Ramsey v. Farmers New World Life Insurance Company ( 2020 )

1 ROYAL F. OAKES (SBN 080480) roakes@hinshawlaw.com 2 MICHAEL A.S. NEWMAN (SBN 205299) mnewman@hinshawlaw.com 3 HINSHAW & CULBERTSON LLP 633 West 5th Street, 47th Floor 4 Los Angeles, CA 90071-2043 Telephone: 213-680-2800 5 Facsimile: 213-614-7399 6 Attorneys for Defendant FARMERS NEW WORLD LIFE INSURANCE COMPANY 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 PATROCINA A. RAMSEY, Case No. 1:19-cv-00405-DAD-SAB 11 Plaintiff, (Honorable Dale A. Drozd) 12 vs. ORDER RE STIPULATION FOR PROTECTIVE ORDER 13 FARMERS NEW WORLD LIFE 14 INSURANCE COMPANY, and DOES 1 through 50, inclusive, 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 1. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. The parties further acknowledge, as set forth in 11 Section 12.3, below, that this Stipulated Protective Order does not entitle them to 12 file confidential information under seal. 13 14 A. GOOD CAUSE STATEMENT 15 This action is likely to involve trade secrets, development, commercial, 16 financial, personal, technical and/or proprietary information for which special 17 protection from public disclosure and from use for any purpose other than 18 prosecution of this action is warranted. Such confidential and proprietary materials 19 and information consist of, among other things, confidential business or financial 20 information, information regarding confidential business practices, or other 21 confidential research, development, or commercial information (including 22 information implicating privacy rights of third parties), information otherwise 23 generally unavailable to the public, or which may be privileged or otherwise 24 protected from disclosure under state or federal statutes, court rules, case decisions, 25 or common law. Accordingly, to expedite the flow of information, to facilitate the 26 prompt resolution of disputes over confidentiality of discovery materials, to 27 adequately protect information the parties are entitled to keep confidential, to ensure 28 1 that the parties are permitted reasonable necessary uses of such material in 2 preparation for and in the conduct of trial, to address their handling at the end of the 3 litigation, and serve the ends of justice, a protective order for such information is 4 justified in this matter. It is the intent of the parties that information will not be 5 designated as confidential for tactical reasons and that nothing be so designated 6 without a good faith belief that it has been maintained in a confidential, non-public 7 manner, and there is good cause why it should not be part of the public record of this 8 case. 9 10 2. DEFINITIONS 11 2.1 Action: The above-entitled action. 12 2.2 Challenging Party: a Party or Non-Party that challenges the 13 designation of information or items under this Order. 14 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 15 how it is generated, stored or maintained) or tangible things that qualify for 16 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 17 the Good Cause Statement. 18 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 19 their support staff). 20 2.5 Designating Party: a Party or Non-Party that designates information or 21 items that it produces in disclosures or in responses to discovery as 22 “CONFIDENTIAL.” 23 2.6 Disclosure or Discovery Material: all items or information, regardless 24 of the medium or manner in which it is generated, stored, or maintained (including, 25 among other things, testimony, transcripts, and tangible things), that are produced or 26 generated in disclosures or responses to discovery in this matter. 27 28 1 2.7 Expert: a person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a party or its counsel to serve as 3 an expert witness or as a consultant in this Action. 4 2.8 House Counsel: attorneys who are employees of a party to this Action. 5 House Counsel does not include Outside Counsel of Record or any other outside 6 counsel. 7 2.9 Non-Party: any natural person, partnership, corporation, association, or 8 other legal entity not named as a party to this action. 9 2.10 Outside Counsel of Record: attorneys who are not employees of a 10 party to this Action but are retained to represent or advise a party to this Action and 11 have appeared in this Action on behalf of that party or are affiliated with a law firm 12 which has appeared on behalf of that party, and includes support staff. 13 2.11 Party: any party to this Action, including all of its officers, directors, 14 employees, consultants, retained experts, and Outside Counsel of Record (and their 15 support staffs). 16 2.12 Producing Party: a party or non-party that produces Disclosure or 17 Discovery Material in this Action. 18 2.13 Professional Vendors: persons or entities that provide litigation 19 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 20 demonstrations, and organizing, storing, or retrieving data in any form or medium) 21 and their employees and subcontractors. 22 2.14 Protected Material: any Disclosure or Discovery Material that is 23 designated as “CONFIDENTIAL.” 24 2.15 Receiving Party: a party that receives Disclosure or Discovery 25 Material from a Producing Party. 26 27 3. SCOPE 28 1 The protections conferred by this Stipulation and Order cover not only 2 Protected Material (as defined above), but also (1) any information copied or 3 extracted from Protected Material; (2) all copies, excerpts, summaries, or 4 compilations of Protected Material; and (3) any testimony, conversations, or 5 presentations by parties or their Counsel that might reveal Protected Material. 6 Any use of Protected Material at trial shall be governed by the orders of the trial 7 judge. This Order does not govern the use of Protected Material at trial. 8 9 4. DURATION 10 Once a case proceeds to trial, all of the information that was designated as 11 confidential or maintained pursuant to this protective order becomes public and will 12 be presumptively available to all members of the public, including the press, unless 13 compelling reasons supported by specific factual findings to proceed otherwise are 14 made to the trial judge in advance of the trial. See Kamakana v. City and County of 15 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” 16 showing for sealing documents produced in discovery from “compelling reasons” 17 standard when merits-related documents are part of court record). Accordingly, the 18 terms of this protective order do not extend beyond the commencement of the trial. 19 20 5. DESIGNATING PROTECTED MATERIAL 21 5.1 Exercise of Restraint and Care in Designating Material for Protection. 22 Each Party or Non-Party that designates information or items for protection under 23 this Order must take care to limit any such designation to specific material that 24 qualifies under the appropriate standards. The Designating Party must designate for 25 protection only those parts of material, documents, items, or oral or written 26 communications that qualify so that other portions of the material, documents, 27 items, or communications for which protection is not warranted are not swept 28 1 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized 2 designations are prohibited. Designations that are shown to be clearly unjustified or 3 that have been made for an improper purpose (e.g., to unnecessarily encumber the 4 case development process or to impose unnecessary expenses and burdens on other 5 parties) may expose the Designating Party to sanctions. 6 If it comes to a Designating Party’s attention that information or items that it 7 designated for protection do not qualify for protection, that Designating Party must 8 promptly notify all other Parties that it is withdrawing the inapplicable designation. 9 5.2 Manner and Timing of Designations. Except as otherwise provided in 10 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 11 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 12 under this Order must be clearly so designated before the material is disclosed or 13 produced. 14 Designation in conformity with this Order requires: 15 (a) for information in documentary form (e.g., paper or electronic 16 documents, but excluding transcripts of depositions or other pretrial or trial 17 proceedings), that the Producing Party affix at a minimum, the legend 18 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page 19 that contains protected material. If only a portion or portions of the material 20 on a page qualifies for protection, the Producing Party also must clearly 21 identify the protected portion(s) (e.g., by making appropriate markings in the 22 margins). 23 A Party or Non-Party that makes original documents available for inspection 24 need not designate them for protection until after the inspecting Party has indicated 25 which documents it would like copied and produced. During the inspection and 26 before the designation, all of the material made available for inspection shall be 27 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 28 1 documents it wants copied and produced, the Producing Party must determine which 2 documents, or portions thereof, qualify for protection under this Order. Then, before 3 producing the specified documents, the Producing Party must affix the 4 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 5 portion or portions of the material on a page qualifies for protection, the Producing 6 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 7 markings in the margins). 8 (b) for testimony given in depositions that the Designating Party identify 9 the Disclosure or Discovery Material on the record, before the close of the 10 deposition all protected testimony. 11 (c) for information produced in some form other than documentary and 12 for any other tangible items, that the Producing Party affix in a prominent 13 place on the exterior of the container or containers in which the information 14 is stored the legend “CONFIDENTIAL.” If only a portion or portions of the 15 information warrants protection, the Producing Party, to the extent 16 practicable, shall identify the protected portion(s). 17 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 18 failure to designate qualified information or items does not, standing alone, waive 19 the Designating Party’s right to secure protection under this Order for such material. 20 Upon timely correction of a designation, the Receiving Party must make reasonable 21 efforts to assure that the material is treated in accordance with the provisions of this 22 Order. 23 24 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 25 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 26 designation of confidentiality at any time that is consistent with the Court’s 27 Scheduling Order. 28 1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 2 resolution process. 3 6.3 The burden of persuasion in any such challenge proceeding shall be on 4 the Designating Party. Frivolous challenges, and those made for an improper 5 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 6 parties) may expose the Challenging Party to sanctions. Unless the Designating 7 Party has waived or withdrawn the confidentiality designation, all parties shall 8 continue to afford the material in question the level of protection to which it is 9 entitled under the Producing Party’s designation until the Court rules on the 10 challenge. 11 12 7. ACCESS TO AND USE OF PROTECTED MATERIAL 13 7.1 Basic Principles. A Receiving Party may use Protected Material that is 14 disclosed or produced by another Party or by a Non-Party in connection with this 15 Action only for prosecuting, defending, or attempting to settle this Action. Such 16 Protected Material may be disclosed only to the categories of persons and under the 17 conditions described in this Order. When the Action has been terminated, a 18 Receiving Party must comply with the provisions of section 13 below (FINAL 19 DISPOSITION). 20 Protected Material must be stored and maintained by a Receiving Party at a 21 location and in a secure manner that ensures that access is limited to the persons 22 authorized under this Order. 23 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 24 otherwise ordered by the court or permitted in writing by the Designating Party, a 25 Receiving Party may disclose any information or item designated 26 “CONFIDENTIAL” only to: 27 28 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 2 as employees of said Outside Counsel of Record to whom it is reasonably 3 necessary to disclose the information for this Action; 4 (b) the officers, directors, and employees (including House Counsel) of the 5 Receiving Party to whom disclosure is reasonably necessary for this Action; 6 (c) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (d) the court and its personnel; 10 (e) court reporters and their staff; 11 (f) professional jury or trial consultants, mock jurors, and Professional 12 Vendors to whom disclosure is reasonably necessary for this Action and who 13 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (g) the author or recipient of a document containing the information or a 15 custodian or other person who otherwise possessed or knew the information; 16 (h) during their depositions, witnesses, and attorneys for witnesses, in the 17 Action to whom disclosure is reasonably necessary provided: (1) the deposing 18 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 19 they will not be permitted to keep any confidential information unless they sign 20 the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 21 otherwise agreed by the Designating Party or ordered by the court. Pages of 22 transcribed deposition testimony or exhibits to depositions that reveal Protected 23 Material may be separately bound by the court reporter and may not be disclosed 24 to anyone except as permitted under this Stipulated Protective Order; and 25 (i) any mediator or settlement officer, and their supporting personnel, 26 mutually agreed upon by any of the parties engaged in settlement discussions. 27 28 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation that 4 compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL,” that Party must: 6 (a) promptly notify in writing the Designating Party. Such notification 7 shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order 9 to issue in the other litigation that some or all of the material covered by the 10 subpoena or order is subject to this Protective Order. Such notification shall 11 include a copy of this Stipulated Protective Order; and 12 (c) cooperate with respect to all reasonable procedures sought to be 13 pursued by the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served with the 15 subpoena or court order shall not produce any information designated in this action 16 as “CONFIDENTIAL” before a determination by the court from which the 17 subpoena or order issued, unless the Party has obtained the Designating Party’s 18 permission. The Designating Party shall bear the burden and expense of seeking 19 protection in that court of its confidential material and nothing in these provisions 20 should be construed as authorizing or encouraging a Receiving Party in this Action 21 to disobey a lawful directive from another court. 22 23 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 24 PRODUCED IN THIS LITIGATION 25 (a) The terms of this Order are applicable to information produced by a 26 Non-Party in this Action and designated as “CONFIDENTIAL.” Such 27 information produced by Non-Parties in connection with this litigation is 28 1 protected by the remedies and relief provided by this Order. Nothing in these 2 provisions should be construed as prohibiting a Non-Party from seeking 3 additional protections. 4 (b) In the event that a Party is required, by a valid discovery request, to 5 produce a Non-Party’s confidential information in its possession, and the 6 Party is subject to an agreement with the Non-Party not to produce the Non- 7 Party’s confidential information, then the Party shall: 8 (1) promptly notify in writing the Requesting Party and the Non-Party that 9 some or all of the information requested is subject to a confidentiality agreement 10 with a Non-Party; 11 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 12 Order in this Action, the relevant discovery request(s), and a reasonably specific 13 description of the information requested; and 14 (3) make the information requested available for inspection by the Non- 15 Party, if requested. 16 (c) If the Non-Party fails to seek a protective order from this court within 14 17 days of receiving the notice and accompanying information, the Receiving Party 18 may produce the Non-Party’s confidential information responsive to the 19 discovery request. If the Non-Party timely seeks a protective order, the Receiving 20 Party shall not produce any information in its possession or control that is subject 21 to the confidentiality agreement with the Non-Party before a determination by 22 the court. Absent a court order to the contrary, the Non-Party shall bear the 23 burden and expense of seeking protection in this court of its Protected Material. 24 25 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 26 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 27 Protected Material to any person or in any circumstance not authorized under this 28 1 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 2 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 3 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 4 persons to whom unauthorized disclosures were made of all the terms of this Order, 5 and (d) request such person or persons to execute the “Acknowledgment and 6 Agreement to Be Bound” that is attached hereto as Exhibit A. 7 8 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 9 PROTECTED MATERIAL 10 When a Producing Party gives notice to Receiving Parties that certain 11 inadvertently produced material is subject to a claim of privilege or other protection, 12 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 13 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 14 may be established in an e-discovery order that provides for production without 15 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar 16 as the parties reach an agreement on the effect of disclosure of a communication or 17 information covered by the attorney-client privilege or work product protection, the 18 parties may incorporate their agreement in the stipulated protective order submitted 19 to the court. 20 21 12. MISCELLANEOUS 22 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 23 person to seek its modification by the Court in the future. 24 12.2 Right to Assert Other Objections. By stipulating to the entry of this 25 Protective Order no Party waives any right it otherwise would have to object to 26 disclosing or producing any information or item on any ground not addressed in this 27 28 1 Stipulated Protective Order. Similarly, no Party waives any right to object on any 2 ground to use in evidence of any of the material covered by this Protective Order. 3 12.3 Filing Protected Material. A Party that seeks to file under seal any 4 Protected Material must comply with the applicable Local Rule. Protected Material 5 may only be filed under seal pursuant to a court order authorizing the sealing of the 6 specific Protected Material at issue. If a Party's request to file Protected Material 7 under seal is denied by the court, then the Receiving Party may file the information 8 in the public record unless otherwise instructed by the court. 9 13. FINAL DISPOSITION 10 After the final disposition of this Action, as defined in paragraph 4, within 60 11 days of a written request by the Designating Party, each Receiving Party must return 12 all Protected Material to the Producing Party or destroy such material. As used in 13 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 14 summaries, and any other format reproducing or capturing any of the Protected 15 Material. Whether the Protected Material is returned or destroyed, the Receiving 16 Party must submit a written certification to the Producing Party (and, if not the same 17 person or entity, to the Designating Party) by the 60-day deadline that (1) identifies 18 (by category, where appropriate) all the Protected Material that was returned or 19 destroyed and (2) affirms that the Receiving Party has not retained any copies, 20 abstracts, compilations, summaries or any other format reproducing or capturing any 21 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 22 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 23 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 24 reports, attorney work product, and consultant and expert work product, even if such 25 materials contain Protected Material. Any such archival copies that contain or 26 constitute Protected Material remain subject to this Protective Order as set forth in 27 Section 4 (DURATION). 28 1 2 14. Any violation of this Order may be punished by any and all appropriate 3 measures including, without limitation, contempt proceedings and/or monetary 4 sanctions. 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 DATED _______________________ 8 _____________________________________ 9 Attorneys for Plaintiff 10 11 12 DATED:________________________ 13 14 _____________________________________ 15 Attorneys for Defendant 16 17 ORDER 18 19 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 20 1. The protective order is entered; 21 2. The parties are advised that pursuant to the Local Rules of the United States 22 District Court, Eastern District of California, any documents which are to be 23 filed under seal will require a written request which complies with Local Rule 24 141; and 25 3. The party making a request to file documents under seal shall be required to 26 show good cause for documents attached to a nondispositive motion or 27 28 1 compelling reasons for documents attached to a dispositive motion. Pintos v. 2 Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). 3 4 IT IS SO ORDERED. □□ (Se 5 ||Dated: _March 3, 2020 OF 6 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 15 ur STIPULATION RE CONFIDENTIALITY AND [PROPOSED] PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ , of _________________ , declare 5 under penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Central 7 District of California in the case of Patrocina A. Ramsey v. Farmers New World 8 Life Insurance Company, Case No. 1:19-cv-00405-DAD-SAB. I agree to comply 9 with and to be bound by all the terms of this Stipulated Protective Order and I 10 understand and acknowledge that failure to so comply could expose me to sanctions 11 and punishment in the nature of contempt. I solemnly promise that I will not 12 disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for the 16 Eastern District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint __________________________ of 19 _______________________________________ as my California agent for service 20 of process in connection with this action or any proceedings related to enforcement 21 of this Stipulated Protective Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: _______________________________ 25 Signature: __________________________________ 26 27 28