Rosalie Vaccarino v. Midland National Life Insurance Company et al
Filing
31
PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 28 (ec)
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Robert S. Gianelli (SBN 82116)
Email: rob.gianelli@gmlawyers.com
Lotte Colbert (SBN 207157)
Email: lotte.colbert@gmlawyers.com
Jully C. Pae (SBN 233565)
Email: jully.pae@gmlawyers.com
GIANELLI & MORRIS, A Law Corporation
626 Wilshire Blvd., Suite 800
Los Angeles, CA 90017
Telephone: +1 213 489 1600
Facsimile: +1 213 489 1611
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Attorneys for Plaintiff Rosalie Vaccarino
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Robert D. Phillips, Jr. (SBN 82639)
Email: rphillips@reedsmith.com
Kathy J. Huang (SBN 240677)
Email: khuang@reedsmith.com
REED SMITH LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071-1514
Telephone: +1 213 457 8000
Facsimile: +1 213 457 8080
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REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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Attorneys for Defendant
Midland National Life Insurance Company
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ROSALIE VACCARINO, on behalf of
herself and all others similarly situated;
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Plaintiff,
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vs.
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MIDLAND NATIONAL LIFE
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INSURANCE COMPANY; and DOES 1- )
100, Inclusive,
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Defendant.
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No.: 2:11-CV-05858-CAS (MANx)
PROTECTIVE ORDER ENTERED
PURSUANT TO THE PARTIES’
STIPULATION
Compl. Filed: June 17, 2011
Compl. Removed: July 15, 2011
Trial Date:
None Set
Honorable Christina A. Snyder
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PROTECTIVE ORDER
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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the
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parties’ Stipulated Protective Order Regarding Confidential and Trade Secret
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Information (“Stipulation”) filed on September 1, 2011, the terms of the protective
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order to which the parties have agreed are adopted as a protective order of this Court
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(which generally shall govern the pretrial phase of this action) except to the extent, as
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set forth below, that those terms have been substantively modified by the Court’s
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amendment of Paragraphs 1, 8, 12, 13, 15, and 17 of, and Exhibit A to, the
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Stipulation.
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The parties are expressly cautioned that the designation of any information,
REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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document, or thing as “CONFIDENTIAL,” “Confidential Information,” or other
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designation(s) used by the parties, does not, in and of itself, create any entitlement to
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file such information, document, or thing, in whole or in part, under seal.
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Accordingly, reference to this Protective Order or to the parties’ designation of any
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information, document, or thing as “CONFIDENTIAL,” “Confidential Information,”
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or other designation(s) used by the parties, is wholly insufficient to warrant a filing
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under seal.
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There is a strong presumption that the public has a right of access to judicial
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proceedings and records in civil cases. In connection with non-dispositive motions,
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good cause must be shown to support a filing under seal. The parties apparently have
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endeavored, through the good cause statement set forth in their Stipulation, to make a
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prospective showing of good cause. The Court has stricken their good cause
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statement, because a specific showing of good cause or compelling reasons (see
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below) for filing under seal, with proper evidentiary support and legal
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justification, must be made with respect to each document or item designated as
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“CONFIDENTIAL,” “Confidential Information,” or other designation(s) used by the
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parties, which a party seeks to have filed under seal. The parties mere designation of
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any information, document, or thing as “CONFIDENTIAL,” “Confidential
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Information,” or other designation(s) used by the parties, does not -- without the
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PROTECTIVE ORDER
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submission of competent evidence, in the form of a declaration or declarations,
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establishing that the material sought to be filed under seal qualifies as
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confidential, privileged, or otherwise protectable -- constitute good cause.
Further, if sealing is requested in connection with a dispositive motion or trial,
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then compelling reasons, as opposed to good cause, for the sealing must be shown,
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and the relief sought shall be narrowly tailored to serve the specific interest to be
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protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.
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2010). For each item or type of information, document, or thing sought to be filed or
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introduced under seal in connection with a dispositive motion or trial, the party
REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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seeking protection must articulate compelling reasons, supported by specific facts and
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legal justification, for the requested sealing order. Again, competent evidence
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supporting the application to file documents under seal must be provided by
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declaration.
Any document that is not confidential, privileged, or otherwise protectable in its
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entirety will not be filed under seal if the confidential portions can be redacted. If
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documents can be redacted, then a redacted version for public viewing, omitting only
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the confidential, privileged, or otherwise protectable portions of the document, shall
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be filed. Any application that seeks to file documents under seal in their entirety
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should include an explanation of why redaction is not feasible.
Notwithstanding any other provision of this Protective Order, in the event that
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this case proceeds to trial, all information, documents, and things discussed or
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introduced into evidence at trial will become public and available to all members of
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the public, including the press, unless sufficient cause is shown in advance of trial to
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proceed otherwise.
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TERMS OF THE PROTECTIVE ORDER
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1.
[OMITTED BY THE COURT]
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PROTECTIVE ORDER
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2.
For purposes of this Protective Order, “Confidential Information” shall mean
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DEFINITION OF “CONFIDENTIAL INFORMATION”
the following types of documents and information:
(a)
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information that constitutes a trade secret including, without limitation,
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information, materials, and/or other documents reflecting non-public business or
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financial strategies, and/or confidential competitive information which, if disclosed,
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could result in prejudice or harm to the disclosing party;
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(b)
non-public financial or actuarial projections, analyses, or studies;
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(c)
non-public communications with regulators, Departments of Insurance,
REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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or other governmental bodies that are intended to be kept confidential and/or are
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protected from disclosure by statute or regulation; and
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(d)
policyholder-specific information.
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2.1
Any copies or reproductions, excerpts, summaries, or other documents or
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media that contain or incorporate Confidential Information as defined above shall also
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be treated as Confidential Information pursuant to this Protective Order.
2.2
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Nothing in this Protective Order shall be construed as requiring Midland
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to produce any personal or identifying information regarding any individual, nor any
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other policyholder information that is protected from disclosure under applicable state
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or federal law.
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3.
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MARKING DOCUMENTS “CONFIDENTIAL”
The Designating Party shall designate Confidential Information by stamping
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any document or material produced to a Party with the legend “CONFIDENTIAL” or
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by informing the Parties of the designation in writing at the time of production. Any
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such stamp or designation shall not, in any manner, cover up, overlap upon, obscure or
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otherwise conceal any text, picture, drawing, graph, or other communication or
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depiction in the document. As reasonably practicable, to the extent that a document or
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other material contains both Confidential Information and non-confidential
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information, the Designating Party shall clearly delineate the particular portions that
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PROTECTIVE ORDER
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constitute Confidential Information and the remaining portions of the document or
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material shall be deemed not to be Confidential Information.
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4.
DESIGNATING DEPOSITIONS “CONFIDENTIAL”
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With respect to any deposition, confidential treatment may be invoked by
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designating testimony as “Confidential” on the record at the deposition, or by serving
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such designations within 30 days after receipt of the final transcript of the deposition.
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All deposition transcripts shall be treated as Confidential Information for 30 days
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following receipt of the final transcript, unless the Parties otherwise agree.
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5.
Material designated by a Party or non-party, or by counsel for a Party or non-
REED SMITH LLP
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A limited liability partnership formed in the State of Delaware
USE OF “CONFIDENTIAL” MATERIAL
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party, as Confidential Information under this Protective Order shall be used by
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persons receiving it only for the purposes of the litigation or settlement of this Action.
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Any person in possession of Confidential Information must exercise reasonable care
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with regard to its storage, custody and use to ensure that the confidential nature of the
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same is maintained.
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6.
INADVERTENT PRODUCTION OF CONFIDENTIAL MATERIAL:
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NO WAIVER
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If at any time prior to the trial of this Action, a Party or non-party realizes that
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previously undesignated documents or other material should be designated as
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Confidential Information, the Party or non-party may so designate by advising the
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Parties in writing. The designated documents or material will thereafter be treated as
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Confidential Information pursuant to this Protective Order. Upon receipt of such
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designation in writing, the Parties and all other persons subject to this Protective
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Order shall take reasonable and appropriate action to notify any and all recipients of
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the material about the protected status of the newly designated Confidential
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Information and to retrieve the newly designated Confidential Information from any
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person who is not permitted by this Protective Order to have Confidential Information.
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PROTECTIVE ORDER
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7.
“QUALIFIED PERSONS”
Confidential Information may be disclosed only to the following “Qualified
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Persons”:
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(a)
the Court, including attorneys, employees, judges, secretaries, special
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masters, stenographic reporters, staff, transcribers, and all other personnel necessary to
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assist the Court in its function and whose duties require access to Confidential
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Information;
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(b)
the Parties and counsel of record for the Parties, including all partners
and associate attorneys of such counsel’s law firms who are assisting in the conduct of
REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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the Action, as well as any other counsel and support personnel of such counsel who
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are assisting counsel of record for the Parties in connection with the Action, and all
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clerks, employees, independent contractors, consultants, investigators, paralegals,
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assistants, secretaries, staff and stenographic, computer, audio-visual, and clerical
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employees, and agents thereof, operating under the supervision of such partners or
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associate attorneys in connection with the Action;
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(c)
litigation support services personnel, including outside copying services,
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court reporters, stenographers, or companies engaged in the business of supporting
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computerized or electronic discovery or trial preparation, retained by a Party or its
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counsel in connection with the Action;
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(d)
consulting or testifying experts, including associated personnel necessary
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to assist experts in the Action, provided that such expert or consultant is not employed
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by, or a consultant to, a competitor of the Party or non-party whose Confidential
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Information is to be disclosed;
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(e)
any person who created or authored such Confidential Information and
any persons to whom the Confidential Information has been previously disclosed;
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(f)
auditors and insurers of the Parties;
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(g)
any mediators or arbitrators, including their necessary staff, engaged by
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the Parties for settlement purposes in the Action; and
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PROTECTIVE ORDER
(h)
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Witnesses at depositions or other proceedings in the Action, where
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counsel for the examining Party believes in good faith that disclosure is necessary to
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develop the testimony of such witnesses.
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DESIGNATIONS TO BE MADE IN GOOD FAITH
The Parties agree to limit their designation of Confidential Information solely to
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designation under this Protective Order. No Party receiving Confidential Information
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shall be under any obligation to object to the designation of any document at the time
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such designation is made or at any time thereafter. No Party shall, by failure to object,
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REED SMITH LLP
documents, information, and things that they, in good faith, believe qualify for such
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A limited liability partnership formed in the State of Delaware
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be found to have acquiesced or agreed to such designation or be barred from objecting
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to such designation at any time.
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9.
EXECUTING THE NON-DISCLOSURE AGREEMENT
Each person to whom Confidential Information is disclosed, except the persons
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identified in ¶¶ 7 (a), (b), (c) (e), and (g) above, shall execute a non-disclosure
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agreement in the form annexed hereto as Exhibit A before receiving Confidential
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Information. Copies of the executed Exhibit A shall be retained by any Party
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disclosing Confidential Information to such person, and counsel for any Party to the
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Action that receives Confidential Information from a Designating Party shall obtain
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and retain a copy of all such executed agreements pertaining to any such persons who
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obtain Confidential Information directly or indirectly from such Party to the Action.
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Counsel for the receiving Party shall be responsible for ensuring compliance with the
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non-disclosure agreement by all persons to whom it provides Confidential Information
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directly or indirectly.
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10.
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CHALLENGING “CONFIDENTIAL” DESIGNATIONS
A Party objecting to the designation of any material as Confidential Information
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shall give written notice to the Designating Party. Within 14 days of receipt of the
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written objection, the Designating Party shall serve a letter on the objecting Party, in
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accordance with Local Rule 37-1, responding to the objection and requesting a
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PROTECTIVE ORDER
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conference to meet and confer in good faith to attempt to resolve the dispute without
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resort to Court intervention. If, after complying with the procedures set forth in Local
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Rule 37-1, the objecting Party and the Designating Party cannot resolve their dispute,
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the Designating Party, within 21 days after the good faith conference, or such other
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time period as may be agreed to by the Parties, must file a motion with the Court to
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continue the designation of the material as Confidential Information. The Designating
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Party has the burden of establishing that the document is entitled to protection.
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Provided that the Designating Party makes an application to the Court within the time
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period set forth above, any material so designated shall remain Confidential
REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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Information, and shall be subject to all of the restrictions on its disclosure and use set
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forth in this Protective Order until such time as the Court determines otherwise.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHER
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PROTECTED INFORMATION
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Inadvertent production or other disclosure of documents or information subject
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to work-product immunity, the attorney-client privilege, or other legal privilege that
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protects information from discovery shall not constitute a waiver of the immunity,
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privilege, or other protection, provided that the producing Party or non-party notifies
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each receiving Party in writing in a reasonably prompt manner after it confirms such
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inadvertent production. The written notice shall identify the inadvertently produced
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document(s), and describe the basis for requesting the return or destruction of each
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inadvertently produced document. Upon receipt of the written notice, each receiving
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Party and non-party shall promptly comply with the request and return or destroy such
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documents. If the producing and receiving parties do not agree that the document is
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entitled to protection, they shall follow the procedures in the paragraph above for
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challenging “Confidential” designations. Any Party or non-party having received
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privileged or protected information produced inadvertently is expected to comply with
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the requirements of this paragraph as soon as it is known or should be known that the
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document and information contained therein is privileged and/or protected. The
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PROTECTIVE ORDER
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Parties and any non-parties shall have the benefit of all limitations on waiver afforded
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by Federal Rule of Evidence 502 and Federal Rule of Civil Procedure 26(b)(5)(B).
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Any inadvertent disclosure of privileged information shall not operate as a waiver in
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any other federal or state proceeding, and the Parties’ agreement regarding the effect
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of inadvertent disclosure of privileged information shall be binding on non-parties.
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SUBPOENA FOR CONFIDENTIAL INFORMATION
If any Party has obtained Confidential Information under the terms of this
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Protective Order and receives a request to produce such Confidential Information by
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subpoena or other compulsory process commanding the production of such
REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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Confidential Information, such Party shall promptly (within 3 business days) notify
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the Designating Party, including in such notice the date set for the production of such
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subpoenaed information and, unless prohibited by applicable law, enclosing a copy of
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the subpoena (or other form of process), and shall object to the process or subpoena
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and not produce or disclose the Confidential Information until any dispute between the
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requesting party and the Designating Party is resolved by the parties or a court
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order has been entered that requires such production or disclosure. Nothing in
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these provisions should be construed as authorizing or encouraging a party to
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disobey a lawful directive from another court.
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FILING CONFIDENTIAL INFORMATION
All documents or things filed with the Court that comprise or contain
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Confidential Information, or that refer to or in any way disclose Confidential
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Information (including pleadings, motions,or other submissions), shall be submitted
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for filing under seal in accordance with the Local Rules, particularly Local Rule 79-
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5.1.
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14.
NO LIMITATION ON USE OF OWN INFORMATION
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Nothing herein shall impose any restriction on the use or disclosure by a Party
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of its own information or of information that lawfully came into the possession of the
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Party independent of any disclosure of information in this litigation. Nothing
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PROTECTIVE ORDER
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contained in this Protective Order shall be construed as preventing any Party or non-
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party from seeking greater protections or confidentiality for particular Confidential
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Information.
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USE OF CONFIDENTIAL INFORMATION AT TRIAL
The Parties shall disclose any exhibits containing Confidential Information that
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they intend to introduce at trial, and the Parties shall be prepared at the Final Pretrial
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Conference to address with the Court how such exhibits shall be used at trial and
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what protection, if any, from disclosure is warranted.
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ORDER SURVIVES TRIAL
REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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This Order shall be binding throughout and after final adjudication of this
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action, including, but not limited to, final adjudication of any appeals and petitions for
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extraordinary writs. Nothing in this Protective Order shall be construed to contradict
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any provision of law.
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FINAL TERMINATION
Upon final termination of this Action, including any and all appeals, counsel for
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each Party shall, upon request of the Designating Party, return all Confidential
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Information to the party that produced the information, including any copies, excerpts
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and summaries thereof, including all copies provided to Qualified Persons, except
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those persons described in ¶ 7(a), or shall destroy the same at the option of the
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receiving Party, and shall purge all such information from all machine-readable media
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on which it resides, including with respect to Qualified Persons. Notwithstanding the
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foregoing, counsel for each Party may retain all pleadings, briefs, memoranda,
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discovery responses, deposition transcripts, deposition exhibits, expert reports,
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motions, and other documents filed with the Court that refer to or incorporate
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Confidential Information, and will continue to be bound by this Protective Order with
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respect to all such retained information. Further, attorney work-product materials that
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contain Confidential Information need not be destroyed, but, if they are not destroyed,
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the person in possession of the attorney work-product will continue to be bound by
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PROTECTIVE ORDER
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this Protective Order with respect to all such retained information.
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MODIFYING THIS ORDER
Nothing in this Protective Order shall be construed to prohibit the Parties from
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agreeing to modify any provision of this Protective Order or seeking relief from the
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Court. Nor shall anything in this Protective Order or any Party’s compliance herewith
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be construed as a waiver of any Party’s rights under applicable law.
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IT IS SO ORDERED.
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REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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Dated: September 23, 2011
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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE
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PROTECTIVE ORDER
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EXHIBIT A
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ROSALIE VACCARINO, on behalf of
herself and all others similarly situated;
AGREEMENT TO BE BOUND BY
PROTECTIVE ORDER ENTERED
PURSUANT TO THE PARTIES’
STIPULATION
REED SMITH LLP
A limited liability partnership formed in the State of Delaware
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Plaintiff,
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No.: 2:11-CV-05858-CAS (MANx)
vs.
MIDLAND NATIONAL LIFE
INSURANCE COMPANY; and DOES
1-100, Inclusive,
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Defendant.
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Compl. Filed: June 17, 2011
Compl. Removed: July 15, 2011
Trial Date:
None Set
Honorable Christina A. Snyder
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I, the undersigned, hereby declare that I have read the attached Protective Order
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Entered Pursuant to the Parties’ Stipulation entered in the above-captioned Action. I
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understand the terms of, will comply with, and agree to be bound by all of the
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provisions of the Protective Order Entered Pursuant to the Parties’ Stipulation.
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DATED:
Signature
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Print Name
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PROTECTIVE ORDER
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