Credit Suisse Lending Trust USA v. Transamerica Life Insurance Company

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CREDIT SUISSE LENDING TRUST Case No. 2:20-cv-02516-CAS(GJS)

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(USA), CREDIT SUISSE LENDING

TRUST (USA) 5, and PRIMARY [PROPOSED] STIPULATED

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MASTERBAREAF PTC LIMITED, on PROTECTIVE ORDER

behalf of and as trustee of the CSSEL

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GUERNSEY BARE TRUST, [Discovery Matter Referred to Judge

Standish]

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Plaintiffs,

Judge: Hon. Christina A. Snyder

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v.

Magistrate Judge: Hon. Gail J.

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TRANSAMERICA LIFE INSURANCE Standish

COMPANY,

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Defendant.

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1 1. A. PURPOSES AND LIMITATIONS

2 Discovery in this Action is likely to involve production of confidential and

3 proprietary actuarial, business, technical, and financial information of Plaintiffs

4 Credit Suisse Lending Trust (USA), Credit Suisse Lending Trust (USA) 5, and

5 Primary MasterBareAF PTC Limited, on behalf of and as trustee of the CSSEL

6 Guernsey Bare Trust (collectively, “Plaintiffs”), and Defendant Transamerica Life

7 Insurance Company (“TLIC”), for which special protection from public disclosure

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

9 Accordingly, Plaintiffs and TLIC hereby stipulate to and petition the Court to enter

10 the following Stipulated Protective Order (“Protective Order” or “Order”). The

11 Parties acknowledge that this Order does not confer blanket protections on all

12 disclosures or responses to discovery and that the protection it affords from public

13 disclosure and use extends only to the limited information or items that are entitled

14 to confidential treatment under the applicable legal principles.

15 B. GOOD CAUSE STATEMENT

16 This Action is likely to involve trade secrets, insured individuals’ medical

17 data, customer and pricing lists and other valuable research, development,

18 commercial, financial, technical and/or proprietary information for which special

19 protection from public disclosure and from use for any purpose other than

20 prosecution of this Action is warranted. Such confidential and proprietary materials

21 and information consist of, among other things, confidential business or financial

22 information, information regarding confidential business practices, or other

23 confidential research, development or commercial information (including

24 information implicating privacy rights of third parties), information otherwise

25 generally unavailable to the public, or which may be privileged or otherwise

26 protected from disclosure under any state or federal statute, court rule, case decision

27 or common law. Accordingly, to expedite the flow of information, to facilitate the

28 prompt resolution of any dispute over confidentiality of discovery materials, to

1 adequately protect information the Parties are entitled to keep confidential, to

2 ensure that the Parties are permitted reasonable necessary uses of such material in

3 preparation for and in the conduct of discovery and trial, to address their handling at

4 the end of the litigation, and serve the ends of justice, a protective order for such

5 information is justified in this matter. It is the intent of the Parties that information

6 will not be designated as confidential for tactical reasons and that nothing be so

7 designated without a good faith belief that it has been maintained in a confidential,

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

9 record of this case.

10 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

11 SEAL

12 The Parties further acknowledge, as set forth in Section 12.3 (Filing

13 Protected Material), below, that this Protective Order does not entitle any of them to

14 file confidential information under seal; Local Civil Rule 79-5 and the Court’s

15 Guide to Electronically Filing Under Seal Documents in Civil Cases set forth the

16 procedures that must be followed and the standards that will be applied when a

17 Party seeks permission from the Court to file material under seal.

18 There is a strong presumption that the public has a right of access to judicial

19 proceedings and records in civil cases. In connection with non-dispositive motions,

20 good cause must be shown to support a filing under seal. See Kamakana v. City

21 and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen.

22 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony

23 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective

24 orders require good cause showing). A specific showing of good cause or

25 compelling reason with proper evidentiary support and legal justification must be

26 made with respect to Protected Material that a Party seeks to file under seal. A

27 Party’s mere designation of Disclosure or Discovery Material as

28 “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

1 ONLY” does not—without the submission of competent evidence by declaration

2 establishing that the material sought to be filed under seal qualifies as confidential,

3 privileged or otherwise protectable—constitute good cause.

4 Further, if a Party requests sealing related to a dispositive motion or trial,

5 then compelling reason, not only good cause, for the sealing must be shown, and

6 the relief sought shall be narrowly tailored to serve the specific interest to be

7 protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.

8 2010). For each item or type of information, document, or thing sought to be filed

9 or introduced under seal in connection with discovery motion practice, a dispositive

10 motion or trial, the Party seeking protection must articulate compelling reasons,

11 supported by specific facts and legal justification, for the requested sealing order.

12 Again, competent evidence supporting the application to file documents under seal

13 must be provided by declaration.

14 Any document that is not confidential, privileged or otherwise protectable in

15 its entirety will not be filed under seal if the confidential portions can be redacted.

16 If documents can be redacted, then a redacted version for public viewing, omitting

17 only the confidential, privileged or otherwise protectable portions of the document,

18 shall be filed. Any application that seeks to file documents under seal in their

19 entirety should include an explanation of why redaction is not feasible.

20 2. DEFINITIONS

21 2.1. Acknowledgment: the “Acknowledgment and Agreement to be

22 Bound” form attached as Exhibit A to this Order.

23 2.2. Action: Credit Suisse Lending Trust (USA), Credit Suisse Lending

24 Trust (USA) 5, and Primary MasterbareAF PTC Limited, on behalf of and as

25 trustee of the CSSEL Guernsey Bare Trust v. Transamerica Life Insurance

26 Company, Case No. 2:20-cv-02516-CAS(GJSx).

27 2.3. Challenging Party: A Party or Non-Party that challenges the

28 designation of information or items under this Order.

1 2.4. “CONFIDENTIAL” Information or Items: Confidential proprietary or

2 commercially sensitive business and financial information, trade secrets, and

3 personal information which is not generally known or publicly available and which

4 the Designating Party would not normally reveal to a third party or information that

5 otherwise meets the standard for protection set forth in Rule 26(c) of the Federal

6 Rules of Civil Procedure. It is the intent of the Parties that information will not be

7 designated as confidential for tactical reasons and that nothing be so designated

8 without a good faith belief that it has been maintained in a confidential non-public

9 manner, and there is good cause why it should not be part of the public record of

10 this Action.

11 2.5. Counsel: Outside Counsel of Record and House Counsel (as well as

12 their support staff).

13 2.6. Designating Party: A Party or Non-Party that designates information

14 or items that it produces or that are produced in disclosures or in response to

15 discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

16 ATTORNEYS’ EYES ONLY.”

17 2.7. Disclosure or Discovery Material: All items or information, regardless

18 of the medium or manner in which it is generated, stored or maintained (including,

19 among other things, testimony, transcripts and tangible things), that are produced or

20 generated in disclosures or responses to discovery in this Action.

21 2.8. Expert: A person with specialized knowledge or experience in a

22 matter pertinent to the Action who has been retained by a Party or its Counsel to

23 serve as an expert witness or as a consultant in this Action and who is not a past or

24 current employee of a Party and who, at the time of retention, is not anticipated to

25 become an employee of a Party. This definition includes a professional jury or trial

26 consultant retained in connection with this Action.

27 2.9. “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

28 Information or Items: Extremely sensitive “CONFIDENTIAL” Information or

1 Items, the disclosure of which to another Party or Non-Party would create a

2 substantial risk of serious harm that could not be avoided by less restrictive means.

3 By designating Discovery Material as “HIGHLY CONFIDENTIAL –

4 ATTORNEYS’ EYES ONLY,” the Designating Party affirms that its counsel of

5 record in this Action has complied with the standard of care set forth in section 5.1

6 below.

7 2.10. House Counsel: Attorneys who are employees, contractors, or

8 secondees of a Party, any affiliate thereof, or of an entity that owns an interest in a

9 Party and is responsible for controlling, directing or advising on the Action. House

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

11 2.11. Non-Party: Any natural person, partnership, corporation, association,

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

13 2.12. Outside Counsel of Record: Attorneys who are not employees,

14 contractors, or secondees of a Party to this Action but who are retained to represent

15 or advise a Party to this Action and have appeared in this Action on behalf of that

16 Party or are affiliated with a law firm that has appeared on behalf of that Party,

17 including support staff.

18 2.13. Party: Any party to this Action, including its House Counsel, officers,

19 directors, employees, consultants and retained experts.

20 2.14. Producing Party: A Party or Non-Party that produces Disclosure or

21 Discovery Material in this Action.

22 2.15. Professional Vendors: Persons or entities that provide litigation

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

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

25 and their employees and subcontractors.

26 2.16. Protected Material: Any Disclosure or Discovery Material that is

27 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

28 ATTORNEYS’ EYES ONLY.”

1 2.17. Receiving Party: A Party that receives Disclosure or Discovery

2 Material from a Producing Party.

3 2.18. Related Actions: “Related Actions” means (1) Feller v. Transamerica

4 Life Insurance Company, Case No. 2:16-cv-01378-CAS (C.D. Cal); (2) EFG Bank

5 AG, Cayman Branch, et al. v. Transamerica Life Insurance Company, Case No.

6 2:16-cv-08104 CAS-GJSx (C.D. Cal); (3) LSH Co., et al. v. Transamerica Life

7 Insurance Company, Case No. 2:18-cv-09711-CAS-KS (C.D. Cal.); (4) Brighton

8 Trustees, LLC, et al. v. Transamerica Life Insurance Company, Case No. 2:19-cv-

9 04210-CAS-GJS (C.D. Cal.); (5) The Wolf 2005 LLC v. Transamerica Life

10 Insurance Company, Case No. 2:17-cv-00994-CAS-GJSx (C.D. Cal); (6) Wells

11 Fargo Bank, National Association v. Transamerica Life Insurance Company, Case

12 No. 2:19-cv-06478-CAS-GJS (C.D. Cal.); (7) Wells Fargo Bank, National

13 Association v. Transamerica Life Insurance Company, Case No. 2:19-cv-06791-

14 CAS-GJS (C.D. Cal.); and (8) Steven Draeger, et al. v. Transamerica Life

15 Insurance Company¸ Case No. 2:19-cv-10478-CAS-GJSx. If Plaintiffs amend the

16 complaint to include claims on policies subject to the 2017-2018 MDR increases,

17 then “Related Actions” shall thereafter include Thompson v. Transamerica Life Ins.

18 Co., Case No. 2:18-cv-05422-CAS-GJSx (C.D. Cal.).

19 3. SCOPE

20 The protections conferred by this Order cover not only Protected Material (as

21 defined above), but also (1) any information copied or extracted from Protected

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

23 and (3) any testimony, conversations, or presentations by Parties or their Counsel or

24 any of its Experts that reveals Protected Material. Any use of Protected Material at

25 trial shall be governed by the orders of the trial judge. This Order does not govern

26 the use of Protected Material at trial.

27 4. DURATION

28 FINAL DISPOSITION of the action is defined as the conclusion of any

1 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal

2 has run. Except as set forth below, the terms of this protective order apply through

3 FINAL DISPOSITION of the action. The parties may stipulate that the they will be

4 contractually bound by the terms of this agreement beyond FINAL DISPOSITION,

5 but will have to file a separate action for enforcement of the agreement once all

6 proceedings in this case are complete.

7 Once a case proceeds to trial, information that was designated as

8 CONFIDENTIAL or maintained pursuant to this protective order used or

9 introduced as an exhibit at trial becomes public and will be presumptively available

10 to all members of the public, including the press, unless compelling reasons

11 supported by specific factual findings to proceed otherwise are made to the trial

12 judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing

13 “good cause” showing for sealing documents produced in discovery from

14 “compelling reasons” standard when merits-related documents are part of court

15 record). Accordingly, for such materials, the terms of this protective order do not

16 extend beyond the commencement of the trial.

17 5. DESIGNATING PROTECTED MATERIAL

18 5.1. Exercise of Restraint and Care in Designating Material for Protection.

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

20 this Order must take care to limit any such designation to specific material that

21 qualifies under the appropriate standards. To the extent it is practical to do so, the

22 Designating Party must designate for protection only those parts of material,

23 documents, items or oral or written communications that qualify so that other

24 portions of the material, documents, items or communications for which protection

25 is not warranted are not swept unjustifiably within the ambit of this Order.

26 While mass, indiscriminate or routinized designations are prohibited, the

27 Parties recognize that manually analyzing and designating large numbers of

28 documents one-by-one for confidentiality can be an unduly burdensome task. The

1 Parties agree that each Party may reasonably rely on metadata information and

2 good-faith searches to designate documents for protection. Designations that are

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

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

5 unnecessary expenses and burdens on other Parties) that are not remediated by the

6 Designating Party after notice may expose the Designating Party to sanctions.

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

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

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

10 5.2. Manner and Timing of Designations. Except as otherwise provided in

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

12 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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

14 produced. Designation in conformity with this Order requires:

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

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

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

18 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

19 ONLY” to each page that contains protected material. If only a portion of the

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

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

22 margins).

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

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

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

26 before the designation, all of the material made available for inspection shall be

27 deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the

28 inspecting Party has identified the documents it wants copied and produced, the

1 Producing Party must determine which documents, or portions thereof, qualify for

2 protection under this Order. Then, before producing the specified documents, the

3 Producing Party must affix the legend “CONFIDENTIAL” or “HIGHLY

4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains

5 Protected Material. If only a portion of the material on a page qualifies for

6 protection, the Producing Party also must clearly identify the protected portion(s)

7 (e.g., by making appropriate markings in the margins).

8 (b) any Party may designate as Protected Material testimony given

9 in a deposition or in other pretrial or trial proceedings by informing the reporter

10 during the deposition or by sending a letter to all Outside Counsel of Record and to

11 the deposition reporter designating by page and line any portions of the transcript to

12 be so restricted, or the entire transcript if applicable, within thirty (30) days after

13 receiving the deposition transcript and specifying the level of protection being

14 asserted.

15 During this 30-day period, a transcript will be treated as if it had been

16 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its

17 entirety unless otherwise agreed. After the expiration of that period, the transcript

18 shall be treated only as actually designated.

19 When deposition testimony is designated Protected Material by informing the

20 reporter during the deposition, the transcript containing Protected Material shall

21 have an obvious legend on the title page that the transcript contains Protected

22 Material, and the title page shall be followed by a list of all pages (including line

23 numbers as appropriate) that have been designated as Protected Material and the

24 level of protection being asserted by the Designating Party. The Designating Party

25 shall inform the court reporter of these requirements.

26 Parties shall give the other Parties notice if they reasonably expect a

27 deposition, hearing, or other proceeding to include Protected Material so that the

28 other Parties can ensure that only authorized individuals who have signed the

1 Acknowledgment are present at those proceedings. The use of a document as an

2 exhibit at a deposition shall not in any way affect its designation as

3 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

4 ONLY.”

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

6 and for any other tangible items, that the Producing Party affix in a prominent place

7 on the exterior of the container or containers in which the information is stored the

8 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

9 EYES ONLY.” If only a portion or portions of the information warrants protection,

10 the Producing Party, to the extent practicable, shall identify the protected portion(s).

11 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent

12 failure to designate qualified information or any item does not, standing alone,

13 waive the Designating Party’s right to secure protection under this Order for such

14 material. Upon timely correction of a designation, the Receiving Party must make

15 reasonable efforts to assure that the material is treated in accordance with the

16 provisions of this Order.

17 5.4 Protected Health Information. Additionally, certain Confidential

18 Information or Items may be Protected Health Information (“PHI”) as defined by

19 the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the

20 regulations promulgated thereunder at 45 CFR 160.103. Without limiting the

21 generality of the foregoing, “PHI” includes, but is not limited to, health

22 information, including demographic information, relating to either (a) the past,

23 present or future physical or mental condition of an individual, (b) the provision of

24 care to an individual or (c) the payment for care provided to an individual, which

25 identifies the individual or which reasonably could be expected to identify an

26 individual. All “covered entities” (as defined by 45 CFR 160.103) are hereby

27 authorized to disclose PHI to all attorneys now of record in this Action or who may

28 become of record in the future in this Action. Subject to the Federal Rules of Civil

1 Procedure, and without prejudice to any Party’s objection except as otherwise

2 provided herein, the Parties are authorized to receive, subpoena, transmit or

3 disclose PHI relevant to the claims at issue in this Action, subject to all terms of

4 this Order. All PHI disclosed under this Order must be designated as Confidential

5 Information pursuant to this Order. A Receiving Party which receives PHI in

6 discovery shall not use or disclose such PHI for any purpose other than this Action.

7 To the extent documents or information produced in this Action have already been

8 exchanged or will again be exchanged between the Parties in the normal course of

9 business, treatment of such documents prior to or after the conclusion of this Action

10 shall be governed by this Order.

11 5.5 Specific Provisions Concerning the Disclosure of Personally

12 Identifiable Information (“PII”). When PII (e.g., names, addresses, Social Security

13 numbers, phone numbers, etc.) is disclosed between the Parties as authorized by

14 this Order, the PII of any individuals whose claims are not at issue in this Action

15 and who are otherwise identified in the Discovery Material may either be redacted

16 to protect the identity of such individuals, or produced without redactions. Upon

17 receipt of any PII, a Receiving Party shall take all reasonable measures necessary

18 for protecting the PII from unauthorized disclosure as required under both state and

19 federal law. To the extent disclosure of any PII requires a Producing Party,

20 including, third parties, to obtain a Court-ordered subpoena or to give notice or

21 obtain consent, in any form or manner, from any person or entity before disclosure

22 of the PII, the Court finds that, in the view of the protections provided for the

23 information disclosed in this Order, the volume of Discovery Material to be

24 produced and the ongoing oversight of the Court, there is good cause to excuse

25 such requirement and, this Order shall constitute an express direction that the

26 Producing Party is exempted from obtaining a Court-ordered subpoena or having to

27 notify and/or obtain consent from any person or entity prior to the disclosure of the

28 PII.

1 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

2 6.1. Timing of Challenges. Any Party or Non-Party may challenge a

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

4 Scheduling Order. Unless a prompt challenge to a Designating Party’s

5 confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

6 unnecessary economic burdens, or a significant disruption or delay of the Action, a

7 Party does not waive its right to challenge a confidentiality designation by electing

8 not to mount a challenge promptly after the original designation is disclosed.

9 6.2. Meet and Confer. The Challenging Party shall initiate the dispute

10 resolution process under Local Rule 37-1. In conferring, the Challenging Party

11 must explain the basis for its belief that the confidentiality designation was not

12 proper and must give the Designating Party an opportunity to review the designated

13 material, to reconsider the circumstances, and, if no change in designation is

14 offered, to explain the basis for the chosen designation.

15 6.3. The burden of persuasion in any such challenge proceeding shall be on

16 the Designating Party. Frivolous designations or challenges, and those designations

17 or challenges made for an improper purpose (e.g., to harass or impose unnecessary

18 expenses and burdens on other parties) may expose the respective Designating

19 Party or Challenging Party to sanctions. Unless the Designating Party has waived

20 or withdrawn the confidentiality designation, all Parties shall continue to afford the

21 material in question the level of protection to which it is entitled under the

22 Designating Party’s designation until the Court rules on the challenge.

23 7. ACCESS TO AND USE OF PROTECTED MATERIAL

24 7.1. Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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

1 Receiving Party must comply with the provisions of section 13 below (FINAL

2 DISPOSITION). Protected Material must be stored and maintained by a Receiving

3 Party at a location and in a secure manner that ensures that access is limited to the

4 persons authorized under this Order.

5 Notwithstanding anything in this Order, to the extent documents produced by

6 TLIC in the Related Actions were originally produced using the Bates numbers from

7 those Related Actions, and depositions taken against TLIC or TLIC-affiliated

8 witnesses in the Related Actions, such documents and depositions will be produced

9 in this Action in accordance with the procedures agreed to by the parties in the

10 Stipulated Order Regarding Electronically Stored Information and Document

11 Production where applicable, as well as the Federal Rules of Civil Procedure and the

12 Federal Rules of Evidence as to admissibility. The treatment of Confidential Material

13 in those documents and depositions in this Action will be governed by this Order.

14 The Parties further stipulate that Confidential Information produced by TLIC in the

15 Related Actions only but excluded from this Action (i.e., owner specific documents

16 or class data) may be disclosed to Outside Counsel of Record for Plaintiffs subject to

17 the terms of this Agreement for the sole purpose of reviewing transcripts from

18 depositions taken in the Related Actions and reducing litigation costs incurred

19 through document hosting platforms.

20 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Subject to

21 Section 7.4 herein, unless otherwise ordered by the Court or permitted in writing by

22 the Designating Party, a Receiving Party may disclose any information or item

23 designated “CONFIDENTIAL” only to:

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

25 as well as employees of said Outside Counsel of Record to whom it is reasonably

26 necessary to disclose the information for this Action;

27 (b) the Receiving Party, including officers, directors, and employees

28 (including House Counsel) of the Receiving Party to whom disclosure is reasonably

1 necessary for this Action;

2 (c) the Receiving Party’s parents and affiliates, and their respective

3 officers, directors, employees, consultants, advisors, insurers and/or reinsurers

4 (1) to whom disclosure is reasonably necessary for this Action, and (2) who have

5 signed the Acknowledgment;

6 (d) Experts (as defined in this Order) of the Receiving Party to

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

8 Acknowledgment;

9 (e) the Related Actions plaintiffs’ counsel only as to Protected

10 Material in or derived from documents with a Related Action Bates number if such

11 Protected Material already has been disclosed to such counsel;

12 (f) the Court and its personnel;

13 (g) court reporters and their staff;

14 (h) professional jury or trial consultants, mock jurors, and

15 Professional Vendors to whom disclosure is reasonably necessary for this Action

16 and who have signed the Acknowledgement;

17 (i) the author or recipient of a document containing the information

18 or a custodian or other person who otherwise possessed or knew the information;

19 (j) during a deposition, the witness and attorneys for the witness in

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

21 Party requests that the witness sign the Acknowledgment; and (2) such witness and

22 attorneys for such witness will not be permitted to keep any confidential

23 information unless each signs the Acknowledgment, unless otherwise agreed by the

24 Designating Party or ordered by the Court; and

25 (k) any mediator or settlement officer, and their supporting

26 personnel, mutually agreed upon by the Parties engaged in settlement discussions

27 and who have signed the Acknowledgment.

28 7.3. Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

1 ONLY” Information or Items. Subject to Section 7.4 herein, unless otherwise

2 ordered by the Court or permitted in writing by the Designating Party, a Receiving

3 Party may disclose any information or item designated “HIGHLY

4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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

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

7 necessary to disclose the information for this Action;

8 (b) House Counsel and up to two (2) additional officers, directors,

9 employees, consultants, advisors, insurers and/or reinsurers of TLIC, if it is a

10 Receiving Party, to whom disclosure is reasonably necessary for this Action and

11 who have signed the “Acknowledgment and Agreement to be Bound” (Exhibit A);

12 a House Counsel who is a member of the Bar of any state in the United States need

13 not sign the Acknowledgment;

14 (c) House Counsel and up to fifteen (15) additional officers,

15 directors, employees, consultants, and advisors of Plaintiffs and any of Plaintiffs’

16 parents or affiliates, combined, if they are a Receiving Party, to whom disclosure is

17 reasonably necessary for this Action and who have signed the “Acknowledgment

18 and Agreement to be Bound” (Exhibit A); a House Counsel who is a member of the

19 Bar of any state in the United States need not sign the Acknowledgment;

20 (d) Experts (as defined in this Order) of the Receiving Party to

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

22 Acknowledgment;

23 (e) the Related Actions plaintiffs’ counsel only as to Protected

24 Material in or derived from documents with a Related Action Bates number if such

25 Protected Material already has been disclosed to such counsel;

26 (f) the Court and its personnel;

27 (g) court reporters and their staff;

28 (h) professional jury or trial consultants, mock jurors, and

1 Professional Vendors to whom disclosure is reasonably necessary for this Action

2 and who have signed the Acknowledgement;

3 (i) the author or recipient of a document containing the information

4 or a custodian or other person who otherwise possessed or knew the information;

5 (j) during a deposition, the witness and attorneys for the witness in

6 the Action to whom disclosure is reasonably necessary provided the witness signs

7 the Acknowledgment; and

8 (k) any mediator or settlement officer, and their supporting

9 personnel, mutually agreed upon by any of the Parties engaged in settlement

10 discussions and who have signed the Acknowledgment.

11 7.4 Related Action Plaintiffs. Plaintiffs may share and discuss documents

12 produced in this Action with plaintiffs in any of the Related Actions, so long as

13 such documents were also produced and Bates-stamped to the plaintiffs in the

14 Related Actions by TLIC, and plaintiffs in the Related Action may share and

15 discuss with Plaintiffs documents produced and Bates-stamped in the Related

16 Actions by TLIC so long as such documents were also produced to Plaintiffs in this

17 Action by TLIC (collectively, the “Shared Documents”). The limitations on

18 categories of individuals able to view any documents designated CONFIDENTIAL

19 or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, as described in

20 Sections 7.2 and 7.3 herein, shall apply equally to any recipient of Shared

21 Documents under this Section as if the recipient had received documents in this

22 Action

23 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

24 IN OTHER LITIGATION

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

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

27 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

28 ONLY” that Party must:

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

2 notification shall include a copy of the subpoena or court order;

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

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

5 subpoena or order is subject to this Protective Order. Such notification shall

6 include a copy of this Order;

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

8 pursued by the Designating Party whose Protected Material may be affected; and

9 (d) otherwise comply with any applicable HIPAA rules or

10 regulations with respect to any response or production in connection with a

11 discovery request or subpoena.

12 If the Designating Party timely seeks a protective order, the Party served with

13 the subpoena or court order shall not produce any information designated in this

14 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

15 EYES ONLY” before a determination by the court from which the subpoena or

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

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

18 court of its confidential material and nothing in these provisions should be

19 construed as authorizing or encouraging a Receiving Party in this Action to disobey

20 a lawful directive from another court.

21 For the avoidance of doubt, and subject to paragraph 8(a)-(d), nothing in this

22 Order shall be construed to preclude a Receiving Party from disclosing any

23

information or item designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

24

– ATTORNEYS’ EYES ONLY” to any regulatory agency, regulatory body, self-

25

regulatory agency or government office or agency having jurisdiction over the

26

Receiving Party without notice to the Designating Party, provided that such

27

information or item is responsive to a statutorily-authorized request from a regulatory

28

1 agency, regulatory body, self-regulatory agency or government office or agency

2 having jurisdiction over the Receiving Party.

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

4 PRODUCED IN THIS ACTION

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

6 by a Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY

7 CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” Such information produced by

8 any Non-Party in connection with this Action is protected by the remedies and

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

10 prohibiting a Non-Party from seeking additional protections.

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

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

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

14 confidential information, then the Party shall:

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

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

17 confidentiality agreement with a Non-Party;

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

19 in this Action, the relevant discovery request(s), and a reasonably specific

20 description of the information requested; and

21 (3) make the information requested available for inspection

22 by the Non-Party, if requested.

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

24 within 21 days of receiving the notice and accompanying information, the

25 Receiving Party may produce the Non-Party’s confidential information responsive

26 to the discovery request. If the Non-Party timely seeks a protective order, the

27 Receiving Party shall not produce any information in its possession or control that

28 is subject to the confidentiality agreement with the Non-Party before a

1 determination by the court. Absent a court order to the contrary, the Non-Party

2 shall bear the burden and expense of seeking protection in this court of its Protected

3 Material.

4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

7 Order, the Receiving Party must immediately (a) notify in writing the Designating

8 Party of the unauthorized disclosures, (b) use its best efforts to retrieve all

9 unauthorized copies of the Protected Material, (c) inform the person or persons to

10 whom unauthorized disclosures were made of all the terms of this Order, and

11 (d) request such person or persons to execute the Acknowledgment.

12 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

13 PROTECTED MATERIAL

14 When a Producing Party gives notice to each Receiving Party that certain

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

16 (e.g., work product immunity), the obligations of each Receiving Party are those set

17 forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended

18 to modify whatever procedure may be established in an e-discovery order that

19 provides for production without prior privilege review. Pursuant to Federal Rule of

20 Evidence 502(d) and (e), the Parties agree that the inadvertent or unintentional

21 disclosure by the Producing Party of material that is privileged or subject to other

22 protection shall not be deemed a waiver in whole or in part of the claim of privilege

23 or other protection, either as to the specific information disclosed or as to any other

24 information relating thereto on the same or related subject matter.

25 Upon learning of an inadvertent or unintentional disclosure of privileged

26 information, the Producing Party shall provide written notice to each Party who has

27 received such information. If the Receiving Party does not timely challenge the

28 assertion of privilege, then within ten (10) business days of the date of that written

1 notice, the documents or materials described in that notice (“Privileged

2 Documents”) shall be returned to counsel for the Producing Party, sequestered, or

3 destroyed by the Receiving Party, and in the same time frame, any notes or other

4 writing or recordings that copy, summarize, reflect, or discuss the content of the

5 Privileged Documents (“Privileged Notes”) shall be sequestered or destroyed by the

6 Receiving Party. No use shall be made of such documents or materials from such

7 inadvertent production during deposition or at trial, nor shall such documents or

8 materials be provided to anyone who did not already have access to them prior to

9 the request by the Producing Party that they be returned.

10 If the Receiving Party intends to challenge the assertion of privilege, it must

11 provide written notice within this ten-day period, explaining the grounds for its

12 challenge, and sequester the Privileged Documents and Privileged Notes. The

13 Receiving Party shall initiate the dispute resolution process under Local Rule 37.1

14 within ten (10) business days of date of service of the Receiving Party’s notice

15 disputing a claim of inadvertent production.

16 If the Parties cannot resolve a challenge without court intervention, the

17 Receiving Party may move the Court for an order compelling production of any

18 Privileged Documents in compliance with Local Rule 37, but the motion shall not

19 assert as a ground for production the fact of the inadvertent production or

20 disclosure. Pending the Court’s ruling, the Party challenging the assertion of

21 privilege shall sequester the Privileged Documents and Privileged Notes and shall

22 not make any use of such information.

23 12. MISCELLANEOUS

24 12.1. Right to Further Relief. Nothing in this Order abridges the right of any

25 person to seek its modification by the Court in the future.

26 12.2. Right to Assert Other Objections. By stipulating to the entry of this

27 Order, no Party waives any right it otherwise would have to object to disclosing or

28 producing any information or item on any ground not addressed in this Order.

1 Similarly, no Party waives any right to object on any ground to use in evidence of

2 any of the material covered by this Protective Order.

3 12.3. Filing Protected Material. A Party that seeks to file under seal any

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

5 may only be filed under seal pursuant to a court order authorizing the sealing of the

6 specific Protected Material at issue. If a Party’s request to file Protected Material

7 under seal is denied by the court, then the Receiving Party may file the information

8 in the public record unless otherwise instructed by the court.

9 13. FINAL DISPOSITION

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

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

12 return all Protected Material to the Producing Party or destroy such material, except

13 such material that exists on back-up tapes or similar storage and systems, in which

14 case such material need not be immediately deleted or destroyed, and instead,

15 should be overwritten and destroyed in the normal course of business. Until that

16 material is overwritten and destroyed in the normal course of business, the

17 Receiving Party will take reasonable steps to limit access, if any, to the persons

18 necessary to conduct routine IT and cybersecurity functions. As used in this

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

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

21 Material. Whether the Protected Material is returned or destroyed, the Receiving

22 Party must submit a written certification to the Producing Party (and, if not the

23 same person or entity, to the Designating Party) by the 60 day deadline that

24 (1) identifies (by category, where appropriate) all the Protected Material that was

25 returned or destroyed and (2) affirms that the Receiving Party has not retained any

26 copies, abstracts, compilations, summaries or any other format reproducing or

27 capturing any of the Protected Material. Notwithstanding this provision, Counsel

28 are entitled to retain an archival copy of all pleadings, motion papers, trial,

1 | deposition and hearing transcripts, legal memoranda, correspondence, deposition

2 || and trial exhibits, expert reports, attorney work product, and consultant and expert

3 || work product, even if such materials contain Protected Material. Any such archival

4 || copies that contain or constitute Protected Material remain subject to this Protective

5 || Order as set forth in Section 4 (DURATION).

6

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: April 7, 2021 ORRICK, HERRINGTON & SUTCLIFFE LLP

9 By: /s/ Khai LeQuang

10 Khai LeQuang

Attorneys for Plaintiffs

CREDIT SUISSE LENDING TRUST (USA),

CREDIT SUISSE LENDING TRUST (USA

12 5, and PRIMARY MASTERBAREAF PTC

LIMITED, on behalf of and as trustee of the

13 CSSEL GUERNSEY BARE TRUST

14 | Dated: April 7, 2021 McDOWELL HETHERINGTON LLP

15

By: /s/ Hutson B. Smelle

16 Hutson B. Smelley

17 Attorneys for Defendant

TRANSAMERICA LIFE INSURANCE

18 COMPANY

19

20

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

22

53 Dated: May 5, 2021

24

HON. BAIL J. STANDISH

25 United States Magistrate Judge

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

5 perjury that I have read in its entirety and understand the Protective Order that was

6 issued by the United States District Court for the Central District of California on

7 ________________________________ [date] in the case of Credit Suisse Lending

8 Trust (USA), Credit Suisse Lending Trust (USA) 5, and Primary MasterbareAF

9 PTC Limited, on behalf of and as trustee of the CSSEL Guernsey Bare Trust v.

10 Transamerica Life Insurance Company, Case No. 2:20-cv-02516-CAS(GJSx). I

11 agree to comply with and to be bound by all the terms of this Protective Order and I

12 understand and acknowledge that failure to so comply could expose me to sanctions

13 and punishment in the nature of contempt. I solemnly promise that I will not

14 disclose in any manner any information or item that is subject to this Protective

15 Order to any person or entity except in strict compliance with the provisions of this

16 Protective Order. I further agree to submit to the jurisdiction of the United States

17 District Court for the Central District of California for enforcing the terms of this

18 Protective Order, even if such enforcement proceedings occur after termination of

19 this action. I hereby appoint _________________ [print or type full name] of

20 _________________________________________ [print or type full address and

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

22 this action or any proceedings related to enforcement of this Protective Order.

23 Date:

24 City and State where sworn and signed:

25 Printed name:

26 Signature:

27

28