Eric Pearson v. The Cincinnati Insurance Company ( 2024 )

1 LEWIS BRISBOIS BISGAARD & SMITH LLP JULIAN J. PARDINI, SB# 133878 2 Email: Julian.Pardini@lewisbrisbois.com RODOLFO OROZCO BEAS, SB# 320459 3 Email: Rodolfo.OrozcoBeas@lewisbrisbois.com 45 Fremont Street, Suite 3000 4 San Francisco, California 94105 Telephone: 415.362.2580 5 Facsimile: 415.434.0882 6 ANGELA A. ZANIN, SB# 229149 E-Mail: Angela.Zanin@lewisbrisbois.com 7 633 West 5th Street, Suite 4000 Los Angeles, California 90071 8 Telephone: 213.250.1800 Facsimile: 213.250.7900 9 Attorneys for Defendant, THE CINCINNATI INSURANCE COMPANY 10 11 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 14 15 ERIC PEARSON, an individual, Case No. 2:24-cv-03370-SB-PD 16 Plaintiff, STIPULATED PROTECTIVE ORDER 17 vs. (PD Version) 18 THE CINCINNATI INSURANCE ☒ Check if submitted without material 19 COMPANY, an OHIO corporation, and modifications to PD form DOES 1 TO 20, INCLUSIVE, 20 Defendants. 21 22 23 1. INTRODUCTION 24 1.1 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 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 2 enter the following Stipulated Protective Order. The parties acknowledge that this 3 Order does not confer blanket protections on all disclosures or responses to 4 discovery and that the protection it affords from public disclosure and use extends 5 only to the limited information or items that are entitled to confidential treatment 6 under the applicable legal principles. The parties further acknowledge, as set forth 7 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 8 file confidential information under seal; Civil Local Rule 79-5 sets forth the 9 procedures that must be followed and the standards that will be applied when a party 10 seeks permission from the court to file material under seal. 11 1.2 GOOD CAUSE STATEMENT 12 This case involves a dispute between Plaintiff Eric Pearson (“Plaintiff’) and 13 Defendant The Cincinnati Insurance Company (“Defendant”) regarding alleged 14 coverage benefits owed to Plaintiff under the policy issued to him by Defendant. 15 Documents for which this protective order is sought include internal documents 16 maintained by Plaintiff and Defendant, as well as internal documents maintained by 17 the various third parties involved in the underlying claim. Such confidential and 18 proprietary materials and information constitute, among other things, confidential 19 business information, information regarding confidential business practices, or other 20 commercial information, information otherwise generally unavailable to the public, 21 or which may be privileged or otherwise protected from disclosure. 22 In addition, Defendant notes that one third party has requested that all parties 23 enter into a protective order prior to that third party’s production of documents 24 responsive to the document subpoena issued by Defendant. 25 2. DEFINITIONS 26 2.1 Action: this pending federal law suit. 27 2.2 Challenging Party: a Party or Non-Party that challenges the designation 1 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 2 how it is generated, stored or maintained) or tangible things that qualify for protection 3 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 4 Cause Statement. 5 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 6 support staff). 7 2.5 Designating Party: a Party or Non-Party that designates information or 8 items that it produces in disclosures or in responses to discovery as 9 “CONFIDENTIAL.” 10 2.6 Disclosure or Discovery Material: all items or information, regardless 11 of the medium or manner in which it is generated, stored, or maintained (including, 12 among other things, testimony, transcripts, and tangible things), that are produced or 13 generated in disclosures or responses to discovery in this matter. 14 2.7 Expert: a person with specialized knowledge or experience in a matter 15 pertinent to the litigation who has been retained by a Party or its counsel to serve as 16 an expert witness or as a consultant in this Action. 17 2.8 House Counsel: attorneys who are employees of a party to this Action. 18 House Counsel does not include Outside Counsel of Record or any other outside 19 counsel. 20 2.9 Non-Party: any natural person, partnership, corporation, association, or 21 other legal entity not named as a Party to this action. 22 2.10 Outside Counsel of Record: attorneys who are not employees of a party 23 to this Action but are retained to represent or advise a party to this Action and have 24 appeared in this Action on behalf of that party or are affiliated with a law firm which 25 has appeared on behalf of that party, and includes support staff. 26 27 1 2.11 Party: any party to this Action, including all of its officers, directors, 2 employees, consultants, retained experts, and Outside Counsel of Record (and their 3 support staffs). 4 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 5 Discovery Material in this Action. 6 2.13 Professional Vendors: persons or entities that provide litigation support 7 services (e.g., photocopying, videotaping, translating, preparing exhibits or 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) 9 and their employees and subcontractors. 10 2.14 Protected Material: any Disclosure or Discovery Material that is 11 designated as “CONFIDENTIAL.” 12 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 13 from a Producing Party. 14 15 3. SCOPE 16 The protections conferred by this Stipulation and Order cover not only 17 Protected Material (as defined above), but also (1) any information copied or 18 extracted from Protected Material; (2) all copies, excerpts, summaries, or 19 compilations of Protected Material; and (3) any testimony, conversations, or 20 presentations by Parties or their Counsel that might reveal Protected Material. 21 Any use of Protected Material at trial will be governed by the orders of the 22 trial judge. This Order does not govern the use of Protected Material at trial. 23 4. DURATION 24 Once a case proceeds to trial, all of the information that was designated as 25 confidential or maintained pursuant to this protective order becomes public and will 26 be presumptively available to all members of the public, including the press, unless 27 compelling reasons supported by specific factual findings to proceed otherwise are 1 made to the trial judge in advance of the trial. See Kamakana v. City and County of 2 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” 3 showing for sealing documents produced in discovery from “compelling reasons” 4 standard when merits-related documents are part of court record). Accordingly, the 5 terms of this protective order do not extend beyond the commencement of the trial. 6 5. DESIGNATING PROTECTED MATERIAL 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. 8 Each Party or Non-Party that designates information or items for protection under this 9 Order must take care to limit any such designation to specific material that qualifies 10 under the appropriate standards. The Designating Party must designate for protection 11 only those parts of material, documents, items, or oral or written communications that 12 qualify so that other portions of the material, documents, items, or communications 13 for which protection is not warranted are not swept unjustifiably within the ambit of 14 this Order. 15 Mass, indiscriminate, or routinized designations are prohibited. Designations 16 that are shown to be clearly unjustified or that have been made for an improper 17 purpose (e.g., to unnecessarily encumber the case development process or to impose 18 unnecessary expenses and burdens on other parties) may expose the Designating 19 Party to sanctions. 20 If it comes to a Designating Party’s attention that information or items that it 21 designated for protection do not qualify for protection, that Designating Party must 22 promptly notify all other Parties that it is withdrawing the inapplicable designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in 24 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 25 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 26 under this Order must be clearly so designated before the material is disclosed or 27 produced. 1 Designation in conformity with this Order requires: 2 (a) for information in documentary form (e.g., paper or electronic documents, 3 but excluding transcripts of depositions or other pretrial or trial proceedings), that 4 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 5 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 6 portion or portions of the material on a page qualifies for protection, the Producing 7 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 8 markings in the margins). 9 A Party or Non-Party that makes original documents available for 10 inspection need not designate them for protection until after the inspecting Party has 11 indicated which documents it would like copied and produced. During the inspection 12 and before the designation, all of the material made available for inspection will be 13 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 14 it wants copied and produced, the Producing Party must determine which documents, 15 or portions thereof, qualify for protection under this Order. Then, before producing 16 the specified documents, the Producing Party must affix the “CONFIDENTIAL 17 legend” to each page that contains Protected Material. If only a portion or portions 18 of the material on a page qualifies for protection, the Producing Party also must clearly 19 identify the protected portion(s) (e.g., by making appropriate markings in the 20 margins). 21 (b) for testimony given in depositions that the Designating Party identify the 22 Disclosure or Discovery Material on the record, before the close of the deposition all 23 protected testimony. 24 (c) for information produced in some form other than documentary and for any 25 other tangible items, that the Producing Party affix in a prominent place on the exterior 26 of the container or containers in which the information is stored the legend 27 “CONFIDENTIAL.” If only a portion or portions of the information warrants 1 protection, the Producing Party, to the extent practicable, will identify the protected 2 portion(s). 3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 4 failure to designate qualified information or items does not, standing alone, waive the 5 Designating Party’s right to secure protection under this Order for such material. 6 Upon timely correction of a designation, the Receiving Party must make reasonable 7 efforts to assure that the material is treated in accordance with the provisions of this 8 Order. 9 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 10 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 11 designation of confidentiality at any time that is consistent with the Court’s 12 Scheduling Order. 13 6.2 Meet and Confer. The Challenging Party will initiate the dispute 14 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1 15 et seq. 16 6.3 The burden of persuasion in any such challenge proceeding will be on 17 the Designating Party. Frivolous challenges, and those made for an improper 18 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 19 parties) may expose the Challenging Party to sanctions. Unless the Designating 20 Party has waived or withdrawn the confidentiality designation, all parties will 21 continue to afford the material in question the level of protection to which it is 22 entitled under the Producing Party’s designation until the Court rules on the 23 challenge. 24 7. ACCESS TO AND USE OF PROTECTED MATERIAL 25 7.1 Basic Principles. A Receiving Party may use Protected Material that is 26 disclosed or produced by another Party or by a Non-Party in connection with this 27 Action only for prosecuting, defending, or attempting to settle this Action. Such 1 Protected Material may be disclosed only to the categories of persons and under the 2 conditions described in this Order. When the Action has been terminated, a Receiving 3 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 4 Protected Material must be stored and maintained by a Receiving Party at a 5 location and in a secure manner that ensures that access is limited to the persons 6 authorized under this Order. 7 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 8 otherwise ordered by the court or permitted in writing by the Designating Party, a 9 Receiving Party may disclose any information or item designated 10 “CONFIDENTIAL” only to: 11 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 12 employees of said Outside Counsel of Record to whom it is reasonably necessary to 13 disclose the information for this Action; 14 (b) the officers, directors, and employees (including House Counsel) of the 15 Receiving Party to whom disclosure is reasonably necessary for this Action; 16 (c) Experts (as defined in this Order) of the Receiving Party to whom 17 disclosure is reasonably necessary for this Action and who have signed the 18 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (d) the Court and its personnel; 20 (e) court reporters and their staff; 21 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 22 to whom disclosure is reasonably necessary for this Action and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (g) the author or recipient of a document containing the information or a 25 custodian or other person who otherwise possessed or knew the information; 26 (h) during their depositions, witnesses ,and attorneys for witnesses, in the 27 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 1 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will 2 not be permitted to keep any confidential information unless they sign the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 4 agreed by the Designating Party or ordered by the court. Pages of transcribed 5 deposition testimony or exhibits to depositions that reveal Protected Material may be 6 separately bound by the court reporter and may not be disclosed to anyone except as 7 permitted under this Stipulated Protective Order; and 8 (i) any mediator or settlement officer, and their supporting personnel, mutually 9 agreed upon by any of the parties engaged in settlement discussions. 10 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 11 OTHER LITIGATION 12 If a Party is served with a subpoena or a court order issued in other litigation 13 that compels disclosure of any information or items designated in this Action as 14 “CONFIDENTIAL,” that Party must: 15 16 (a) promptly notify in writing the Designating Party. Such notification will 17 include a copy of the subpoena or court order; 18 (b) promptly notify in writing the party who caused the subpoena or order to 19 issue in the other litigation that some or all of the material covered by the subpoena 20 or order is subject to this Protective Order. Such notification will include a copy of 21 this Stipulated Protective Order; and 22 (c) cooperate with respect to all reasonable procedures sought to be pursued 23 by the Designating Party whose Protected Material may be affected. 24 If the Designating Party timely seeks a protective order, the Party served with 25 the subpoena or court order will not produce any information designated in this action 26 as “CONFIDENTIAL” before a determination by the court from which the subpoena 27 or order issued, unless the Party has obtained the Designating Party’s permission. The 1 of its confidential material and nothing in these provisions should be construed as 2 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 3 directive from another court. 4 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 5 PRODUCED IN THIS LITIGATION 6 (a) The terms of this Order are applicable to information produced by a Non- 7 Party in this Action and designated as “CONFIDENTIAL.” Such information 8 produced by Non-Parties in connection with this litigation is protected by the 9 remedies and relief provided by this Order. Nothing in these provisions should be 10 construed as prohibiting a Non-Party from seeking additional protections. 11 (b) In the event that a Party is required, by a valid discovery request, to produce 12 a Non-Party’s confidential information in its possession, and the Party is subject to an 13 agreement with the Non-Party not to produce the Non-Party’s confidential 14 information, then the Party will: 15 16 (1) promptly notify in writing the Requesting Party and the Non-Party 17 that some or all of the information requested is subject to a confidentiality 18 agreement with a Non-Party; 19 (2) promptly provide the Non-Party with a copy of the Stipulated 20 Protective Order in this Action, the relevant discovery request(s), and a 21 reasonably specific description of the information requested; and 22 (3) make the information requested available for inspection by the Non- 23 Party, if requested. 24 (c) If the Non-Party fails to seek a protective order from this court within 14 25 days of receiving the notice and accompanying information, the Receiving Party may 26 produce the Non-Party’s confidential information responsive to the discovery request. 27 If the Non-Party timely seeks a protective order, the Receiving Party will not produce 1 agreement with the Non-Party before a determination by the court. Absent a court 2 order to the contrary, the Non-Party will bear the burden and expense of seeking 3 protection in this court of its Protected Material. 4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 6 Protected Material to any person or in any circumstance not authorized under this 7 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 8 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 9 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 10 persons to whom unauthorized disclosures were made of all the terms of this Order, 11 and (d) request such person or persons to execute the “Acknowledgment and 12 Agreement to Be Bound” that is attached hereto as Exhibit A. 13 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 14 PROTECTED MATERIAL 15 When a Producing Party gives notice to Receiving Parties that certain 16 inadvertently produced material is subject to a claim of privilege or other protection, 17 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 18 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 19 may be established in an e-discovery order that provides for production without prior 20 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 21 parties reach an agreement on the effect of disclosure of a communication or 22 information covered by the attorney-client privilege or work product protection, the 23 parties may incorporate their agreement in the stipulated protective order submitted 24 to the court. 25 12. MISCELLANEOUS 26 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 27 person to seek its modification by the Court in the future. 1 12.2 Right to Assert Other Objections. By stipulating to the entry of this 2 Protective Order no Party waives any right it otherwise would have to object to 3 disclosing or producing any information or item on any ground not addressed in this 4 Stipulated Protective Order. Similarly, no Party waives any right to object on any 5 ground to use in evidence of any of the material covered by this Protective Order. 6 12.3 Filing Protected Material. A Party that seeks to file under seal any 7 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 8 only be filed under seal pursuant to a court order authorizing the sealing of the specific 9 Protected Material at issue. If a Party's request to file Protected Material under seal 10 is denied by the court, then the Receiving Party may file the information in the public 11 record unless otherwise instructed by the court. 12 13. FINAL DISPOSITION 13 After the final disposition of this Action, as defined in paragraph 4, within 60 14 days of a written request by the Designating Party, each Receiving Party must return 15 all Protected Material to the Producing Party or destroy such material. As used in this 16 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 17 summaries, and any other format reproducing or capturing any of the Protected 18 Material. Whether the Protected Material is returned or destroyed, the Receiving 19 Party must submit a written certification to the Producing Party (and, if not the same 20 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 21 (by category, where appropriate) all the Protected Material that was returned or 22 destroyed and (2) affirms that the Receiving Party has not retained any copies, 23 abstracts, compilations, summaries or any other format reproducing or capturing any 24 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 25 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 26 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 27 reports, attorney work product, and consultant and expert work product, even if such 1 constitute Protected Material remain subject to this Protective Order as set forth in 2 Section 4 (DURATION). 3 14. Any willful violation of this Order may be punished by civil or criminal 4 contempt proceedings, financial or evidentiary sanctions, reference to disciplinary 5 authorities, or other appropriate action at the discretion of the Court. 6 7 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 8 9 DATED: November 19, 2024 __________/s/ David C. Gentry (PHV) ___________________________ 10 Attorneys for Plaintiff 11 12 DATED: November 21, 2024___________ _/s/ Julian J. Pardini 13 ___________________________ Attorneys for Defendant 14 15 16 17 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 19 DATED: November 22, 2024 PATRICIA DONAHUE 20 _____________ __________________________________ HON. PATRICIA DONAHUE 21 United States Magistrate Judge 22 23 24 25 26 27 1 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 I, _____________________________ [full name], of _________________ 3 [full address], declare under penalty of perjury that I have read in its entirety and 4 understand the Stipulated Protective Order that was issued by the United States 5 District Court for the Central District of California on [date] in the case of Eric 6 Pearson v. Cincinnati Insurance Co., Case No. 2-24-cv-03370 (C.D. Cal.). I agree to 7 comply with and to be bound by all the terms of this Stipulated Protective Order and 8 I understand and acknowledge that failure to so comply could expose me to sanctions 9 and punishment in the nature of contempt. I solemnly promise that I will not disclose 10 in any manner any information or item that is subject to this Stipulated Protective 11 Order to any person or entity except in strict compliance with the provisions of this 12 Order. 13 I further agree to submit to the jurisdiction of the United States District Court 14 for the Central District of California for the purpose of enforcing the terms of this 15 Stipulated Protective Order, even if such enforcement proceedings occur after 16 termination of this action. I hereby appoint __________________________ [full 17 name] of _______________________________________ [full address and 18 telephone number] as my California agent for service of process in connection with 19 this action or any proceedings related to enforcement of this Stipulated Protective 20 Order. 21 Date: ______________________________________ 22 City and State where signed: _________________________________ 23 Printed Name: ______________________________ 24 25 Signature: ________________________________ 26 27 1 FEDERAL COURT PROOF OF SERVICE Eric Pearson v. The Cincinnati Insurance Company, et al. 2 USDC-Central District, Western Division, Case No. 2:24-cv-03370-SB-PD 3 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 4 At the time of service, I was over 18 years of age and not a party to the action. My business address is 45 Fremont Street, Suite 3000, San Francisco, CA 94105. I 5 am employed in the office of a member of the bar of this Court at whose direction the service was made. 6 On November 21, 2024, I served the following document(s): 7 I served the documents on the following persons at the following addresses 8 (including fax numbers and e-mail addresses, if applicable): 9 SEE ATTACHED SERVICE LIST 10 The documents were served by the following means: 11  (BY COURT’S CM/ECF SYSTEM) Pursuant to Local Rule, I electronically filed the documents with the Clerk of the Court using the CM/ECF system, 12 which sent notification of that filing to the persons listed above. 13 I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. 14 Executed on November 21, 2024, at San Francisco, California. 15 16 /s/ Maureen Liu 17 Maureen Liu 18 19 20 21 22 23 24 25 26 27 1 SERVICE LIST Eric Pearson v. The Cincinnati Insurance Company, et al. 2 USDC-Central District, Western Division, Case No. 2:24-cv-03370-SB-PD 3 David J. Furtado Tel: 303.755.2929 Regina A. Spurley Email: dfurtado@furtadolaw.com; 4 regina@elkingamboa.com; David Gentry regina@raafirm.com; 5 Furtado Law PC davidgentry@furtadolaw.com; 3773 Chery Creek North Drive, Suite 6 755 Denver, Co 80209; and 7 9959 Robbins Drive, #B 8 Beverly Hills, CA 90212 Attorneys for Plaintiff 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27