Daniel Thomas v. State Farm General Insurance Company

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 DANIEL THOMAS, an individual, Case No. 2:20-cv-10967-GW-AFM

11 Plaintiff,

[State Court Case No.:

12 v. 56-2020-00546397-CU-IC-VTA]

13 STATE FARM GENERAL

INSURANCE COMPANY, a California [PROPOSED] PROTECTIVE

14 Corporation; ORDER1

15 Defendant.

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18 1. A. PURPOSES AND LIMITATIONS

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

20 proprietary or private information for which special protection from public disclosure

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

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

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

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

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

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28 1 This Stipulated Protective Order is based substantially on the model protective order

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

2 legal principles.

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4 B. GOOD CAUSE STATEMENT

5 This action is likely to involve trade secrets, and other valuable research,

6 development, commercial, financial, technical and/or proprietary information, as well

7 as private personal information, for which special protection from public disclosure

8 and from use for any purpose other than prosecution of this action is warranted. More

9 specifically, this action may involve the production of State Farm’s electronic claim

10 file system, which was created with considerable time and expense. Further, such

11 materials were created and maintained for a business purpose, and contain unique

12 information to State Farm. Additionally, such confidential and proprietary materials

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

14 information, information regarding confidential business practices, or other

15 confidential research, development, or commercial information (including

16 information implicating privacy rights of third parties), private personal information,

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

18 or otherwise protected from disclosure under state or federal statutes, court rules, case

19 decisions, or common law. Accordingly, to expedite the flow of information, to

20 facilitate the prompt resolution of disputes over confidentiality of discovery materials,

21 to adequately protect information the parties are entitled to keep confidential, to

22 ensure that the parties are permitted reasonable necessary uses of such material in

23 preparation for and in the conduct of trial, to address their handling at the end of the

24 litigation, and serve the ends of justice, a protective order for such information is

25 justified in this matter. It is the intent of the parties that information will not be

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

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

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

2 case.

3 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

4 SEAL

5 The parties further acknowledge, as set forth in Section 12.3, below, that this

6 Stipulated Protective Order does not entitle them to file confidential information

7 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and

8 the standards that will be applied when a party seeks permission from the court to file

9 material under seal.

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

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

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

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

14 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,

15 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good

16 cause showing), and a specific showing of good cause or compelling reasons with

17 proper evidentiary support and legal justification, must be made with respect to

18 Protected Material that a party seeks to file under seal. The parties’ mere designation

19 of Disclosure or Discovery Material as CONFIDENTIAL does not—without the

20 submission of competent evidence by declaration, establishing that the material

21 sought to be filed under seal qualifies as confidential, privileged, or otherwise

22 protectable—constitute good cause.

23 Further, if a party requests sealing related to a dispositive motion or trial, then

24 compelling reasons, not only good cause, for the sealing must be shown, and the relief

25 sought shall be narrowly tailored to serve the specific interest to be protected. See

26 Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each

27 item or type of information, document, or thing sought to be filed or introduced under

28 seal in connection with a dispositive motion or trial, the party seeking protection must

1 articulate compelling reasons, supported by specific facts and legal justification, for

2 the requested sealing order. Again, competent evidence supporting the application to

3 file documents under seal must be provided by declaration.

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

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

6 documents can be redacted, then a redacted version for public viewing, omitting only

7 the confidential, privileged, or otherwise protectable portions of the document, shall

8 be filed. Any application that seeks to file documents under seal in their entirety

9 should include an explanation of why redaction is not feasible.

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11 2. DEFINITIONS

12 A. Action: this pending federal lawsuit, entitled Daniel Thomas v. State

13 Farm General Insurance Company, Case No. 2:20-cv-10967-GW-AFM.

14 B. Challenging Party: a Party or Non-Party that challenges the designation

15 of information or items under this Order.

16 C. “CONFIDENTIAL” Information or Items: information (regardless of

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

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

19 Cause Statement.

20 D. Counsel: Outside Counsel of Record and House Counsel (as well as their

21 support staff).

22 E. Designating Party: a Party or Non-Party that designates information or

23 items that it produces in disclosures or in responses to discovery as

24 “CONFIDENTIAL.”

25 F. Disclosure or Discovery Material: all items or information, regardless of

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

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

28 generated in disclosures or responses to discovery in this matter.

1 G. Expert: a person with specialized knowledge or experience in a matter

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

3 an expert witness or as a consultant in this Action.

4 H. House Counsel: attorneys who are employees of a party to this Action.

5 House Counsel does not include Outside Counsel of Record or any other outside

6 counsel.

7 I. Non-Party: any natural person, partnership, corporation, association or

8 other legal entity not named as a Party to this action.

9 J. Outside Counsel of Record: attorneys who are not employees of a party

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

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

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

13 K. Party: any party to this Action, including all of its officers, directors,

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

15 support staffs).

16 L. Producing Party: a Party or Non-Party that produces Disclosure or

17 Discovery Material in this Action.

18 M. Professional Vendors: persons or entities that provide litigation support

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

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

21 and their employees and subcontractors.

22 N. Protected Material: any Disclosure or Discovery Material that is

23 designated as “CONFIDENTIAL.”

24 O. Receiving Party: a Party that receives Disclosure or Discovery Material

25 from a Producing Party.

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27 3. SCOPE

28 The protections conferred by this Stipulation and Order cover not only

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

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

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

4 or their Counsel that might reveal Protected Material.

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

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

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8 4. DURATION

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

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

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

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

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

14 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

15 showing for sealing documents produced in discovery from “compelling reasons”

16 standard when merits-related documents are part of court record). Even after final

17 disposition of this litigation, the confidentiality obligations imposed by this Order

18 shall remain in effect until a Designating Party agrees otherwise in writing or a court

19 order otherwise directs. Final disposition shall be deemed to be the later of (1)

20 dismissal of all claims and defenses in this action, with or without prejudice; and (2)

21 final judgment herein after the completion and exhaustion of all appeals, rehearings,

22 remands, trials, or reviews of this action, including the time limits for filing any

23 motions or applications for extension of time pursuant to applicable law.

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25 5. DESIGNATING PROTECTED MATERIAL

26 A. Exercise of Restraint and Care in Designating Material for Protection.

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

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

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

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

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

4 for which protection is not warranted are not swept unjustifiably within the ambit of

5 this Order.

6 Mass, indiscriminate or routinized designations are prohibited. Designations

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

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

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

10 to sanctions.

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

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

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

14 B. Manner and Timing of Designations. Except as otherwise provided in

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

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

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

18 produced.

19 Designation in conformity with this Order requires:

20 1. for information in documentary form (e.g., paper or electronic

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

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

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

24 contains protected material. If only a portion of the material on a page qualifies for

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

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

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

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

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

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

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

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

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

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

7 to each page that contains Protected Material. If only a portion of the material on a

8 page qualifies for protection, the Producing Party also must clearly identify the

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

10 2. for testimony given in depositions that the Designating Party

11 identifies the Disclosure or Discovery Material on the record, before the close of the

12 deposition all protected material.

13 3. for information produced in some form other than documentary

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

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

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

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

18 portion(s).

19 C. Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

22 Upon timely correction of a designation, the Receiving Party must make reasonable

23 efforts to assure that the material is treated in accordance with the provisions of this

24 Order.

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26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

27 A. Timing of Challenges. Any Party or Non-Party may challenge a

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

1 Scheduling Order.

2 B. Meet and Confer. The Challenging Party shall initiate the dispute

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

4 C. Joint Stipulation. Any challenge submitted to the Court shall be via a

5 joint stipulation pursuant to Local Rule 37-2.

6 D. The burden of persuasion in any such challenge proceeding shall be on

7 the Designating Party. Frivolous challenges, and those made for an improper purpose

8 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may

9 expose the Challenging Party to sanctions. Unless the Designating Party has waived

10 or withdrawn the confidentiality designation, all parties shall continue to afford the

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

12 Party’s designation until the Court rules on the challenge.

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14 7. ACCESS TO AND USE OF PROTECTED MATERIAL

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

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

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

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

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

20 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

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

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

23 authorized under this Order.

24 B. Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

26 Receiving Party may disclose any information or item designated

27 “CONFIDENTIAL” only to:

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1 1. the Receiving Party’s Outside Counsel of Record in this Action,

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

3 necessary to disclose the information for this Action;

4 2. the officers, directors, and employees (including House Counsel)

5 of the Receiving Party to whom disclosure is reasonably necessary for this Action;

6 3. Experts (as defined in this Order) of the Receiving Party to whom

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

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

9 4. the court and its personnel;

10 5. court reporters and their staff;

11 6. professional jury or trial consultants, mock jurors, and

12 Professional Vendors to whom disclosure is reasonably necessary for this Action and

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

14 7. the author or recipient of a document containing the information

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

16 8. during their depositions, witnesses, and attorneys for witnesses, in

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

18 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they

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

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

21 agreed by the Designating Party or ordered by the court. Pages of transcribed

22 deposition testimony or exhibits to depositions that reveal Protected Material may be

23 separately bound by the court reporter and may not be disclosed to anyone except as

24 permitted under this Stipulated Protective Order;

25 9. any mediator or settlement officer, and their supporting personnel,

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

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1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

2 OTHER LITIGATION

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

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

5 “CONFIDENTIAL,” that Party must:

6 1. promptly notify in writing the Designating Party. Such

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

8 2. promptly notify in writing the party who caused the subpoena or

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

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

11 a copy of this Stipulated Protective Order; and

12 3. cooperate with respect to all reasonable procedures sought to be

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

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

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

16 as “CONFIDENTIAL” before a determination by the court from which the subpoena

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

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

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

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

21 directive from another court.

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

24 IN THIS LITIGATION

25 1. The terms of this Order are applicable to information produced by

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

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

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

2 construed as prohibiting a Non-Party from seeking additional protections.

3 2. 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 3. 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.

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24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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

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

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

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6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

7 PROTECTED MATERIAL

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

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

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

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

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

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

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

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

16 parties may incorporate their agreement in the stipulated protective order submitted

17 to the court.

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19 12. MISCELLANEOUS

20 A. Right to Further Relief. Nothing in this Order abridges the right of any

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

22 B. Right to Assert Other Objections. By stipulating to the entry of this

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

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

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

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

27 C. Filing Protected Material. A Party that seeks to file under seal any

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

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

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

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

4 record unless otherwise instructed by the court.

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6 13. FINAL DISPOSITION

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

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

9 all Protected Material to the Producing Party or destroy such material, except in order

10 to comply with laws or regulations concerning disclosure, or in the conduct of the

11 Parties’ communications with attorneys, financial advisors or auditors or insurers, or

12 in the conduct of the Parties’ business including without limitation disclosure by State

13 Farm to its reinsurers, counsel, and auditors. As used in this subdivision, “all

14 Protected Material” includes all copies, abstracts, compilations, summaries, and any

15 other format reproducing or capturing any of the Protected Material. Whether the

16 Protected Material is returned or destroyed, the Receiving Party must submit a written

17 certification to the Producing Party (and, if not the same person or entity, to the

18 Designating Party) by the 60 day deadline that (1) identifies (by category, where

19 appropriate) all the Protected Material that was returned or destroyed and (2) affirms

20 that the Receiving Party has not retained any copies, abstracts, compilations,

21 summaries or any other format reproducing or capturing any of the Protected Material.

22 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

23 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

24 correspondence, deposition and trial exhibits, expert reports, attorney work product,

25 and consultant and expert work product, even if such materials contain Protected

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

27 remain subject to this Protective Order as set forth in Section 4 (DURATION).

28 Moreover, nothing in this Protective Order disallows State Farm from

l (a) complying with any state or federal law or regulation, including reporting

of information to a regulator or government entity as permitted and/or required by

3|| applicable state and federal law;

4 (b) adding information discovered that it is relevant to a claim to the relevant

5|| electronic record in its electronic claim system;

6 (c) disclosing evidence of a crime or fraud; retaining information necessary to

meet mandated retention requirements; or

8 (d) retaining copies of Protected Information that may exist on back-up media

or other computer archive storage not regularly access by business users in the

ordinary course provided that should a copy of the Confidential Information can be

accessed it will not be used for a purpose inconsistent with this Order.

12,14. VIOLATION

13 Any violation of this Order may be punished by appropriate measures

i i 14] including, without limitation, contempt proceedings and/or monetary sanctions.

16|| FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

Cty Mo<k—

—————...,

DATED: 5/13/2021

Re EO

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1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ______________________________________ [print or type full name], of

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_________________________________ [print or type full address], declare under

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penalty of perjury that I have read in its entirety and understand the Stipulated

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Protective Order that was issued by the United States District Court for the Central

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District of California on [date] in the case of Daniel Thomas v. State Farm General

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Insurance Company, Case No. 2:20-cv-10967-GW-AFM. I agree to comply with and

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to be bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment

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in the nature of contempt. I solemnly promise that I will not disclose in any manner

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any information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the provisions of this Order. I further

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agree to submit to the jurisdiction of the United States District Court for the Central

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District of California for enforcing the terms of this Stipulated Protective Order, even

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if such enforcement proceedings occur after termination of this action.

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I hereby appoint _________________________ [print or type full name] of

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________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action

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or any proceedings related to enforcement of this Stipulated Protective Order.

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Date: ___________________

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City and State where sworn and signed:

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________________________________________

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Printed name:

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_____________________________________________________________

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Signature:

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________________________________________________________________

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