Anderson v. Allianz Life Insurance Company of North America ( 2022 )

1 James H. Wilkins, #116364 WILKINS, DROLSHAGEN & CZESHINSKI LLP 2 6785 N. Willow Ave. Fresno, CA 93710 3 Telephone: (559) 438-2390 Facsimile: (559) 438-2393 4 Attorneys for Plaintiff, LANCE ANDERSON, Guardian Ad Litem of MAURINE ANDERSON 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 LANCE ANDERSON, as Guardian Ad Litem of Case No. 1:22-cv-00165-DAD-EPG MAURINE ANDERSON 12 AMENDED STIPULATION RE 13 Plaintiff, CONFIDENTIALITY AND PROTECTIVE ORDER 14 v. 15 ALLIANZ LIFE INSURANCE COMPANY OF (ECF No. 9) NORTH AMERICA, and Does 1 through 50, 16 inclusive, 17 18 Defendants. 19 20 21 1. PURPOSES AND LIMITATIONS 22 Discovery in this action is likely to involve production of confidential, proprietary, or private 23 information for which special protection from public disclosure and from use for any purpose other 24 than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and 25 petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that 26 this Order does not confer blanket protections on all disclosures or responses to discovery and that 27 the protection it affords from public disclosure and use extends only to the limited information or 28 1 items that are entitled to confidential treatment under the applicable legal principles. The parties 2 further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does 3 not entitle them to file confidential information under seal. 4 A. GOOD CAUSE STATEMENT 5 This action is likely to involve trade secrets, development, commercial, financial, personal, 6 technical and/or proprietary information for which special protection from public disclosure and 7 from use for any purpose other than prosecution of this action is warranted. Such confidential and 8 proprietary materials and information consist of, among other things, confidential business or 9 financial information, information regarding confidential business practices, or other confidential 10 research, development, or commercial information (including information implicating privacy 11 rights of third parties), information otherwise generally unavailable to the public, or which may be 12 privileged or otherwise protected from disclosure under state or federal statutes, court rules, case 13 decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt 14 resolution of disputes over confidentiality of discovery materials, to adequately protect information 15 the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable 16 necessary uses of such material in preparation for and in the conduct of trial, to address their 17 handling at the end of the litigation, and serve the ends of justice, a protective order for such 18 information is justified in this matter. It is the intent of the parties that information will not be 19 designated as confidential for tactical reasons and that nothing be so designated without a good faith 20 belief that it has been maintained in a confidential, non-public manner, and there is good cause why 21 it should not be part of the public record of this case. 22 More specifically, and in compliance with Local Rule 141.1(c), the parties make the 23 following representations: 24 1. The types of information eligible for protection include medical records of Maurine 25 Anderson and personal information regarding Maurine Anderson contained in those medical 26 records, including, but not limited to her address, her birthdate, her Social Security number, 27 and other information that could be used to “steal” her identity; information regarding 28 1 Anderson’s medical records by Allianz claims personnel; analysis of coverage issues by 2 Allianz claims personnel in light of the information contained in Maurine Anderson’s 3 medical records; 4 2. The need for the protection to be provided by the protective order concerns the privacy 5 interests of Maurine Anderson in the information contained in her medical records and her 6 finances; Allianz’s internal evaluation of the information contained in Maurine Anderson’s 7 medical records; and Allianz’s analysis of coverage provided by the subject insurance policy 8 as applied to Maurine Anderson’s claim in light of the information contained in Maurine 9 Anderson’s medical records; and 10 3. The Parties anticipate that certain information to be protected by the protective order will be 11 relied on by the Parties in certain pleadings and other documents that may be filed with the 12 Court, and the Parties need the protection of the Court order to prevent disclosure of that 13 certain information via the public nature of those pleadings and other documents. 14 2. DEFINITIONS 15 2.1 Action: The above-entitled action. 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 as specified above in the Good Cause Statement. 21 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support 22 staff). 23 2.5 Designating Party: A Party or Non-Party that designates information or items that it 24 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 25 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium 26 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 27 transcripts, and tangible things), that are produced or generated in disclosures or responses to 28 1 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to 2 the litigation who has been retained by a party or its counsel to serve as an expert witness or as a 3 consultant in this Action. 4 2.8 House Counsel: attorneys who are employees of a party to this Action. House 5 Counsel does not include Outside Counsel of Record or any other outside counsel. 6 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal 7 entity not named as a party to this action. 8 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this 9 Action but are retained to represent or advise a party to this Action and have appeared in this Action 10 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party 11 and includes support staff. 12 2.11 Party: any party to this Action, including all of its officers, directors, employees, 13 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 14 2.12 Producing Party: a party or non-party that produces Disclosure or Discovery 15 Material in this Action. 16 2.13 Professional Vendors: persons or entities that provide litigation support services 17 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 18 storing, or retrieving data in any form or medium) and their employees and subcontractors. 19 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 20 “CONFIDENTIAL.” 21 2.15 Receiving Party: a party that receives Disclosure or Discovery Material from a 22 Producing Party. 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only Protected Material 25 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all 26 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 27 conversations, or presentations by parties or their Counsel that might reveal Protected Material. 28 1 Any use of Protected Material at trial shall be governed by the orders of the trial judge. This 2 Order does not govern the use of Protected Material at trial. 3 4. DURATION 4 Once this case proceeds to trial, all of the information that was designated as confidential or 5 maintained pursuant to this protective order may become public and may be presumptively available 6 to all members of the public, including the press, unless compelling reasons supported by specific 7 factual findings to proceed otherwise are made to the trial judge in advance of the trial. See 8 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing 9 “good cause” showing for sealing documents produced in discovery from “compelling reasons” 10 standard when merits-related documents are part of court record). Accordingly, the terms of this 11 protective order do not extend beyond the commencement of the trial. 12 Nothing in this protective order operates to preclude any Party to this protective order from 13 seeking further protection of confidential materials after the commencement of trial. 14 5. DESIGNATING PROTECTED MATERIAL 15 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 16 Non-Party that designates information or items for protection under this Order must take care to 17 limit any such designation to specific material that qualifies under the appropriate standards. The 18 Designating Party must designate for protection only those parts of material, documents, items, or 19 oral or written communications that qualify so that other portions of the material, documents, items, 20 or communications for which protection is not warranted are not swept unjustifiably within the 21 ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations 22 that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 23 unnecessarily encumber the case development process or to impose unnecessary expenses and 24 burdens on other parties) may expose the Designating Party to sanctions. 25 If it comes to a Designating Party’s attention that information or items that it designated for 26 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 27 that it is withdrawing the inapplicable designation. 28 1 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 2 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 3 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 4 designated before the material is disclosed or produced. 5 Designation in conformity with this Order requires: 6 (a) For information in documentary form (e.g., paper or electronic documents, but 7 excluding transcripts of depositions or other pretrial or trial proceedings), that the 8 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 9 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 10 portion or portions of the material on a page qualifies for protection, the Producing 11 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 12 markings in the margins). 13 A Party or Non-Party that makes original documents available for inspection need 14 not designate them for protection until after the inspecting Party has indicated which 15 documents it would like copied and produced. During the inspection and before the 16 designation, all of the material made available for inspection shall be deemed 17 “CONFIDENTIAL.” After the inspecting Party has identified the documents, it 18 wants copied and produced, the Producing Party must determine which documents, 19 or portions thereof, qualify for protection under this Order. Then, before producing 20 the specified documents, the Producing Party must affix the “CONFIDENTIAL 21 legend” to each page that contains Protected Material. If only a portion or portions 22 of the material on a page qualifies for protection, the Producing Party also must 23 clearly identify the protected portion(s) (e.g., by making appropriate markings in the 24 margins). 25 (b) for testimony given in depositions that the Designating Party identify the Disclosure 26 or Discovery Material on the record, before the close of the deposition all protected 27 testimony. 28 1 (c) for information produced in some form other than documentary and for any other 2 tangible items, that the Producing Party affix in a prominent place on the exterior of 3 the container or containers in which the information is stored the legend 4 “CONFIDENTIAL.” If only a portion or portions of the information warrants 5 protection, the Producing Party, to the extent practicable, shall identify the protected 6 portion(s). 7 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 8 designate qualified information or items does not, standing alone, waive the Designating Party’s 9 right to secure protection under this Order for such material. Upon timely correction of a 10 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 11 in accordance with the provisions of this Order. 12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 13 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 14 confidentiality at any time that is consistent with the Court’s Scheduling Order. 15 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process. 16 6.3 The burden of persuasion in any such challenge proceeding shall be on the 17 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or 18 impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to 19 sanctions. Unless the Designating Party has waived or withdrawn the confidentiality designation, 20 all parties shall continue to afford the material in question the level of protection to which it is 21 entitled under the Producing Party’s designation until the Court rules on the challenge. 22 7. ACCESS TO AND USE OF PROTECTED MATERIAL 23 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 24 produced by another Party or by a Non-Party in connection with this Action only for prosecuting, 25 defending, or attempting to settle this Action. Such Protected Material may be disclosed only to the 26 categories of persons and under the conditions described in this Order. When the Action has been 27 terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 28 1 Protected Material must be stored and maintained by a Receiving Party at a location and in 2 a secure manner that ensures that access is limited to the persons authorized under this Order. 3 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 4 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 5 information or item designated “CONFIDENTIAL” only to: 6 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees 7 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 8 information for this Action; 9 (b) the officers, directors, and employees (including House Counsel) of the Receiving 10 Party to whom disclosure is reasonably necessary for this Action; 11 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 12 reasonably necessary for this Action and who have signed the “Acknowledgment and 13 Agreement to Be Bound” (Exhibit A); 14 (d) the court and its personnel; 15 (e) court reporters and their staff; 16 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to 17 whom disclosure is reasonably necessary for this Action and who have signed the 18 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (g) the author or recipient of a document containing the information or a custodian or 20 other person who otherwise possessed or knew the information; 21 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to 22 whom disclosure is reasonably necessary provided: (1) the deposing party requests 23 that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be 24 permitted to keep any confidential information unless they sign the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 26 agreed by the Designating Party or ordered by the court. Pages of transcribed 27 deposition testimony or exhibits to depositions that reveal Protected Material may be 28 1 separately bound by the court reporter and may not be disclosed to anyone except as 2 permitted under this Stipulated Protective Order; and 3 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed 4 upon by any of the parties engaged in settlement discussions. 5 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 6 OTHER LITIGATION 7 If a Party is served with a subpoena or a court order issued in other litigation that compels 8 disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party 9 must: 10 (a) promptly notify in writing the Designating Party. Such notification shall include a 11 copy of the subpoena or court order; 12 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 13 other litigation that some or all of the material covered by the subpoena or order is 14 subject to this Protective Order. Such notification shall include a copy of this 15 Stipulated Protective Order; and 16 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 17 Designating Party whose Protected Material may be affected. 18 If the Designating Party timely seeks a protective order, the Party served with the 19 subpoena or court order shall not produce any information designated in this action 20 as “CONFIDENTIAL” before a determination by the court from which the subpoena 21 or order issued, unless the Party has obtained the Designating Party’s permission. 22 The Designating Party shall bear the burden and expense of seeking protection in 23 that court of its confidential material and nothing in these provisions should be 24 construed as authorizing or encouraging a Receiving Party in this Action to disobey 25 a lawful directive from another court. 26 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 27 THIS LITIGATION 28 1 (a) The terms of this Order are applicable to information produced by a Non-Party in 2 this Action and designated as “CONFIDENTIAL.” Such information produced by 3 Non-Parties in connection with this litigation is protected by the remedies and relief 4 provided by this Order. Nothing in these provisions should be construed as 5 prohibiting a Non-Party from seeking additional protections. 6 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 7 Party’s confidential information in its possession, and the Party is subject to an 8 agreement with the Non-Party not to produce the Non-Party’s confidential 9 information, then the Party shall: 10 (1) promptly notify in writing the Requesting Party and the Non-Party that some 11 or all of the information requested is subject to a confidentiality agreement 12 with a Non-Party; 13 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 14 Order in this Action, the relevant discovery request(s), and a reasonably 15 specific description of the information requested; and 16 (3) make the information requested available for inspection by the Non-Party, if 17 requested. 18 (c) If the Non-Party fails to seek a protective order from this court within 14 days of 19 receiving the notice and accompanying information, the Receiving Party may 20 produce the Non-Party’s confidential information responsive to the discovery 21 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 22 not produce any information in its possession or control that is subject to the 23 confidentiality agreement with the Non-Party before a determination by the court. 24 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 25 of seeking protection in this court of its Protected Material. 26 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 27 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 28 1 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 2 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 3 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 4 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 5 Be Bound” that is attached hereto as Exhibit A. 6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 7 PROTECTED MATERIAL 8 When a Producing Party gives notice to Receiving Parties that certain inadvertently 9 produced material is subject to a claim of privilege or other protection, the obligations of the 10 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 11 is not intended to modify whatever procedure may be established in an e-discovery order that 12 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) 13 and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or 14 information covered by the attorney-client privilege or work product protection, the parties may 15 incorporate their agreement in the stipulated protective order submitted to the court. 16 12. MISCELLANEOUS 17 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 18 its modification by the Court in the future. 19 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 20 no Party waives any right it otherwise would have to object to disclosing or producing any 21 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 22 Party waives any right to object on any ground to use in evidence of any of the material covered by 23 this Protective Order. 24 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected Material 25 must comply with the applicable Local Rule. Protected Material may only be filed under seal 26 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a 27 Party’s request to file Protected Material under seal is denied by the court, then the Receiving Party 28 1 |/13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 60 days of a 3 || written request by the Designating Party, each Receiving Party must return all Protected Material to 4 || the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” 5 includes all copies, abstracts, compilations, summaries, and any other format reproducing or 6 || capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, 7 || the Receiving Party must submit a written certification to the Producing Party (and, if not the same 8 || person or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by category, 9 || where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the 10 || Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format 11 || reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are 12 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 13 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 14 || work product, and consultant and expert work product, even if such materials contain Protected 15 || Material. Any such archival copies that contain or constitute Protected Material remain subject to 16 || this Protective Order as set forth in Section 4 (DURATION). 17 ||14. VIOLATION OF ORDER 18 Any violation of this Order may be punished by any and all appropriate measures including, 19 || without limitation, contempt proceedings and/or monetary sanctions. 20 IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 21 22 || Dated: March 29, 2022 /s/ James H. Wilkins 73 Attorneys for Plaintiff 24 _ 95 || Pated: March 29, 2022 < Yeepher Cele 26 Attorneys for Defendant 27 28 19 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ , of _________________ , declare under penalty of 5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued 6 by the United States District Court for the Central District of California in the case of Patrocina A. 7 Ramsey v. Farmers New World Life Insurance Company, Case No. 1:19-cv-00405-DAD-SAB. I 8 agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I 9 understand and acknowledge that failure to so comply could expose me to sanctions and punishment 10 in the nature of contempt. I solemnly promise that I will not disclose in any manner any information 11 or item that is subject to this Stipulated Protective Order to any person or entity except in strict 12 compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the Eastern District 14 of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such 15 enforcement proceedings occur after termination of this action. I hereby appoint 16 __________________________ of _______________________________________ as my 17 California agent for service of process in connection with this action or any proceedings related to 18 enforcement of this Stipulated Protective Order. 19 Date: ______________________________________ 20 City and State where sworn and signed: _________________________________ 21 Printed name: _______________________________ 22 Signature: __________________________________ 23 24 25 26 27 28 1 ORDER 2 Pursuant to the parties’ stipulation (ECF No. 9), IT IS ORDERED that the parties’ amended 3 stipulated protective order is hereby approved. 4 5 || IT IS SO ORDERED. || Dated: _Mareh 30, 2022 [see hey 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 14