Patrick Taylor v. Unum Life Insurance Company of America

1

2

3

4

5

6

7

8

9

10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12

13

PATRICK TAYLOR, an individual, Case No. 2:19-CV-07712-FMO-SS

14

Plaintiff,

15

vs. STIPULATED PROTECTIVE ORDER

16

UNUM LIFE INSURANCE

17

COMPANY OF AMERICA, a Maine

18 corporation; and DOES 1 through 50,

inclusive,

19

Defendants.

20

21

1. A. PURPOSES AND LIMITATIONS

22

Discovery in this action is likely to involve production of confidential,

23

proprietary, or private information for which special protection frompublic disclosure

24

and from use for any purpose other than prosecuting this litigation may be warranted.

25

Accordingly, the parties hereby stipulate to and petition the Court to enter the

26

following Stipulated Protective Order. The parties acknowledge that this Order does

27

not confer blanket protections on all disclosures or responses to discovery and

28

1 that the protection it affords from public disclosure and use extends only to the limited

2 information or items that are entitled to confidential treatment under the applicable

3 legal principles. The parties further acknowledge, as set forth in Section 12.3, below,

4 that this Stipulated Protective Order does not entitle them to file confidential

5 information under seal; Civil Local Rule 79-5 sets forth the procedures that must

6 be followed and the standards that will be applied when a party seeks permission from

7 the court to file material under seal.

8 B. GOOD CAUSE STATEMENT

9 This action involves confidential and proprietary materials for which special

10 protection from public disclosure and from use for any purpose other than prosecution

11 of this action is warranted. Such confidential and proprietary materials and information

12 consist of, among other things, personal medical and work related documents of

13 Plaintiff and other employees, confidential business or financial information and

14 information regarding confidential business practices of Defendant. Accordingly, to

15 expedite the flow of information, to facilitate the prompt resolution of disputes over

16 confidentiality of discovery materials, to adequately protect information the parties are

17 entitled to keep confidential, to ensure that the parties are permitted reasonable

18 necessary uses of such material in preparation for and in the conduct of trial, to address

19 their handling at the end of the litigation, and serve the ends of justice, a protective

20 order for such information is justified in this matter. It is the intent of the parties that

21 information will not be designated as confidential for tactical reasons and that nothing

22 be so designated without a good faith belief that it has been maintained in a

23 confidential, non-public manner, and there is good cause why it should not be part of

24 the public record of this case.

25 2. DEFINITIONS

26 2.1. Action: Patrick Taylor v. Unum Life Insurance Company of America, et

27 al., Case No. 2:19-CV-07712-FMO-SS, now pending in the Central District of

28 California.

1 2.2. Challenging Party: a Party or Non-Party that challenges the designation

2 of information or items under this Order.

3 2.3. “CONFIDENTIAL” Information or Items: information (regardless of

4 how it is generated, stored or maintained) or tangible things that qualify for protection

5 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

6 Statement.

7 2.4. Counsel (without qualifier): Outside Counsel of Record and House Counsel

8 (as well as their support staff).

9 2.5. Designating Party: a Party or Non-Party that designates information or

10 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”

11 2.6. Disclosure or Discovery Material: all items or information, regardless of

12 the medium or manner in which it is generated, stored, or maintained (including, among

13 other things, testimony, transcripts, and tangible things), that are produced or generated

14 in disclosures or responses to discovery in this matter.

15 2.7. Expert: a person with specialized knowledge or experience in a matter

16 pertinent to the litigation who has been retained by a Party or its counsel to serve as an

17 expert witness or as a consultant in this Action.

18 2.8. House Counsel: attorneys who are employees of a party to this Action.

19 House Counsel does not include Outside Counsel of Record or any other outside counsel.

20 2.9. Non-Party: any natural person, partnership, corporation, association, or

21 other legal entity not named as a Party to this Action.

22 2.10. Outside Counsel of Record: attorneys who are not employees of a party

23 to this Action but are retained to represent or advise a party to this Action and have

24 appeared in this Action on behalf of that party or are affiliated with a law firm that has

25 appeared on behalf of that party, and includes support staff.

26 2.11. Party: any party to this Action, including all of its officers, directors,

27 employees, consultants, retained experts, and Outside Counsel of Record (and their

28 support staffs).

1 2.12. Producing Party: a Party or Non-Party that produces Disclosure or

2 Discovery Material in this Action.

3 2.13. Professional Vendors: persons or entities that provide litigation support

4 services (e.g., photocopying, videotaping, translating, preparing exhibits or

5 demonstrations, and organizing, storing, or retrieving data in any form or medium) and

6 their employees and subcontractors.

7 2.14. Protected Material: any Disclosure or Discovery Material that is designated

8 as “CONFIDENTIAL.”

9 2.15. Receiving Party: a Party that receives Disclosure or Discovery Material

10 from a Producing Party.

11 3. SCOPE

12 The protections conferred by this Stipulation and Order cover not only Protected

13 Material (as defined above), but also (1) any information copied or extracted from

14 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

15 Material; and (3) any testimony, conversations, or presentations by Parties or their

16 Counsel that might reveal Protected Material.

17 Any use of Protected Material at trial shall be governed by the orders of the trial

18 judge. This Order does not govern the use of Protected Material at trial.

19 4. DURATION

20 Once this Action proceeds to trial, information that was designated as

21 CONFIDENTIAL or maintained pursuant to this protective order used or introduced

22 as an exhibit at trial becomes public and will be presumptively available to all

23 members of the public, including the press, unless compelling reasons supported by

24 specific factual findings to proceed otherwise are made to the trial judge in advance of

25 the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th

26 Cir. 2006) (distinguishing “good cause” showing for sealing documents produced in

27 discovery from “compelling reasons” standard when merits-related documents are part

28 of court record). Accordingly, the terms of this protective order do not extend beyond

1 the commencement of the trial.

2 5. DESIGNATING PROTECTED MATERIAL

3 5.1. Exercise of Restraint and Care in Designating Material for Protection.

4 Each Party or Non-Party that designates information or items for protection under this

5 Order must take care to limit any such designation to specific material that qualifies

6 under the appropriate standards. The Designating Party must designate for protection

7 only those parts of material, documents, items or oral or written communications that

8 qualify so that other portions of the material, documents, items or communications for

9 which protection is not warranted are not swept unjustifiably within the ambit of this

10 Order.

11 Mass, indiscriminate or routinized designations are prohibited. Designations

12 that are shown to be clearly unjustified or that have been made for an improper purpose

13 (e.g., to unnecessarily encumber the case development process or to impose

14 unnecessary expenses and burdens on other parties) may expose the Designating Party

15 to sanctions.

16 If it comes to a Designating Party’s attention that information or items that it

17 designated for protection do not qualify for protection, that Designating Party must

18 promptly notify all other Parties that it is withdrawing the inapplicable designation.

19 5.2. Manner and Timing of Designations. Except as otherwise provided in

20 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

21 stipulated or ordered, Disclosure of Discovery Material that qualifies for protection

22 under this Order must be clearly so designated before the material is disclosed or

23 produced.

24 Designation in conformity with this Order requires:

25 (a) for information in documentary form (e.g., paper or electronic

26 documents, but excluding transcripts of depositions or other pretrial or trial

27 proceedings), that the Producing Party affix at a minimum, the legend

28 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

1 contains protected material. If only a portion or portions of the material on a page

2 qualifies for protection, the Producing Party also must clearly identify the protected

3 portion(s) (e.g., by making appropriate markings in the margins).

4 A Party or Non-Party that makes original documents available for inspection

5 need not designate them for protection until after the inspecting Party has indicated

6 which documents it would like copied and produced. During the inspection and before

7 the designation, all of the material made available for inspection shall be deemed

8 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

9 copied and produced, the Producing Party must determine which documents, or

10 portions thereof, qualify for protection under this Order. Then, before producing the

11 specified documents, the Producing Party must affix the “CONFIDENTIAL legend”

12 to each page that contains Protected Material. If only a portion or portions of the

13 material on a page qualifies for protection, the Producing Party also must clearly

14 identify the protected portion(s) (e.g., by making appropriate markings in the margins).

15 (b) for testimony given in depositions that the Designating Party identifies the

16 Disclosure or Discovery Material on the record, before the close of the deposition all

17 protected testimony or within 30 days from the date of Designating Party’s receipt of

18 the deposition transcript.

19 (c) for information produced in some form other than documentary and for

20 any other tangible items, that the Producing Party affix in a prominent place on the

21 exterior of the container or containers in which the information is stored the legend

22 “CONFIDENTIAL.” If only a portion or portions of the information warrants

23 protection, the Producing Party, to the extent practicable, shall identify the protected

24 portion(s).

25 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent

26 failure to designate qualified information or items does not, standing alone, waive the

27 Designating Party’s right to secure protection under this Order for such material. Upon

28 timely correction of a designation, the Receiving Party must make reasonable efforts

1 to assure that the material is treated in accordance with the provisions of this Order.

2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

3 6.1. Timing of Challenges. Any Party or Non-Party may challenge a

4 designation of confidentiality at any time that is consistent with the Court’s

5 Scheduling Order.

6 6.2. Meet and Confer. The Challenging Party shall initiate the dispute

7 resolution process under Local Rule 37-1 et seq.

8 6.3. Joint Stipulation. Any challenge submitted to the Court shall be via a joint

9 stipulation pursuant to Local Rule 37-2.

10 6.4. The Burden of Persuasion. The burden of persuasion in any such

11 challenge proceeding shall be on the Designating Party. Frivolous challenges, and

12 those made for an improper purpose (e.g., to harass or impose unnecessary expenses

13 and burdens on other parties) may expose the Challenging Party to sanctions. Unless

14 the Designating Party has waived or withdrawn the confidentiality designation, all

15 parties shall continue to afford the material in question the level of protection to which

16 it is entitled under the Producing Party’s designation until the Court rules on the

17 challenge.

18 7. ACCESS TO AND USE OF PROTECTED MATERIAL

19 7.1. Basic Principles. A Receiving Party may use Protected Material that is

20 disclosed or produced by another Party or by a Non-Party in connection with this

21 Action only for prosecuting, defending or attempting to settle this Action. Such

22 Protected Material may be disclosed only to the categories of persons and under the

23 conditions described in this Order. When the Action has been terminated, a Receiving

24 Party must comply with the provisions of section 1Non below (FINAL

25 DISPOSITION).

26 Protected Material must be stored and maintained by a Receiving Party at a

27 location and in a secure manner that ensures that access is limited to the persons

28 authorized under this Order.

1 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless

2 otherwise ordered by the court or permitted in writing by the Designating Party, a

3 Receiving Party may disclose any information or item designated “CONFIDENTIAL”

4 only to:

5 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well

6 as employees of said Outside Counsel of Record to whom it is reasonably necessary

7 to disclose the information for this Action;

8 (b) the officers, directors, and employees (including House Counsel) of the

9 Receiving Party to whom disclosure is reasonably necessary for this Action;

10 (c) Experts (as defined in this Order) of the Receiving Party to whom

11 disclosure is reasonably necessary for this Action and who have signed the

12 “Acknowledgment and Agreement to Be Bound” (Exhibit A);

13 (d) the court and its personnel;

14 (e) court reporters and their staff;

15 (f) professional jury or trial consultants, mock jurors, and Professional

16 Vendors to whom disclosure is reasonably necessary for this Action and who have

17 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

18 (g) the author or recipient of a document containing the information or a

19 custodian or other person who otherwise possessed or knew the information.

20 (h) during their depositions, witnesses, and attorneys for witnesses, in the

21 Action to whom disclosure is reasonably necessary provided: (1) the deposing party

22 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will

23 not be permitted to keep any confidential information unless they sign the

24 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed

25 by the Designating Party or ordered by the court. Pages of transcribed deposition

26 testimony or exhibits to depositions that reveal Protected Material may be separately

27 bound by the court reporter and may not be disclosed to anyone except as permitted

28 under this Stipulated Protective Order; and

1 (i) any mediators or settlement officers and their supporting personnel,

2 mutually agreed upon by any of the parties engaged in settlement discussions.

3 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED

4 PRODUCED IN OTHER LITIGATION

5 If a Party is served with a subpoena or a court order issued in other litigation

6 that compels disclosure of any information or items designated in this Action as

7 “CONFIDENTIAL,” that Party must:

8 (a) promptly notify in writing the Designating Party. Such notification

9 shall include a copy of the subpoena or court order;

10 (b) promptly notify in writing the party who caused the subpoena or

11 order to issue in the other litigation that some or all of the material covered by the

12 subpoena or order is subject to this Protective Order. Such notification shall include a

13 copy of this Stipulated Protective Order; and

14 (c) cooperate with respect to all reasonable procedures sought to be

15 pursued by the Designating Party whose Protected Material may be affected. If the

16 Designating Party timely seeks a protective order, the Party served with the subpoena

17 or court order shall not produce any information designated in this action as

18 “CONFIDENTIAL” before a determination by the court from which the subpoena or

19 order issued, unless the Party has obtained the Designating Party’s permission. The

20 Designating Party shall bear the burden and expense of seeking protection in that court

21 of its confidential material and nothing in these provisions should be construed as

22 authorizing or encouraging a Receiving Party in this Action to disobey a lawful

23 directive from another court.

24 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

25 PRODUCED IN THIS LITIGATION

26 (a) The terms of this Order are applicable to information produced by

27 a Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

28 produced by Non-Parties in connection with this litigation is protected by the remedies

1 and relief provided by this Order. Nothing in these provisions should be construed as

2 prohibiting a Non-Party from seeking additional protections.

3 (b) In the event that a Party is required, by a valid discovery request,

4 to produce a Non-Party’s confidential information in its possession, and the Party is

5 subject to an agreement with the Non-Party not to produce the Non-Party’s

6 confidential information, then the Party shall:

7 (1) promptly notify in writing the Requesting Party and the

8 Non-Party that some or all of the information requested is subject to a confidentiality

9 agreement with a Non-Party;

10 (2) promptly provide the Non-Party with a copy of the

11 Stipulated Protective Order in this Action, the relevant discovery request(s), and a

12 reasonably specific description of the information requested; and

13 (3) make the information requested available for inspection by

14 the Non-Party, if requested.

15 (c) If the Non-Party fails to seek a protective order from this court

16 within 14 days of receiving the notice and accompanying information, the Receiving

17 Party may produce the Non-Party’s confidential information responsive to the

18 discovery request. If the Non-Party timely seeks a protective order, the Receiving

19 Party shall not produce any information in its possession or control that is subject to

20 the confidentiality agreement with the Non-Party before a determination by the court.

21 Absent a court order to the contrary, the Non-Party shall bear the burden and expense

22 of seeking protection in this court of its Protected Material.

23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

24 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

25 Protected Material to any person or in any circumstance not authorized under this

26 Stipulated Protective Order, the Receiving Party must immediately (a) notify in

27 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

28 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

1 persons to whom unauthorized disclosures were made of all the terms of this Order,

2 and (d) request such person or persons to execute the “Acknowledgment and

3 Agreement to Be Bound” that is attached hereto as Exhibit A.

4 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

5 PROTECTED MATERIAL

6 When a Producing Party gives notice to Receiving Parties that certain

7 inadvertently produced material is subject to a claim of privilege or other protection,

8 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

9 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

10 may be established in an e-discovery order that provides for production without prior

11 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

12 parties reach an agreement on the effect of disclosure of a communication or

13 information covered by the attorney-client privilege or work product protection, the

14 parties may incorporate their agreement in the stipulated protective order submitted to

15 the court.

16 12. MISCELLANEOUS

17 12.1. Right to Further Relief. Nothing in this Order abridges the right of any

18 person to seek its modification by the court in the future.

19 12.2. Right to Assert Other Objections. By stipulating to the entry of this

20 Protective Order no Party waives any right it otherwise would have to object to

21 disclosing or producing any information or item on any ground not addressed in this

22 Stipulated Protective Order. Similarly, no Party waives any right to object on any

23 ground to use in evidence of any of the material covered by this Protective Order.

24 12.3. Filing Protected Material. A Party that seeks to file under seal any

25 Protected Material must comply with Civil Local Rule 79-5. Protected Material may

26 only be filed under seal pursuant to a court order authorizing the sealing of the specific

27 Protected Material at issue. If a Party’s request to file Protected Material under seal is

28 denied by the court, then the Receiving Party may file the information in the public

1 record unless otherwise instructed by the court.

2 13. FINAL DISPOSITION

3 After the final disposition of this Action, as defined in paragraph 4, within 60

4 days of a written request by the Designating Party, each Receiving Party must return

5 all Protected Material to the Producing Party or destroy such material. As used in this

6 subdivision, “all Protected Material” includes all copies, abstracts, compilations,

7 summaries, and any other format reproducing or capturing any of the Protected

8 Material. Whether the Protected Material is returned or destroyed, the Receiving Party

9 must submit a written certification to the Producing Party (and, if not the same person

10 or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by

11 category, where appropriate) all the Protected Material that was returned or destroyed

12 and (2) affirms that the Receiving Party has not retained any copies, abstracts,

13 compilations, summaries or any other format reproducing or capturing any of the

14 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

15 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

16 legal memoranda, correspondence, deposition and trial exhibits, expert reports,

17 attorney work product, and consultant and expert work product, even if such materials

18 contain Protected Material. Any such archival copies that contain or constitute

19 Protected Material remain subject to this Protective Order as set forth in Section 6

20 (DURATION).

21 14. VIOLATION

22 Any violation of this Order may be punished by any and all appropriate

23 measures including, without limitation, contempt proceedings and/or monetary

24 sanctions.

25

26

27

28

1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2 Dated: February 12, 2020 RISE LAW FIRM, PC

3

4

By: /s/ Eliot J. Rushovich_____________

5 ELIOT J. RUSHOVICH

ELISSA A. CROCE

6

Attorneys for Plaintiff

7 PATRICK TAYLOR

8

9 Dated: February 12, 2020 AKERMAN LLP

10

11

By: __________________________

12 DAVID VAN PELT

ASHLEY BOBO

13

Attorneys for Defendant

14 UNUM GROUP

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 ATTESTATION OF SIGNATURE

2 Pursuant to Central District Local Rule 5-4.3.4(a)(2)(i), the filer of this

3 || document hereby attests that all other signatories listed, and on whose behalf the filin

4 ||is submitted, concur in the filing’s content and have authorized this filing.

5

Dated: February 12, 2020 RISE LAW FIRM, PC

7

8

By:

9 ELIOT J. RUSHOVICH

10 ELISSA A. CROCE

Attorneys for Plaintiff

Il PATRICK TAYLOR

12

13

14

5 ORDER

16 FOR GOOD CAUSE SHOWN, the Court hereby approves this

Stipulation and Protective Order.

18 IT IS SO ORDERED

16 (Wy

DATED: 3/10/2020

20 Alexander F. MacKinnon

21 United States Magistrate Judge

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

5 entirety and understand the Stipulated Protective Order that was issued by the United

6 States District Court for the Central District of California on ______________ [date]

7 in the case of Patrick Taylor v. Unum Life Insurance Company of America, et al.,

8 Case No. 2:19-CV-07712-FMO-SS. I agree to comply with and to be bound by all

9 the terms of this Stipulated Protective Order and I understand and acknowledge that

10 failure to so comply could expose me to sanctions and punishment in the nature of

11 contempt. I solemnly promise that I will not disclose in any manner any information

12 or item that is subject to this Stipulated Protective Order to any person or entity

13 except in strict compliance with the provisions of this Order.

14 I further agree to submit to the jurisdiction of the United States District Court

15 for the Central District of California for the purpose of enforcing the terms of this

16 Stipulated Protective Order, even if such enforcement proceedings occur after

17 termination of this Action.

18 I hereby appoint __________________________ [print or type full name] of

19 _______________________________________ [print or type full address and

20 telephone number] as my California agent for service of process in connection with

21 this Action or any proceedings related to enforcement of this Stipulated Protective

22 Order.

23

24

Date:

25

City and State where sworn and signed:

26

Printed name:

27

Signature:

28