The opinion
! || BAUTE CROCHETIERE & HARTLEY LLP
MICHAEL J. HARTLEY (State Bar No. 189375)
2 mhartley @bautelaw.com
COUR Y A. PALKO (State Bar No. 233822)
3 cpalko@bautelaw.com
7 South Figueroa Street, Suite 3800
4 || Los Angeles, California 90017
Telephone: 13) 630-5000
5 || Facsimile: (213) 683-1225
6 Attorneys for Defendant NATIONAL
UNION FIRE INSURANCE COMPANY
7 || OF PITTSBURGH, PA.
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 WESTERN DIVISION — LOS ANGELES
11 ||FLATIRON WEST, INC., Case No. 2:20-cv-09022-JAK-MRW
Hon. John A. Kronstadt
12 Plaintiff, Courtroom 10B
13 V.
STIPULATED PROTECTIVE ORDER
14 || NATIONAL UNION FIRE
INSURANCE COMPANY OF
15 || PITTSBURGH, PA, Check if submitted without material
16 Defendant modifications to MRW form
17 Amended Complaint Filed: December 21, 202(
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1. INTRODUCTION
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1.1 PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidentiz
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proprietary, or private information for which special protection from public □□□□□□□□□
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and from use for any purpose other than prosecuting this litigation may be warrante
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Accordingly, the parties hereby stipulate to and petition the Court to enter the followir
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Stipulated Protective Order. The parties acknowledge that this Order does not conf
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blanket protections on all disclosures or responses to discovery and that the protectic
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it affords from public disclosure and use extends only to the limited information «
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1 items that are entitled to confidential treatment under the applicable legal principles.
2 The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated
3 Protective Order does not entitle them to file confidential information under seal; Civil
4 Local Rule 79-5 sets forth the procedures that must be followed and the standards that
5 will be applied when a party seeks permission from the court to file material under seal.
6 1.2 GOOD CAUSE STATEMENT
7 Discovery in this insurance coverage dispute involves confidential, proprietary,
8 or sensitive business information, including but not limited to the parties’ financial
9 information, calculation of insurance premiums, and settlement negotiations. Should
10 relevant materials be disclosed publicly, the potential resulting harm includes
11 disclosure to competitors of confidential, proprietary, and sensitive business
12 information, putting the parties at a competitive disadvantage. Information or items
13 designated for protection are limited to specific material that qualifies under the
14 appropriate standards. The information sought to be protected is of minimal public
15 interest, and is unrelated, or only tangentially related, to the merits of the case. The
16 public’s interest in access to these discovery materials is outweighed by the parties’
17 need to keep their confidential, proprietary, and sensitive business information secret.
18 Therefore, good cause exists for the entry of this pretrial protective order. C.f. Oliner
19 v. Kontrabecki, 745 F.3d 1024, 1026 (9th Cir. 2014).
20 2. DEFINITIONS
21 2.1 Action: this pending federal lawsuit.
22 2.2 Challenging Party: a Party or Non-Party that challenges the designation
23 of information or items under this Order.
24 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
25 how it is generated, stored or maintained) or tangible things that qualify for protection
26 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
27 Statement, including but not limited to information the Designating Party believes in
1 confidential, business, competitive, or privacy information, trade secret information,
2 non-public financial or business information, or personal or privileged information
3 protected from disclosure under California Insurance Code section 791.01 et seq., 15
4 U.S.C. § 6801, 15 U.S.C. § 6809(3)(A), and/or 12 U.S.C. § 1843, which the Designating
5 Party is prohibited from revealing or would not normally reveal to third parties except
6 in confidence, or has undertaken with others to maintain its confidence.
7 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
8 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
11 “CONFIDENTIAL.”
12 2.6 Disclosure or Discovery Material: all items or information, regardless of
13 the medium or manner in which it is generated, stored, or maintained (including, among
14 other things, testimony, transcripts, and tangible things), that are produced or generated
15 in disclosures or responses to discovery in this matter.
16 2.7 Expert: a person with specialized knowledge or experience in a matter
17 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
18 expert witness or as a consultant in this Action.
19 2.8 House Counsel: attorneys who are employees of a party to this Action.
20 House Counsel does not include Outside Counsel of Record or any other outside
21 counsel.
22 2.9 Non-Party: any natural person, partnership, corporation, association, or
23 other legal entity not named as a Party to this action.
24 2.10 Outside Counsel of Record: attorneys who are not employees of a party
25 to this Action but are retained to represent or advise a party to this Action and have
26 appeared in this Action on behalf of that party or are affiliated with a law firm which
27 has appeared on behalf of that party, and includes support staff.
1 2.11 Party: any party to this Action, including all of its officers, directors,
2 employees, consultants, retained experts, and Outside Counsel of Record (and their
3 support staffs).
4 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
5 Discovery Material in this Action.
6 2.13 Professional Vendors: persons or entities that provide litigation support
7 services (e.g., photocopying, videotaping, translating, preparing exhibits or
8 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
9 their employees and subcontractors.
10 2.14 Protected Material: any Disclosure or Discovery Material that is
11 designated as “CONFIDENTIAL.”
12 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
13 from a Producing Party.
14 3. SCOPE
15 The protections conferred by this Stipulation and Order cover not only Protected
16 Material (as defined above), but also (1) any information copied or extracted from
17 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
18 Material; (3) any testimony, conversations, or presentations by Parties or their Counsel
19 that might reveal Protected Material. However, the protections conferred by the
20 Stipulated Protective Order do not cover the following information: (a) any information
21 that is in the public domain at the time of disclosure to a Receiving party or becomes
22 part of the public domain after its disclosure to a Receiving Party as a result of
23 publication not involving a violation of this Order, including becoming part of the
24 public record through trial or otherwise; and (b) any information known to the
25 Receiving Party prior to the disclosure or obtained by the Receiving Party after the
26 disclosure from a source who obtained the information lawfully and under no obligation
27 of confidentiality to the Designating Party.
1 Any use of Protected Material at trial will be governed by the orders of the trial
2 judge. This Order does not govern the use of Protected Material at trial.
3 4. DURATION
4 Even after final disposition of this litigation, the confidentiality obligations
5 imposed by this Order will remain in effect until a Designating Party agrees otherwise
6 in writing or a court order otherwise directs. Final disposition will be deemed to be the
7 later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;
8 and (2) final judgment herein after the completion and exhaustion of all appeals,
9 rehearings, remands, trials, or reviews of this Action, including the time limits for filing
10 any motions or applications for extension of time pursuant to applicable law.
11 5. DESIGNATING PROTECTED MATERIAL
12 5.1 Exercise of Restraint and Care in Designating Material for Protection.
13 Each Party or Non-Party that designates information or items for protection under this
14 Order must take care to limit any such designation to specific material that qualifies
15 under the appropriate standards. The Designating Party must designate for protection
16 only those parts of material, documents, items, or oral or written communications that
17 qualify so that other portions of the material, documents, items, or communications for
18 which protection is not warranted are not swept unjustifiably within the ambit of this
19 Order.
20 Mass, indiscriminate, or routinized designations are prohibited. Designations
21 that are shown to be clearly unjustified or that have been made for an improper purpose
22 (e.g., to unnecessarily encumber the case development process or to impose
23 unnecessary expenses and burdens on other parties) may expose the Designating Party
24 to sanctions.
25 If it comes to a Designating Party’s attention that information or items that it
26 designated for protection do not qualify for protection, that Designating Party must
27 promptly notify all other Parties that it is withdrawing the inapplicable designation.
1 5.2 Manner and Timing of Designations. Except as otherwise provided in this
2 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
3 or ordered, Disclosure or Discovery Material that qualifies for protection under this
4 Order must be clearly so designated before the material is disclosed or produced.
5 Designation in conformity with this Order requires:
6 (a) for information in documentary form (e.g., paper or electronic documents,
7 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
8 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
9 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
10 portion or portions of the material on a page qualifies for protection, the Producing
11 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
12 markings in the margins).
13 A Party or Non-Party that makes original documents available for
14 inspection need not designate them for protection until after the inspecting Party has
15 indicated which documents it would like copied and produced. During the inspection
16 and before the designation, all of the material made available for inspection will be
17 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
18 it wants copied and produced, the Producing Party must determine which documents,
19 or portions thereof, qualify for protection under this Order. Then, before producing the
20 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to
21 each page that contains Protected Material. If only a portion or portions of the material
22 on a page qualifies for protection, the Producing Party also must clearly identify the
23 protected portion(s) (e.g., by making appropriate markings in the margins).
24 (b) for testimony given in depositions or in other pretrial or trial proceedings,
25 that the Designating Party identify the Disclosure or Discovery Material on the record,
26 before the close of the deposition all protected testimony, hearing, or other proceeding,
27 all protected portion(s) (e.g., by making appropriate markings in the margins).
1 (c) for information produced in some form other than documentary and for
2 any other tangible items, that the Designating Party or Producing Party affix in a
3 prominent place on the exterior of the container or containers in which the information
4 is stored the legend “CONFIDENTIAL.” If only a portion or portions of the
5 information warrants protection, the Producing Party, to the extent practicable, will
6 identify the protected portion(s).
7 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
8 failure to designate qualified information or items does not, standing alone, waive the
9 Designating Party’s right to secure protection under this Order for such material. Upon
10 timely correction of a designation, the Receiving Party must make reasonable efforts to
11 assure that the material is treated in accordance with the provisions of this Order.
12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
13 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
14 designation of confidentiality at any time that is consistent with the Court’s Scheduling
15 Order. Unless a prompt challenge to a Designating Party’s confidentiality designation
16 is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
17 burdens, or a significant disruption or delay of the litigation, a Party does not waive its
18 right to challenge a confidentiality designation by electing not to mount a challenge
19 promptly after the original designation is disclosed.
20 6.2 Meet and Confer. The Challenging Party will initiate the dispute
21 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1 et
22 seq.
23 6.3 The burden of persuasion in any such challenge proceeding will be on the
24 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
25 to harass or impose unnecessary expenses and burdens on other parties) may expose
26 the Challenging Party to sanctions. Unless the Designating Party has waived or
27 withdrawn the confidentiality designation, all parties will continue to afford the
1 material in question the level of protection to which it is entitled under the Producing
2 Party’s designation until the Court rules on the challenge.
3 7. ACCESS TO AND USE OF PROTECTED MATERIAL
4 7.1 Basic Principles. A Receiving Party may use Protected Material that is
5 disclosed or produced by another Party or by a Non-Party in connection with this Action
6 only for prosecuting, defending, or attempting to settle this Action. Such Protected
7 Material may be disclosed only to the categories of persons and under the conditions
8 described in this Order. When the Action has been terminated, a Receiving Party must
9 comply with the provisions of section 13 below (FINAL DISPOSITION).
10 Protected Material must be stored and maintained by a Receiving Party at a
11 location and in a secure manner that ensures that access is limited to the persons
12 authorized under this Order.
13 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
14 otherwise ordered by the Court or permitted in writing by the Designating Party, a
15 Receiving Party may disclose any information or item designated “CONFIDENTIAL”
16 only to:
17 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
18 as employees of said Outside Counsel of Record to whom it is reasonably necessary to
19 disclose the information for this Action;
20 (b) the officers, directors, employees (including House Counsel), and
21 authorized representatives and agents, of the Receiving Party to whom disclosure is
22 reasonably necessary for this Action;
23 (c) any reinsurer, proposed reinsurer, auditor, accountant, or reinsurance
24 broker or intermediary who has a legitimate business reason to review the Protected
25 Material;
26 (d) any regulatory authority or other governmental authorities (including
27 self-regulatory authorities) having or claiming jurisdiction over any Receiving Party
1 and its and their respective employees, agents, advisors, consultants, reinsurers, and
2 proposed reinsurers;
3 (e) Experts (as defined in this Order) of the Receiving Party to whom
4 disclosure is reasonably necessary for this Action;
5 (f) the Court and its personnel;
6 (g) court reporters and their staff;
7 (h) professional jury or trial consultants, mock jurors, and Professional
8 Vendors to whom disclosure is reasonably necessary for this Action;
9 (i) the author or recipient of a document containing the information or a
10 custodian or other person who otherwise possessed or knew the information;
11 (j) during their depositions, witnesses, and attorneys for witnesses, in the
12 Action to whom disclosure is reasonably necessary. Pages of transcribed deposition
13 testimony or exhibits to depositions that reveal Protected Material may be separately
14 bound by the court reporter and may not be disclosed to anyone except as permitted
15 under this Stipulated Protective Order; and
16 (k) any mediator or settlement officer, and their supporting personnel,
17 mutually agreed upon by any of the parties engaged in settlement discussions.
18 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
19 OTHER LITIGATION
20 If a Party is served with a subpoena or a court order issued in other litigation that
21 compels disclosure of any information or items designated in this Action as
22 “CONFIDENTIAL,” that Party must:
23 (a) promptly notify in writing the Designating Party. Such notification will
24 include a copy of the subpoena or court order;
25 (b) promptly notify in writing the party who caused the subpoena or order to
26 issue in the other litigation that some or all of the material covered by the subpoena or
27 order is subject to this Protective Order. Such notification will include a copy of this
1 (c) cooperate with respect to all reasonable procedures sought to be pursued
2 by the Designating Party whose Protected Material may be affected.
3 If the Designating Party timely seeks a protective order, the Party served with
4 the subpoena or court order will not produce any information designated in this action
5 as “CONFIDENTIAL” before a determination by the court from which the subpoena
6 or order issued, unless the Party has obtained the Designating Party’s permission. The
7 Designating Party will bear the burden and expense of seeking protection in that court
8 of its confidential material, and nothing in these provisions should be construed as
9 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
10 directive from another court.
11 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
12 IN THIS LITIGATION
13 (a) The terms of this Order are applicable to information produced by a Non-
14 Party in this Action and designated as “CONFIDENTIAL.” Such information produced
15 by Non-Parties in connection with this litigation is protected by the remedies and relief
16 provided by this Order. Nothing in these provisions should be construed as prohibiting
17 a Non-Party from seeking additional protections.
18 (b) In the event that a Party is required, by a valid discovery request, to
19 produce a Non-Party’s confidential information in its possession, and the Party is
20 subject to an agreement with the Non-Party not to produce the Non-Party’s confidential
21 information, then the Party will:
22 (1) promptly notify in writing the Requesting Party and the Non-Party that
23 some or all of the information requested is subject to a confidentiality agreement with
24 a Non-Party;
25 (2) promptly provide the Non-Party with a copy of the Stipulated
26 Protective Order in this Action, the relevant discovery request(s), and a reasonably
27 specific description of the information requested; and
1 (3) make the information requested available for inspection by the Non-
2 Party, if requested.
3 (c) If the Non-Party fails to seek a protective order from this Court within 14
4 days of receiving the notice and accompanying information, the Receiving Party may
5 produce the Non-Party’s confidential information responsive to the discovery request.
6 If the Non-Party timely seeks a protective order, the Receiving Party will not produce
7 any information in its possession or control that is subject to the confidentiality
8 agreement with the Non-Party before a determination by the Court. Absent a court
9 order to the contrary, the Non-Party will bear the burden and expense of seeking
10 protection in this Court of its Protected Material.
11 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
13 Protected Material to any person or in any circumstance not authorized under this
14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
15 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
16 all unauthorized copies of the Protected Material, (c) inform the person or persons to
17 whom unauthorized disclosures were made of all the terms of this Order, and (d) request
18 such person or persons destroy the Protected Material and/or return the Protected
19 Material to the Receiving Party.
20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
21 PROTECTED MATERIAL
22 When a Designating Party or Producing Party gives notice to Receiving Parties
23 that certain inadvertently produced material is subject to a claim of privilege or other
24 protection, the obligations of the Receiving Parties are those set forth in Federal Rule
25 of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever
26 procedure may be established in an e-discovery order that provides for production
27 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e),
1 or information covered by the attorney-client privilege or work product protection, the
2 parties may incorporate their agreement in the stipulated protective order submitted to
3 the Court.
4 12. MISCELLANEOUS
5 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
6 person or Party to seek its modification by the Court in the future.
7 12.2 Right to Assert Other Objections. By stipulating to the entry of this
8 Protective Order, no Party waives any right it otherwise would have to object to
9 disclosing or producing any information or item on any ground not addressed in this
10 Stipulated Protective Order. Similarly, no Party waives any right to object on any
11 ground to use in evidence of any of the material covered by this Protective Order.
12 12.3 Filing Protected Material. A Party that seeks to file under seal any
13 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
14 only be filed under seal pursuant to a court order authorizing the sealing of the specific
15 Protected Material at issue. If a Party’s request to file Protected Material under seal is
16 denied by the Court, then the Receiving Party may file the information in the public
17 record unless otherwise instructed by the Court.
18 13. FINAL DISPOSITION
19 In accordance with paragraph 4 herein, the confidentiality obligations imposed
20 by this Order shall remain in effect after the final disposition of this action unless and
21 until a Designating Party agrees otherwise or a court order otherwise directs. Upon
22 final disposition of this action, as defined in paragraph 4, each Receiving Party must
23 maintain all Protected Material in confidence pursuant to the terms of this Order. As
24 used in this subdivision, “all Protected Material” includes all copies, abstracts,
25 compilations, summaries, and any other format reproducing or capturing any of the
26 Protected Material. Counsel are expressly entitled to retain an archival copy of all
27 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
1 || and consultant and expert work product, even if such materials contain Protecte
2 || Material. Any such archival copies that contain or constitute Protected Material rema:
3 || subject to this Protective Order as set forth in Section 4 (DURATION).
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5 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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7 || DATED: November 5, 2021 BAUTE CROCHETIERE & HARTLEY LLP
8 By: /s/ Michael J. Hartley
9 Michael J. Hartley
Attorneys for Defendant National Union
10 Insurance Company of Pittsburgh, Pa.
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DATED: November 5, 2021 MORALES FIERRO & REEVES
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13 By: /s/ Ramiro Morales
Ramiro Morales
14 Attorneys for Plaintiff Flatiron West, Inc.
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17 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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19 [
9 || DATED: 11/8/2021 Lf
54 HON. MICHAEL R. WILNER
United States Magistrate Judge
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