any motions or applications for extension of time 17 pursuant to applicable law. 18 5. DESIGNATING PROTECTED MATERIAL 19 5.1 Exercise of Restraint and Care in Designating Material for Protection. 20 Each Party or Non-Party that designates information or items for protection 21 under this Order must take care to limit any such designation to specific material 22 that qualifies under the appropriate standards. The Designating Party must 23 designate for protection only those parts of material, documents, items or oral or 24 written communications that qualify so that other portions of the material, 25 documents, items or communications for which protection is not warranted are not 26 swept unjustifiably within the ambit of this Order. 27 Mass, indiscriminate or routinized designations are prohibited. Designations 1 purpose (e.g., to unnecessarily encumber the case development process or to impose 2 unnecessary expenses and burdens on other parties) may expose the Designating 3 Party to sanctions. 4 If it comes to a Designating Party’s attention that information or items that it 5 designated for protection do not qualify for protection, that Designating Party must 6 promptly notify all other Parties that it is withdrawing the inapplicable designation. 7 5.2 Manner and Timing of Designations. Except as otherwise provided in 8 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 9 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 10 under this Order must be clearly so designated before the material is disclosed or 11 produced. 12 Designation in conformity with this Order requires: 13 (a) for information in documentary form (e.g., paper or electronic 14 documents, but excluding transcripts of depositions or other pretrial or trial 15 proceedings), that the Producing Party affix at a minimum, the legend 16 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 17 contains protected material. If only a portion of the material on a page qualifies for 18 protection, the Producing Party also must clearly identify the protected portion(s) 19 (e.g., by making appropriate markings in the margins). 20 A Party or Non-Party that makes original documents available for inspection 21 need not designate them for protection until after the inspecting Party has indicated 22 which documents it would like copied and produced. During the inspection and 23 before the designation, all of the material made available for inspection shall be 24 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 25 documents it wants copied and produced, the Producing Party must determine which 26 documents, or portions thereof, qualify for protection under this Order. Then, 27 before producing the specified documents, the Producing Party must affix the 1 portion of the material on a page qualifies for protection, the Producing Party also 2 must clearly identify the protected portion(s) (e.g., by making appropriate markings 3 in the margins). 4 (b) for testimony given in depositions that the Designating Party identifies 5 the Disclosure or Discovery Material on the record, before the close of the 6 deposition all protected testimony. 7 (c) for information produced in some form other than documentary and 8 for any other tangible items, that the Producing Party affix in a prominent place on 9 the exterior of the container or containers in which the information is stored the 10 legend “CONFIDENTIAL.” If only a portion or portions of the information 11 warrants protection, the Producing Party, to the extent practicable, shall identify the 12 protected portion(s). 13 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 14 failure to designate qualified information or items does not, standing alone, waive 15 the Designating Party’s right to secure protection under this Order for such material. 16 Upon timely correction of a designation, the Receiving Party must make reasonable 17 efforts to assure that the material is treated in accordance with the provisions of this 18 Order. 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 21 designation of confidentiality at any time that is consistent with the Court’s 22 Scheduling Order. 23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 24 resolution process under Local Rule 37.1 et seq. 25 6.3 The burden of persuasion in any such challenge proceeding shall be on 26 the Designating Party. Frivolous challenges, and those made for an improper 27 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 1 Party has waived or withdrawn the confidentiality designation, all parties shall 2 continue to afford the material in question the level of protection to which it is 3 entitled under the Producing Party’s designation until the Court rules on the 4 challenge. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is 7 disclosed or produced by another Party or by a Non-Party in connection with this 8 Action only for prosecuting, defending or attempting to settle this Action. Such 9 Protected Material may be disclosed only to the categories of persons and under the 10 conditions described in this Order. When the Action has been terminated, a 11 Receiving Party must comply with the provisions of section 13 below (FINAL 12 DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a 14 location and in a secure manner that ensures that access is limited to the persons 15 authorized under this Order. 16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 17 otherwise ordered by the court or permitted in writing by the Designating Party, a 18 Receiving Party may disclose any information or item designated 19 “CONFIDENTIAL” only to: 20 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 21 well as employees of said Outside Counsel of Record to whom it is reasonably 22 necessary to disclose the information for this Action; 23 (b) the officers, directors, and employees (including House Counsel) of 24 the Receiving Party to whom disclosure is reasonably necessary for this Action; 25 (c) Experts (as defined in this Order) of the Receiving Party to whom 26 disclosure is reasonably necessary for this Action and who have signed the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 (e) court reporters and their staff; 2 (f) professional jury or trial consultants, mock jurors, and Professional 3 Vendors to whom disclosure is reasonably necessary for this Action and who have 4 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (g) the author or recipient of a document containing the information or a 6 custodian or other person who otherwise possessed or knew the information; 7 (h) during their depositions, witnesses, and attorneys for witnesses, in the 8 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 9 requests that the witness sign the form attached as Exhibit A hereto; and (2) they 10 will not be permitted to keep any confidential information unless they sign the 11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 12 agreed by the Designating Party or ordered by the court. Pages of transcribed 13 deposition testimony or exhibits to depositions that reveal Protected Material may 14 be separately bound by the court reporter and may not be disclosed to anyone except 15 as permitted under this Stipulated Protective Order; and 16 (i) any mediator or settlement officer, and their supporting personnel, 17 mutually agreed upon by any of the parties engaged in settlement discussions. 18 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 19 PRODUCED IN OTHER LITIGATION 20 If a Party is served with a subpoena or a court order issued in other litigation 21 that compels disclosure of any information or items designated in this Action as 22 “CONFIDENTIAL,” that Party must: 23 (a) promptly notify in writing the Designating Party. Such notification 24 shall include a copy of the subpoena or court order; 25 (b) promptly notify in writing the party who caused the subpoena or order 26 to issue in the other litigation that some or all of the material covered by the 27 subpoena or order is subject to this Protective Order. Such notification shall include 1 (c) cooperate with respect to all reasonable procedures sought to be 2 pursued by the Designating Party whose Protected Material may be affected. 3 If the Designating Party timely seeks a protective order, the Party served with 4 the subpoena or court order shall not produce any information designated in this 5 action as “CONFIDENTIAL” before a determination by the court from which the 6 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 8 protection in that court of its confidential material and nothing in these provisions 9 should be construed as authorizing or encouraging a Receiving Party in this Action 10 to disobey a lawful directive from another court. 11 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 12 PRODUCED IN THIS LITIGATION 13 (a) The terms of this Order are applicable to information produced by a 14 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 15 produced by Non-Parties in connection with this litigation is protected by the 16 remedies and relief provided by this Order. Nothing in these provisions should be 17 construed as prohibiting a Non-Party from seeking additional protections. 18 (b) In the event that a Party is required, by a valid discovery request, to 19 produce a Non-Party’s confidential information in its possession, and the Party is 20 subject to an agreement with the Non-Party not to produce the Non-Party’s 21 confidential information, then the Party shall: 22 (1) promptly notify in writing the Requesting Party and the Non-Party 23 that some or all of the information requested is subject to a confidentiality 24 agreement with a Non-Party; 25 (2) promptly provide the Non-Party with a copy of the Stipulated 26 Protective Order in this Action, the relevant discovery request(s), and a reasonably 27 specific description of the information requested; and 1 Non-Party, if requested. 2 (c) If the Non-Party fails to seek a protective order from this court within 3 14 days of receiving the notice and accompanying information, the Receiving Party 4 may produce the Non-Party’s confidential information responsive to the discovery 5 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 6 not produce any information in its possession or control that is subject to the 7 confidentiality agreement with the Non-Party before a determination by the court. 8 Absent a court order to the contrary, the Non-Party shall bear the burden and 9 expense of seeking protection in this court of its Protected Material. 10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 12 Protected Material to any person or in any circumstance not authorized under this 13 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 14 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 15 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 16 persons to whom unauthorized disclosures were made of all the terms of this Order, 17 and (d) request such person or persons to execute the “Acknowledgment and 18 Agreement to Be Bound” that is attached hereto as Exhibit A. 19 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 20 PROTECTED MATERIAL 21 When a Producing Party gives notice to Receiving Parties that certain 22 inadvertently produced material is subject to a claim of privilege or other protection, 23 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 24 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 25 procedure may be established in an e-discovery order that provides for production 26 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 27 (e), insofar as the parties reach an agreement on the effect of disclosure of a 1 product protection, the parties may incorporate their agreement in the stipulated 2 protective order submitted to the court. 3 12. MISCELLANEOUS 4 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 5 person to seek its modification by the Court in the future. 6 12.2 Right to Assert Other Objections. By stipulating to the entry of this 7 Protective Order, no Party waives any right it otherwise would have to object to 8 disclosing or producing any information or item on any ground not addressed in this 9 Stipulated Protective Order. Similarly, no Party waives any right to object on any 10 ground to use in evidence of any of the material covered by this Protective Order. 11 12.3 Filing Protected Material. A Party that seeks to file under seal any 12 Protected Material must comply with Local Civil Rule 79-5. Protected Material 13 may only be filed under seal pursuant to a court order authorizing the sealing of the 14 specific Protected Material at issue. If a Party’s request to file Protected Material 15 under seal is denied by the court, then the Receiving Party may file the information 16 in the public record unless otherwise instructed by the court. 17 13. FINAL DISPOSITION 18 After the final disposition of this Action, as defined in paragraph 4, within 60 19 days of a written request by the Designating Party, each Receiving Party must return 20 all Protected Material to the Producing Party or destroy such material. As used in 21 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 22 summaries, and any other format reproducing or capturing any of the Protected 23 Material. Whether the Protected Material is returned or destroyed, the Receiving 24 Party must submit a written certification to the Producing Party (and, if not the same 25 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 26 (by category, where appropriate) all the Protected Material that was returned or 27 destroyed and (2) affirms that the Receiving Party has not retained any copies, 1 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 2 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 3 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 4 reports, attorney work product, and consultant and expert work product, even if such 5 materials contain Protected Material. Any such archival copies that contain or 6 constitute Protected Material remain subject to this Protective Order as set forth in 7 Section 4 (DURATION). 8 14. VIOLATION 9 Any violation of this Order may be punished by appropriate measures 10 including, without limitation, contempt proceedings and/or monetary sanctions. 11 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 12 Dated: November 27, 2023 13 s/ Samuel L. Bruchey William M. Shernoff 14 Samuel L. Bruchey Attorneys for Plaintiffs 15 GREGORY and LINDA MCDONALD 16 Dated: November 27, 2023 17 s/ Aaron C. Agness Aaron C. Agness 18 Karen D. Ruiz Attorneys for Defendant 19 TRAVELERS COMMERCIAL INSURANCE COMPANY 20 21 Attestation Pursuant to L.R. 5-4.3.4(a)(2)(i) 22 I, Aaron C. Agness, attest that all other signatories listed, and on whose behalf 23 this filing is submitted, concur in the filing’s content and have authorized the filing 24 of this document with the use of their electronic signature. 25 s/ Aaron C. Agness 26 Aaron C. Agness 27 1 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 2 3 || DATED: January 17, 2024 Rayeeen , QL 6 || United States Magisirate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on [date] in the case of Gregory and Linda McDonald v. Travelers Commercial 9 Insurance Company, et al., Case 2:22-cv-00781-MWF (RAOx). I agree to comply 10 with and to be bound by all the terms of this Stipulated Protective Order and I 11 understand and acknowledge that failure to so comply could expose me to sanctions 12 and punishment in the nature of contempt. I solemnly promise that I will not 13 disclose in any manner any information or item that is subject to this Stipulated 14 Protective Order to any person or entity except in strict compliance with the 15 provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court for the 17 Central District of California for enforcing the terms of this Stipulated Protective 18 Order, even if such enforcement proceedings occur after termination of this action. 19 I hereby appoint __________________________ [print or type full name] of 20 _______________________________________ [print or type full address and 21 telephone number] as my California agent for service of process in connection with 22 this action or any proceedings related to enforcement of this Stipulated Protective 23 Order. 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: _______________________________ 27