Evelyn Wong v. UNUM Life Insurance Company of America

Case 2:21-cv-05905-DSF-JDE Document 28 Filed 09/02/22 Page 1 of 15 Page ID #:123

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 EVELYN WONG, Case No. 2:21-cv-05905-DSF-JDE

12 Plaintiff,

13 vs.

STIPULATED PROTECTIVE

14 UNUM LIFE INSURANCE ORDER

COMPANY OF AMERICA,

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Defendant.

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17 Based on the parties’ Stipulation and for good cause shown, the Court finds and

18 orders as follows.

19 1. PURPOSES AND LIMITATIONS

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

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proprietary or private information for which special protection from public disclosure

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

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

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

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

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

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

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legal principles.

STIPULATED PROTECTIVE ORDER

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1 2. GOOD CAUSE STATEMENT

2 This action is likely to involve confidential corporate information and other

3 commercial, financial and/or proprietary information for which special protection

4 from public disclosure and from use for any purpose other than prosecution of this

5 action is warranted. Such confidential and proprietary materials and information

6 consist of, among other things, confidential business or financial information,

7 information or communications regarding confidential business practices, or other

8 confidential commercial information (including information implicating privacy

9 rights of third parties), information otherwise generally unavailable to the public, or

10 which may be privileged or otherwise protected from disclosure under state or federal

11 statutes, court rules, case decisions, or common law. Accordingly, to expedite the

12 flow of information, to facilitate the prompt resolution of disputes over confidentiality

13 of discovery materials, to adequately protect information the parties are entitled to

14 keep confidential, to ensure that the parties are permitted reasonable necessary uses

15 of such material in preparation for and in the conduct of trial, to address their handling

16 at the end of the litigation, and serve the ends of justice, a protective order for such

17 information is justified in this matter. It is the intent of the parties that information

18 will not be designated as confidential for tactical reasons and that nothing be so

19 designated without a good faith belief that it has been maintained in a confidential,

20 non-public manner, and there is good cause why it should not be part of the public

21 record of this case.

22 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE

23 The parties further acknowledge, as set forth in Section 14.3, below, that this

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

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

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

27 material under seal. There is a strong presumption that the public has a right of access

28 to judicial proceedings and records in civil cases. In connection with non-dispositive

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1 motions, good cause must be shown to support a filing under seal. See Kamakana v.

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

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

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

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

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

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

8 parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL

9 does not— without the submission of competent evidence by declaration, establishing

10 that the material sought to be filed under seal qualifies as confidential, privileged, or

11 otherwise protectable—constitute good cause.

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

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

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

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

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

17 seal, the party seeking protection must articulate compelling reasons, supported by

18 specific facts and legal justification, for the requested sealing order. Again, competent

19 evidence supporting the application to file documents under seal must be provided by

20 declaration.

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.

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STIPULATED PROTECTIVE ORDER

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1 4. DEFINITIONS

2 4.1 Action: Evelyn Wong v. Unum Life Insurance Company of America,

3 USDC – Central District Case No. 2:21-cv-05905-DSF-JDE.

4 4.2 Challenging Party: a Party or Non-Party that challenges the designation

5 of information or items under this Order.

6 4.3 “CONFIDENTIAL” Information or Items: information (regardless of

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

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

9 Cause Statement.

10 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

11 support staff).

12 4.5 Designating Party: a Party or Non-Party that designates information or

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

14 “CONFIDENTIAL.”

15 4.6 Disclosure or Discovery Material: all items or information, regardless of

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

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

18 generated in disclosures or responses to discovery.

19 4.7 Expert: a person with specialized knowledge or experience in a matter

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

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

22 4.8 House Counsel: attorneys who are employees of a party to this Action.

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

24 counsel.

25 4.9 Non-Party: any natural person, partnership, corporation, association or

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

27 4.10 Outside Counsel of Record: attorneys who are not employees of a party

28 to this Action but are retained to represent a party to this Action and have appeared in

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STIPULATED PROTECTIVE ORDER

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1 this Action on behalf of that party or are affiliated with a law firm that has appeared

2 on behalf of that party, and includes support staff.

3 4.11 Party: any party to this Action, including all of its officers, directors,

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

5 support staffs).

6 4.12 Producing Party: a Party or Non-Party that produces Disclosure or

7 Discovery Material in this Action.

8 4.13 Professional Vendors: persons or entities that provide litigation support

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

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

11 and their employees and subcontractors.

12 4.14 Protected Material: any Disclosure or Discovery Material that is

13 designated as “CONFIDENTIAL.”

14 4.15 Receiving Party: a Party that receives Disclosure or Discovery

15 Material from a Producing Party.

16 5. SCOPE

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

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

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

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

21 or their Counsel that might reveal Protected Material.

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

23 trial judge and other applicable authorities. This Order does not govern the use of

24 Protected Material at trial.

25 6. DURATION

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

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

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

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STIPULATED PROTECTIVE ORDER

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

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

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

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

5 standard when merits-related documents are part of court record). Accordingly, the

6 terms of this protective order do not extend beyond the commencement of the trial.

7 7. DESIGNATING PROTECTED MATERIAL

8 7.1 Exercise of Restraint and Care in Designating Material for Protection.

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

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

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

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

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

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

15 this Order.

16 Mass, indiscriminate or routinized designations are prohibited. Designations

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

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

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

20 to sanctions.

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

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

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

24 7.2 Manner and Timing of Designations. Except as otherwise provided in

25 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material

26 that qualifies for protection under this Order must be clearly so designated before the

27 material is disclosed or produced.

28 Designation in conformity with this Order requires:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

19 (b) for testimony given in depositions that the Designating Party

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

21 deposition all protected testimony.

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

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

24 the exterior of the container or containers in which the information is stored the legend

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

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

27 portion(s).

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STIPULATED PROTECTIVE ORDER

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1 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

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

6 Order.

7 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS

8 8.1. Timing of Challenges. Any Party or Non-Party may challenge a

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

10 Scheduling Order.

11 8.2 Meet and Confer. The Challenging Party shall initiate the dispute

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

13 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint

14 stipulation pursuant to Local Rule 37-2.

15 8.4 The burden of persuasion in any such challenge proceeding shall be on the

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

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

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

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

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

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

22 9. ACCESS TO AND USE OF PROTECTED MATERIAL

23 9.1 Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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

28 Party must comply with the provisions of section 15 below (FINAL DISPOSITION).

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STIPULATED PROTECTIVE ORDER

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

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

3 authorized under this Order.

4 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

6 Receiving Party may disclose any information or item designated

7 “CONFIDENTIAL” only to:

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

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

10 necessary to disclose the information for this Action;

11 (b) the officers, directors, and employees (including House Counsel) of

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

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

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

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

16 (d) the court and its personnel;

17 (e) court reporters and their staff;

18 (f) professional jury or trial consultants, mock jurors, and Professional

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

20 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

21 (g) the author or recipient of a document containing the information or a

22 custodian or other person who otherwise possessed or knew the information;

23 (h) during their depositions, witnesses, and attorneys for witnesses, in

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

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

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

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

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

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STIPULATED PROTECTIVE ORDER

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

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

3 permitted under this Stipulated Protective Order; and

4 (i) any mediators or settlement officers and their supporting personnel,

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

6 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED

7 PRODUCED IN OTHER LITIGATION

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

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

10 “CONFIDENTIAL,” that Party must:

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

12 shall include a copy of the subpoena or court order;

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

14 to issue in the other litigation that some or all of the material covered by the subpoena

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

16 this Stipulated Protective Order; and

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

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

19 Designating Party timely seeks a protective order, the Party served with the subpoena

20 or court order shall not produce any information designated in this action as

21 “CONFIDENTIAL” before a determination by the court from which the subpoena or

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

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

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

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

26 directive from another court.

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STIPULATED PROTECTIVE ORDER

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1 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

2 PRODUCED IN THIS LITIGATION

3 (a) The terms of this Order are applicable to information produced by a

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

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

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

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

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

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

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

11 confidential information, then the Party shall:

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

13 that some or all of the information requested is subject to a confidentiality agreement

14 with a Non-Party;

15 (2) promptly provide the Non-Party with a copy of the Stipulated

16 Protective Order in this Action, the relevant discovery request(s), and a reasonably

17 specific description of the information requested; and

18 (3) make the information requested available for inspection by the Non-

19 Party, if requested.

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

21 14 days of receiving the notice and accompanying information, the Receiving Party

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

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

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

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

26 Absent a court order to the contrary, the Non-Party shall bear the burden and expense

27 of seeking protection in this court of its Protected Material.

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STIPULATED PROTECTIVE ORDER

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1 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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

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

9 Agreement to Be Bound” attached hereto as Exhibit A.

10 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

11 PROTECTED MATERIAL

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

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

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

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

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

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

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

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

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

21 to the court.

22 14. MISCELLANEOUS

23 14.1 Right to Further Relief. Nothing in this Order abridges the right of any

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

25 14.2 Right to Assert Other Objections. By stipulating to the entry of this

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

27 to disclosing or producing any information or item on any ground not addressed in

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STIPULATED PROTECTIVE ORDER

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

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

3 14.3 Filing Protected Material. A Party that seeks to file under seal any

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

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

6 Protected Material. If a Party’s request to file Protected Material under seal is denied

7 by the court, then the Receiving Party may file the information in the public record

8 unless otherwise instructed by the court.

9 15. FINAL DISPOSITION

10 After the final disposition of this Action, as defined in paragraph 6, within 60

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

12 all Protected Material to the Producing Party or destroy such material. As used in this

13 subdivision, “all Protected Material” includes all copies, abstracts, compilations,

14 summaries, and any other format reproducing or capturing any of the Protected

15 Material. Whether the Protected Material is returned or destroyed, the Receiving Party

16 must submit a written certification to the Producing Party (and, if not the same person

17 or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by

18 category, where appropriate) all the Protected Material that was returned or destroyed

19 and (2) affirms that the Receiving Party has not retained any copies, abstracts,

20 compilations, summaries or any other format reproducing or capturing any of the

21 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

22 archival copy of all pleadings, motion papers, trial, deposition, and hearing

23 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

24 reports, attorney work product, and consultant and expert work product, even if such

25 materials contain Protected Material. Any such archival copies that contain or

26 constitute Protected Material remain subject to this Protective Order as set forth in

27 Section 6 (DURATION).

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STIPULATED PROTECTIVE ORDER

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1 |}16. VIOLATION

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

3 || including, without limitation, contempt proceedings and/or monetary sanctions.

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

6 dL

7 || DATED: September 02, 2022

8 itn D. EARLY

9 United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY

7 PROTECTIVE ORDER

8 The undersigned acknowledges that he/she has read the Protective Order

9 attached hereto, understands the terms thereof, and agrees to be bound by its terms.

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The undersigned understands that the terms of the Protective Order obligate him/her

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to use documents designated CONFIDENTIAL in accordance with the Order, and

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not to disclose any such documents or information derived directly therefrom to any

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14 other person, firm or concern.

15 The undersigned acknowledges that violation of the Protective Order

16 may result in penalties for contempt of court.

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18 ___________________________

Printed Name

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Date: ___________________ ___________________________

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Signature

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STIPULATED PROTECTIVE ORDER