Avetco, Inc. v. Sentinel Insurance Company, Ltd.

E-mail: andy.downs@bullivant.com [2] Ann K. Johnston, SBN 145022 3 E-mail: ann.johnston@bullivant.com Ted A. Smith, SBN 159986 [4] E-mail: ted.smith@bullivant.com 5 BULLIVANT HOUSER BAILEY PC 101 Montgomery Street, Suite 2600 [6] San Francisco, CA 94104 7 Telephone: 415.352.2700 Facsimile: 415.352.2701 [8] 9 Attorneys for Defendant Sentinel Insurance Company, Ltd. [10] 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 WESTERN DIVISION 14 AVETCO, INC., a California Case No.: 2:23-cv-07244-SPG-AJR corporation, [15] 16 Plaintiff, [PROPOSED] STIPULATED 17 v. PROTECTIVE ORDER [18] SENTINEL INSURANCE COMPANY 19 LTD. dba THE HARTFORD, a 20 Connecticut corporation; and DOES 150, inclusive, [21] 22 Defendants. [24] 25 1. GENERAL 26 1.1 Purposes and Limitations. Discovery in this action is likely to 27 involve production of confidential, proprietary, or private information for which 28 special protection from public disclosure and from use for any purpose other than 2 stipulate to and petition the Court to enter the following Stipulated Protective 3 Order. The parties acknowledge that this Order does not confer blanket 4 protections on all disclosures or responses to discovery and that the protection it 5 affords from public disclosure and use extends only to the limited information or 6 items that are entitled to confidential treatment under the applicable legal 7 principles. The parties further acknowledge, as set forth in Section 12.3, below, 8 that this Stipulated Protective Order does not entitle them to file confidential 9 information under seal; Civil Local Rule 79-5 sets forth the procedures that must 10 be followed and the standards that will be applied when a party seeks permission 11 from the court to file material under seal. 12 1.2 Good Cause Statement. 13 This action is likely to involve trade secrets, customer and pricing lists and 14 other valuable research, development, commercial, financial, technical and/or 15 proprietary information for which special protection from public disclosure and 16 from use for any purpose other than prosecution of this action is warranted. In 17 addition, this action involves documents for which a party has asserted the 18 attorney client and attorney work product privilege, the application of which the 19 other party contests. Such confidential, privileged, and proprietary materials and 20 information consist of, among other things, confidential business or financial 21 information, privileged communications between attorneys and their consultant, 22 information regarding confidential business practices, or other confidential 23 research, development, or commercial information (including information 24 implicating privacy rights of third parties), information otherwise generally 25 unavailable to the public, or which may be privileged or otherwise protected from 26 disclosure under state or federal statutes, court rules, case decisions, or common 27 law. Accordingly, to expedite the flow of information, to facilitate the prompt 28 resolution of disputes over confidentiality of discovery materials, to adequately 2 parties are permitted reasonable necessary uses of such material in preparation for 3 and in the conduct of trial, to address their handling at the end of the litigation, and 4 serve the ends of justice, a protective order for such information is justified in this 5 matter. It is the intent of the parties that information will not be designated as 6 confidential for tactical reasons and that nothing be so designated without a good 7 faith belief that it has been maintained in a confidential, non-public manner, and 8 there is good cause why it should not be part of the public record of this case. 9 2. DEFINITIONS 10 2.1 Action: Avetco, Inc. v. Sentinel Insurance Company Ltd. dba The 11 Hartford, et al., USDC, Central District of California, Case No. 2:23-cv-0724412 SPG-AJR 13 2.2 Challenging Party: a Party or Non-Party that challenges the 14 designation of information or items under this Order. 15 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 16 how it is generated, stored or maintained) or tangible things that qualify for 17 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 18 the Good Cause Statement. 19 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 20 their support staff). 21 2.5 Designating Party: a Party or Non-Party that designates information 22 or items that it produces in disclosures or in responses to discovery as 23 “CONFIDENTIAL.” 24 2.6 Disclosure or Discovery Material: all items or information, 25 regardless of the medium or manner in which it is generated, stored, or maintained 26 (including, among other things, testimony, transcripts, and tangible things), that 27 are produced or generated in disclosures or responses to discovery in this matter. 28 2.7 Expert: a person with specialized knowledge or experience in a 2 serve as an expert witness or as a consultant in this Action. 3 2.8 House Counsel: attorneys who are employees of a party to this 4 Action. House Counsel does not include Outside Counsel of Record or any other 5 outside counsel. 6 2.9 Non-Party: any natural person, partnership, corporation, association, 7 or other legal entity not named as a Party to this action. 8 2.10 Outside Counsel of Record: attorneys who are not employees of a 9 party to this Action but are retained to represent or advise a party to this Action 10 and have appeared in this Action on behalf of that party or are affiliated with a law 11 firm that has appeared on behalf of that party, including support staff. 12 2.11 Party: any party to this Action, including all of its officers, directors, 13 employees, consultants, retained experts, and Outside Counsel of Record (and 14 their support staffs). 15 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 16 Discovery Material in this Action. 17 2.13 Professional Vendors: persons or entities that provide litigation 18 support services (e.g., photocopying, videotaping, translating, preparing exhibits 19 or demonstrations, and organizing, storing, or retrieving data in any form or 20 medium) and their employees and subcontractors. 21 2.14 Protected Material: any Disclosure or Discovery Material that is 22 designated as “CONFIDENTIAL.” 23 2.15 Receiving Party: a Party that receives Disclosure or Discovery 24 Material from a Producing Party. 25 3. SCOPE 26 The protections conferred by this Stipulation and Order cover not only 27 Protected Material (as defined above), but also (1) any information copied or 28 extracted from Protected Material; (2) all copies, excerpts, summaries, or 2 presentations by Parties or their Counsel that might reveal Protected Material. 3 Any use of Protected Material at trial shall be governed by the orders of the 4 trial judge. This Order does not govern the use of Protected Material at trial. 5 4. DURATION 6 Once a case proceeds to trial, all of the court-filed information to be 7 introduced that was previously designated as confidential or maintained pursuant 8 to this protective order becomes public and will be presumptively available to all 9 members of the public, including the press, unless compelling reasons supported 10 by specific factual findings to proceed otherwise are made to the trial judge in 11 advance of the trial. See Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172 , 12 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing 13 documents produced in discovery from “compelling reasons” standard when 14 merits-related documents are part of court record). Accordingly, the terms of this 15 protective order do not extend beyond the commencement of the trial. 16 5. DESIGNATING PROTECTED MATERIAL 17 5.1 Exercise of Restraint and Care in Designating Material for Protection. 18 Each Party or Non-Party that designates information or items for protection under 19 this Order must take care to limit any such designation to specific material that 20 qualifies under the appropriate standards. The Designating Party must designate 21 for protection only those parts of material, documents, items, or oral or written 22 communications that qualify so that other portions of the material, documents, 23 items, or communications for which protection is not warranted are not swept 24 unjustifiably within the ambit of this Order. 25 Mass, indiscriminate, or routinized designations are prohibited. 26 Designations that are shown to be clearly unjustified or that have been made for an 27 improper purpose (e.g., to unnecessarily encumber the case development process 28 or to impose unnecessary expenses and burdens on other parties) may expose the 2 If it comes to a Designating Party’s attention that information or items that 3 it designated for protection do not qualify for protection, that Designating Party 4 must promptly notify all other Parties that it is withdrawing the inapplicable 5 designation. 6 5.2 Manner and Timing of Designations. Except as otherwise provided 7 in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 8 stipulated or ordered, Disclosure or Discovery Material that qualifies for 9 protection under this Order must be clearly so designated before the material is 10 disclosed or produced. 11 Designation in conformity with this Order requires: 12 (a) for information in documentary form (e.g., paper or electronic 13 documents, but excluding transcripts of depositions or other pretrial or trial 14 proceedings), that the Producing Party affix, at a minimum, the legend 15 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 16 contains protected material. If only a portion or portions of the material on a page 17 qualifies for protection, the Producing Party also must clearly identify the 18 protected portion(s) (e.g., by making appropriate markings in the margins). 19 A Party or Non-Party that makes original documents available for 20 inspection need not designate them for protection until after the inspecting Party 21 has indicated which documents it would like copied and produced. During the 22 inspection and before the designation, all of the material made available for 23 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 24 identified the documents it wants copied and produced, the Producing Party must 25 determine which documents, or portions thereof, qualify for protection under this 26 Order. Then, before producing the specified documents, the Producing Party must 27 affix the “CONFIDENTIAL legend” to each page that contains Protected 28 Material. If only a portion or portions of the material on a page qualifies for 2 (e.g., by making appropriate markings in the margins). 3 (b) for testimony given in depositions that the Designating Party 4 identify the Disclosure or Discovery Material on the record, before the close of the 5 deposition. 6 (c) for information produced in some form other than documentary 7 and for any other tangible items, that the Producing Party affix in a prominent 8 place on the exterior of the container or containers in which the information is 9 stored the legend “CONFIDENTIAL.” If only a portion or portions of the 10 information warrants protection, the Producing Party, to the extent practicable, 11 shall identify the protected portion(s). 12 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 13 failure to designate qualified information or items does not, standing alone, waive 14 the Designating Party’s right to secure protection under this Order for such 15 material. Upon timely correction of a designation, the Receiving Party must make 16 reasonable efforts to assure that the material is treated in accordance with the 17 provisions of this Order. 18 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 19 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 20 designation of confidentiality at any time that is consistent with the Court’s 21 Scheduling Order. 22 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 23 resolution process under Local Rule 37-1, et seq. Any discovery motion must 24 strictly comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3. 25 6.3 Burden. The burden of persuasion in any such challenge proceeding 26 shall be on the Designating Party. Frivolous challenges, and those made for an 27 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 28 other parties) may expose the Challenging Party to sanctions. Unless the 2 parties shall continue to afford the material in question the level of protection to 3 which it is entitled under the Producing Party’s designation until the Court rules 4 on the challenge. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that 7 is disclosed or produced by another Party or by a Non-Party in connection with 8 this Action only for prosecuting, defending, or attempting to settle this Action. 9 Such Protected Material may be disclosed only to the categories of persons and 10 under the conditions described in this Order. When the Action has been 11 terminated, a Receiving Party must comply with the provisions of section 13 12 below (FINAL DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a 14 location and in a secure manner that ensures that access is limited to the persons 15 authorized under this Order. 16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 17 otherwise ordered by the Court or permitted in writing by the Designating Party, a 18 Receiving Party may disclose any information or item designated 19 “CONFIDENTIAL” only to: 20 (a) the Receiving Party’s Outside Counsel of Record in this Action, 21 as well as employees of said Outside Counsel of Record to whom it is reasonably 22 necessary to disclose the information for this Action; 23 (b) the officers, directors, and employees (including House Counsel) 24 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 25 (c) Experts (as defined in this Order) of the Receiving Party to whom 26 disclosure is reasonably necessary for this Action and who have signed the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 28 (d) the Court and its personnel; 2 (f) professional jury or trial consultants, mock jurors, and 3 Professional Vendors to whom disclosure is reasonably necessary for this Action 4 and who have signed the “Acknowledgment and Agreement to Be Bound” 5 (Exhibit A); 6 (g) the author or recipient of a document containing the information 7 or a custodian or other person who otherwise possessed or knew the information; 8 (h) during their depositions, witnesses, and attorneys for witnesses, 9 in the Action to whom disclosure is reasonably necessary provided: (1) the 10 deposing party requests that the witness sign the form attached as Exhibit A 11 hereto; and (2) they will not be permitted to keep any confidential information 12 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 13 unless otherwise agreed by the Designating Party or ordered by the Court. Pages 14 of transcribed deposition testimony or exhibits to depositions that reveal Protected 15 Material may be separately bound by the court reporter and may not be disclosed 16 to anyone except as permitted under this Stipulated Protective Order; and 17 (i) any mediator or settlement officer, and their supporting personnel, 18 mutually agreed upon by any of the parties engaged in settlement discussions. 19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 20 PRODUCED IN OTHER LITIGATION 21 If a Party is served with a subpoena or a court order issued in other 22 litigation that compels disclosure of any information or items designated in this 23 Action as “CONFIDENTIAL,” that Party must: 24 (a) promptly notify in writing the Designating Party. Such notification 25 shall include a copy of the subpoena or court order; 26 (b) promptly notify in writing the party who caused the subpoena or order 27 to issue in the other litigation that some or all of the material covered by the 28 subpoena or order is subject to this Protective Order. Such notification shall 2 (c) cooperate with respect to all reasonable procedures sought to be pursued 3 by the Designating Party whose Protected Material may be affected. 4 If the Designating Party timely seeks a protective order, the Party served 5 with the subpoena or court order shall not produce any information designated in 6 this action as “CONFIDENTIAL” before a determination by the court from which 7 the subpoena or order issued, unless the Party has obtained the Designating 8 Party’s permission. The Designating Party shall bear the burden and expense of 9 seeking protection in that court of its confidential material and nothing in these 10 provisions should be construed as authorizing or encouraging a Receiving Party in 11 this Action to disobey a lawful directive from another court. 12 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 13 PRODUCED IN THIS LITIGATION 14 (a) The terms of this Order are applicable to information produced by a 15 Non-Party in this Action and designated as “CONFIDENTIAL.” Such 16 information produced by Non-Parties in connection with this litigation is protected 17 by the remedies and relief provided by this Order. Nothing in these provisions 18 should be construed as prohibiting a Non-Party from seeking additional 19 protections. 20 (b) In the event that a Party is required, by a valid discovery request, to 21 produce a Non-Party’s confidential information in its possession, and the Party is 22 subject to an agreement with the Non-Party not to produce the Non-Party’s 23 confidential information, then the Party shall: 24 (1) promptly notify in writing the Requesting Party and the Non25 Party that some or all of the information requested is subject to a confidentiality 26 agreement with a Non-Party; 27 (2) promptly provide the Non-Party with a copy of the Stipulated 28 Protective Order in this Action, the relevant discovery request(s), and a reasonably 2 (3) make the information requested available for inspection by the 3 Non-Party, if requested. 4 (c) If the Non-Party fails to seek a protective order from this Court within 5 14 days of receiving the notice and accompanying information, the Receiving 6 Party may produce the Non-Party’s confidential information responsive to the 7 discovery request. If the Non-Party timely seeks a protective order, the Receiving 8 Party shall not produce any information in its possession or control that is subject 9 to the confidentiality agreement with the Non-Party before a determination by the 10 Court. Absent a court order to the contrary, the Non-Party shall bear the burden 11 and expense of seeking protection in this Court of its Protected Material. 12 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 13 If a Receiving Party learns that, by inadvertence or otherwise, it has 14 disclosed Protected Material to any person or in any circumstance not authorized 15 under this Stipulated Protective Order, the Receiving Party must immediately (a) 16 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 17 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 18 the person or persons to whom unauthorized disclosures were made of all the 19 terms of this Order, and (d) request such person or persons to execute the 20 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 21 A. 22 11 . INADVERTENT PRODUCTION OF PRIVILEGED OR 23 OTHERWISE PROTECTED MATERIAL 24 When a Producing Party gives notice to Receiving Parties that certain 25 inadvertently produced material is subject to a claim of privilege or other 26 protection, the obligations of the Receiving Parties are those set forth in Federal 27 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 28 whatever procedure may be established in an e-discovery order that provides for 2 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 3 of a communication or information covered by the attorney-client privilege or 4 work product protection, the parties may incorporate their agreement in the 5 stipulated protective order submitted to the Court. 6 12. MISCELLANEOUS 7 12.1 Right to Further Relief. Nothing in this Order abridges the right of 8 any person to seek its modification by the Court in the future. 9 12.2 Right to Assert Other Objections. By stipulating to the entry of this 10 Protective Order, no Party waives any right it otherwise would have to object to 11 disclosing or producing any information or item on any ground not addressed in 12 this Stipulated Protective Order. Similarly, no Party waives any right to object on 13 any ground to use in evidence of any of the material covered by this Protective 14 Order. 15 12.3 Filing Protected Material. A Party that seeks to file under seal any 16 Protected Material must comply with Civil Local Rule 79-5. Protected Material 17 may only be filed under seal pursuant to a court order authorizing the sealing of 18 the specific Protected Material at issue; good cause must be shown in the request 19 to file under seal. 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 21 public record unless otherwise instructed by the Court. 22 13. FINAL DISPOSITION 23 After the final disposition of this Action, within 60 days of a written request 24 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 26 Protected Material” includes all copies, abstracts, compilations, summaries, and 27 any other format reproducing or capturing any of the Protected Material. Whether 28 the Protected Material is returned or destroyed, the Receiving Party must submit a 2 to the Designating Party) by the 60 day deadline that (1) identifies (by category, 3 where appropriate) all the Protected Material that was returned or destroyed, and 4 (2) affirms that the Receiving Party has not retained any copies, abstracts, 5 compilations, summaries or any other format reproducing or capturing any of the 6 Protected Material. Notwithstanding this provision, counsel are entitled to retain 7 an archival copy of all pleadings, motion papers, trial, deposition, and hearing 8 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 9 reports, attorney work product, and consultant and expert work product, even if 10 such materials contain Protected Material. Any such archival copies that contain 11 or constitute Protected Material remain subject to this Protective Order as set forth 12 in Section 4 (DURATION). 13 14. VIOLATION OF ORDER 14 Any violation of this Order may be punished by any and all appropriate 15 measures including, without limitation, contempt proceedings and/or monetary 16 sanctions. [1] 2 | SO STIPULATED, THROUGH COUNSEL OF RECORD. 3 | DATED: 8/16/24 [4] > | ENGSTROM, LIPSCOMB & LACK [6] 7 /s/ Ryan J. Farrell Ryan J. Farrell [8] 9 Attorneys for Plaintiff Avetco, Inc. 10 | DATED: 8/16/24 [11] 12 | BULLIVANT HOUSER BAILEY, PC [13] /s/ Ann K. Johnston 14 Ann K. Johnston [15] 16 || Attorneys for Defendant Sentinel Insurance Company, Ltd. [17] 18 | FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. [19] 90 | DATED:___ 8/16/24 7] HON. A. JOEL RICHLIN United States Magistrate Judge [22] 23 ok 2 KK ok 4877-1421-1289.3 [28] 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND [3] 4 I, _____________________________ [full name], of _________________ 5 [full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States 7 District Court for the Central District of California on ____________ [date] in the 8 case of ___________ [insert case name and number]. I agree to comply with 9 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 11 sanctions and punishment in the nature of contempt. I solemnly promise that I 12 will not disclose in any manner any information or item that is subject to this 13 Stipulated Protective Order to any person or entity except in strict compliance 14 with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for the purpose of enforcing the terms 17 of this Stipulated Protective Order, even if such enforcement proceedings occur 18 after termination of this action. I hereby appoint __________________________ 19 [full name] of _______________________________________ [full address and 20 telephone number] as my California agent for service of process in connection 21 with this action or any proceedings related to enforcement of this Stipulated 22 Protective Order. 23 Date: ______________________________________ 24 City and State where signed: _________________________________ [25] 26 Printed name: _______________________________ [27] Signature: __________________________________