Old Republic General Insurance Corporation v. Amtrust North America ( 2021 )

1 Bbwraonldkti nL@. Wwoollkkiinnc, uErsrqan. . c(SomBN 112220) 2 Catharine M. Tolson, Esq. (SBN 271223) ctolson@wolkincurran.com 3 WOLKIN · CURRAN, LLP 111 Maiden Lane, Sixth Floor 4 San Francisco, California 94108 Telephone: (415) 982-9390 5 Facsimile: (415) 982-4328 6 Attorneys for Defendant NAVIGATORS SPECIALTY 7 INSURANCE COMPANY 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 OLD REPUBLIC GENERAL INSURANCE Case No.: 1:20-CV-00778-NONE-JLT CORPORATION 12 STIPULATED DEPOSITION Plaintiff, PROTOCOL; and [PROPOSED] 13 ORDER APPROVING STIPULATED v. DEPOSITION PROTOCOL 14 (Doc. 57) AMTRUST INTERNATIONAL 15 UNDERWRITERS LTD., COLONY INSURANCE COMPANY, EVEREST 16 INDEMNITY INS. CO., LIBERTY SURPLUS INSURANCE, NAVIGATORS 17 SPECIALTY INS. CO., PEERLESS INSURANCE CO., THE OHIO 18 CASULATY INS. CO., TOKIO MARINE SPECIALTY INSURANCE CO., U.S. 19 SPECIALTY INSURANCE COMPANY, and DOES 1 through 10, 20 Defendants. 21 22 23 The parties submit that, given the ongoing COVID-19 pandemic, good cause exists 24 for entry of the stipulated deposition protocol outlined herein. See, e.g., Sinceno v. Riverside 25 Church in the City of N.Y., 2020 U.S. Dist. LEXIS 47859, at *1 (S.D.N.Y. Mar. 18, 26 2020) (approving all depositions being taken by “telephone, videoconference, or other 27 remote means” in view of the COVID-19 pandemic); see also Pearlstein v. Blackberry Ltd., 28 2020 U.S. Dist. LEXIS 47032, at *2-3 (S.D.N.Y. Mar. 16, 2020) (same); Thomas v. 1 Wallace, Rush, Schmidt, Inc., 2020 U.S. Dist. LEXIS 46925, at *6 (M.D. La. Mar. 18, 2 2020) (same). Cf. Automatic Equip. Mfg. Co. v. Danko Mfg., 2020 U.S. Dist. LEXIS 47350, 3 at *6 (D. Neb. Mar. 12, 2020) (permitting parties to hold Markman hearing by 4 videoconference); ResCap Liquidating Tr. v. Primary Residential Mortg., 444 F. Supp. 3d 5 967, 2020 U.S. Dist. LEXIS 44607, at *3 (D. Minn. Mar. 13, 2020) (COVID-19 6 “establish[ed] good cause for remote testimony.”). Accordingly, pursuant Rules 1 and 29 of 7 the Federal Rules of Civil Procedure, Amtrust International Underwriters Ltd., Navigators 8 Specialty Insurance Company, Peerless Insurance Company and The Ohio Casualty 9 Insurance Company, and U.S. Specialty Insurance Company (collectively, the “Parties”) 10 submit the following stipulated deposition protocol for depositions in this matter: 11 I. DEFINITIONS 12 A. “Attending counsel” shall mean any legal counsel for a party that is attending 13 the deposition of a non-party. 14 B. “Court reporter” shall mean an individual retained by the deposing party to 15 transcribe the oral testimony offered at a deposition in the litigation and who is authorized to 16 administer oaths either by federal law or by the law of the place of examination. 17 C. “Deposition” shall mean any deposition upon oral examination taken 18 pursuant to Fed. R. Civ. P. 27, Fed. R. Civ. P. 30, Fed. R. Civ. P. 45, or any court order. 19 D. “Deposing counsel” shall mean the legal counsel of the party or parties 20 noticing and taking a deposition in the litigation. 21 E. “Defending counsel” shall mean the legal counsel (including counsel of 22 record and agency/in-house counsel) of the party, parties, non-party, or non-parties 23 defending a deposition in the litigation. 24 F. “Exhibit” shall mean any Document or Electronically Stored Information that 25 is marked as an exhibit during a Deposition. 26 G. “Parties” shall mean Plaintiffs, Defendants, and their current and former 27 employees, executives, officers, and directors. 28 /// 1 H. “Non-parties” shall mean all natural or legal persons that are not Parties from 2 whom a Party is seeking testimony at a deposition in the litigation. 3 II. GENERAL PRINCIPLES AND DURATION OF THIS ORDER 4 A. This Order is intended to allow the parties to continue deposition discovery in 5 light of the ongoing COVID-19 pandemic. 6 B. The Court and counsel recognize that the COVID-19 pandemic requires the 7 parties to be flexible in completing deposition discovery in this litigation. The parties agree 8 to take steps that will enable deponents, deposing counsel, defending counsel, and attending 9 counsel to complete depositions in a manner that also takes into account the needs of 10 dependent care and personal health care. In light of the developing public health situation, 11 the parties and non-parties shall meet, confer, and cooperate with one another regarding the 12 scheduling of depositions and the procedures for taking depositions. In doing so, the parties 13 and non-parties shall make all reasonable efforts to accommodate reasonable requests for 14 continuances of depositions due to illnesses or dependent care needs of attorneys, deponents, 15 or the court reporter. 16 C. Deposing counsel and defending counsel agree to notice depositions 17 sufficiently early to allow defending counsel time to prepare the deponent to testify remotely 18 and agree to accommodate reasonable scheduling requests. Twenty-one days’ notice shall 19 typically be considered reasonable notice of the deposition. 20 D. Unless otherwise stated, this Order is not intended to alter, expand, or limit 21 the applicable Federal Rules of Civil Procedure, Federal Rules of Evidence, and/or court 22 orders. 23 III. PROCEDURES FOR TAKING THE INITIAL DEPOSITION 24 A. Pursuant to Fed. R. Civ. P. 29(a) and Fed. R. Civ. P. 30(b)(4), depositions in 25 this litigation shall be taken by remote means that comply with local, state and federal 26 guidance, regulations, and orders concerning social distancing and public health, unless all 27 participants in the deposition, including the deponent, defending counsel, attending counsel, 28 and the court reporter, agree that remote means are not necessary. “Remote means” shall 1 include (a) telephone, (b) video-conferencing platforms that allow for the deponent, 2 attending counsel, deposing counsel, defending counsel, court reporter, and videographer to 3 participate in a deposition without attending the deposition in-person, or (c) any other means 4 that the deposing counsel, defending counsel, and attending counsel agree to. 5 B. Pursuant to Fed. R. Civ. P. 30(f)(2), deposing counsel shall be responsible for 6 ensuring that any exhibits that they wish to mark and use at the deposition can be shown to 7 the witness in a manner that enables the witness to review the exhibits during the course of 8 the deposition. Acceptable means of marking and using exhibits for a deposition shall 9 include: (a) sending via Fed Ex, U.S. Postal Service, or UPS pre-marked exhibits to the 10 deponent, defending counsel, attending counsel, and the court reporter in advance of the 11 deposition; (b) emailing pre-marked exhibits to the deponent, defending counsel, attending 12 counsel, and the court reporter in advance of the deposition; (c) using a video conferencing 13 platform that enables deposing counsel to share exhibits with the deponent, court reporter, 14 defending counsel, and attending counsel; or (d) any other means that the deposing counsel, 15 defending counsel, and attending counsel agree to. If the remote means utilized does not 16 permit for the court reporter to mark exhibits remotely, deposing counsel shall be 17 responsible for pre-marking exhibits. 18 C. As used in Fed. R. Civ. P. 28(a)(1)(A), the “place of examination” is the 19 location of the deponent. A court reporter may administer an oath concerning a deposition 20 via remote means. 21 D. Deposing counsel and defending counsel shall meet, confer, and cooperate to 22 ensure that the deponent has technology sufficient to attend a deposition via remote means. 23 If necessary, this shall include arranging for the deponent to participate in a “test run” of the 24 deposition video conferencing software being utilized at the expense of the deposing party. 25 E. Deposing counsel is responsible for ensuring that the remote means utilized 26 for a deposition allow for the court reporter to accurately record the deponent’s testimony. 27 Either deposing counsel or defending counsel may elect to have a technical specialist attend 28 /// 1 a deposition taken by remote means to ensure that technical issues are dealt with in a timely 2 manner. 3 F. Deposing counsel shall bear the cost of ensuring that the deponent has the 4 proper software, hardware and other relevant equipment to attend a deposition by video 5 conference. 6 G. Should technical issues prevent the court reporter from reliably hearing or 7 transcribing the testimony at any deposition taken pursuant to this order and such technical 8 issue cannot be remedied in a timely manner, deposing counsel, defending counsel, and 9 attending counsel shall meet, confer, and cooperate with one another regarding the 10 rescheduling of the deposition. 11 H. In addition to recording deposition testimony by stenographic means, the 12 deposing party may record the deposition via video. 13 I. All objections to the use and admissibility of the transcript or video of a 14 deposition taken pursuant to this order based on the fact that the deposition was taken by 15 remote means are deemed waived. 16 J. Deposing counsel and defending counsel shall be responsible for ensuring 17 that they have a means of communicating with co-counsel or the deponent, as the case may 18 be, during breaks in the deposition; the parties agree not to oppose reasonable 19 accommodations to allow such conferences during breaks, as well as communications 20 between co-counsel during the deposition. 21 K. All persons attending depositions taken by remote means are reminded that 22 the typical rules of professionalism and etiquette during depositions still apply. All persons 23 attending depositions taken pursuant to this order who do not have an immediate need to 24 speak shall ensure that their telephone or video conference lines are muted. In addition, all 25 persons attending depositions taken pursuant to this order shall ensure that they can do so in 26 a space that is relatively free from distractions that would inhibit the course of the 27 deposition. 28 /// 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 Dated: March 25, 2021 BRANSON, BRINKOP, GRIFFITH & CAMPO, LLP 3 /s/ Geoffrey Hutchinson 4 By: 5 John R. Campo Geoffrey Hutchinson 6 Attorneys for Plaintiff, OLD REPUBLIC GENERAL INSURANCE CORPORATION 7 8 Dated: March 25, 2021 WOLKIN • CURRAN, LLP 9 /s/ Catharine M. Tolson 10 By: 11 Brandt L. Wolkin, Esq. Catharine M. Tolson, Esq. 12 Attorneys for Defendant, NAVIGATORS SPECIALTY INSURANCE COMPANY 13 14 Dated: March 25, 2021 HIRSCH CLOSSON, APLC 15 /s/ Lisa Shemonsky 16 By: 17 Lisa Shemonsky Attorneys for Defendant, AMTRUST 18 INTERNATIONAL UNDERWRITERS LTD. 19 20 Dated: March 25, 2021 ROPERS MAJESKI, PC 21 /s/ Cameron Miller 22 By: Blake J. Russum 23 Cameron Miller Attorneys for Defendant, THE OHIO 24 CASUALTY INSURANCE COMPANY 25 26 27 28 1 Dated: March 25, 2021 ROPERS MAJESKI, PC 2 /s/ Cameron Miller 3 By: 4 Blake J. Russum Cameron Miller 5 Attorneys for Defendant, PEERLESS INSURANCE COMPANY 6 7 8 Dated: March 25, 2021 TROUTMAN SANDERS, LLP 9 /s/ Jenni Khuu Katzer 10 By: Terrence R. Mcinnis 11 Jenni Khuu Katzer Attorneys for Defendant, U.S. SPECIALTY 12 INSURANCE COMPANY 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 SIGNATURE ATTESTATION 2 Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative Policies and 3 Procedures Manual, I hereby certify that the content of this document is acceptable to 4 counsel for all parties herein, and that I have obtained the authorization of counsel to all 5 parties herein to affix his or her electronic signature to this document. 6 I declare under penalty of perjury under the laws of the United States of American 7 that the foregoing is true and correct and executed on March 25, 2021 in San Francisco, 8 California. 9 Dated: March 25, 2021 WOLKIN • CURRAN, LLP 10 /s/ Catharine M. Tolson 11 By: Brandt L. Wolkin, Esq. 12 Catharine M. Tolson, Esq. Attorneys for Defendant, NAVIGATORS 13 SPECIALTY INSURANCE COMPANY 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER 2 APPROVING STIPULATED DEPOSITION PROTOCOL 3 Pursuant to the Parties’ Stipulation, the Deposition Protocol is approved. 4 IT IS SO ORDERED. 5 6 Dated: March 25, 2021 /s/ Jennifer L. Thurston 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28