Nam v. Safeco Insurance Company of America ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION 10 KITAE NAM, an individual, Case No. 1:20-cv-01273-NONE-EPG 11 Plaintiff, 12 v. PROTECTIVE ORDER 13 SAFECO INSURANCE COMPANY OF AMERICA, a corporation, and Does 1 through 14 10, (ECF No. 14) 15 Defendants. 16 17 1. A. PURPOSES AND LIMITATIONS 18 Pursuant to the Parties’ Stipulation for a Protective Order and representation that discovery 19 in this action is likely to involve the disclosure of confidential business, proprietary, private and/or 20 trade secret information for which special protection from public disclosure and from use for any 21 purpose other than prosecuting this action may be warranted, this Court enters the following 22 Protective Order. This Order does not confer blanket protections on all disclosures or responses to 23 discovery. The protection it affords from public disclosure and use extends only to the limited 24 information or items that are entitled to confidential treatment under the applicable legal 25 principles. Further, as set forth in Section 12.3, below, this Protective Order does not entitle the 26 parties to file confidential information under seal. Rather, when the parties seek permission from 27 the court to file material under seal, the parties must comply with Civil Local Rule 141 and with any pertinent orders of the assigned District Judge and Magistrate Judge. 1 B. GOOD CAUSE STATEMENT 2 In accordance with Eastern District Local Rule 141.1(c)(1), the type of confidential and 3 proprietary material eligible for protection in this action includes, but is not limited to: (1) 4 proprietary policies, procedures, manuals, handbooks and/or guidelines, including claim handling 5 manuals, bulletins, training materials, and documents concerning the handling of claims pursuant 6 to the California Fair Claims Settlement Practices Regulations, and other documents governing the 7 investigation, handling and adjustment of claims; (2) confidential Master Service Agreements with 8 third party vendors, including Independent Adjustment agreements and compensation and 9 incentive information; (3) confidential and proprietary financial and business data, including trade 10 secret information; (4) policy underwriting and pricing material; and/or (5) other documents and 11 information protected under privacy rights. 12 There is a particularized need for this Stipulated Protective Order. (Eastern District Local 13 Rule 141.1(c)(2)). Plaintiff has already requested through discovery in this action to Defendant 14 and third parties, the types of confidential and proprietary materials noted in the preceding 15 paragraph. See Lee v. Kaiser Foundation Health Plan Long Term Disability Plan, 2010 WL 16 2803105 at *3 (N.D. Cal. July 14, 2010) (internal insurance claims materials are considered trade 17 secrets); Umpqua Bank v. First Am. Title Ins. Co., No. CIV S-09-3208 WBS EF, 2011 WL 18 997212, at *8 (E.D. Cal. Mar. 17, 2011) (contemplating production of claims manuals pursuant to 19 protective order); GBTI, Inc. v. Ins. Co. of State of Pa., 2010 WL 2942631, at *4 (E.D. Cal. July 20 23, 2010) (underwriting and claims manuals to be produced subject to appropriate 21 confidentiality/protective order in recognition by the Court that the insurer “has a legitimate 22 interest in protecting its trade secrets and other confidential proprietary information”); McCurdy v. 23 Metro. Life Ins. Co., 2007 WL 915177, at *4 (E.D. Cal. Mar. 23, 2007) (claims and procedural 24 manuals, guidelines, bulletins, and memoranda to be produced in accordance with the terms of a 25 stipulated protective order.); Nationwide Mut. Ins. Co. v. Ryan, 2013 WL 6001931, at *4 (N.D. 26 Cal. Nov. 12, 2013) (ordering production of claims adjusting manual, underwriting manual and 27 investigations manual pursuant to a stipulated protective order.) 1 propounded involving the production of confidential records, and in order to expedite the flow of 2 information, to facilitate the prompt resolution of disputes over confidentiality of discovery 3 materials, including the procedure for challenging Confidentiality designations in conformity with 4 Eastern District Local Rule 251 (Motions Dealing with Discovery Matters), to adequately protect 5 information the parties are entitled to keep confidential, to ensure that the parties are permitted 6 reasonable necessary uses of such material in connection with this action, to address their handling 7 of such material at the end of the litigation, and to serve the ends of justice, a protective order for 8 such information is justified in this matter. (Eastern District Local Rule 141.1(c)(2)-(3)). 9 Finally, the Parties shall not designate any information/documents as confidential without 10 a good faith belief that such information/documents have been maintained in a confidential, non- 11 public manner, and that there is good cause or a compelling reason why it should not be part of the 12 public record of this case. 13 2. DEFINITIONS 14 2.1 Action: The instant action: Nam v. Safeco Insurance Company of America, United 15 States District Court, Eastern District of California, Case No. 1:20-cv-01273-NONE-EPG. 16 2.2 Challenging Party: a Party or Non-Party that challenges the designation of 17 information or items under this Order. 18 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is 19 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 20 of Civil Procedure 26(c) and that a Party or third-party reasonably, in good faith believes contains 21 any confidential research, development, trade secret, or commercial information, or any other 22 personal information of any Party or a Party’s customer, provided that the Party or third-party has 23 made efforts to maintain confidentiality that are reasonable under the circumstances, whether the 24 Confidential Information is: a document, electronically stored information (“ESI”), or other 25 written material or image; information contained in a document, ESI, or other material; 26 information revealed during a deposition; information revealed in an interrogatory, answer, or 27 written response to discovery; information responsive to requests for production or a deposition 1 subpoena for business records; information revealed during a meet and confer, or otherwise in 2 connection with formal or informal discovery. 3 Confidential Information includes testimony, written or recorded materials, or information 4 in any other form, produced or disclosed by Safeco or a third party in connection with discovery 5 proceedings in this case, in which the following is discussed or in any way referred to: Safeco’s 6 claims adjusting manuals, underwriting manuals, procedural manuals, guidelines for investigating 7 and adjusting first-party property claims, bulletins, agreements with vendors, third party customer 8 lists, third party project lists, or any other documents concerning the handling of claims pursuant 9 to the California Fair Claims Settlement Practices Regulations. 10 All information deemed to be “Confidential Information or Items” may be designated 11 under this Stipulated Protective Order as “CONFIDENTIAL.” 12 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support 13 staff). 14 2.5 Disclosure or Discovery Material: all items or information, regardless of the 15 medium or manner in which it is generated, stored, or maintained (including, among other things, 16 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 17 responses to discovery in this matter. 18 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 19 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 20 consultant in this Action. 21 2.7 House Counsel: attorneys who are employees of a party to this Action. House 22 Counsel does not include Outside Counsel of Record or any other outside counsel. 23 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 24 entity not named as a Party to this action. 25 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 26 Action but are retained to represent or advise a party to this Action and have appeared in this 27 Action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 1 2.10 Party: any party to this Action, including all of its officers, directors, employees, 2 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 3 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 4 Material in this Action. 5 2.12 Professional Vendors: persons or entities that provide litigation support services 6 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 7 organizing, storing, or retrieving data in any form or medium) and their employees and 8 subcontractors. 9 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 10 “CONFIDENTIAL.” 11 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 12 Producing Party. 13 3. SCOPE 14 The Parties agree that the protections conferred by this Stipulated Protective Order cover 15 not only Protected Material (as defined above), but also (1) any information copied or extracted 16 from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 17 Material; and (3) any deposition testimony, conversations, or presentations by Parties or their 18 Counsel that might reveal Protected Material, other than during a court hearing or at trial. 19 If any Protected Material (1) is, or contains information which is, already in the public 20 domain; or (2) later becomes part of the public domain after its designation as Confidential as a 21 result of publication not involving a violation of this Order, including becoming part of the public 22 record through trial or otherwise; or (3) contains information already known to the Receiving 23 Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source 24 who obtained the information lawfully and under no obligation of confidentiality to the 25 Designating Party, then the Receiving Party may challenge the designation of confidentiality 26 consistent with the procedures set forth in Paragraph 6 below. 27 The Parties agree that any use of Protected Material during a court hearing or at trial shall 1 Material during trial. 2 4. DURATION 3 Even after final disposition of this litigation, the confidentiality obligations imposed by this 4 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 5 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 6 and defenses in this Action, with or without prejudice; and (2) final judgment herein after the 7 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 8 including the time limits for filing any motions or applications for extension of time pursuant to 9 applicable law. 10 5. DESIGNATING PROTECTED MATERIAL 11 5.1 Exercise of Restraint and Care in Designating Material for Protection. 12 Each Party or Non-Party that designates information or items for protection under this 13 Order must take care to limit any such designation to specific material that qualifies under the 14 appropriate standards. The Designating Party must designate for protection only those parts of 15 material, documents, items, or oral or written communications that qualify so that other portions of 16 the material, documents, items, or communications for which protection is not warranted are not 17 swept unjustifiably within the ambit of this Order. 18 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 19 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 20 unnecessarily encumber the case development process or to impose unnecessary expenses and 21 burdens on other parties) may expose the Designating Party to sanctions. 22 If it comes to a Designating Party’s attention that information or items that it designated 23 for protection do not qualify for protection, that Designating Party must promptly notify all other 24 Parties that it is withdrawing the inapplicable designation. 25 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order, or 26 as otherwise stipulated or ordered, material that qualifies for protection under this Order must be 27 clearly so designated before the material is disclosed or produced. 1 (a) for information in documentary form (e.g., paper or electronic documents, but 2 excluding transcripts of depositions), that the Producing Party affix at a minimum, the legend 3 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that contains 4 protected material. If only a portion or portions of the material on a page qualifies for protection, 5 the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 6 markings in the margins). 7 A Party or Non-Party that makes original documents available for inspection need not 8 designate them for protection until after the inspecting Party has indicated which documents it 9 would like copied and produced. During the inspection and before the designation, all of the 10 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 11 Party has identified the documents it wants copied and produced, the Producing Party must 12 determine which documents, or portions thereof, qualify for protection under this Order. Then, 13 before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL 14 legend” to each page that contains Protected Material. If only a portion or portions of the material 15 on a page qualifies for protection, the Producing Party also must clearly identify the protected 16 portion(s) (e.g., by making appropriate markings in the margins). 17 (b) for testimony given in depositions that the Designating Party identifies on the 18 record, before the close of the deposition as protected testimony. When it is impractical to identify 19 separately each portion of testimony that is entitled to protection, and when it appears that 20 substantial portions of the testimony may qualify for protection, the Designating Party or Non- 21 Party that sponsors, offers, or gives the testimony may invoke on the record (before the deposition 22 or proceeding is concluded) a right to have up to 20 days after receipt of the final transcript to 23 identify the specific portions of the testimony as to which protection is sought. Only those portions 24 of the testimony that are appropriately designated for protection within the 20 days shall be 25 covered by the provisions of this Stipulated Protective Order. 26 (c) for information produced in some form other than documentary, and for any other 27 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 1 portion or portions of the information warrants protection, the Producing Party, to the extent 2 practicable, shall identify the protected portion(s). 3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 4 designate qualified information or items does not, standing alone, waive the Designating Party’ 5 right to secure protection under this Order for such material. Upon timely correction of a 6 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 7 in accordance with the provisions of this Stipulated Protective Order. 8 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 9 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 10 confidentiality at any time that is consistent with the Court’s Scheduling Order. 11 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 12 process under Local Rule 251. 13 6.3 The burden of persuasion in any such challenge proceeding shall be on the 14 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 15 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 16 to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality 17 designation, all parties shall continue to afford the material in question the level of protection to 18 which it is entitled under the Producing Party’s designation until the Court rules on the challenge. 19 7. ACCESS TO AND USE OF PROTECTED MATERIAL 20 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 21 produced by another Party or by a Non-Party in connection with this Action only for prosecuting, 22 defending, or attempting to settle this Action. Such Protected Material may be disclosed only to 23 the categories of persons and under the conditions described in this Order. When the Action has 24 been terminated, a Receiving Party must comply with the provisions of Section 13 below. 25 Protected Material must be stored and maintained by a Receiving Party at a location and in 26 a secure manner that ensures that access is limited to the persons authorized under this Order. 27 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 1 information or item designated “CONFIDENTIAL” only to: 2 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 3 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 4 information for this Action; 5 (b) the officers, directors, and employees (including House Counsel) of the Receiving 6 Party to whom disclosure is reasonably necessary for this Action; 7 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 8 reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement 9 to Be Bound” (Exhibit A); 10 (d) the court and its personnel; 11 (e) court reporters and their staff; 12 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to 13 whom disclosure is reasonably necessary for this Action and who have signed the 14 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 15 (g) the author or recipient of a document containing the information or a custodian or 16 other person who otherwise possessed or knew the information; 17 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to 18 whom disclosure is reasonably necessary provided: (1) the deposing party requests that the witness 19 sign the “Acknowledgment and Agreement to Be Bound” form attached as Exhibit A hereto; and 20 (2) they will not be permitted to keep any confidential information unless they sign the 21 “Acknowledgment and Agreement to Be Bound” attached as Exhibit A, unless otherwise agreed 22 by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or 23 exhibits to depositions that reveal Protected Material may be separately bound by the court 24 reporter and may not be disclosed to anyone except as permitted under this Protective Order; and 25 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed 26 upon by any of the parties engaged in settlement discussions. 27 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 1 If a Party is served with a subpoena or a court order issued in other litigation that compels 2 disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party 3 must: 4 (a) promptly notify in writing the Designating Party. Such notification shall include a 5 copy of the subpoena or court order unless prohibited by law; 6 (b) promptly notify in writing the party who caused the subpoena or order to issue in 7 the other litigation that some or all of the material covered by the subpoena or order is subject to 8 this Protective Order. Such notification shall include a copy of this Protective Order; and 9 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 10 Designating Party whose Protected Material may be affected. 11 If the Designating Party seeks a protective order, the Party served with the subpoena or 12 court order shall not produce any information designated in this action as “CONFIDENTIAL” 13 before a determination by the court from which the subpoena or order issued, unless the Party has 14 obtained the Designating Party’s permission, or unless otherwise required by the law or court 15 order. The Designating Party shall bear the burden and expense of seeking protection in that court 16 of its confidential material and nothing in these provisions should be construed as authorizing or 17 encouraging a Receiving Party in this Action to disobey a lawful directive from another court. 18 /// 19 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 20 LITIGATION 21 (a) The terms of this Order are applicable to information produced by a Non-Party in 22 this Action and designated as “CONFIDENTIAL,” either by the Non-Party or a Party. Such 23 information produced by Non-Parties in connection with this litigation is protected by the 24 remedies and relief provided by this Stipulated Protective Order. Nothing in these provisions 25 should be construed as prohibiting a Non-Party from seeking additional protections. 26 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 27 Party’s confidential information in its possession, and the Party is subject to an agreement with the 1 (1) promptly notify in writing the Requesting Party and the Non-Party that 2 some or all of the information requested is subject to a confidentiality agreement with a Non- 3 Party; 4 (2) promptly provide the Non-Party with a copy of the Protective Order in this 5 Action, the relevant discovery request(s), and a reasonably specific description of the information 6 requested; and 7 (3) make the information requested available for inspection by the Non-Party, if 8 requested. 9 (c) If a Non-Party represented by counsel fails to commence the process called for by 10 Local Rules 141.1(b)(2) and 251 after receiving the notice and accompanying information or fails 11 contemporaneously to notify the Receiving Party that it has done so, the Receiving Party may 12 produce the Non-Party’s confidential information responsive to the discovery request. If an 13 unrepresented Non-Party fails to seek a protective order from this court after receiving the notice 14 and accompanying information, the Receiving Party may produce the Non-Party’s confidential 15 information responsive to the discovery request. If the Non-Party seeks a protective order, the 16 Receiving Party shall not produce any information in its possession or control that is subject to the 17 confidentiality agreement with the Non-Party before a determination by the court unless otherwise 18 required by the law or court order. Absent a court order to the contrary, the Non-Party shall bear 19 the burden and expense of seeking protection in this court of its Protected Material. 20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 21 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 22 Material to any person or in any circumstance not authorized under this Protective Order, the 23 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 24 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 25 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 26 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 27 Be Bound” that is attached hereto as Exhibit A. 1 MATERIAL 2 When a Producing Party gives notice to Receiving Parties that certain inadvertently 3 produced material is subject to a claim of privilege or other protection, the obligations of the 4 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 5 provision is not intended to modify whatever procedure may be established in an e-discovery order 6 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 7 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 8 communication or information covered by the attorney-client privilege or work product protection, 9 the parties may incorporate their agreement into this Protective Order. 10 12. MISCELLANEOUS 11 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 12 seek its modification by the Court in the future. 13 12.2 Right to Assert Other Objections. No Party waives any right it otherwise would 14 have to object to disclosing or producing any information or item on any ground not addressed in 15 this Order. Similarly, no Party waives any right to object on any ground to use in evidence of any 16 of the material covered by this Order. 17 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 18 Material must comply with Civil Local Rule 141 and with any pertinent orders of the assigned 19 District Judge and Magistrate Judge. If a Party's request to file Protected Material under seal is 20 denied by the court, then the Receiving Party may file the information in the public record unless 21 otherwise instructed by the court. 22 13. FINAL DISPOSITION 23 After the final disposition of this Action, as defined in Section 4, within 60 days of a 24 written request by the Designating Party, each Receiving Party must return all Protected Material 25 to the Producing Party or destroy such material. As used in this subdivision, “all Protected 26 Material” includes all copies, abstracts, compilations, summaries, and any other format 27 reproducing or capturing any of the Protected Material. Whether the Protected Material is returned 1 || if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 2 || (by category, where appropriate) all the Protected Material that was returned or destroyed and (2) 3 || affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or 4 || any other format reproducing or capturing any of the Protected Material. Notwithstanding this 5 || provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, 6 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial 7 || exhibits, expert reports, attorney work product, and consultant and expert work product, even if 8 || such materials contain Protected Material. Any such archival copies that contain or constitute 9 || Protected Material remain subject to this Protective Order as set forth in Section 4. 10 || 14. Any violation of this Order may be punished by any and all appropriate measures 11 || including, without limitation, contempt proceedings and/or monetary sanctions. 12 13 || IT IS SO ORDERED. Dated: March 22, 2021 [see ey 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 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 that I have read in its entirety and 5 understand the Protective Order that was issued by the United States District Court for the Eastern 6 District of California on _________________________ in the case of Nam v. Safeco Insurance 7 Company of America. I agree to comply with and to be bound by all the terms of this Protective 8 Order and 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 in any 10 manner any information or item that is subject to this Protective Order to any person or entity 11 except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the 13 Eastern District of California for the purpose of enforcing the terms of this Protective Order, even 14 if such enforcement proceedings occur after termination of this action. I hereby appoint 15 __________________________ [print or type full name] of 16 _______________________________________ [print or type full address and telephone number] 17 as my California agent for service of process in connection with this action or any proceedings 18 related to enforcement of this Protective Order. 19 20 Date: ______________________________________ 21 City and State where sworn and signed: _________________________________ 22 Printed name: _______________________________ 23 Signature: __________________________________ 24 25 26 27