W.M. Jaqua, LLC v. Transamerica Life Insurance Company

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA—WESTERN DIVISION

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11 | W.M. JAQUA, LLC; NNIN, LLC, Case No. 2:21-cv-00672-CAS-GJS

12 Plaintiffs, PROP OEREORDER GRANTING

TIPULATED PROTECTIVE

13 |] v. ORDER

14 | TRANSAMERICA LIFE

INSURANCE COMPANY,

Defendant.

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1 1. PURPOSES AND LIMITATIONS/GOOD CAUSE STATEMENT

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

3 || proprietary actuarial, business, technical, and financial information as well as

4 || private information of Plaintiffs W.M. JAQUA, LLC and NNIN, LLC (“Plaintiffs’’)

5 || or the insured for which special protection from public disclosure and from use for

6 || any purpose other than prosecuting this litigation may be warranted. Accordingly,

7 || Plaintiffs and Defendant Transamerica Life Insurance Company (“TLIC”) hereby

8 || stipulate to and petition the Court to enter the following Stipulated Protective Order

9 || (“Order”). The parties acknowledge that this Order does not confer blanket

10 || protections on all disclosures or responses to discovery and that the protection it

11 || affords from public disclosure and use extends only to the limited information or

12 || items that are entitled to confidential treatment under the applicable legal

13 || principles. The parties further acknowledge, as set forth in Section 12.3 (Filing

14 || Protected Material), below, that this Protective Order does not entitle them to file

15 || confidential information under seal; Local Civil Rule 79-5 and the Court’s Guide to

16 || Electronically Filing Under Seal Documents in Civil Cases set forth the procedures

17 || that must be followed and the standards that will be applied when a party seeks

18 || permission from the Court to file material under seal.

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

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

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

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

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

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

25 || orders require good cause showing), and a specific showing of good cause or

26 || compelling reasons with proper evidentiary support and legal justification, must be

27 || made with respect to Protected Material that a party seeks to file under seal. The

28 || parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL

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1 || or HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY does not—without

2 || the submission of competent evidence by declaration, establishing that the material

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

4 || protectable—constitute good cause.

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

6 || then compelling reasons, not only good cause, for the sealing must be shown, and

7 || the relief sought shall be narrowly tailored to serve the specific interest to be

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

9 || 2010). For each item or type of information, document, or thing sought to be filed

10 || or introduced under seal in connection with a dispositive motion or trial, the party

11 || seeking protection must articulate compelling reasons, supported by specific facts

12 || and legal justification, for the requested sealing order. Again, competent evidence

13 || supporting the application to file documents under seal must be provided by

14 || declaration.

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

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

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

18 || only the confidential, privileged, or otherwise protectable portions of the document,

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

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

21 |] 2. DEFINITIONS

22 2.1 Acknowledgment: the “Acknowledgment and Agreement to be

23 || Bound” form attached as Exhibit A to this Order.

24 2.2 Action: W.M. JAQUA, LLC and NNIN, LLC v. Transamerica Life

25 || Insurance Company, Case No. 2:21-cv-00672-CAS-GJS.

26 2.3. Challenging Party: A Party or Non-Party that challenges the

27 || designation of information or items under this Order.

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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 third parties 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 or

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

15 |) as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES

16 | 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

20 || or generated in disclosures or responses to discovery in this matter.

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

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

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

24 || employee of a Party or a current employee of a Party’s competitor and who, at the

25 || time of retention, is not anticipated to become an employee of a Party or a

26 || competitor of a Party. This definition includes a professional jury or trial

27 || consultant retained in connection with this litigation.

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l 2.9 “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES ONLY”

2 || Information or Items: Extremely sensitive “Confidential Information or Items,”

3 || disclosure of which to another Party or Non-Party would create a substantial risk of

4 || serious harm that could not be avoided by less restrictive means.

5 2.10 House Counsel: Attorneys who are employees for a Party or of an

6 || entity that owns an interest in a Party and is responsible for controlling or directing

7 || the litigation. House Counsel does not include Outside Counsel of Record or any

8 || other outside counsel.

9 2.11 Non-Party: Any natural person, partnership, corporation, association,

10 || or other legal entity not named as a Party to this action.

11 2.12 Outside Counsel of Record: Attorneys who are not employees of a

12 || party to this Action but are retained to represent or advise a party to this Action and

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

14 || that has appeared on behalf of that party, including support staff.

15 2.13 Party: Any party to this Action, including its House Counsel, officers,

16 || directors, employees, consultants, and retained experts.

17 2.14 Parent: An entity that owns, or conducts the business affairs of, the

18 || Receiving Party and is responsible for controlling and directing the litigation.

19 2.15 Producing Party: A Party or Non-Party that produces Disclosure or

20 || Discovery Material in this Action.

21 2.16 Professional Vendors: Persons or entities that provide litigation

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

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

24 || and their employees and subcontractors.

25 2.17 Protected Material: Any Disclosure or Discovery Material that is

26 || designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-

27 || ATTORNEYS’ EYES ONLY.”

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1 2.18 Receiving Party: A Party that receives Disclosure or Discovery

2 || Material from a Producing Party.

3 2.19 Related Actions: Feller v. Transamerica Life Insurance Co., No. 2:16-

4 || cv-01378-CAS-GJSx (C.D. Cal. filed Feb. 28, 2016) (“Feller”); EFG Bank AG

5 || Cayman Branch, et al. v. Transamerica Life Insurance Co., Case No. 2:16-cv-

6 || 08104-CAS-GJSx (C.D. Cal. filed Oct. 31, 2016) (“EFG’”).

7|3. SCOPE

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

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

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

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

12 || their Experts that might reveal Protected Material. Any use of Protected Material at

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

14 || the use of Protected Material at trial.

15 |] 4. DURATION

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

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

18 || appeal has run. Except as set forth below, the terms of this Order apply through

19 || FINAL DISPOSITION. The parties stipulate that they will be contractually bound

20 || by the terms of this agreement beyond FINAL DISPOSITION, and that they will

21 || have to file a separate action for enforcement of the agreement once FINAL

22 || DISPOSITION of the action occurs.

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

24 || CONFIDENTIAL, HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY, or

25 || maintained pursuant to this protective order used or introduced as an exhibit at trial

26 || becomes public and will be presumptively available to all members of the public,

27 || including the press, unless compelling reasons supported by specific factual

28 || findings to proceed otherwise are made to the trial judge in advance of the trial. See

1 || Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing

2 || documents produced in discovery from “compelling reasons” standard when merits-

3 || related documents are part of court record). Accordingly, the terms of this

4 || protective order do not extend beyond the commencement of the trial.

5} 5. DESIGNATING PROTECTED MATERIAL

6 5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

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

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

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

11 || documents, items or oral or written communications that qualify so that other

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

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

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

15 || Parties recognize that manually analyzing and designating large numbers of

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

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

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

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

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

21 || unnecessary expenses and burdens on other parties) may expose the Designating

22 || Party to sanctions.

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

24 || designated for protection do not qualify for protection, that Designating Party must

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

26 5.2 Manner and Timing of Designations. Except as otherwise provided in

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

28 || stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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

2 || produced. Designation in conformity with this Order requires:

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

4 || documents, but excluding transcripts of depositions or other pretrial or trial

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

6 || “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES

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

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

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

10 || margins).

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

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

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

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

15 || deemed “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES ONLY.” After the

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

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

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

19 || Producing Party must affix the legend “CONFIDENTIAL” or “HIGHLY

20 || CONFIDENTIAL-ATTORNEYS’ EYES ONLY” to each page that contains

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

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

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

24 (b) any Party may designate as Protected Material testimony given in a

25 || deposition or in other pretrial or trial proceedings by informing the reporter during

26 || the deposition or by sending a letter to all Outside Counsel of Record and to the

27 || deposition reporter designating by page and line any portions of the transcript to be

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

1 || receiving the deposition transcript and specifying the level of protection being

2 || asserted.

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

4 || designated “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES ONLY” in its

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

6 || shall be treated only as actually designated.

7 When deposition testimony is designated Protected Material by informing the

8 || reporter during the deposition, the transcript containing Protected Material shall

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

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

11 || numbers-as appropriate) that have been designated as Protected Material and the

12 || level of protection being asserted by the Designating Party. The Designating Party

13 || shall inform the court reporter of these requirements.

14 Parties shall give the other parties notice if they reasonably expect a

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

16 || other parties can ensure that only authorized individuals who have signed the

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

18 || exhibit at a deposition shall not in any way affects its designation as

19 | “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES

20 |} ONLY.”

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

22 || for any other tangible items, that the Producing Party affix in a prominent place on

23 || the exterior of the container or containers in which the information is stored the

24 || legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’

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

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

27 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent

28 || failure to designate qualified information or items does not, standing alone, waive

1 || the Designating Party’s right to secure protection under this Order for such

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

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

4 || provisions of this Order.

5 5.4 Protected Health Information. Additionally, certain Confidential

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

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

8 || regulations promulgated thereunder at 45 CFR 160.103. Without limiting the

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

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

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

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

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

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

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

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

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

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

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

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

21 || Information pursuant to this Order. A Receiving Party which recetves PHI in

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

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

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

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

26 || shall be governed by this Order.

27 5.5 Specific Provisions Concerning the Disclosure of Personally

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

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

2 || this Order, the PII of any individuals whose claims are not at issue in this lawsuit

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

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

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

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

7 || federal law.

8 || 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS.

9 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

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

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

12 || confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

13 || unnecessary economic burdens, or a significant disruption or delay of the litigation,

14 || a Party does not waive its right to challenge a confidentiality designation by

15 || electing not to mount a challenge promptly after the original designation is

16 || disclosed.

17 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

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

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

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

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

22 || offered, to explain the basis for the chosen designation.

23 6.3 The burden of persuasion in any such challenge proceeding shall be on

24 || the Designating Party. Frivolous designations or challenges, and those designations

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

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

27 || Party or Challenging Party to sanctions. Unless the Designating Party has waived

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

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

2 || Designating 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

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

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

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

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

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

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

12 || persons authorized under this Order.

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

14 || TLIC in this Action were originally produced in Feller using the Feller Bates

15 || numbers or EFG using the EFG Bates numbers, and depositions taken against

16 || TLIC or TLIC-affiliated witnesses in the Related Actions, such documents and

17 || depositions will be produced in this Action in accordance with the procedures

18 || agreed to by the parties in the Stipulated Order Regarding Electronically Stored

19 || Information and Document Production where applicable, as well as the Federal

20 || Rules of Civil Procedure and the Federal Rules of Evidence as to admissibility. The

21 || treatment of Confidential Material in those documents and depositions in this

22 || Action will be governed by this Order. The Parties further stipulate that

23 || Confidential Information produced by TLIC in the Related Actions only but

24 || excluded from this Action (1.e., Owner Specific Documents) may be disclosed to

25 || Outside Counsel of Record for Plaintiffs subject to the terms of this Agreement for

26 || the sole purpose of reviewing transcripts from depositions taken in the Related

27 || Actions and reducing litigation costs incurred through document hosting platforms.

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

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

3 || Receiving Party may disclose any information or item designated

4 || “CONFIDENTIAL” only to:

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

6 || 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) the Receiving Party, including officers, directors, and employees

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

10 || necessary for this Action;

11 (c) the Receiving Party’s Parents’ officers, directors, employees, or

12 || consultants, advisors, insurers and/or reinsurers (1) to whom disclosure is

13 || reasonably necessary for this Action, and (2) who have signed the

14 || Acknowledgment;

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

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

17 || Acknowledgment;

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

19 || Material in or deriving from documents with a Feller or EFG Bates number if such

20 || Protected Material already has been disclosed to such counsel;

21 (f) the Court and its personnel;

22 (g) court reporters and their staff;

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

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

25 || signed the Acknowledgment;

26 (1) the author or recipient of a document containing the information or

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

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1 (j) during their depositions, witnesses, and attorneys for witnesses, in

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

3 || party requests that the witness sign the Acknowledgment; and (2) they will not be

4 || permitted to keep any confidential information unless they sign the

5 || Acknowledgment, unless otherwise agreed by the Designating Party or ordered by

6 || the Court; and

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

8 || mutually agreed upon by any of the parties engaged in settlement discussions and

9 || who have signed the Acknowledgment.

10 7.3. Disclosure of “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES

11 || ONLY Information or Items. Unless otherwise ordered by the Court or permitted

12 || in writing by the Designating Party, a Receiving Party may disclose any

13 || information or item designated “HIGHLY CONFIDENTIAL- ATTORNEYS’

14 || EYES ONLY” only to:

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

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

17 || necessary to disclose the information for this Action;

18 (b) House Counsel and up to five additional officers, directors,

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

20 || Receiving Party, or Plaintiffs, combined, if they are a receiving party, to whom

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

22 || “Acknowledgment and Agreement to be Bound” (Exhibit A). A House Counsel

23 || who is a member of the Bar of any state in the United States need not sign the

24 || Acknowledgment.

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

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

27 || Acknowledgment;

28 (d) the Related Actions plaintiffs’ counsel only as to Protected

1 || Material in or deriving from documents with a Feller, or EFG Bates number if such

2 || Protected Material already has been disclosed to such counsel;

3 (e) the Court and its personnel;

4 (f) court reporters and their staff;

5 (g) professional jury or trial consultants, mock jurors, and Professional

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

7 || signed the Acknowledgment;

8 (h) the author or recipient of a document containing the information or

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

10 (i) during their depositions, witnesses, and attorneys for witnesses, in

11 || the Action to whom disclosure is reasonably necessary provided the witness signs

12 || the Acknowledgment; and

13 (j) any mediator or settlement officer, and their supporting personnel,

14 || mutually agreed upon by any of the parties engaged in settlement discussions and

15 || who have signed the Acknowledgment.

16 |] 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED

17 PRODUCED IN OTHER LITIGATION

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

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

20 || “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES

21 || ONLY” that Party must:

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

23 || include a copy of the subpoena or court order;

24 (b) promptly notify in writing the party who caused the subpoena or order to

25 || issue in the other litigation that some or all of the material covered by the subpoena

26 || or order is subject to this Protective Order. Such notification shall include a copy of

27 || this Order;

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

2 || by the Designating Party whose Protected Material may be affected; and

3 (d) otherwise comply with any applicable HIPAA rules or regulations with

4 || respect to any response or production in connection with a discovery request or

5 || subpoena.

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

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

8 || action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’

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

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

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

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

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

14 || a lawful directive from another court.

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

16 PRODUCED IN THIS LITIGATION

17 (a) The terms of this Order are applicable to information produced by a Non-

18 || Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY

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

20 || Non-Parties in connection with this litigation is protected by the remedies and relief

21 || provided by this Order. Nothing in these provisions should be construed as

22 || prohibiting a Non-Party from seeking additional protections.

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

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

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

26 || confidential information, then the Party shall:

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1 (1) promptly notify in writing the Requesting Party and the Non-Party

2 || that some or all of the information requested is subject to a confidentiality

3 || agreement with a Non-Party;

4 (2) promptly provide the Non-Party with a copy of the Order in this

5 || Action, the relevant discovery request(s), and a reasonably specific description of

6 || the information requested; and

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

8 || Non-Party, if requested.

9 (c) If the Non-Party fails to seek a protective order from this court within 21

10 || days of receiving the notice and accompanying information, the Receiving Party

11 || may produce the Non-Party’s confidential information responsive to the discovery

12 || request. If the Non-Party timely seeks a protective order, the Receiving Party shall

13 || not produce any information in its possession or control that is subject to the

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

15 || Absent a court order to the contrary, the Non-Party shall bear the burden and

16 || expense of seeking protection in this court of its Protected Material.

17 | 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

23 || whom unauthorized disclosures were made of all the terms of this Order, and (d)

24 || request such person or persons to execute the Acknowledgment.

25 □□ □□□ INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

26 PROTECTED MATERIAL

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

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

1 || (e.g., work product immunity), the obligations of the Receiving Parties are those set

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

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

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

5 || Evidence 502(d) and (e), the parties agree that the inadvertent or unintentional

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

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

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

9 || information relating thereto on the same or related subject matter.

10 Upon learning of an inadvertent or unintentional disclosure of privileged

11 || information, the Producing Party shall provide written notice to the parties who

12 || have received such information. If the Receiving Party does not timely challenge

13 || the assertion of privilege, then within ten business days of the date of that written

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

15 || Documents”) shall be returned to counsel for the Producing Party or destroyed by

16 || the Receiving Party, and in the same time frame, any notes or other writing or

17 || recordings that copy, summarize, reflect, or discuss the content of the Privileged

18 || Documents (‘Privileged Notes’’) shall be destroyed by the Receiving Party. No use

19 || shall be made of such documents or materials from such inadvertent production

20 || during deposition or at trial, nor shall such documents or materials be provided to

21 || anyone who did not already have access to them prior to the request by the

22 || Producing Party that they be returned.

23 If the Receiving Party intends to challenge the assertion of privilege, □□ must

24 || provide written notice within this ten-day period explaining the grounds for its

25 || challenge, initiate the dispute resolution process under Local Rule 37.1, and

26 || sequester the Privileged Documents and Privileged Notes.

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

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

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

2 || assert as a ground for production the fact of the inadvertent production or

3 || disclosure. Pending the Court’s ruling, the party challenging the assertion of

4 || privilege shall sequester the Privileged Documents and Privileged Notes and shall

5 |} not make any use of such information.

6 || 12. MISCELLANEOUS

7 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

8 || person to seek its modification by the Court in the future.

9 12.2 Right to Assert Other Objections. By stipulating to the entry of this

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

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

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

13 || any of the material covered by this Protective Order.

14 12.3 Filing Protected Material. A Party that seeks to file under seal any

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

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

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

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

19 || in the public record unless otherwise instructed by the court.

20 || 13. FINAL DISPOSITION

21 After the final disposition of this Action, as defined in Section 4

22 || (DURATION), within 60 days of a written request by the Designating Party, each

23 || Receiving Party must return all Protected Material to the Producing Party or destroy

24 || such material, except such material that exists on back-up tapes or similar storage

25 || and systems, in which case such material need not be immediately deleted or

26 || destroyed, and instead, should be overwritten and destroyed in the normal course of

27 || business. Until that material is overwritten and destroyed in the normal course of

28 || business, the Receiving Party will take reasonable steps to limit access, if any, to

1 || the persons necessary to conduct routine IT and cybersecurity functions. As used in

2 || this subdivision, “all Protected Material” includes all copies, abstracts,

3 || compilations, summaries, and any other format reproducing or capturing any of the

4 || Protected Material. Whether the Protected Material is returned or destroyed, the

5 || Receiving Party must submit a written certification to the Producing Party (and, if

6 || not the same person or entity, to the Designating Party) by the 60 day deadline that

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

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

9 || copies, abstracts, compilations, summaries or any other format reproducing or

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

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

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

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

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

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

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

17 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

18 || Dated: September 21, 2021 ARENT FOX LLP

19

20 By: /s/ Frantic M. Dolenac

21 Pray at Dalenac

22 Attorneys for Plaintiffs

74 W.M. JAQUA, LLC and NNIN, LLC

Dated: September 21, 2021 McDOWELL HETHERINGTON LLP

25

26 By: ison B-Sinclley

27 Attorneys for Defendant

28 TRANSAMERICA LIFE INSURANCE

1 I, Hutson B. Smelley, in accordance with Local Rule 5-4.3.4, attest that all

2 || other signatories listed, and on whose behalf this filing is submitted, concur in the

3 || filing’s content and have authorized the filing.

4

5 || Dated: September 21, 2021 /s/ Hutson B. Smelley

6 Hutson B. Smelley

7 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

9 || Dated: September 23, 2021

10 Unite d States Magistrate Sud ge

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l EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

4 [print or type full address], declare under penalty of perjury

5 || that I have read in its entirety and understand the Stipulated Protective Order that

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

7 || on [date] in the case of W.M. JAQUA, LLC and NNIN, LLC v.

8 || Transamerica Life Insurance Company, Case No. 2:21-cv-00672-CAS-GJS. I agree

9 || to comply with and to be bound by all the terms of this Stipulated Protective Order

10 || and I understand and acknowledge that failure to so comply could expose me to

|| sanctions and punishment in the nature of contempt. I solemnly promise that I will

12 || not disclose in any manner any information or item that is subject to this Stipulated

13 || Protective Order to any person or entity except in strict compliance with the

14 |) provisions of this Stipulated Protective Order. I further agree to submit to the

15 || jurisdiction of the United States District Court for the Central District of California

16 || for enforcing the terms of this Stipulated Protective Order, even if such

17 || enforcement proceedings occur after termination of this action. I hereby appoint

18 [print or type full name] of

19 [print or type full address and

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

21 || this action or any proceedings related to enforcement of this Stipulated Protective

22 || Order.

23

24 |) Date:

25 |) City and State where sworn and signed:

26 || Printed name:

27 || Signature:

28