Steven Draeger v. Transamerica Life Insurance Company ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA—WESTERN DIVISION 10 11 || STEVEN DRAEGER and DARA Case No. 2:19-cv-10478-CAS-GJSx DRAEGER 12 [FROFOSED| ORDER GRANTING Plaintiffs, TIPULATED PROTECTIVE 13 ORDER Vv. 14 TRANSAMERICA LIFE 15 || INSURANCE COMPANY, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 1 1. PURPOSES AND LIMITATIONS/GOOD CAUSE STATEMENT 2 Discovery in this action is likely to involve production of confidential and 3 || proprietary actuarial, business, technical, and financial information as well as 4 || private information of Plaintiffs Steven Draeger and Dara Draeger (“Plaintiffs”) or 5 || the insured for which special protection from public disclosure and from use for any 6 || purpose other than prosecuting this litigation may be warranted. Accordingly, 7 || Plaintiffs and Defendant Transamerica Life Insurance Company (“TLIC”) hereby 8 || stipulate to and petition the Court to enter the following Stipulated Protective Order 9 || (‘Order’). The parties acknowledge that this Order does not confer blanket 10 || protections on all disclosures or responses to discovery and that the protection it 11 || affords from public disclosure and use extends only to the limited information or 12 || items that are entitled to confidential treatment under the applicable legal 13 || principles. The parties further acknowledge, as set forth in Section 12.3 (Filing 14 || Protected Material), below, that this Protective Order does not entitle them to file 15 || confidential information under seal; Local Civil Rule 79-5 and the Court’s Guide to 16 || Electronically Filing Under Seal Documents in Civil Cases set forth the procedures 17 || that must be followed and the standards that will be applied when a party seeks 18 || permission from the Court to file material under seal. 19 There is a strong presumption that the public has a right of access to judicial 20 || proceedings and records in civil cases. In connection with non-dispositive motions, 21 || good cause must be shown to support a filing under seal. See Kamakana v. City 22 || and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. 23 || Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony 24 || Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective 25 || orders require good cause showing), and a specific showing of good cause or 26 || compelling reasons with proper evidentiary support and legal justification, must be 27 || made with respect to Protected Material that a party seeks to file under seal. The 28 || parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL -2- 1 || or HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY does not—without 2 || the submission of competent evidence by declaration, establishing that the material 3 || sought to be filed under seal qualifies as confidential, privileged, or otherwise 4 || protectable—constitute good cause. 5 Further, if a party requests sealing related to a dispositive motion or trial, 6 || then compelling reasons, not only good cause, for the sealing must be shown, and 7 || the relief sought shall be narrowly tailored to serve the specific interest to be 8 || protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 9 || 2010). For each item or type of information, document, or thing sought to be filed 10 || or introduced under seal in connection with a dispositive motion or trial, the party 11 || seeking protection must articulate compelling reasons, supported by specific facts 12 || and legal justification, for the requested sealing order. Again, competent evidence 13 || supporting the application to file documents under seal must be provided by 14 || declaration. 15 Any document that is not confidential, privileged, or otherwise protectable in 16 || its entirety will not be filed under seal if the confidential portions can be redacted. 17 || If documents can be redacted, then a redacted version for public viewing, omitting 18 || only the confidential, privileged, or otherwise protectable portions of the document, 19 || shall be filed. Any application that seeks to file documents under seal in their 20 || entirety should include an explanation of why redaction is not feasible. 21 || 2. DEFINITIONS 22 2.1 Acknowledgment: the “Acknowledgment and Agreement to be 23 || Bound” form attached as Exhibit A to this Order. 24 2.2 Action: Steven Draeger and Dara Draeger v. Transamerica Life 25 || Insurance Company, Case No. 2:19-cv-10478-CAS-GJSx. 26 2.3 Challenging Party: A Party or Non-Party that challenges the 27 || designation of information or items under this Order. 28 1 2.4 “CONFIDENTIAL” Information or Items: Confidential proprietary or 2 || commercially sensitive business and financial information, trade secrets, and 3 || personal information which is not generally known or publicly available and which 4 || the Designating Party would not normally reveal to third parties or information that 5 || otherwise meets the standard for protection set forth in Rule 26(c) of the Federal 6 || Rules of Civil Procedure. It is the intent of the parties that information will not be 7 || designated as confidential for tactical reasons and that nothing be so designated 8 || without a good faith belief that it has been maintained in a confidential non-public 9 || manner, and there is good cause why it should not be part of the public record of 10 || this Action. 11 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as 12 || their support staff). 13 2.6 Designating Party: A Party or Non-Party that designates information or 14 || items that it produces or that are produced in disclosures or in response to discovery 15 |) as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES 16 | ONLY.” 17 2.7 Disclosure or Discovery Material: All items or information, regardless 18 || of the medium or manner in which it is generated, stored, or maintained (including, 19 || among other things, testimony, transcripts, and tangible things), that are produced 20 || or generated in disclosures or responses to discovery in this matter. 21 2.8 Expert: A person with specialized knowledge or experience in a matter 22 || pertinent to the litigation who has been retained by a Party or its counsel to serve as 23 || an expert witness or as a consultant in this Action and who is not a past or current 24 || employee of a Party or a current employee of a Party’s competitor and who, at the 25 || time of retention, is not anticipated to become an employee of a Party or a 26 || competitor of a Party. This definition includes a professional jury or trial 27 || consultant retained in connection with this litigation. 28 l 2.9 “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES ONLY” 2 || Information or Items: Extremely sensitive “Confidential Information or Items,” 3 || disclosure of which to another Party or Non-Party would create a substantial risk of 4 || serious harm that could not be avoided by less restrictive means. 5 2.10 House Counsel: Attorneys who are employees for a Party or of an 6 || entity that owns an interest in a Party and is responsible for controlling or directing 7 || the litigation. House Counsel does not include Outside Counsel of Record or any 8 || other outside counsel. 9 2.11 Non-Party: Any natural person, partnership, corporation, association, 10 || or other legal entity not named as a Party to this action. 11 2.12 Outside Counsel of Record: Attorneys who are not employees of a 12 || party to this Action but are retained to represent or advise a party to this Action and 13 || have appeared in this Action on behalf of that party or are affiliated with a law firm 14 || that has appeared on behalf of that party, including support staff. 15 2.13 Party: Any party to this Action, including its House Counsel, officers, 16 || directors, employees, consultants, and retained experts. 17 2.14 Parent: An entity that owns, or conducts the business affairs of, the 18 || Receiving Party and is responsible for controlling and directing the litigation. 19 2.15 Producing Party: A Party or Non-Party that produces Disclosure or 20 || Discovery Material in this Action. 21 2.16 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 2.17 Protected Material: Any Disclosure or Discovery Material that is 26 || designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- 27 || ATTORNEYS’ EYES ONLY.” 28 1 2.18 Receiving Party: A Party that receives Disclosure or Discovery 2 || Material from a Producing Party. 3 2.19 Related Actions: Feller v. Transamerica Life Insurance Co., No. 2:16- 4 || cv-01378-CAS-GJSx (C.D. Cal. filed Feb. 28, 2016) (“Feller”); EFG Bank AG 5 || Cayman Branch, et al. v. Transamerica Life Insurance Co., Case No. 2:16-cv- 6 || 08104-CAS-GJSx (C.D. Cal. filed Oct. 31, 2016) (“EFG’’). 7|3. SCOPE 8 The protections conferred by this Order cover not only Protected Material (as 9 || defined above), but also (1) any information copied or extracted from Protected 10 || Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 11 || and (3) any testimony, conversations, or presentations by Parties or their Counsel or 12 || their Experts that might reveal Protected Material. Any use of Protected Material at 13 || trial shall be governed by the orders of the trial judge. This Order does not govern 14 || the use of Protected Material at trial. 15 |] 4. DURATION 16 FINAL DISPOSITION of the action is defined as the conclusion of any 17 || appellate proceedings, or, if no appeal is taken, when the time for filing of an 18 || appeal has run. Except as set forth below, the terms of this Order apply through 19 || FINAL DISPOSITION. The parties stipulate that they will be contractually bound 20 || by the terms of this agreement beyond FINAL DISPOSITION, and that they will 21 || have to file a separate action for enforcement of the agreement once FINAL 22 || DISPOSITION of the action occurs. 23 Once a case proceeds to trial, information that was designated as 24 || CONFIDENTIAL, HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY, or 25 || maintained pursuant to this protective order used or introduced as an exhibit at trial 26 || becomes public and will be presumptively available to all members of the public, 27 || including the press, unless compelling reasons supported by specific factual 28 || findings to proceed otherwise are made to the trial judge in advance of the trial. See 1 || Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing 2 || documents produced in discovery from “compelling reasons” standard when merits- 3 || related documents are part of court record). Accordingly, the terms of this 4 || protective order do not extend beyond the commencement of the trial. 5] 5. DESIGNATING PROTECTED MATERIAL 6 5.1 Exercise of Restraint and Care in Designating Material for Protection. 7 || Each Party or Non-Party that designates information or items for protection under 8 || this Order must take care to limit any such designation to specific material that 9 || qualifies under the appropriate standards. To the extent it is practical to do so, the 10 || Designating Party must designate for protection only those parts of material, 11 || documents, items or oral or written communications that qualify so that other 12 || portions of the material, documents, items or communications for which protection 13 || is not warranted are not swept unjustifiably within the ambit of this Order. 14 While mass, indiscriminate or routinized designations are prohibited, the 15 || Parties recognize that manually analyzing and designating large numbers of 16 || documents one-by-one for confidentiality can be an unduly burdensome task. The 17 || Parties agree that each Party may reasonably rely on metadata information and 18 || good-faith searches to designate documents for protection. Designations that are 19 || shown to be clearly unjustified or that have been made for an improper purpose 20 || (e.g., to unnecessarily encumber the case development process or to impose 21 || unnecessary expenses and burdens on other parties) may expose the Designating 22 || Party to sanctions. 23 If it comes to a Designating Party’s attention that information or items that it 24 || designated for protection do not qualify for protection, that Designating Party must 25 || promptly notify all other Parties that it is withdrawing the inapplicable designation. 26 5.2 Manner and Timing of Designations. Except as otherwise provided in 27 || this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 28 || stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 1 || under this Order must be clearly so designated before the material is disclosed or 2 || produced. Designation in conformity with this Order requires: 3 (a) for information in documentary form (e.g., paper or electronic 4 || documents, but excluding transcripts of depositions or other pretrial or trial 5 || proceedings), that the Producing Party affix at a minimum, the legend 6 || “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES 7 || ONLY”, to each page that contains protected material. If only a portion of the 8 || material on a page qualifies for protection, the Producing Party also must clearly 9 || identify the protected portion(s) (e.g., by making appropriate markings in the 10 || margins). 11 A Party or Non-Party that makes original documents available for inspection 12 || need not designate them for protection until after the inspecting Party has indicated 13 || which documents it would like copied and produced. During the inspection and 14 || before the designation, all of the material made available for inspection shall be 15 || deemed “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES ONLY.” After the 16 || inspecting Party has identified the documents it wants copied and produced, the 17 || Producing Party must determine which documents, or portions thereof, qualify for 18 || protection under this Order. Then, before producing the specified documents, the 19 || Producing Party must affix the legend “CONFIDENTIAL” or “HIGHLY 20 || CONFIDENTIAL-ATTORNEYS’ EYES ONLY” to each page that contains 21 || Protected Material. If only a portion of the material on a page qualifies for 22 || protection, the Producing Party also must clearly identify the protected portion(s) 23 || (e.g., by making appropriate markings in the margins). 24 (b) any Party may designate as Protected Material testimony given in a 25 || deposition or in other pretrial or trial proceedings by informing the reporter during 26 || the deposition or by sending a letter to all Outside Counsel of Record and to the 27 || deposition reporter designating by page and line any portions of the transcript to be 28 || so restricted, or the entire transcript if applicable, within thirty (30) days after 1 || receiving the deposition transcript and specifying the level of protection being 2 || asserted. 3 During this 30-day period, a transcript will be treated as if it had been 4 || designated “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES ONLY” in its 5 || entirety unless otherwise agreed. After the expiration of that period, the transcript 6 || shall be treated only as actually designated. 7 When deposition testimony is designated Protected Material by informing the 8 || reporter during the deposition, the transcript containing Protected Material shall 9 || have an obvious legend on the title page that the transcript contains Protected 10 || Material, and the title page shall be followed by a list of all pages (including line 11 || numbers-as appropriate) that have been designated as Protected Material and the 12 || level of protection being asserted by the Designating Party. The Designating Party 13 || shall inform the court reporter of these requirements. 14 Parties shall give the other parties notice if they reasonably expect a 15 || deposition, hearing, or other proceeding to include Protected Material so that the 16 || other parties can ensure that only authorized individuals who have signed the 17 || Acknowledgment are present at those proceedings. The use of a document as an 18 || exhibit at a deposition shall not in any way affects its designation as 19 |) “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES 20 |} ONLY.” 21 (c) for information produced in some form other than documentary and 22 || for any other tangible items, that the Producing Party affix in a prominent place on 23 || the exterior of the container or containers in which the information is stored the 24 || legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ 25 || EYES ONLY.” If only a portion or portions of the information warrants protection, 26 || the Producing Party, to the extent practicable, shall identify the protected portion(s). 27 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 28 || failure to designate qualified information or items does not, standing alone, waive 1 || the Designating Party’s right to secure protection under this Order for such 2 || material. Upon timely correction of a designation, the Receiving Party must make 3 || reasonable efforts to assure that the material is treated in accordance with the 4 || provisions of this Order. 5 5.4 Protected Health Information. Additionally, certain Confidential 6 || Information or Items may be Protected Health Information (“PHI”) as defined by 7 || the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the 8 || regulations promulgated thereunder at 45 CFR 160.103. Without limiting the 9 || generality of the foregoing, “PHI” includes, but is not limited to, health 10 || information, including demographic information, relating to either, (a) the past, 11 || present or future physical or mental condition of an individual, (b) the provision of 12 || care to an individual, or (c) the payment for care provided to an individual, which 13 || identifies the individual or which reasonably could be expected to identify an 14 || individual. All “covered entities” (as defined by 45 CFR 160.103) are hereby 15 || authorized to disclose PHI to all attorneys now of record in this Action or who may 16 || become of record in the future in this Action. Subject to the Federal Rules of Civil 17 || Procedure, and without prejudice to any Party’s objection except as otherwise 18 || provided herein, the Parties are authorized to receive, subpoena, transmit, or 19 || disclose PHI relevant to the claims at issue in this Action, subject to all terms of 20 || this Order. All PHI disclosed under this Order must be designated as Confidential 21 || Information pursuant to this Order. A Receiving Party which receives PHI in 22 || discovery shall not use or disclose such PHI for any purpose other than this Action. 23 || To the extent documents or information produced in this Action have already been 24 || exchanged or will again be exchanged between the Parties in the normal course of 25 || business, treatment of such documents prior to or after the conclusion of this Action 26 || shall be governed by this Order. 27 5.5 Specific Provisions Concerning the Disclosure of Personally 28 || Identifiable Information (“PII”). When PII (e.g., names, addresses, Social Security 1 || numbers, phone numbers, etc.) 1s disclosed between the Parties as authorized by 2 || this Order, the PII of any individuals whose claims are not at issue in this lawsuit 3 || and who are otherwise identified in the Discovery Material may either be redacted 4 || to protect the identity of such individuals, or produced without redactions. Upon 5 || receipt of any PII, a Receiving Party shall take all reasonable measures necessary 6 || for protecting the PII from unauthorized disclosure as required under both state and 7 || federal law. 8 || 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS. 9 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 10 || designation of confidentiality at any time that is consistent with the Court’s 11 || Scheduling Order. Unless a prompt challenge to a Designating Party’s 12 || confidentiality designation is necessary to avoid foreseeable, substantial unfairness, 13 || unnecessary economic burdens, or a significant disruption or delay of the litigation, 14 || a Party does not waive its right to challenge a confidentiality designation by 15 || electing not to mount a challenge promptly after the original designation is 16 || disclosed. 17 6.2 Mect and Confer. The Challenging Party shall initiate the dispute 18 || resolution process under Local Rule 37-1. In conferring, the Challenging Party 19 || must explain the basis for its belief that the confidentiality designation was not 20 || proper and must give the Designating Party an opportunity to review the designated 21 || material, to reconsider the circumstances, and, if no change in designation is 22 || offered, to explain the basis for the chosen designation. 23 6.3 The burden of persuasion in any such challenge proceeding shall be on 24 || the Designating Party. Frivolous designations or challenges, and those designations 25 || or challenges made for an improper purpose (e.g., to harass or impose unnecessary 26 || expenses and burdens on other parties) may expose the respective Designating 27 || Party or Challenging Party to sanctions. Unless the Designating Party has waived 28 || or withdrawn the confidentiality designation, all parties shall continue to afford the 1 || material in question the level of protection to which it is entitled under the 2 || Designating Party’s designation until the Court rules on the challenge. 3/7. ACCESS TO AND USE OF PROTECTED MATERIAL 4 7.1 Basic Principles. A Receiving Party may use Protected Material that is 5 || disclosed or produced by another Party or by a Non-Party in connection with this 6 || Action only for prosecuting, defending or attempting to settle this Action. Such 7 || Protected Material may be disclosed only to the categories of persons and under the 8 || conditions described in this Order. When the Action has been terminated, a 9 || Receiving Party must comply with the provisions of section 13 below (FINAL 10 || DISPOSITION). Protected Material must be stored and maintained by a Receiving 11 || Party at a location and in a secure manner that ensures that access is limited to the 12 || persons authorized under this Order. 13 Notwithstanding anything in this Order, to the extent documents produced by 14 || TLIC in this Action were originally produced in Fe//er using the Feller Bates 15 |) numbers or EFG using the EF'G Bates numbers, and depositions taken against 16 || TLIC or TLIC-affiliated witnesses in the Related Actions, such documents and 17 || depositions will be produced in this Action in accordance with the procedures 18 || agreed to by the parties in the Stipulated Order Regarding Electronically Stored 19 || Information and Document Production where applicable, as well as the Federal 20 || Rules of Civil Procedure and the Federal Rules of Evidence as to admissibility. The 21 || treatment of Confidential Material in those documents and depositions in this 22 || Action will be governed by this Order. The Parties further stipulate that 23 || Confidential Information produced by TLIC in the Related Actions only but 24 || excluded from this Action (1.e., Owner Specific Documents) may be disclosed to 25 || Outside Counsel of Record for Plaintiffs subject to the terms of this Agreement for 26 || the sole purpose of reviewing transcripts from depositions taken in the Related 27 || Actions and reducing litigation costs incurred through document hosting platforms. 28 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 2 || otherwise ordered by the Court or permitted in writing by the Designating Party, a 3 || Receiving Party may disclose any information or item designated 4 || “CONFIDENTIAL” only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 6 || well as employees of said Outside Counsel of Record to whom it is reasonably 7 || necessary to disclose the information for this Action; 8 (b) the Receiving Party, including officers, directors, and employees 9 || (including House Counsel) of the Receiving Party to whom disclosure is reasonably 10 || necessary for this Action; 11 (c) the Receiving Party’s Parents’ officers, directors, employees, or 12 || consultants, advisors, insurers and/or reinsurers (1) to whom disclosure is 13 || reasonably necessary for this Action, and (2) who have signed the 14 || Acknowledgment; 15 (d) Experts (as defined in this Order) of the Receiving Party to whom 16 || disclosure is reasonably necessary for this Action and who have signed the 17 || Acknowledgment; 18 (e) the Related Actions plaintiffs’ counsel only as to Protected 19 || Material in or deriving from documents with a Feller or EFG Bates number if such 20 || Protected Material already has been disclosed to such counsel; 21 (f) the Court and its personnel; 22 (g) court reporters and their staff; 23 (h) professional jury or trial consultants, mock jurors, and Professional 24 || Vendors to whom disclosure 1s reasonably necessary for this Action and who have 25 || signed the Acknowledgment; 26 (1) the author or recipient of a document containing the information or 27 || a custodian or other person who otherwise possessed or knew the information; 28 1 (j) during their depositions, witnesses, and attorneys for witnesses, in 2 || the Action to whom disclosure is reasonably necessary provided: (1) the deposing 3 || party requests that the witness sign the Acknowledgment; and (2) they will not be 4 || permitted to keep any confidential information unless they sign the 5 || Acknowledgment, unless otherwise agreed by the Designating Party or ordered by 6 || the Court; and 7 (k) any mediator or settlement officer, and their supporting personnel, 8 || mutually agreed upon by any of the parties engaged in settlement discussions and 9 || who have signed the Acknowledgment. 10 7.3. Disclosure of “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES 11 |} ONLY Information or Items. Unless otherwise ordered by the Court or permitted 12 || in writing by the Designating Party, a Receiving Party may disclose any 13 || information or item designated “HIGHLY CONFIDENTIAL- ATTORNEYS’ 14 || EYES ONLY” only to: 15 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 16 || well as employees of said Outside Counsel of Record to whom it is reasonably 17 || necessary to disclose the information for this Action; 18 (b) House Counsel and up to five additional officers, directors, 19 || employees, consultants, advisors, insurers and/or reinsurers of TLIC if it is a 20 || Receiving Party, or Plaintiffs, combined, if they are a receiving party, to whom 21 || disclosure is reasonably necessary for this Action and who have signed the 22 || “Acknowledgment and Agreement to be Bound” (Exhibit A). A House Counsel 23 || who is a member of the Bar of any state in the United States need not sign the 24 || Acknowledgment. 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; 28 (d) the Related Actions plaintiffs’ counsel only as to Protected 1 || Material in or deriving from documents with a Feller, or EFG Bates number if such 2 || Protected Material already has been disclosed to such counsel; 3 (e) the Court and its personnel; 4 (f) court reporters and their staff; 5 (g) professional jury or trial consultants, mock jurors, and Professional 6 || Vendors to whom disclosure is reasonably necessary for this Action and who have 7 || signed the Acknowledgment; 8 (h) the author or recipient of a document containing the information or 9 || a custodian or other person who otherwise possessed or knew the information; 10 (i) during their depositions, witnesses, and attorneys for witnesses, in 11 || the Action to whom disclosure is reasonably necessary provided the witness signs 12 || the Acknowledgment; and 13 (j) any mediator or settlement officer, and their supporting personnel, 14 || mutually agreed upon by any of the parties engaged in settlement discussions and 15 || who have signed the Acknowledgment. 16 || 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 17 PRODUCED IN OTHER LITIGATION 18 If a Party is served with a subpoena or a court order issued in other litigation 19 || that compels disclosure of any information or items designated in this Action as 20 || “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES 21 || ONLY” that Party must: 22 (a) promptly notify in writing the Designating Party. Such notification shall 23 || include a copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or order to 25 || issue in the other litigation that some or all of the material covered by the subpoena 26 || or order is subject to this Protective Order. Such notification shall include a copy of 27 || this Order; 28 1 (c) cooperate with respect to all reasonable procedures sought to be pursued 2 || by the Designating Party whose Protected Material may be affected; and 3 (d) otherwise comply with any applicable HIPAA rules or regulations with 4 || respect to any response or production in connection with a discovery request or 5 || subpoena. 6 If the Designating Party timely seeks a protective order, the Party served with 7 || the subpoena or court order shall not produce any information designated in this 8 || action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ 9 || EYES ONLY” before a determination by the court from which the subpoena or 10 || order issued, unless the Party has obtained the Designating Party’s permission. The 11 || Designating Party shall bear the burden and expense of seeking protection in that 12 || court of its confidential material and nothing in these provisions should be 13 || construed as authorizing or encouraging a Receiving Party in this Action to disobey 14 || a lawful directive from another court. 15 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 16 PRODUCED IN THIS LITIGATION 17 (a) The terms of this Order are applicable to information produced by a Non- 18 || Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 19 | CONFIDENTIAL- ATTORNEYS’ EYES ONLY.” Such information produced by 20 || Non-Parties in connection with this litigation is protected by the remedies and relief 21 || provided by this Order. Nothing in these provisions should be construed as 22 || prohibiting a Non-Party from seeking additional protections. 23 (b) In the event that a Party is required, by a valid discovery request, to 24 || produce a Non-Party’s confidential information in its possession, and the Party is 25 || subject to an agreement with the Non-Party not to produce the Non-Party’s 26 || confidential information, then the Party shall: 27 28 1 (1) promptly notify in writing the Requesting Party and the Non-Party 2 || that some or all of the information requested is subject to a confidentiality 3 || agreement with a Non-Party; 4 (2) promptly provide the Non-Party with a copy of the Order in this 5 || Action, the relevant discovery request(s), and a reasonably specific description of 6 || the information requested; and 7 (3) make the information requested available for inspection by the 8 || Non-Party, if requested. 9 (c) If the Non-Party fails to seek a protective order from this court within 21 10 || days of receiving the notice and accompanying information, the Receiving Party 11 || may produce the Non-Party’s confidential information responsive to the discovery 12 || request. If the Non-Party timely seeks a protective order, the Receiving Party shall 13 || not produce any information in its possession or control that is subject to the 14 || confidentiality agreement with the Non-Party before a determination by the court. 15 |} Absent a court order to the contrary, the Non-Party shall bear the burden and 16 || expense of seeking protection in this court of its Protected Material. 17 |} 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 19 || Protected Material to any person or in any circumstance not authorized under this 20 || Order, the Receiving Party must immediately (a) notify in writing the Designating 21 || Party of the unauthorized disclosures, (b) use its best efforts to retrieve all 22 || unauthorized copies of the Protected Material, (c) inform the person or persons to 23 || whom unauthorized disclosures were made of all the terms of this Order, and (d) 24 || request such person or persons to execute the Acknowledgment. 25 |} 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 26 PROTECTED MATERIAL 27 When a Producing Party gives notice to Receiving Parties that certain 28 || inadvertently produced material is subject to a claim of privilege or other protection 1 || (e.g., work product immunity), the obligations of the Receiving Parties are those set 2 || forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended 3 || to modify whatever procedure may be established in an e-discovery order that 4 || provides for production without prior privilege review. Pursuant to Federal Rule of 5 || Evidence 502(d) and (e), the parties agree that the inadvertent or unintentional 6 || disclosure by the Producing Party of material that is privileged or subject to other 7 || protection shall not be deemed a waiver in whole or in part of the claim of privilege 8 || or other protection, either as to the specific information disclosed or as to any other 9 || information relating thereto on the same or related subject matter. 10 Upon learning of an inadvertent or unintentional disclosure of privileged 11 || information, the Producing Party shall provide written notice to the parties who 12 || have received such information. If the Receiving Party does not timely challenge 13 || the assertion of privilege, then within ten business days of the date of that written 14 || notice, the documents or materials described in that notice (“Privileged 15 || Documents’) shall be returned to counsel for the Producing Party or destroyed by 16 || the Receiving Party, and in the same time frame, any notes or other writing or 17 || recordings that copy, summarize, reflect, or discuss the content of the Privileged 18 || Documents (“Privileged Notes”) shall be destroyed by the Receiving Party. No use 19 || shall be made of such documents or materials from such inadvertent production 20 || during deposition or at trial, nor shall such documents or materials be provided to 21 || anyone who did not already have access to them prior to the request by the 22 || Producing Party that they be returned. 23 If the Receiving Party intends to challenge the assertion of privilege, it must 24 || provide written notice within this ten-day period explaining the grounds for its 25 || challenge, initiate the dispute resolution process under Local Rule 37.1, and 26 || sequester the Privileged Documents and Privileged Notes. 27 If the Parties cannot resolve a challenge without court intervention, the 28 || Receiving Party may move the Court for an order compelling production of any 1 || Privileged Documents in compliance with Local Rule 37, but the motion shall not 2 || assert as a ground for production the fact of the inadvertent production or 3 || disclosure. Pending the Court’s ruling, the party challenging the assertion of 4 || privilege shall sequester the Privileged Documents and Privileged Notes and shall 5 |} not make any use of such information. 6 |} 12. MISCELLANEOUS 7 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 8 || person to seek its modification by the Court in the future. 9 12.2 Right to Assert Other Objections. By stipulating to the entry of this 10 || Order, no Party waives any right it otherwise would have to object to disclosing or 11 || producing any information or item on any ground not addressed in this Order. 12 || Similarly, no Party waives any right to object on any ground to use in evidence of 13 || any of the material covered by this Protective Order. 14 12.3 Filing Protected Material. A Party that seeks to file under seal any 15 || Protected Material must comply with Local Civil Rule 79-5. Protected Material 16 || may only be filed under seal pursuant to a court order authorizing the sealing of the 17 || specific Protected Material at issue. If a Party’s request to file Protected Material 18 || under seal is denied by the court, then the Receiving Party may file the information 19 || in the public record unless otherwise instructed by the court. 20 || 13. FINAL DISPOSITION 21 After the final disposition of this Action, as defined in Section 4 22 || (DURATION), within 60 days of a written request by the Designating Party, each 23 || Receiving Party must return all Protected Material to the Producing Party or destroy 24 || such material, except such material that exists on back-up tapes or similar storage 25 || and systems, in which case such material need not be immediately deleted or 26 || destroyed, and instead, should be overwritten and destroyed in the normal course of 27 || business. Until that material is overwritten and destroyed in the normal course of 28 || business, the Receiving Party will take reasonable steps to limit access, if any, to 1 || the persons necessary to conduct routine IT and cybersecurity functions. As used in 2 || this subdivision, “all Protected Material” includes all copies, abstracts, 3 || compilations, summaries, and any other format reproducing or capturing any of the 4 || Protected Material. Whether the Protected Material is returned or destroyed, the 5 || Receiving Party must submit a written certification to the Producing Party (and, if 6 || not the same person or entity, to the Designating Party) by the 60 day deadline that 7 || (1) identifies (by category, where appropriate) all the Protected Material that was 8 || returned or destroyed and (2) affirms that the Receiving Party has not retained any 9 || copies, abstracts, compilations, summaries or any other format reproducing or 10 || capturing any of the Protected Material. Notwithstanding this provision, Counsel 11 || are entitled to retain an archival copy of all pleadings, motion papers, trial, 12 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition 13 || and trial exhibits, expert reports, attorney work product, and consultant and expert 14 || work product, even if such materials contain Protected Material. Any such archival 15 || copies that contain or constitute Protected Material remain subject to this Protective 16 Order as set forth in Section 4 (DURATION). 17 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 18 || Dated: December 18, 2020 ENGSTROM, LIPSCOMB & LACK 19 20 By: /s/ Steven C. Shuman 21 Andrew facobson 22 Attorneys for Plaintiffs 74 STEVEN DRAEGER and DARA DRAEGER 24 25 26 27 28 1 || Dated: December 18, 2020 McDOWELL HETHERINGTON LLP 2 3 By: /s/ Hutson B. Smelley 4 Hutson B. Smelley Attorneys for Defendant 5 TRANSAMERICA LIFE INSURANCE COMPANY 6 7 . . I, Hutson B. Smelley, in accordance with Local Rule 5-4.3.4, attest that all 8 other signatories listed, and on whose behalf this filing is submitted, concur in the 9 filing’s content and have authorized the filing. 10 11 Dated: December 18, 2020 /s/ Hutson B. Smelle 12 Hutson B: Smelley 1 3 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 14 15 Dated: December 28, 2020 /S/ 16 HON. GAIL J. STANDISH 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 l EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, [print or type full name], of 4 [print or type full address], declare under penalty of perjury 5 || that I have read in its entirety and understand the Stipulated Protective Order that 6 || was issued by the United States District Court for the Central District of California 7 || on [date] in the case of Steven Draeger and Dara Draeger v. 8 || Transamerica Life Insurance Company, Case No. 2:19-cv-10478-CAS-GJSx. I 9 || agree to comply with and to be bound by all the terms of this Stipulated Protective 10 || Order and I understand and acknowledge that failure to so comply could expose me 11 || to sanctions and punishment in the nature of contempt. I solemnly promise that I 12 |) will not disclose in any manner any information or item that is subject to this 13 || Stipulated Protective Order to any person or entity except in strict compliance with 14 || the provisions of this Stipulated Protective Order. I further agree to submit to the 15 || jurisdiction of the United States District Court for the Central District of California 16 || for enforcing the terms of this Stipulated Protective Order, even if such 17 || enforcement proceedings occur after termination of this action. I hereby appoint 18 [print or type full name] of 19 [print or type full address and 20 || telephone number] as my California agent for service of process in connection with 21 || this action or any proceedings related to enforcement of this Stipulated Protective 22 || Order. 23 24 || Date: 25 |) City and State where sworn and signed: 26 || Printed name: 27 || Signature: 28