even 13 stipulated protective orders require good cause showing
How later courts described this case
- even 13 stipulated protective orders require good cause showing
Written by the judges who cited it.
The opinion
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 1 of 13 Page ID #:234
1 MARC S. HINES (SBN 140065)
mhines@lawhhp.com
2 NICOLE M. HAMPTON (SBN 189024)
nhampton@lawhhp.com
3 BRIAN PELANDA (SBN 278453)
bpelanda@lawhhp.com
4 HINES HAMPTON PELANDA LLP
30 Executive Park, Suite 210
5 Irvine, California 92614
Tel.: (714) 513-1122
6 Fax: (714) 242-9529
7 Attorneys for Defendant
CRESTBROOK INSURANCE COMPANY
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
10
11 DAVID HERSKOVITZ, an individual; CASE NO.: 2:21-cv-07202-FLA-PLA
DODIE HERSKOVITZ, an individual,
12
13 Plaintiffs, STIPULATION AND PROPOSED
PROTECTIVE ORDER
14 vs.
15 CRESTBROOK INSURANCE
COMPANY, a Massachusetts
16 corporation; NATIONWIDE
PRIVATE CLIENT, an Arizona
17 corporation; and DOES 1-50, inclusive,
18 Defendants.
19
1. PURPOSES AND LIMITATIONS
20
Discovery in this action is likely to involve production of confidential,
21
proprietary or private information for which special protection from public
22
disclosure and from use for any purpose other than pursuing this litigation may be
23
warranted. Accordingly, PLAINTIFFS DAVID and DODIE HERSKOVITZ and
24
DEFENDANT CRESTBROOK INSURANCE COMPANY (jointly, the “parties”)
25
hereby stipulate to and petition the Court to enter the following Stipulated
26
Protective Order. The parties acknowledge that this Order does not confer blanket
27
protections on all disclosures or responses to discovery and that the protection it
28
1
STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 2 of 13 Page ID #:235
1 affords from public disclosure and use extends only to the limited information or
2 items that are entitled to confidential treatment under the applicable legal
3 principles.
4 2. GOOD CAUSE STATEMENT
5 This action is likely to involve trade secrets and other valuable research,
6 development, commercial, financial, technical and/or proprietary information for
7 which special protection from public disclosure and from use for any purpose other
8 than prosecution of this action is warranted. Such confidential and proprietary
9 materials and information consist of, among other things, confidential business or
10 financial information, information regarding confidential business practices and
11 procedures, including claims handling manuals, or other confidential research,
12 development, or commercial information (including information implicating
13 privacy rights of third parties such as claim files or personnel records), information
14 otherwise generally unavailable to the public, or which may be privileged or
15 otherwise protected from disclosure under state or federal statutes, court rules, case
16 decisions, or common law. Accordingly, to expedite the flow of information, to
17 facilitate the prompt resolution of disputes over confidentiality of discovery
18 materials, to adequately protect information the parties are entitled to keep
19 confidential, to ensure that the parties are permitted reasonable necessary uses of
20 such material in preparation for and in the conduct of trial, to address their
21 handling at the end of the litigation, and serve the ends of justice, a protective order
22 for such information is justified in this matter. It is the intent of the parties that
23 information will not be designated as confidential for tactical reasons and that
24 nothing be so designated without a good faith belief that it has been maintained in
25 a confidential, non-public manner, and there is good cause why it should not be
26 part of the public record of this case.
27 ////
28
2
STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 3 of 13 Page ID #:236
1
2 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
3 The parties further acknowledge, as set forth in Section 14.3, below, that this
4 Stipulated Protective Order does not entitle them to file confidential information
5 under seal. Local Civil Rule 79-5 sets forth the procedures that must be followed
6 and the standards that will be applied when a party seeks permission from the court
7 to file material under seal. There is a strong presumption that the public has a right
8 of access to judicial proceedings and records in civil cases. In connection with non-
9 dispositive motions, good cause must be shown to support a filing under seal. See
10 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),
11 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-
12 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even
13 stipulated protective orders require good cause showing), and a specific showing of
14 good cause or compelling reasons with proper evidentiary support and legal
15 justification must be made with respect to Protected Material that a party seeks to
16 file under seal. The parties’ mere designation of Disclosure or Discovery Material
17 as CONFIDENTIAL does not— without the submission of competent evidence by
18 declaration, establishing that the material sought to be filed under seal qualifies as
19 confidential, privileged, or otherwise protectable—constitute good cause.
20 Further, if a party requests sealing related to a dispositive motion or trial,
21 then compelling reasons, not only good cause, for the sealing must be shown, and
22 the relief sought shall be narrowly tailored to serve the specific interest to be
23 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
24 2010). For each item or type of information, document, or thing sought to be filed
25 or introduced under seal, the party seeking protection must articulate compelling
26 reasons, supported by specific facts and legal justification, for the requested sealing
27 order. Again, competent evidence supporting the application to file documents
28
3
STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 4 of 13 Page ID #:237
1 under seal must be provided by declaration.
2 Any document that is not confidential, privileged, or otherwise protectable
3 in its entirety will not be filed under seal if the confidential portions can be
4 redacted. If documents can be redacted, then a redacted version for public viewing,
5 omitting only the confidential, privileged, or otherwise protectable portions of the
6 document, shall be filed. Any application that seeks to file documents under seal in
7 their entirety should include an explanation of why redaction is not feasible.
8 4. DEFINITIONS
9 4.1 Action: This pending lawsuit.
10 4.2 Challenging Party: a Party or Non-Party that challenges the
11 designation of information or items under this Order.
12 4.3 “CONFIDENTIAL” Information or Items: information (regardless of
13 how it is generated, stored or maintained) or tangible things that qualify for
14 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
15 the Good Cause Statement.
16 4.4 Counsel: Counsel of Record (as well as their support staff).
17 4.5 Designating Party: a Party or Non-Party that designates information or
18 items that it produces in disclosures or in responses to discovery as
19 “CONFIDENTIAL.”
20 4.6 Disclosure or Discovery Material: all items or information, regardless
21 of the medium or manner in which it is generated, stored, or maintained (including,
22 among other things, testimony, transcripts, and tangible things), that are produced
23 or generated in disclosures or responses to discovery.
24 4.7 Expert: a person with specialized knowledge or experience in a matter
25 pertinent to the litigation who has been retained by a Party or its counsel to serve
26 as an expert witness or as a consultant in this Action.
27 4.8 House Counsel: attorneys who are employees of a party to this
28
4
STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 5 of 13 Page ID #:238
1 Action. House Counsel does not include Outside Counsel of Record or any other
2 outside counsel.
3 4.9 Non-Party: any natural person, partnership, corporation, association or
4 other legal entity not named as a Party to this action.
5 4.10 Outside Counsel of Record: attorneys who are not employees of a
6 party to this Action but are retained to represent a party to this Action and have
7 appeared in this Action on behalf of that party or are affiliated with a law firm that
8 has appeared on behalf of that party, and includes support staff.
9 4.11 Party: any party to this Action, including all of its officers, directors,
10 employees, consultants, retained experts, and Outside Counsel of Record (and their
11 support staffs).
12 4.12 Producing Party: a Party or Non-Party that produces Disclosure or
13 Discovery Material in this Action.
14 4.13 Professional Vendors: persons or entities that provide litigation
15 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
16 demonstrations, and organizing, storing, or retrieving data in any form or medium)
17 and their employees and subcontractors.
18 4.14 Protected Material: any Disclosure or Discovery Material that is
19 designated as “CONFIDENTIAL.”
20 4.15 Receiving Party: a Party that receives Disclosure or Discovery
21 Material from a Producing Party.
22 5. SCOPE
23 The protections conferred by this Stipulation and Order cover not only
24 Protected Material (as defined above), but also (1) any information copied or
25 extracted from Protected Material; (2) all copies, excerpts, summaries, or
26 compilations of Protected Material; and (3) any testimony, conversations, or
27 presentations by Parties or their Counsel that might reveal Protected Material. Any
28
5
STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 6 of 13 Page ID #:239
1 use of Protected Material at trial shall be governed by the orders of the trial judge
2 and other applicable authorities. This Order does not govern the use of Protected
3 Material at trial.
4 6. DURATION
5 Once a case proceeds to trial, information that was designated as
6 CONFIDENTIAL or maintained pursuant to this protective order used or
7 introduced as an exhibit at trial becomes public and will be presumptively
8 available to all members of the public, including the press, unless compelling
9 reasons supported by specific factual findings to proceed otherwise are made to the
10 trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
11 (distinguishing “good cause” showing for sealing documents produced in
12 discovery from “compelling reasons” standard when merits-related documents are
13 part of court record). Accordingly, the terms of this protective order do not extend
14 beyond the commencement of the trial.
15 7. DESIGNATING PROTECTED MATERIAL
16 7.1 Exercise of Restraint and Care in Designating Material for
17 Protection. Each Party or Non-Party that designates information or
18 items for protection under this Order must take care to limit any such designation
19 to specific material that qualifies under the appropriate standards. The Designating
20 Party must designate for protection only those parts of material, documents, items
21 or oral or written communications that qualify so that other portions of the
22 material, documents, items or communications for which protection is not
23 warranted are not swept unjustifiably within the ambit of this Order.
24 Mass, indiscriminate or routinized designations are prohibited. Designations
25 that are shown to be clearly unjustified or that have been made for an improper
26 purpose (e.g., to unnecessarily encumber the case development process or to
27 impose unnecessary expenses and burdens on other parties) may expose the
28
6
STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 7 of 13 Page ID #:240
1 Designating Party to sanctions.
2 If it comes to a Designating Party’s attention that information or items that it
3 designated for protection do not qualify for protection, that Designating Party must
4 promptly notify all other Parties that it is withdrawing the inapplicable designation.
5 7.2 Manner and Timing of Designations. Except as otherwise provided in
6 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material
7 that qualifies for protection under this Order must be clearly so designated before
8 the material is disclosed or produced.
9 Designation in conformity with this Order requires:
10 (a) for information in documentary form (e.g., paper or electronic
11 documents, but excluding transcripts of depositions or other pretrial or trial
12 proceedings), that the Producing Party affix at a minimum, the legend
13 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
14 contains protected material. If only a portion of the material on a page qualifies for
15 protection, the Producing Party also must clearly identify the protected portion(s)
16 (e.g., by making appropriate markings in the margins).
17 A Party or Non-Party that makes original documents available for inspection
18 need not designate them for protection until after the inspecting Party has indicated
19 which documents it would like copied and produced. During the inspection and
20 before the designation, all of the material made available for inspection shall be
21 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
22 documents it wants copied and produced, the Producing Party must determine
23 which documents, or portions thereof, qualify for protection under this Order.
24 Then, before producing the specified documents, the Producing Party must affix
25 the “CONFIDENTIAL legend” to each page that contains Protected Material. If
26 only a portion of the material on a page qualifies for protection, the Producing
27 Party also must clearly identify the protected portion(s) (e.g., by making
28
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STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 8 of 13 Page ID #:241
1 appropriate markings in the margins).
2 (b) for testimony given in depositions that the Designating Party
3 identifies the Disclosure or Discovery Material on the record, before the close of
4 the deposition all protected testimony.
5 (c) for information produced in some form other than documentary
6 and for any other tangible items, that the Producing Party affix in a prominent
7 place on the exterior of the container or containers in which the information is
8 stored the legend “CONFIDENTIAL.” If only a portion or portions of the
9 information warrants protection, the Producing Party, to the extent practicable,
10 shall identify the protected portion(s).
11 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
12 failure to designate qualified information or items does not, standing alone, waive
13 the Designating Party’s right to secure protection under this Order for such
14 material. Upon timely correction of a designation, the Receiving Party must make
15 reasonable efforts to assure that the material is treated in accordance with the
16 provisions of this Order.
17 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
18 8.1. Timing of Challenges. Any Party or Non-Party may challenge a
19 designation of confidentiality at any time that is consistent with the Court’s
20 Scheduling Order.
21 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
22 resolution process under Local Rule 37-1 et seq.
23 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
24 joint stipulation pursuant to Local Rule 37-2.
25 8.4 The burden of persuasion in any such challenge proceeding shall be
26 on the Designating Party. Frivolous challenges, and those made for an improper
27 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
28
8
STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 9 of 13 Page ID #:242
1 parties) may expose the Challenging Party to sanctions. Unless the Designating
2 Party has waived or withdrawn the confidentiality designation, all parties shall
3 continue to afford the material in question the level of protection to which it is
4 entitled under the Producing Party’s designation until the Court rules on the
5 challenge.
6
9. ACCESS TO AND USE OF PROTECTED MATERIAL
7
9.1 Basic Principles. A Receiving Party may use Protected Material that is
8
disclosed or produced by another Party or by a Non-Party in connection with this
9
Action only for prosecuting, defending or attempting to settle this Action. Such
10
Protected Material may be disclosed only to the categories of persons and under
11
the conditions described in this Order. When the Action has been terminated, a
12
Receiving Party must comply with the provisions of section 15 below (FINAL
13
DISPOSITION).
14
Protected Material must be stored and maintained by a Receiving Party at a
15
location and in a secure manner that ensures that access is limited to the persons
16
authorized under this Order.
17
9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
18
otherwise ordered by the court or permitted in writing by the Designating Party, a
19
Receiving Party may disclose any information or item designated
20
“CONFIDENTIAL” only to:
21
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
22
well as employees of said Outside Counsel of Record to whom it is reasonably
23
necessary to disclose the information for this Action;
24
(b) the officers, directors, and employees (including House Counsel)
25
of the Receiving Party to whom disclosure is reasonably necessary for this Action;
26
(c) Experts (as defined in this Order) of the Receiving Party to whom
27
disclosure is reasonably necessary for this Action and who have signed the
28
9
STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 10 of 13 Page ID #:243
1 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
2 (d) the court and its personnel;
3 (e) court reporters and their staff;
4 (f) professional jury or trial consultants, mock jurors, and Professional
5 Vendors to whom disclosure is reasonably necessary for this Action and who have
6 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
7 (g) the author or recipient of a document containing the information or
8 a custodian or other person who otherwise possessed or knew the information;
9 (h) during their depositions, witnesses, and attorneys for witnesses, in
10 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
11 party requests that the witness sign the form attached as Exhibit A hereto; and (2)
12 they will not be permitted to keep any confidential information unless they sign the
13 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
14 agreed by the Designating Party or ordered by the court. Pages of transcribed
15 deposition testimony or exhibits to depositions that reveal Protected Material may
16 be separately bound by the court reporter and may not be disclosed to anyone
17 except as permitted under this Stipulated Protective Order; and
18 (i) any mediators or settlement officers and their supporting personnel,
19 mutually agreed upon by any of the parties engaged in settlement discussions.
20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
21
If a Receiving Party learns that, by inadvertence or otherwise, it has
22
disclosed Protected Material to any person or in any circumstance not authorized
23
under this Stipulated Protective Order, the Receiving Party must immediately (a)
24
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
25
best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
26
the person or persons to whom unauthorized disclosures were made of all the terms
27
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STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 11 of 13 Page ID #:244
1 of this Order, and (d) request such person or persons to execute the
2 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A.
3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
4
5 When a Producing Party gives notice to Receiving Parties that certain
6 inadvertently produced material is subject to a claim of privilege or other
7 protection, the obligations of the Receiving Parties are those set forth in Federal
8 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
9 whatever procedure may be established in an e-discovery order that provides for
10 production without prior privilege review. Pursuant to Federal Rule of Evidence
11 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
12 of a communication or information covered by the attorney-client privilege or
13 work product protection, the parties may incorporate their agreement in the
14 stipulated protective order submitted to the court.
15 12. MISCELLANEOUS
16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
17 person to seek its modification by the Court in the future.
18 12.2 Right to Assert Other Objections. By stipulating to the entry of this
19 Protective Order, no Party waives any right it otherwise would have to object to
20 disclosing or producing any information or item on any ground not addressed in
21 this Stipulated Protective Order. Similarly, no Party waives any right to object on
22 any ground to use in evidence of any of the material covered by this Protective
23 Order.
24 12.3 Filing Protected Material. A Party that seeks to file under seal any
25 Protected Material must comply with Local Civil Rule 79-5. Protected Material
26 may only be filed under seal pursuant to a court order authorizing the sealing of the
27 specific Protected Material. If a Party’s request to file Protected Material under
28
11
STIPULATIONANDPROTECTIVEORDER
Case 2:21-cv-07202-FLA-PLA Document 16 Filed 04/05/22 Page 12 of 13 Page ID #:245
1 seal is denied by the court, then the Receiving Party may file the information in the
2 public record unless otherwise instructed by the court.
3 13. FINAL DISPOSITION
4 After the final disposition of this Action, as defined in paragraph 6, within
5 60 days of a written request by the Designating Party, each Receiving Party must
6 return all Protected Material to the Producing Party or destroy such material. As
7 used in this subdivision, “all Protected Material” includes all copies, abstracts,
8 compilations, summaries, and any other format reproducing or capturing any of the
9 Protected Material. Whether the Protected Material is returned or destroyed, the
10 Receiving Party must submit a written certification to the Producing Party (and, if
11 not the same person or entity, to the Designating Party) by the 60-day deadline that
12 (1) identifies (by category, where appropriate) all the Protected Material that was
13 returned or destroyed and (2) affirms that the Receiving Party has not retained any
14 copies, abstracts, compilations, summaries or any other format reproducing or
15 capturing any of the Protected Material. Notwithstanding this provision, Counsel
16 are entitled to retain an archival copy of all pleadings, motion papers, trial,
17 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
18 and trial exhibits, expert reports, attorney work product, and consultant and expert
19 work product, even if such materials contain Protected Material. Any such archival
20 copies that contain or constitute Protected Material remain subject to this
21 Protective Order as set forth in Section 6 (DURATION).
22 14. VIOLATION
23 Any violation of this Order may be punished by appropriate measures
24 ////
25 ////
26 ////
27 ////
28
12
STIPULATIONANDPROTECTIVEORDER
se 2:21-cv-07202-FLA-PLA Document Filed 04/05/22 Page 13o0f13 Page ID #:246
1 |) including, without limitation, contempt proceedings and/or monetary sanctions.
2 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: April __5__, 2022 ENGSTROM, LIPSCOMB & LACK,
4 P.C.
sg
5 Ap
6 Andrew M. Jacobson
7 Attorney for Plaintiffs
DAVID AND DODIE HERSKOVITZ
9
0 Dated: April 5, 2022 HINES HAMPTON PELANDA LLP
Necobe Ww
M1 By: We Carnes:
12 Nicole M. Hampton
3 Attorneys for Defendant
CRESTBROOK INSURANCE COMPANY
14
15
16 ORDER
17
18 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
19
20 || DATED: April 5, 2022
( ue Mamet
22 x.
23 Hon. Paul L. Abrams
34 United States Magistrate Judge
25
26
27
28
13
STIPULATION AND PROTECTIVE ORDER