The opinion
1 || Kevin W. Harris (SBN 133084)
Attorney at Law
2 || 1387 Garden HWy2 Ste. 200
Sacramento CA 95833
3 || Telephone: 916.271.0688
4 Facsimile: 855.800.4454
Attorney for Plaintiff
5 ZOHRAB BAHRIKYAN
6 || John T. Burnite een 16223)
McDOWELL HETHERINGTON LLP
7 || 1999 Harrison Street, Suite 2050
Oakland, CA 94612
8 || Telephone: 510.628.2145
Facimile: 510.628.2146
9 || Email: john.burnite@mhllp.com
10 || Jarrett E. Ganer (Admitted Pro Hac Vice)
Micah A. Grodin (dmitted Pro Hac rice)
11 | MCDOWELL HETHERINGTON LL
1001 Fannin Street, Suite 2700
12 || Houston, TX 77002
Telephone: 713-337-5580
13 || Facsimile: 713-337-8850
Email: jarrett. ganer@mhllp.com
14 |) Email: micah.grodin@mhllp.com
IS || Attorneys for Defendant
16 || FRANSAMERICA
7 LIFE INSURANCE COMPANY
18
UNITED STATES DISTRICT COURT
1? EASTERN DISTRICT OF CALIFORNIA
20
ZOHRAB BAHRIKYAN, No. 2:22-cv-0894 MCE DB
21
Plaintiff, STIPULATED PROTECTIVE
22 ORDER
V.
23
TRANSAMERICA LIFE INSURANCE
24 ||COMPANY and DOES | through 40,
inclusive,
25
Defendants.
26
27
28
STIPULATED PROTECTIVE ORDER
1. PURPOSES AND LIMITATIONS/GOOD CAUSE STATEMENT
2 Disclosure and discovery activity in this action are likely to involve production
3 || of confidential and proprietary actuarial, business, technical, and financial
4 || information from Transamerica Life Insurance Company (“TLIC”) as well as private
5 || information of Plaintiff Zohrab Bahrikyan or the insured for which special protection
6 || from public disclosure and from use for any purpose other than prosecuting this
7 || litigation may be warranted. Accordingly, Plaintiff and Defendant Transamerica Life
8 || Insurance Company (“TLIC”) hereby stipulate to and petition the Court to enter the
9 || following Stipulated Protective Order (“Order”). The parties acknowledge that this
10 || Order does not confer blanket protections on all disclosures or responses to discovery
11 || and that the protection it affords from public disclosure and use extends only to the
12 || limited information or items that are entitled to confidential treatment under the
13 || applicable legal principles. The parties further acknowledge, as set forth in Section
14 || 12.3 (Filing Protected Material), below, that this Protective Order does not entitle
15 || them to file confidential information under seal; Local Rule 141 sets forth the
16 || procedures that must be followed and the standards that will be applied when a party
17 || seeks permission from the Court to file material under seal. Nothing in this order
18 || shall limit the testimony of parties or non-parties, or the use of certain documents, at
19 }| any court hearing or trial. Such determinations will only be made by the court at the
20 || hearing or trial, or upon an appropriate motion.
21 Any document that is not confidential, privileged, or otherwise protectable in
22 || its entirety will not be filed under seal if the confidential portions can be redacted. If
23 || documents can be redacted, then a redacted version for public viewing, omitting only
24 || the confidential, privileged, or otherwise protectable portions of the document, shall
25 || be filed. Any application that seeks to file documents under seal in their entirety
26 || should include an explanation of why redaction is not feasible.
27
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2. DEFINITIONS
2 2.1 Acknowledgment: the “Acknowledgment and Agreement to be Bound”
3 || form attached as Exhibit A to this Order.
4 2.2 Action: Zohrab Bahrikyan v. Transamerica Life Insurance Company,
5 |} Case No. 2:22-cv-00894-MCE-DB.
6 2.3 Challenging Party: A party or non-party that challenges the designation
7 || of information or items under this Order.
8 2.4 “CONFIDENTIAL” Information or Items: Confidential and proprietary
9 || actuarial, business, technical, and financial information from TLIC as well as private
10 || information of Plaintiff Zohrab Bahrikyan or the insured which is not generally
11 || known or publicly available and which the designating party would not normally
12 || reveal to third parties or information (regardless of how it is generated, stored, or
13 || maintained) that otherwise meets the standard for protection set forth in Rule 26© of
14 || the Federal Rules of Civil Procedure. It is the intent of the parties that information
15 || will not be designated as confidential for tactical reasons and that nothing be so
16 || designated without a good faith belief that it has been maintained in a confidential
17 || non-public manner, and there is good cause why it should not be part of the public
18 || record of this Action.
19 2.5 Counsel (without qualifier): Outside Counsel of Record and House
20 || Counsel (as well as their support staff).
21 2.6 Designating Party: A party or non-party that designates information or
22 || items that it produces or that are produced in disclosures or in response to discovery
23 || as “CONFIDENTIAL.”
24 2.7 Disclosure or Discovery Material: All items or information, regardless
25 || of the medium or manner in which it is generated, stored, or maintained (including,
26 || among other things, testimony, transcripts, and tangible things), that are produced or
27 || generated in disclosures or responses to discovery in this matter.
28
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1 2.8 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. This definition includes a
4 || professional jury or trial consultant retained in connection with this litigation.
5 2.9 House Counsel: Attorneys who are employees for a Party. House
6 || Counsel does not include Outside Counsel of Record or any other outside counsel.
7 2.10 Non-Party: Any natural person, partnership, corporation, association, or
8 || other legal entity not named as a Party to this action.
9 2.11 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, including support staff.
13 2.12 Party: Any party to this Action, including its officers, directors,
14 || employees, consultants, retatned experts, House Counsel, and Outside Counsel of
15 || Record (and their support staffs).
16 2.13 Producing Party: A Party or Non-Party that produces Disclosure or
17 || Discovery Material in this Action.
18 2.14 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 2.15 Protected Material: Any Disclosure or Discovery Material that is
23 || designated as “CONFIDENTIAL.”
24 2.16 Receiving Party: A Party that receives Disclosure or Discovery Material
25 || from a Producing Party.
263. SCOPE
27 The protections conferred by this Order cover not only Protected Material (as
28 || defined above), but also (1) any information copied or extracted from Protected
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1 || Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
2 || and (3) any testimony, conversations, or presentations by Parties or their Counsel or
3 || their Experts that might reveal Protected Material. However, the protections
4 || conferred by this Order do not cover the following information: (a) any information
5 || that is in the public domain at the time of disclosure to a Receiving Party or becomes
6 || part of the public domain after its disclosure to a Receiving Party as a result of
7 || publication not involving a violation of this Order, including become part of the
8 || public record through trial or otherwise; and (b) any information known to the
9 || Receiving Party prior to the disclosure or obtained by the Receiving Party after the
10 || disclosure from a source who obtained the information lawfully and under no
11 || obligation of confidentiality to the Designating Party. Any use of Protected Material
12 || at trial shall be governed by a separate agreement or order of the trial judge. This
13 |} Order does not govern the use of Protected Material at trial.
14]4. DURATION
15 FINAL DISPOSITION shall be deemed to be the later of (1) dismissal of all
16 || claims and defenses in this action, with or without prejudice; and (2) final judgment
17 || herein after the completion and exhaustion of all appeals, rehearings, remands, trial,
18 || or reviews of this action, including the time limits for filing any motions or
19 || applications for extension of time pursuant to applicable law. Except as set forth
20 || below, the terms of this Order apply through FINAL DISPOSITION. The parties
21 || stipulate that they will be contractually bound by the terms of this agreement beyond
22 || FINAL DISPOSITION, and that they will have to file a separate action for
23 || enforcement of the agreement once FINAL DISPOSITION of the action occurs.
24 || Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over
25 || enforcement of the terms of this Protective Order after final disposition.
26 DESIGNATING PROTECTED MATERIAL
27 5.1 Exercise of Restraint and Care in Designating Material for Protection.
28 || Each Party or Non-Party that designates information or items for protection under
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1 || this Order must take care to limit any such designation to specific material that
2 || qualifies under the appropriate standards. To the extent it is practical to do so, the
3 || Designating Party must designate for protection only those parts of material,
4 || documents, items, or oral or written communications that qualify so that other
5 || portions of the material, documents, items, or communications for which protection
6 || is not warranted are not swept unjustifiably within the ambit of this Order.
7 While mass, indiscriminate, or routinized designations are prohibited, the
8 || Parties recognize that manually analyzing and designating large numbers of
9 || documents one-by-one for confidentiality can be an unduly burdensome task. The
10 || Parties agree that each Party may reasonably rely on metadata information and good-
11 || faith searches to designate documents for protection. Designations that are shown to
12 || be clearly unjustified or that have been made for an improper purpose (e.g., to
13 || unnecessarily encumber the case development process or to impose unnecessary
14 || expenses and burdens on other parties) may expose the Designating Party to
15 || sanctions.
16 If it comes to a Designating Party’s attention that information or items that it
17 || designated for protection do not qualify for protection, that Designating Party must
18 || promptly notify all other Parties that it is withdrawing the inapplicable designation.
19 5.2 Manner and Timing of Designations. Except as otherwise provided in
20 || this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
21 || stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
22 || under this Order must be clearly so designated before the material is disclosed or
23 || produced. Designation in conformity with this Order requires:
24 (a) for information in documentary form (e.g., paper or electronic
25 || documents, but excluding transcripts of depositions or other pretrial or trial
26 || proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each
27 || page that contains protected material. If only a portion or portions of the material on
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1 || a page qualifies for protection, the Producing Party also must clearly identify the
2 || protected portion(s) (e.g., by making appropriate markings in the margins).
3 A Party or Non-Party that makes original documents or materials available for
4 || inspection need not designate them for protection until after the inspecting Party has
5 || indicated which materials it would like copied and produced. During the inspection
6 || and before the designation, all of the material made available for inspection shall be
7 || deemed “CONFIDENTIAL.” After the inspecting Party has identified the
8 || documents it wants copied and produced, the Producing Party must determine which
9 || documents, or portions thereof, qualify for protection under this Order. Then, before
10 || producing the specified documents, the Producing Party must affix the
11 || “CONFIDENTIAL” legend to each page that contains Protected Material. If only a
12 || portion or portions of the material on a page qualifies for protection, the Producing
13 || Party also must clearly identify the protected portion(s) (e.g., by making appropriate
14 || markings in the margins).
15 (b) any Party may designate as Protected Material testimony given in a
16 || deposition or in other pretrial or trial proceedings by informing the reporter during
17 || the deposition or by sending a letter to all Outside Counsel of Record and to the
18 || deposition reporter designating by page and line any portions of the transcript to be
19 || so restricted, or the entire transcript if applicable, within thirty (30) days after
20 || receiving the deposition transcript.
21 During this 30-day period, a transcript will be treated as if it had been
22 || designated “CONFIDENTIAL” in its entirety unless otherwise agreed. After the
23 || expiration of that period, the transcript shall be treated only as actually designated.
24 When deposition testimony is designated Protected Material by informing the
25 || reporter during the deposition, the transcript containing Protected Material shall have
26 || an obvious legend on the title page that the transcript contains Protected Material,
27 || and the title page shall be followed by a list of all pages (including line numbers-as
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1 || appropriate) that have been designated as Protected Material. The Designating Party
2 || shall inform the court reporter of these requirements.
3 (c) for information produced in some form other than documentary and
4 || for any other tangible items, that the Producing Party affix in a prominent place on
5 || the exterior of the container or containers in which the information is stored the
6 || legend “CONFIDENTIAL.” If only a portion or portions of the information warrants
7 || protection, the Producing Party, to the extent practicable, shall identify the protected
8 || portion(s).
9 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
10 || failure to designate qualified information or items does not, standing alone, waive
11 || the Designating Party’s right to secure protection under this Order for such material.
12 || Upon timely correction of a designation, the Receiving Party must make reasonable
13 || efforts to assure that the material is treated in accordance with the provisions of this
14 || Order.
15 5.4 Protected Health Information. Additionally, certain Confidential
16 || Information or Items may be Protected Health Information (“PHI’) as defined by the
17 || Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the
18 || regulations promulgated thereunder at 45 C.F.R. § 160.103. Without limiting the
19 || generality of the foregoing, “PHI” includes, but is not limited to, health information,
20 || including demographic information, relating to either, (a) the past, present, or future
21 || physical or mental condition of an individual, (b) the provision of care to an
22 || individual, or (c) the payment for care provided to an individual, which identifies the
23 || individual or which reasonably could be expected to identify an individual. All
24 || “covered entities” (as defined by 45 C.F.R. § 160.103) are hereby authorized to
25 || disclose PHI to all attorneys now of record in this Action or who may become of
26 || record in the future in this Action. Subject to the Federal Rules of Civil Procedure,
27 || and without prejudice to any Party’s objection except as otherwise provided herein,
28 || the Parties are authorized to receive, subpoena, transmit, or disclose PHI relevant to
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1 || the claims at issue in this Action, subject to all terms of this Order. All PHI disclosed
2 || under this Order must be designated as Confidential Information pursuant to this
3 || Order. A Receiving Party which receives PHI in discovery shall not use or disclose
4 || such PHI for any purpose other than this Action. To the extent documents or
5 || information produced in this Action have already been exchanged or will again be
6 || exchanged between the Parties in the normal course of business, treatment of such
7 || documents prior to or after the conclusion of this Action shall be governed by this
8 || Order.
9 5.5 Specific Provisions Concerning the Disclosure Personally
10 || Identifiable Information (“PI’’). When PII (e.g., names, addresses, Social Security
11 || numbers, phone numbers, etc.) is disclosed between the Parties as authorized by this
12 || Order, the PII of any individuals whose claims are not at issue in this lawsuit and
13 || who are otherwise identified in the Discovery Material may either be redacted to
14 || protect the identity of such individuals or produced without redactions. Upon receipt
15 || of any PII, a Receiving Party shall take all reasonable measures necessary for
16 || protecting the PII from unauthorized disclosure as required under both state and
17 || federal law.
18 | 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS.
19 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
20 || designation of confidentiality at any time that is consistent with the Court’s
21 || Scheduling Order. Unless a prompt challenge to a Designating Party’s
22 || confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
23 || unnecessary economic burdens, or a significant disruption or delay of the litigation,
24 || a Party does not waive its right to challenge a confidentiality designation by electing
25 || not to mount a challenge promptly after the original designation is disclosed.
26 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
27 || resolution process by providing written notice of each designation it is challenging
28 || and describing the basis for each challenge. To avoid ambiguity as to whether a
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1 || challenge has been made, the written notice must recite that the challenge to
2 || confidentiality is being made in accordance with this specific paragraph of the
3 || Protective Order. The parties shall attempt to resolve each challenge in good faith
4 || and must begin the process by conferring directly (in voice-to-voice dialogue; other
5 || forms of communication are not sufficient) within 14 days of the date of service of
6 || notice. In conferring, the Challenging Party must explain the basis for its belief that
7 || the confidentiality designation was not proper and must give the Designating Party
8 || an opportunity to review the designated material, to reconsider the circumstances,
9 || and, if no change in designation is offered, to explain the basis for the chosen
10 || designation. A Challenging Party may proceed to the next stage of the challenge
11 || process only if it has engaged in this meet and confer process first or establishes that
12 || the Designating Party is unwilling to participate in the meet and confer process in a
13 || timely manner.
14 6.3. Judicial Intervention. If the Parties cannot resolve a challenge without
15 || court intervention, the Designating Party shall file and serve a motion to retain
16 || confidentiality under Local Rule 251 within 21 days of the initial notice of challenge
17 || or within 14 days of the parties agreeing that the meet and confer process will not
18 || resolve their dispute, whichever is earlier. Each such motion shall comply with the
19 || undersigned’s standard information. Failure by the Designating Party to make such
20 || a motion within 21 days (or 14 days, if appliable) shall automatically waive the
21 || confidentiality designation for each challenged designation. In addition, the
22 || Challenging Party may file a motion challenging a confidentiality designation at any
23 || time if there is good cause for doing so, including a challenge to the designation of a
24 || deposition transcript or any portions thereof. Any motion brought pursuant to this
25 || provision must be accompanied by a competent declaration affirming that the movant
26 || has complied with the meet and confer requirements imposed by the preceding
27 || paragraph. Absent a showing of good cause, the court will not hear discovery
28 || disputes on an ex parte basis or on shortened time.
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1 The burden of persuasion in any such challenge proceeding shall be on the
2 || Designating Party. Frivolous designations or challenges, and those designations or
3 || challenges made for an improper purpose (e.g., to harass or impose unnecessary
4 || expenses and burdens on other parties) may expose the respective Designating Party
5 || or Challenging Party to sanctions. Unless the Designating Party has waived or
6 || withdrawn the confidentiality designation by failing to file a motion to retain
7 || confidentiality as described above, all parties shall continue to afford the material in
8 || question the level of protection to which it is entitled under the Producing Party’s
9 || designation until the Court rules on the challenge.
10 || 7. ACCESS TO AND USE OF PROTECTED MATERIAL
11 7.1. Basic Principles. A Receiving Party may use Protected Material that is
12 || disclosed or produced by another Party or by a Non-Party in connection with this
13 |} Action only for prosecuting, defending, or attempting to settle this Action. Such
14 || Protected Material may be disclosed only to the categories of persons and under the
15 || conditions described in this Order. When the Action has been terminated, a
16 || Receiving Party must comply with the provisions of section 13 below (FINAL
17 || DISPOSITION). Protected Material must be stored and maintained by a Receiving
18 |} Party at a location and in a secure manner that ensures that access is limited to the
19 || persons authorized under this Order.
20 7.2 Disclosure _of “CONFIDENTIAL” Information or Items. Unless
21 || otherwise ordered by the Court or permitted in writing by the Designating Party, a
22 || Receiving Party may disclose any information or item designated
23 || “CONFIDENTIAL” only to:
24 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
25 || well as employees of said Outside Counsel of Record to whom it is reasonably
26 || necessary to disclose the information for this Action and who have signed the
27 || Acknowledgement;
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1 (b) the Receiving Party, including officers, directors, employees, or
2 || consultants, advisors, insurers and/or reinsurers of the Receiving Party to whom
3 || disclosure is reasonably necessary;
4 (c) Experts (as defined in this Order) of the Receiving Party to whom
5 || disclosure is reasonably necessary for this Action and who have signed the
6 || Acknowledgment;
7 (d) the Court and its personnel;
8 (e) court reporters and their staff, professional jury or trial consultants,
9 || mock jurors, and Professional Vendors to whom disclosure is reasonably necessary
10 || for this Action and who have signed the Acknowledgment;
11 (f) during their depositions, witnesses, and attorneys for witnesses, in
12 || the Action to whom disclosure is reasonably necessary provided: (1) the deposing
13 || party requests that the witness sign the Acknowledgment; and (2) they will not be
14 || permitted to keep any confidential information unless they sign the
15 || Acknowledgment, unless otherwise agreed by the Designating Party or ordered by
16 || the Court;
17 (g) any mediator or settlement officer, and their supporting personnel,
18 |} mutually agreed upon by any of the parties engaged in settlement discussions and
19 || who have signed the Acknowledgment; and
20 (f) the author or recipient of a document containing the information or a
21 || custodian or other person who otherwise possessed or knew the information
228. PROTECTED MATERIAL _SUBPOENAED OR ORDERED
23 PRODUCED IN OTHER LITIGATION
24 If a Party is served with a subpoena or a court order issued in other litigation
25 || that compels disclosure of any information or items designated in this Action as
26 || “CONFIDENTIAL,” that Party must:
27 (a) promptly notify in writing the Designating Party. Such notification shall
28 || include a copy of the subpoena or court order;
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1 (b) promptly notify in writing the party who caused the subpoena or order to
2 || issue in the other litigation that some or all of the material covered by the subpoena
3 || or order is subject to this Protective Order. Such notification shall include a copy of
4 || this Order;
5 (c) cooperate with respect to all reasonable procedures sought to be pursued
6 || by the Designating Party whose Protected Material may be affected; and
7 (d) otherwise comply with any applicable HIPAA rules or regulations with
8 || respect to any response or production in connection with a discovery request or
9 || subpoena.
10 If the Designating Party timely seeks a protective order, the Party served with
11 || the subpoena or court order shall not produce any information designated in this
12 || action as “CONFIDENTIAL” before a determination by the court from which the
13 || subpoena or order issued, unless the Party has obtained the Designating Party’s
14 || permission. The Designating Party shall bear the burden and expense of seeking
15 || protection in that court of its confidential material, and nothing in these provisions
16 || should be construed as authorizing or encouraging a Receiving Party in this Action
17 || to disobey a lawful directive from another court.
18 | 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
19 PRODUCED IN THIS LITIGATION
20 (a) The terms of this Order are applicable to information produced by a Non-
21 || Party in this Action and designated as “CONFIDENTIAL.” Such information
22 || produced by Non-Parties in connection with this litigation is protected by the
23 || remedies and relief provided by this Order. Nothing in these provisions should be
24 || construed as prohibiting a Non-Party from seeking additional protections.
25 (b) In the event that a Party is required, by a valid discovery request, to produce
26 || a Non-Party’s confidential information in its possession, and the Party is subject to
27 || an agreement with the Non-Party not to produce the Non-Party’s confidential
28 || 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 agreement
3 || 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 the
6 || information requested; and
7 (3) make the information requested available for inspection by the Non-
8 || Party, if requested.
9 (c) If the Non-Party fails to seek a protective order from this court within 14
10 || days of receiving the notice and accompanying information, the Receiving Party may
11 | 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 expense
16 || 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 | 11. 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
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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). Pursuant to Federal Rule of
3 || Evidence 502(d) and (e), the parties agree that the inadvertent or unintentional
4 || disclosure by the Producing Party of material that is privileged or subject to other
5 || protection shall not be deemed a waiver in whole or in part of the claim of privilege
6 || or other protection, either as to the specific information disclosed or as to any other
7 || information relating thereto on the same or related subject matter.
8 Upon learning of an inadvertent or unintentional disclosure of privileged
9 || information (“Privileged Material’), the Producing Party shall provide written notice
10 || to the parties who have received the Privileged Material, identifying the Privileged
11 || Material by Bates number and the privilege protection relied upon.. Within ten
12 || business days of the date of that written notice, the Receiving Party shall sequester,
13 || destroy, or return the Privileged Material so identified and all copies thereof, and in
14 || the same time frame, shall sequester or destroy any notes or other writing or
15 || recordings that copy, summarize, reflect, or discuss the content of the documents or
16 || materials (collectively the “Privileged Notes”). Upon request of the Producing Party,
17 || the Receiving Party shall provide written notice of any sequestration or destruction
18 }| of the Privileged Material and Privileged Notes. Other than in connection with
19 || proceedings contemplated by the last paragraph of Section 11 of this Order, no use
20 || shall be made of Privileged Material or Privileged Notes during deposition or at trial,
21 || and the Receiving Party, its employees, Outside Counsel of Record, and Experts shall
22 || not provide Privileged Material to anyone who did not already have access to them
23 || prior to the request by the Producing Party that they be returned.
24 If the Receiving Party intends to challenge the assertion of privilege, it must
25 || provide written notice within this ten-day period explaining the grounds for its
26 || challenge. The Receiving Party shall initiate the dispute resolution process set forth
27 || in Section 6 of this Order within ten business days of the date of service of the
28 || Receiving Party’s notice disputing the claim of inadvertent production.
So PAGE 14— STIPULATED □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
1 If the Parties cannot resolve a challenge without court intervention, the
2 || Receiving Party may move the Court for an order compelling production of any
3 || inadvertently produced or disclosed document or material in compliance with Local
4 || Rule 251, but the motion shall not assert as a ground for production the fact of the
5 || inadvertent production or disclosure. Pending the Court’s ruling, the Receiving Party
6 || challenging the assertion of privilege shall continue to sequester the Privileged
7 || Documents and Privileged Notes and shall not make any use of such information.
8 | 12. MISCELLANEOUS
9 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
10 || person to seek its modification by the Court in the future.
11 12.2 Right to Assert Other Objections. By stipulating to the entry of this
12 || Order, no Party waives any right it otherwise would have to object to disclosing or
13 || producing any information or item on any ground not addressed in this Order.
14 || Similarly, no Party waives any right to object on any ground to use in evidence of
15 || any of the material covered by this Protective Order.
16 12.3 Filing Protected Material. The designation of documents (including
17 || transcripts of testimony) as confidential pursuant to this order does not automatically
18 || entitle the parties to file such a document with the court under seal. Parties are
19 || advised that any request to seal documents in this district is governed by Local Rule
20 || 141. In brief, Local Rule 141 provides that documents may only be sealed by a
21 || written order of the court after a specific request to seal has been made. L.R. 141(a).
22 || However, a mere request to seal is not enough under the local rules. In particular,
23 || Local Rule 141(b) requires that “[t]he ‘Request to Seal Documents’ shall set forth
24 || the statutory or other authority for sealing, the requested duration, the identity, by
25 || name or category, of persons to be permitted to access the document, and all relevant
26 || information.” L.R. 141(b).
27 A request to seal material must normally meet the high threshold of showing
28 || that “compelling reasons” support secrecy; however, where the material is, at most,
So PAGE 15— STIPULATED □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
1 || “tangentially related” to the merits of a case, the request to seal may be granted on a
2 || showing of “good cause.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092,
3 || 1096-1102 (9th Cir. 2016); Kamakana vy. City and County of Honolulu, 447 F.3d
4 || 1172, 1178-80 (9th Cir. 2006).
5 Requests to seal documents shall be made by motion before the same judge
6 || who will decide the matter related to that request to seal. If a Party’s request to file
7 || Protected Material under seal pursuant to Local Rule 141 1s denied by the court, then
8 || the Receiving Party may file the information in the public record unless otherwise
9 || instructed by the court.
10 12.4 Modification. The parties may not modify the terms of this Protective
11 || Order without the court’s approval. If the parties agree to a potential modification,
12 || they shall submit a stipulation and proposed order for the court’s consideration.
13 | 13. FINAL DISPOSITION
14 Within 60 days after the final disposition of this Action, as defined in Section
15 || 4 (DURATION), each Receiving Party must return all Protected Material to the
16 || Producing Party or destroy such material, except such material that exists on back-
17 || up tapes or similar storage and systems, in which case such material need not be
18 || immediately deleted or destroyed, and instead, should be overwritten and destroyed
19 || in the normal course of business. Until that material is overwritten and destroyed in
20 || the normal course of business, the Receiving Party will take reasonable steps to limit
21 || access, if any, to the persons necessary to conduct routine IT and cybersecurity
22 || functions. As used in this subdivision, “all Protected Material” includes all copies,
23 || abstracts, compilations, summaries, and any other format reproducing or capturing
24 || any of the Protected Material. Whether the Protected Material is returned or
25 || destroyed, the Receiving Party must submit a written certification to the Producing
26 || Party (and, if not the same person or entity, to the Designating Party) by the 60-day
27 || deadline that (1) identifies (by category, where appropriate) all the Protected Material
28 || that was returned or destroyed and (2) affirms that the Receiving Party has not
oo PAGE 16— STIPULATED □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
1 |] retained any copies, abstracts, compilations, summaries, or any other format
2 || reproducing or capturing any of the Protected Material. Notwithstanding this
3 || provision, Counsel are entitled to retain an archival copy of all pleadings, motion
4 || papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
5 || deposition and trial exhibits, expert reports, attorney work product, and consultant
6 || and expert work product, even if such materials contain Protected Material. Any
7 || such archival copies that contain or constitute Protected Material remain subject to
8 || this Protective Order as set forth in Section 4 (DURATION).
9 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
10 ||Dated: November 1, 2022 KEVIN W. HARRIS
11
12 By: /s/ Kevin W. Harri)
B Kevin W. Harris
Attorney for Plaintiff
14 ZOHRAB BAHRIKYAN
15
16 Dated: November 1, 2022 McDOWELL HETHERINGTON LLP
17
By: /s/ John T. Burnite
18 Jarrett E. Ganer
Micah A. Grodin
19 John T. Burnite
20 Attorneys for Defendant
TRANSAMERICA LIFE INSURANCE
21 COMPANY
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PAGE 17 — STIPULATED PROTECTIVE ORDER
1 CERTIFICATION
2
3 I, John T. Burnite, in accordance with Local Rule 131, attest that all other
4 || signatories listed, and on whose behalf this filing is submitted, concur in the filing’s
5 || content and have authorized the filing on November 1, 2022.
6
7 || Dated: November 1, 2022 /s/ John T. Burnite
g John T. Burnite
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So PAGE 18— STIPULATED □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
1 ORDER
2 IT IS HEREBY ORDERED that the parties’ stipulation is granted.
3 IT IS FURTHER ORDERED THAT:
4 1. Requests to seal documents shall be made by motion before the same
5 || judge who will decide the matter related to that request to seal.
6 2. The designation of documents (including transcripts of testimony) as
7 || confidential pursuant to this order does not automatically entitle the parties to file
8 || such a document with the court under seal. Parties are advised that any request to
9 || seal documents in this district is governed by Local Rule 141. In brief, Local Rule
10 || 141 provides that documents may only be sealed by a written order of the court
11 || after a specific request to seal has been made. L.R. 141(a). However, a mere
12 || request to seal is not enough under the local rules. In particular, Local Rule 141(b)
13 |} requires that “[t]he “Request to Seal Documents’ shall set forth the statutory or
14 || other authority for sealing, the requested duration, the identity, by name or
15 || category, of persons to be permitted access to the document, and all relevant
16 || information.” L.R. 141(b).
17 3. A request to seal material must normally meet the high threshold of
18 || showing that “compelling reasons” support secrecy; however, where the material is,
19 || at most, “tangentially related” to the merits of a case, the request to seal may be
20 || granted on a showing of “good cause.” Ctr. for Auto Safety v. Chrysler Grp., LLC,
21 || 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and County of
22 || Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006).
23 4. Nothing in this order shall limit the testimony of parties or non-parties, or
24 || the use of certain documents, at any court hearing or trial — such determinations will
25 || only be made by the court at the hearing or trial, or upon an appropriate motion.
26 5. With respect to motions regarding any disputes concerning this protective
27 || order which the parties cannot informally resolve, the parties shall follow the
28 ////
So PAGE19— STIPULATED □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
1 || procedures outlined in Local Rule 251. Absent a showing of good cause, the court
2 || will not hear discovery disputes on an ex parte basis or on shortened time.
3 6. The parties may not modify the terms of this Protective Order without the
4 || court’s approval. If the parties agree to a potential modification, they shall submit a
5 || stipulation and proposed order for the court’s consideration.
6 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over
7 || enforcement of the terms of this Protective Order after the action is terminated.
8 8. Any provision in the parties’ stipulation that is in conflict with anything in
9 || this order is hereby DISAPPROVED.
10 | DATED: November 3, 2022 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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So PAGE 20— STIPULATED □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
1 EXHIBIT A
5 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 was
6 || issued by the United States District Court for the Eastern District of California on
7 [date] in the case of Zohrab Bahrikyan v. Transamerica Life Insurance
8 || Company, Case No. 2:22-cv-00894-MCE-DB. I agree to comply with and to be
9 || bound by all the terms of this Stipulated Protective Order and I understand and
10 || acknowledge that failure to so comply could expose me to sanctions and punishment
11 || in the nature of contempt. I solemnly promise that I will not disclose in any manner
12 || any information or item that is subject to this Stipulated Protective Order to any
13 || person or entity except in strict compliance with the provisions of this Stipulated
14 || Protective Order. I further agree to submit to the jurisdiction of the United States
15 || District Court for the Eastern District of California for enforcing the terms of this
16 || Stipulated Protective Order, even if such enforcement proceedings occur after
17 || termination of this action. I hereby appoint [print
18 || or type full name] of [print or type
19 || full address and telephone number] as my California agent for service of process in
20 | connection with this action or any proceedings related to enforcement of this
21 || Stipulated Protective Order.
22
23 || Date:
24 |) City and State where sworn and signed:
25 |) Printed name:
26 |) Signature:
27
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So PAGE 21— STIPULATED □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□