distinguishing “good cause” 7 showing for sealing documents produced in discovery from “compelling reasons” 8 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 7 showing for sealing documents produced in discovery from “compelling reasons” 8 standard when merits-related documents are part of court record
- even stipulated protective orders require 20 good cause showing
Written by the judges who cited it.
The opinion
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 1 of 20 Page ID #:665
1 Vivian I. Orlando (SBN 213833)
2 VOrlando@maynardcooper.com
MAYNARD COOPER & GALE PC
3 10100 Santa Monica Boulevard, Ste 550
4 Los Angeles, CA 90067
Telephone: 310-596-4500
5
Facsimile: 205-254-1999
6
Jarrett E. Ganer *
7
jarrett.ganer@mhllp.com
8 Hutson B. Smelley *
hutson.smelley@mhllp.com
9
Micah A. Grodin*
10 micah.grodin@mhllp.com
MCDOWELL HETHERINGTON LLP
11
1001 Fannin Street, Ste 2400
12 Houston, TX 77002
Telephone: 713-337-5580
13
Facsimile: 713-337-8850
14 * Admitted pro hac vice
15
Attorneys for Defendant
16 TRANSAMERICA
LIFE INSURANCE COMPANY
17
18
19 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
20
21 Case No. 2:22-cv-05724-SPG (ASx)
JASON BOUTROS,
22 PROTECTIVE ORDER
Plaintiff,
23
[Discovery Matter Referred to Judge Sagar]
24 v.
Judge: Hon. Sherilyn Peace Garnett
25
TRANSAMERICA LIFE Magistrate Judge: Hon. Alka Sagar
26 INSURANCE COMPANY,
Defendant.
27
28
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 2 of 20 Page ID #:666
1 1. A. PURPOSES AND LIMITATIONS
2 Discovery in this Action is likely to involve production of confidential,
3 proprietary, actuarial, business, technical, and financial information of Plaintiff Jason
4 Boutros and Defendant Transamerica Life Insurance Company (“TLIC”), or private
5 information for which special protection from public disclosure and from use for any
6 purpose other than prosecuting this litigation may be warranted. Accordingly, the
7 Parties hereby stipulate to and petition the Court to enter the following Stipulated
8 Protective Order (“Order”). The Parties acknowledge that this Order does not confer
9 blanket protections on all disclosures or responses to discovery and that the
10 protection it affords from public disclosure and use extends only to the limited
11 information or items that are entitled to confidential treatment under the applicable
12 legal principles.
13 B. GOOD CAUSE STATEMENT
14 This Action is likely to involve trade secrets, insured individuals’ medical
15 data, customer and pricing lists and other valuable research, development,
16 commercial, financial, technical, and/or proprietary information for which special
17 protection from public disclosure and from use for any purpose other than
18 prosecution of this action is warranted. Such confidential and proprietary materials
19 and information consist of, among other things, confidential business or financial
20 information, information regarding confidential business practices, or other
21 confidential research, development, or commercial information (including
22 information implicating privacy rights of third parties), information otherwise
23 generally unavailable to the public, or which may be privileged or otherwise
24 protected from disclosure under state or federal statutes, court rules, case decisions,
25 or common law. Accordingly, to expedite the flow of information, to facilitate the
26 prompt resolution of disputes over confidentiality of discovery materials, to
27 adequately protect information the parties are entitled to keep confidential, to ensure
28 that the Parties are permitted reasonable necessary uses of such material in
2
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 3 of 20 Page ID #:667
1 preparation for and in the conduct of discovery and trial, to address their handling at
2 the end of the litigation, and serve the ends of justice, a protective order for such
3 information is justified in this matter. It is the intent of the parties that information
4 will not be designated as confidential for tactical reasons and that nothing be so
5 designated without a good faith belief that it has been maintained in a confidential,
6 non-public manner, and there is good cause why it should not be part of the public
7 record of this case.
8 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
9 The Parties further acknowledge, as set forth in Section 12.3, below, that this
10 Order does not entitle them to file confidential information under seal; Local Civil
11 Rule 79-5 and the Court’s Standing Order [ECF 11] set forth the procedures that
12 must be followed and the standards that will be applied when a Party seeks
13 permission from the court to file material under seal.
14 There is a strong presumption that the public has a right of access to judicial
15 proceedings and records in civil cases. In connection with non-dispositive motions,
16 good cause must be shown to support a filing under seal. See Kamakana v. City and
17 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
18 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
19 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require
20 good cause showing). A specific showing of good cause or compelling reasons with
21 proper evidentiary support and legal justification, must be made with respect to
22 Protected Material that a Party seeks to file under seal. The Party’s mere designation
23 of Disclosure or Discovery Material as “CONFIDENTIAL” does not—without the
24 submission of competent evidence by declaration, establishing that the material
25 sought to be filed under seal qualifies as confidential, privileged, or otherwise
26 protectable—constitute good cause.
27 Further, if a Party requests sealing related to a dispositive motion or trial, then
28 compelling reasons, not only good cause, for the sealing must be shown, and the
3
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 4 of 20 Page ID #:668
1 relief sought shall be narrowly tailored to serve the specific interest to be protected.
2 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each
3 item or type of information, document, or thing sought to be filed or introduced under
4 seal in connection with discovery, a dispositive motion, or trial, the Party seeking
5 protection must articulate compelling reasons, supported by specific facts and legal
6 justification, for the requested sealing order. Again, competent evidence supporting
7 the application to file documents under seal must be provided by declaration.
8 Any document that is not confidential, privileged, or otherwise protectable in
9 its entirety will not be filed under seal if the confidential portions can be redacted. If
10 documents can be redacted, then a redacted version for public viewing, omitting only
11 the confidential, privileged, or otherwise protectable portions of the document, shall
12 be filed. Any application that seeks to file documents under seal in their entirety
13 should include an explanation of why redaction is not feasible.
14 2. DEFINITIONS
15 2.1 Acknowledgement: The “Acknowledgement and Agreement to be
16 Bound” form attached as Exhibit A to this Order.
17 2.2 Action: Boutros v. Transamerica Life Insurance Company, Case No.
18 2:22-cv-05724-SPG-AS.
19 2.3 Challenging Party: A Party or Non-Party that challenges the designation
20 of information or items under this Order.
21 2.4 “CONFIDENTIAL” Information or Items: Confidential proprietary or
22 commercially sensitive business and financial information, trade secrets, and personal
23 information which is not generally known or publicly available and which the
24 Designating Party would not normally reveal to a third party or information that
25 otherwise meets the standard for protection set forth in Rule 26(c) of the Federal Rules
26 of Civil Procedure. It is the intent of the Parties that information will not be designated
27 as confidential for tactical reasons and that nothing be so designated without a good
28 faith belief that it has been maintained in a confidential non-public manner, and there
4
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 5 of 20 Page ID #:669
1 is good cause why it should not be part of the public record of this Action.
2 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as their
3 support staff).
4 2.6 Designating Party: A Party or Non-Party that designates information or
5 items that it produces in disclosures or in responses to discovery as
6 “CONFIDENTIAL.”
7 2.7 Disclosure or Discovery Material: All items or information, regardless
8 of the medium or manner in which it is generated, stored, or maintained (including,
9 among other things, testimony, transcripts, and tangible things), that are produced or
10 generated in disclosures or responses to discovery in this matter.
11 2.8 Expert: A person with specialized knowledge or experience in a matter
12 pertinent to the Action who has been retained by a Party or its Counsel to serve as
13 an expert witness or as a consultant in this Action and who is not a past or current
14 employee of a Party and who, at the time of retention, is not anticipated to become
15 an employee of a Party. This definition includes a professional jury or trial consultant
16 retained in connection with this Action.
17 2.9 House Counsel: Attorneys who are employees of a Party, any affiliate
18 thereof, or of an entity that owns an interest in a Party and is responsible for
19 controlling, directing, or advising on the Action. House Counsel does not include
20 Outside Counsel of Record or any other outside counsel.
21 2.10 Non-Party: Any natural person, partnership, corporation, association, or
22 other legal entity not named as a Party to this action.
23 2.11 Outside Counsel of Record: Attorneys who are not employees of a Party
24 to this Action but who are retained to represent or advise a Party to this Action and
25 have appeared in this Action on behalf of that party or are affiliated with a law firm
26 that has appeared on behalf of that Party, and includes support staff.
27 2.12 Party: Any party to this Action, including all of its officers, directors,
28 employees, consultants, retained experts, House Counsel, and Outside Counsel of
5
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 6 of 20 Page ID #:670
1 Record (and their support staffs).
2 2.13 Producing Party: Any party or Non-Party that produces Disclosure or
3 Discovery Material in this Action.
4 2.14 Professional Vendors: Persons or entities that provide litigation support
5 services (e.g., photocopying, videotaping, translating, preparing exhibits or
6 demonstrations, and organizing, storing, or retrieving data in any form or medium)
7 and their employees and subcontractors.
8 2.15 Protected Material: Any Disclosure or Discovery Material that is
9 designated as “CONFIDENTIAL.”
10 2.16 Receiving Party: A Party that receives Disclosure or Discovery
11 Material from a Producing Party.
12 3. SCOPE
13 The protections conferred by this Stipulation and Order cover not only
14 Protected Material (as defined above), but also (1) any information copied or
15 extracted from Protected Material; (2) all copies, excerpts, summaries, or
16 compilations of Protected Material; and (3) any testimony, conversations, or
17 presentations by any Party or its Counsel or any of its Experts that might reveal
18 Protected Material.
19 Any use of Protected Material at trial shall be governed by the orders of the
20 trial judge. This Order does not govern the use of Protected Material at trial.
21 4. DURATION
22 FINAL DISPOSITION of the Action is defined as the conclusion of any
23 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
24 has run. Except as set forth below, the terms of this protective order apply through
25 FINAL DISPOSITION of the Action. The Parties stipulate that the they will be
26 contractually bound by the terms of this agreement beyond FINAL DISPOSITION,
27 and that they will have to file a separate action for enforcement of the agreement
28 once FINAL DISPOSITION of the Action occurs.
6
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 7 of 20 Page ID #:671
1 Once a case proceeds to trial, information that was designated as
2 CONFIDENTIAL or maintained pursuant to this Protective Order used or introduced
3 as an exhibit at trial becomes public and will be presumptively available to all
4 members of the public, including the press, unless compelling reasons supported by
5 specific factual findings to proceed otherwise are made to the trial judge in advance
6 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
7 showing for sealing documents produced in discovery from “compelling reasons”
8 standard when merits-related documents are part of court record). Accordingly, for
9 such materials, the terms of this protective order do not extend beyond the
10 commencement of the trial.
11 5. DESIGNATING PROTECTED MATERIAL
12 5.1 Exercise of Restraint and Care in Designating Material for Protection.
13 Each Party or Non-Party that designates information or items for protection under
14 this Order must take care to limit any such designation to specific material that
15 qualifies under the appropriate standards. To the extent it is practical to do so, the
16 Designating Party must designate for protection only those parts of material,
17 documents, items, or oral or written communications that qualify so that other
18 portions of the material, documents, items, or communications for which protection
19 is not warranted are not swept unjustifiably within the ambit of this Order.
20 While mass, indiscriminate, or routinized designations are prohibited, the
21 Parties recognize that manually analyzing and designating large numbers of
22 documents one-by-one for confidentiality can be an unduly burdensome task. The
23 Parties agree that each Party may reasonably rely on metadata information and good-
24 faith searches to designate documents for production. Designations that are shown
25 to be clearly unjustified or that have been made for an improper purpose (e.g., to
26 unnecessarily encumber the case development process or to impose unnecessary
27 expenses and burdens on other Parties) that are not remediated by the Designating
28 Party after notice may expose the Designating Party to sanctions.
7
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 8 of 20 Page ID #:672
1 If it comes to a Designating Party’s attention that information or items that it
2 designated for protection do not qualify for protection, that Designating Party must
3 promptly notify all other Parties that it is withdrawing the inapplicable designation.
4 5.2 Manner and Timing of Designations. Except as otherwise provided in
5 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
7 under this Order must be clearly so designated before the material is disclosed or
8 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,” to each page that contains protected material. If only a portion
14 or portions of the material on a page qualifies for protection, the Producing Party
15 also must clearly identify the protected portion(s) (e.g., by making appropriate
16 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 which
23 documents, or portions thereof, qualify for protection under this Order. Then, before
24 producing the specified documents, the Producing Party must affix the legend
25 “CONFIDENTIAL” to each page that contains Protected Material. If only a portion
26 or portions of the material on a page qualifies for protection, the Producing Party
27 also must clearly identify the protected portion(s) (e.g., by making appropriate
28 markings in the margins).
8
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 9 of 20 Page ID #:673
1 (b) any Party may designate as Protected Material testimony given in a
2 deposition or in other pretrial or trial proceedings by informing the reporter during
3 the deposition or by sending a letter to all Outside Counsel of Record and to the
4 deposition reporter designating by page and line any portions of the transcript to be
5 so restricted, or the entire transcript if applicable, within thirty (30) days after
6 receiving the deposition transcript and specifying the level of protection being
7 asserted.
8 During this 30-day period, a transcript will be treated as if it had been
9 designated “CONFIDENTIAL” in its entirety unless otherwise agreed. After the
10 expiration of that period, the transcript shall be treated only as actually designated.
11 When deposition testimony is designated Protected Material by informing
12 the reporter during the deposition, the transcript containing Protected Material shall
13 have an obvious legend on the title page that the transcript contains Protected
14 Material, and the title page shall be followed by a list of all pages (including line
15 numbers) that have been designated as Protected Material. The Designating Party
16 shall inform the court reporter of these requirements.
17 Parties shall give the other Parties notice if they reasonably expect a
18 deposition, hearing, or other proceeding to include Protected Material so that the other
19 Parties can ensure that only authorized individuals who have signed the
20 Acknowledgement are present at those proceedings. The use of a document as an
21 exhibit at a deposition shall not in any way affect its designation as
22 “CONFIDENTIAL.”
23 (c) for information produced in some form other than documentary and for
24 any other tangible items, that the Producing Party affix in a prominent place on the
25 exterior of the container or containers in which the information is stored the legend
26 “CONFIDENTIAL.” If only a portion or portions of the information warrants
27 protection, the Producing Party, to the extent practicable, shall identify the protected
28 portion(s).
9
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 10 of 20 Page ID #:674
1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
2 failure to designate qualified information or items does not, standing alone, waive
3 the 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 5.4 Protected Health Information. Additionally, certain Confidential
8 Information or Items may be Protected Health Information (“PHI”) as defined by the
9 Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the
10 regulations promulgated thereunder at 45 C.F.R. § 160.103. Without limiting the
11 generality of the foregoing, “PHI” includes, but is not limited to, health information,
12 including demographic information, relating to either (a) the past, present, or future
13 physical or mental condition of an individual, (b) the provision of care to an
14 individual, or (c) the payment for care provided to an individual, which identifies the
15 individual or which reasonably could be expected to identify an individual. All
16 “covered entities” (as defined by 45 C.F.R. § 160.103) are hereby authorized to
17 disclose PHI to all attorneys now of record in this Action or who may become of
18 record in the future in this Action. Subject to the Federal Rules of Civil Procedure,
19 and without prejudice to any Party’s objection except as otherwise provided herein,
20 the Parties are authorized to receive, subpoena, transmit, or disclose PHI relevant to
21 the claims at issue in this Action, subject to all terms of this Order. All PHI disclosed
22 under this Order must be designated as Confidential Information pursuant to this
23 Order. A Receiving Party which receives PHI in discovery shall not use or disclose
24 such PHI for any purpose other than this Action. To the extent documents or
25 information produced in this Action have already been exchanged or will again be
26 exchanged between the Parties in the normal course of business, treatment of such
27 documents prior to or after the conclusion of this Action shall be governed by this
28 Order.
10
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 11 of 20 Page ID #:675
1 5.5 Specific Provisions Concerning the Disclosure of Personally
2 Identifiable Information (“PII”). When PII (e.g., names, addresses, Social Security
3 numbers, phone numbers, etc.) is disclosed between the Parties as authorized by this
4 Order, the PII of each individual whose claims are not at issue in this Action and
5 who are otherwise identified in the Discovery material may either be redacted to
6 protect the identify of such individuals, or produced without redactions. Upon receipt
7 of any PII, a Receiving Party shall take all reasonable measures necessary for
8 protecting the PII from unauthorized disclosure as required under both state and
9 federal law.
10 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
11 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
12 designation of confidentiality at any time that is consistent with the Court’s
13 Scheduling Order. Unless a prompt challenge to a Designating Party’s confidentiality
14 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary
15 economic burdens, or a significant disruption or delay of the Action, a Party does not
16 waive its right to challenge a confidentiality designation by electing not to mount a
17 challenge promptly after the original designation is disclosed.
18 6.2 Meet and Confer. The Challenging Party shall initiate the informal
19 dispute resolution process set forth in the Court’s Procedures and Schedules. See
20 http://www.cacd.uscourts.gov/honorable-alka-sagar.
21 6.3 The burden of persuasion in any such challenge proceeding shall be on
22 the Designating Party. Frivolous designations or challenges, and those designations
23 and challenges made for an improper purpose (e.g., to harass or impose unnecessary
24 expenses and burdens on other parties) may expose the Designating Party or
25 Challenging Party to sanctions. Unless the Designating Party has waived or
26 withdrawn the confidentiality designation, all Parties shall continue to afford the
27 material in question the level of protection to which it is entitled under the
28 Designating Party’s designation until the Court rules on the challenge.
11
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 12 of 20 Page ID #:676
1 7. ACCESS TO AND USE OF PROTECTED MATERIAL
2 7.1 Basic Principles. A Receiving Party may use Protected Material that is
3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under the
6 conditions described in this Order. When the Action has been terminated, a
7 Receiving Party must comply with the provisions of section 13 below (FINAL
8 DISPOSITION).
9 Protected Material must be stored and maintained by a Receiving Party at a
10 location and in a secure manner that ensures that access is limited to the persons
11 authorized under this Order.
12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
13 otherwise ordered by the Court or permitted in writing by the Designating Party, a
14 Receiving Party may disclose any information or item designated
15 “CONFIDENTIAL” only to:
16 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
17 as employees of said Outside Counsel of Record to whom it is reasonably necessary
18 to disclose the information for this Action;
19 (b) the Receiving Party, including officers, directors, and employees
20 (including House Counsel) of the Receiving Party to whom disclosure is reasonably
21 necessary for this Action;
22 (c)the Receiving Party’s Parents and affiliates, and their respective officers,
23 directors, employees, consultants, advisors, insurers and/or reinsurers (1) to whom
24 disclosure is reasonably necessary for this Action, and (2) who have signed the
25 Acknowledgement;
26 (d) 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 Acknowledgment;
12
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 13 of 20 Page ID #:677
1 (e) the Court and its personnel;
2 (f) court reporters and their staff;
3 (g) professional jury or trial consultants, mock jurors, and Professional
4 Vendors to whom disclosure is reasonably necessary for this Action and who have
5 signed the Acknowledgement;
6 (h) the author or recipient of a document containing the information or a
7 custodian or other person who otherwise possessed or knew the information;
8 (i) during a deposition, the witness and attorneys for the witness, in the
9 Action to whom disclosure is reasonably necessary provided: (1) the deposing Party
10 requests that the witness sign the Acknowledgement; and (2) such witness and
11 attorneys for such witness will not be permitted to keep any confidential information
12 unless each signs the Acknowledgement, unless otherwise agreed by the Designating
13 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits
14 to depositions that reveal Protected Material may be separately bound by the court
15 reporter and may not be disclosed to anyone except as permitted under this Stipulated
16 Protective Order; and
17 (i) any mediator or settlement officer, and their supporting personnel,
18 mutually agreed upon by the Parties engaged in settlement discussions and who have
19 signed the Acknowledgement.
20 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
21 IN OTHER LITIGATION
22 If a Party is served with a subpoena or a court order issued in other litigation
23 that compels disclosure of any information or items designated in this Action as
24 “CONFIDENTIAL” that Party must:
25 (a) promptly notify in writing the Designating Party. Such notification shall
26 include a copy of the subpoena or court order;
27 (b) promptly notify in writing the party who caused the subpoena or order
28 to issue in the other litigation that some or all of the material covered by the subpoena
13
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 14 of 20 Page ID #:678
1 or order is subject to this Protective Order. Such notification shall include a copy of
2 this Stipulated Protective Order; and
3 (c) cooperate with respect to all reasonable procedures sought to be pursued
4 by the Designating Party whose Protected Material may be affected; AND
5 (d) otherwise comply with any applicable HIPAA rules or regulations with
6 respect to any response or production in connection with a discovery request or
7 subpoena.
8 If the Designating Party timely seeks a protective order, the Party served
9 with the subpoena or court order shall not produce any information designated in this
10 action as “CONFIDENTIAL” before a determination by the court from which the
11 subpoena or order issued, unless the Party has obtained the Designating Party’s
12 permission. The Designating Party shall bear the burden and expense of seeking
13 protection in that court of its confidential material and nothing in these provisions
14 should be construed as authorizing or encouraging a Receiving Party in this Action
15 to disobey a lawful directive from another court.
16 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
17 PRODUCED IN THIS LITIGATION
18 (a) The terms of this Order are applicable to information produced by a
19 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
20 produced by any Non-Party in connection with this Action is protected by the
21 remedies and relief provided by this Order. Nothing in these provisions should be
22 construed as prohibiting a Non-Party from seeking additional protections.
23 (b) In the event that a Party is required, by a valid discovery request, to
24 produce a Non-Party’s confidential information in its possession, and the Party is
25 subject to an agreement with the Non-Party not to produce the Non-Party’s
26 confidential information, then the Party shall:
27 (1) promptly notify in writing the Requesting Party and the Non-Party
28 that some or all of the information requested is subject to a confidentiality agreement
14
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 15 of 20 Page ID #:679
1 with a Non-Party;
2 (2) promptly provide the Non-Party with a copy of the Stipulated
3 Protective Order in this Action, the relevant discovery request(s), and a reasonably
4 specific description of the information requested; and
5 (3) make the information requested available for inspection by the
6 Non-Party, if requested.
7 (c) If the Non-Party fails to seek a protective order from this court within
8 21 days of receiving the notice and accompanying information, the Receiving Party
9 may produce the Non-Party’s confidential information responsive to the discovery
10 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
11 not produce any information in its possession or control that is subject to the
12 confidentiality agreement with the Non-Party before a determination by the court.
13 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
14 of seeking protection in this court of its Protected Material.
15 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
16 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
17 Protected Material to any person or in any circumstance not authorized under this
18 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
19 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
20 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
21 persons to whom unauthorized disclosures were made of all the terms of this Order,
22 and (d) request such person or persons to execute the Acknowledgement.
23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
24 PROTECTED MATERIAL
25 When a Producing Party gives notice to each Receiving Party that certain
26 inadvertently produced material is subject to a claim of privilege or other protection
27 (e.g., work product immunity), the obligations of the Receiving Parties are those set
28 forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended
15
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 16 of 20 Page ID #:680
1 to modify whatever procedure may be established in an e-discovery order that
2 provides for production without prior privilege review. 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, the Producing Party shall provide written notice to each party who has
10 received such information. Within ten (10) business days of the date of that written
11 notice, the documents or materials described in that notice shall be returned to
12 counsel for the Producing Party, destroyed or sequestered by the Receiving Party,
13 and in the same time frame, any notes or other writing or recordings that copy,
14 summarize, reflect, or discuss the content of the documents or materials shall be
15 destroyed or sequestered by the Receiving Party. No use shall be made of such
16 documents or materials from such inadvertent production during deposition or at
17 trial, nor shall such documents or materials be provided to anyone who did not
18 already have access to them prior to the request by the Producing Party that they be
19 returned.
20 If the Receiving Party intends to challenge the assertion of privilege, it must
21 provide written notice within this ten-day period, explaining the grounds for its
22 challenge. The Receiving Party shall initiate the dispute resolution process under
23 Local Rule 37-1 within ten (10) business days of service of the Receiving Party’s
24 notice disputing a claim of inadvertent production.
25 If the Parties cannot resolve a challenge without court intervention, the
26 Receiving Party may move the Court for an order compelling production of any
27 inadvertently produced or disclosed document or material in compliance with Local
28 Rule 37, but the motion shall not assert as a ground for production the fact of the
16
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 17 of 20 Page ID #:681
1 inadvertent production or disclosure. Pending the Court’s ruling, the party
2 challenging the assertion of privilege shall sequester the affected documents and
3 materials and shall not make any use of such information.
4 12. MISCELLANEOUS
5 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
6 person to seek its modification by the Court in the future.
7 12.2 Right to Assert Other Objections. By stipulating to the entry of this
8 Protective Order no Party waives any right it otherwise would have to object to
9 disclosing or producing any information or item on any ground not addressed in this
10 Stipulated Protective Order. Similarly, no Party waives any right to object on any
11 ground to use in evidence of any of the material covered by this Protective Order.
12 12.3 Filing Protected Material. A Party that seeks to file under seal any
13 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
14 only be filed under seal pursuant to a court order authorizing the sealing of the
15 specific Protected Material at issue. If a Party's request to file Protected Material
16 under seal is denied by the court, then the Receiving Party may file the information
17 in the public record unless otherwise instructed by the court.
18 13. FINAL DISPOSITION
19 After the final disposition of this Action, as defined in Section 4
20 (DURATION), within 60 days of a written request by the Designating Party, each
21 Receiving Party must return all Protected Material to the Producing Party or destroy
22 such material. As used in this subdivision, “all Protected Material” includes all
23 copies, abstracts, compilations, summaries, and any other format reproducing or
24 capturing any of the Protected Material. Whether the Protected Material is returned
25 or 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
28 Material that was returned or destroyed and (2) affirms that the Receiving Party has
17
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 18 of 20 Page ID #:682
1 not 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 such
7 archival copies that contain or constitute Protected Material remain subject to this
8 Protective Order as set forth in Section 4 (DURATION).
9
10 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
11
12 Dated: March 20, 2023 By: /s/ Benjamin Blakeman
13
Benjamin Blakeman (SBN 60596)
14 ben@lifeinsurance-law.com
BLAKEMAN LAW
15
111601 Wilshire Boulevard, Ste 2080
16 Los Angeles, CA 90025
Telephone: 213-629-9922
17
18 Steven W. Kerekes (SBN 112729)
steve4505@sbcglobal.net
19
LAW OFFICES OF STEVEN KEREKES
20 70 South Lake Avenue, 32nd Floor
Pasadena, CA 91101
21
Telephone: 626-796-5000
22
ATTORNEYS FOR PLAINTIFF JASON
23 BOUTROS
24
25
26
27
28
18
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 19 of 20 Page ID #:683
1 Dated: March 20, 2023 By: /s/ Hutson B. Smelley
2 Jarrett E. Ganer *
3 jarrett.ganer@mhllp.com
Hutson B. Smelley *
4 hutson.smelley@mhllp.com
5 Micah A. Grodin*
micah.grodin@mhllp.com
6 MCDOWELL HETHERINGTON LLP
7 1001 Fannin Street, Ste 2400
Houston, TX 77002
8 Telephone: 713-337-5580
9 Facsimile: 713-337-8850
* Admitted pro hac vice
10
11 Vivian I. Orlando (SBN 213833)
VOrlando@maynardcooper.com
12 MAYNARD COOPER & GALE PC
13 10100 Santa Monica Boulevard, Ste 550
Los Angeles, CA 90067
14 Telephone: 310-596-4500
15 Facsimile: 205-254-1999
16
ATTORNEYS FOR DEFENDANT
17 TRANSAMERICA LIFE INSURANCE
COMPANY
18
19 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
20
21 DATED: _M__a_r_c_h_ 2_1_,_ 2_0_2_3________
22
23 ________/ _s _/ _S_a_g_a_r________________________
24 Honorable Alka Sagar
United States Magistrate Judge
25
26
27
28
19
Case 2:22-cv-05724-SPG-AS Document 44 Filed 03/21/23 Page 20 of 20 Page ID #:684
1 EXHIBIT A
2 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 that I have read in its
5 entirety and understand the Stipulated Protective Order that was issued by the
6 United States District Court for the Central District of California on
7 _____________ in the case of Jason Boutros v. Transamerica Life
8 Insurance Company; Case No. 2:22-cv-05724-SPG(ASx). I agree to comply
9 with and to be bound by all the terms of this Stipulated Protective Order and I
10 understand and acknowledge that failure to so comply could expose me
11 to sanctions and punishment in the nature of contempt. I solemnly promise
12 that I will not disclose in any manner any information or item that is subject to
13 this Stipulated Protective Order to any person or entity except in strict compliance
14 with the provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court for
16 the Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint ________________________ [print or
19 type full name] of ___________________ [print or type full address and telephone
20 number] as my California agent for service of process in connection with this action
21 or any proceedings related to enforcement of this Stipulated Protective Order.
22
23 Date: __________________________
24 City and State where sworn and signed: _____________________________
25 Printed name: ____________________________________
26 Signature: ________________________________
27
28
20