Brunsvik et al v. Hartford Life and Accident Insurance Company et al
Filing
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First Amended Stipulated Confidentiality Agreement and PROTECTIVE ORDER signed by Magistrate Judge Gary S. Austin on 11/29/2011. (Bradley, A)
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Melissa M. Cowan, Esq.
E-mail: mcowan@bwslaw.com
Keiko J. Kojima, Esq.
E-mail: kkojima@bwslaw.com
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite 2400
Los Angeles, CA 90071-2953
Telephone: 213.236.0600; Fax: 213.236.2700
Attorneys for Defendant
Hartford Life and Accident Insurance Company
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GARY BRUNSVIK, LILLIAN
BRUNSVIK and DAN ANDERSEN,
Executor for THE ESTATE OF BEN
BRUNSVIK,
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FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT
AND PROTECTIVE ORDER
Plaintiffs,
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Case No. 11-CV-00014-AWI-GSA
v.
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
STONEBRIDGE LIFE INSURANCE
COMPANY, UNION FIDELITY LIFE
INSURANCE COMPANY, and Does
1 through 50, inclusive
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Defendants.
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The parties to this action, by their respective counsel, hereby agree and
stipulate to the following protective order in the above-captioned case:
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Scope of Order. The purpose of this Stipulated Protective Order is to
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protect against the unnecessary disclosure of private, confidential and/or proprietary
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information by parties and non-parties. All such documents and information
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protected by this Stipulated Protective Order will hereafter be referred to as
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“Protected Information.” The Protected Information shall be used solely in
B URKE , W ILLIAMS &
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CASE NO. 11-CV-00014-OWW-GSA
FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
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connection with the litigation and trial of this case, and for no other purpose or in
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any other case.
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2.
Definitions. Materials and information protected by this Stipulated
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Protective Order shall mean any documents, materials, items, or information
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designated by Plaintiff, Defendant or any other third party as “Protected
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Information” and produced in response to a party’s requests for production of
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documents, interrogatories, stipulation, subpoena, motion or deposition. “Protected
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Information” is limited to the following categories: (i) Hartford’s Life Claims
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Manual and the Accidental Death and Life Claims Evaluation; (ii) Plaintiff’s
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financial and income information
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Hartford maintains that protection of documents in Category (i) is required
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because these proprietary, commercially-sensitive documents pertain to Hartford’s
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internal claims handling guidelines, claim considerations, or procedures. They are
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the product of Hartford’s experience and expertise in the insurance industry, and are
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not disseminated to the general public or to Hartford’s insureds. Only Hartford
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employees are granted access to the Life Claims Manual, which is stored
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electronically. Likewise, the Accidental Death and Life Claims Evaluation was
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prepared for internal use only. Hartford maintains a confidentiality disclaimer on
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the portal used to enter the Life Claims Manual that provides in part that it contains
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proprietary information that is a trade secret and that recipients and users of the
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manual are to retain the information in strict confidence and may not make copies
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other than as permitted in writing by a specified department. The Life Claims
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Manual and the Accidental Death and Life Claims Evaluation have never been
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produced absent a protective order or confidentiality agreement.
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Plaintiff maintains that protection of documents in Category (ii) is required
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because his financial and income information is private and confidential. The
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Court, pursuant to its November 21, 2011 order on Plaintiff’s motion to quash
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subpoenas to his financial institutions, has ordered the parties to enter into a
B URKE , W ILLIAMS &
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CASE NO. 11-CV-00014-AWI-GSA
FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
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protective order which address Plaintiff’s privacy concerns.
Each party that designates information or items for protection under this
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Stipulated Protective Order must take care to limit any such designation to specific
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material that qualified under the appropriate standard. A designating party must
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take care to designate for protection only those parts of material, documents, items,
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or oral or written communications that qualify – so that other portions of the
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material, documents, items, or communications for which protection is not
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warranted are not swept unjustifiably within the ambit of this Stipulated Protective
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Order.
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The parties assert that the “Protected Information” should be protected by a
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Court order rather than by a private agreement because the entry of a protective
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order would carry the weight of the Court’s imprimatur and authorize the exercise
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of its contempt power over any potential violations of this protective order. A
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private agreement between the parties would not serve to fully protect the
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confidential nature of the “Protected Information” from unwarranted disclosure,
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would not be as strong of a deterrent against such disclosure, and would not provide
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sufficient remedies in the event of disclosure.
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3.
Category of Protection. There shall be only two categories of
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protection. Documents or other material may be designated as “Protected
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Information” by a party or a producing nonparty if they contain information of the
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type referred to in Paragraph 2 of this Stipulated Protective Order. Protected
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Information may not be photocopied, reproduced or duplicated in any manner,
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whether in hard copy or electronic format, subject to the explicit exceptions
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contained in this Order.
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4.
Qualified Persons. Protected Information as designated above shall be
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used only for the purposes of conducting this litigation and shall be disclosed only
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to “Qualified Persons” which, as used herein, shall mean: (a) The parties to this
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action; (b) counsel of record for the parties; (c) any person regularly employed by
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PROTECTIVE ORDER
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such counsel, including legal assistants, secretaries, law clerks, investigators,
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associates and contract attorneys; (d) actual or prospective experts and consultants
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retained or consulted by a party or a party's counsel in the course of this action; (e)
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any potential deposition and trial witnesses; (f) any professional vendors or other
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persons or entities that provide litigation support services (e.g., photocopying;
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videotaping; translating; preparing exhibits or demonstrations; organizing, storing,
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retrieving data in any form or medium and there employees and subcontractors); (g)
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any private mediator or other ADR professional retained or selected by the parties
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to assist in the resolution of the matter; (h) the court and court personnel; and (i)
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any person to whom Hartford provides the its own Protected Information
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designated under Category (i) for its own purposes, with its consent, or through
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court order is designated as a “Qualified Person” only as to Hartford’s own
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Protected Information designated under Category (i). These persons shall not
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disclose, discuss or reveal the contents or existence of the Protected Information or
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the actual Protected Information itself to any other person or entity not specifically
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described in this paragraph.
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5.
Use and Dissemination of Protected Information. Information
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designated as ”Protected Information” shall not be disclosed or made available by
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the receiving party or third party to anyone other than a Qualified Person. Only
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Qualified Persons may photocopy, reproduce or duplicate Protected Information for
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their own use, or for the use of another Qualified Person. No disclosure shall be
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made to any person pursuant to Paragraph 4(d), 4(e) 4(f) or 4(g) until such person
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has executed either this agreement or a written Non-Disclosure Order in the form
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attached hereto as Exhibit “A.”
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6.
Disclosure to Third Parties. Persons to whom access to Protected
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Information is given pursuant to this Agreement and Order shall keep such
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Protected Information and any copies, extracts, summaries, notes or descriptions
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thereof secure in accordance with the purposes and intent of this Agreement and
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CASE NO. 11-CV-00014-AWI-GSA
FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
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Order and shall adopt and employ all suitable precautions to ensure continued
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confidentiality, non use and non disclosure.
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Party’s Right To Use Information. Nothing in this Order shall prevent
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a party from using its own Protected Information in any manner it sees fit or from
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revealing its own Protected Information to a person other than those designated in
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Paragraph 4 as a qualified person without prior consent of any other person, entity
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or this Court.
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8.
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Rights Preserved. Nothing in this Order shall be deemed to preclude
any party or third party from seeking or obtaining, on the appropriate showing,
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additional protection with respect to the confidentiality of documents or
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information. Nor shall any provision of this order be deemed to preclude any party
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from challenging the validity of the confidentiality of any materials so designated
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(in the manner specified in Paragraph 9 below), or from requesting the Court to
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amend or modify this Order with respect to any particular matter. Nothing in this
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Order shall be deemed a waiver of any party’s right to object to the admissibility of
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any documents produced pursuant to this Stipulated Protective Order at trial or any
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other court proceeding on the of relevance, materiality, privilege, overbreadth or
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any other recognized objection to discovery.
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Objections to Designation. A party that elects to initiate a challenge to
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a Designating Party’s confidentiality designation must do so in good faith and begin
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the process by conferring directly with counsel for the designating party. In
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conferring, the challenging party must explain the basis for its belief that the
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confidentiality designation was not proper and must give the designating party an
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opportunity to review the designated material, to reconsider the circumstances, and,
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if not change in designation is offered, to explain the basis for the chosen
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designation. A challenging party may proceed to the next stage of the challenge
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process only if it has engaged in this meet and confer process first. A party that
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elects to press a challenge to a confidentiality designation after considering the
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PROTECTIVE ORDER
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justification offered by the Designating Party may file and serve a motion that
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identifies the challenged material and sets forth in detail the basis for the challenge.
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Each such motion must be accompanied by a competent declaration that affirms
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that the movant has complied with the meet and confer requirements imposed in the
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preceding paragraph and sets forth with specificity the justification for the
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confidentiality designation that was given by the designating party in the meet and
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confer dialogue.
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10.
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Filing Under Seal. In the event a party wishes to use any Protected
Information in any affidavits, briefs, memoranda of law, or other papers filed in
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Court in this litigation, such Protected Information must be of the type set forth in
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Paragraph 2 and 3 of this Stipulated Protective Order and must satisfy the criteria
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set forth in Local Rule 141. The party wishing to file such Protected Information
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shall request that the Court recognize the information as “Protected Information”
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and shall fully comply with all rules and procedures set forth by Fed. R.Civ.P. 5.2,
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26 and Local Rule 141 and any other applicable rules governing the request to file
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documents under seal.
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Consent to Disclosure. Nothing shall prevent disclosure beyond the
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terms of this Stipulated Protective Order if all parties consent to such disclosure.
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Specifically, if and to the extent any party wishes to disclose any Protected
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Information beyond the terms of this Stipulated Protective Order, that party shall
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provide the other party with reasonable notice in writing of its request to so disclose
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the materials.
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Inadvertent Disclosure. The inadvertent production or disclosure of
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any Protected Information (including physical objects) to the receiving party shall
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not constitute a waiver of the attorney-client privilege or work product immunity if
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the producing party sends to each receiving party a request for return of any such
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inadvertently produced documents to the producing party within 30 days. Upon
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receiving such a request by the producing party, the receiving party immediately
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CASE NO. 11-CV-00014-AWI-GSA
FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
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shall return to the producing party all copies of such documents, or shall
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immediately confirm in writing that all electronic copies of the documents have
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been deleted from electronic records and all paper copies of the documents have
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been destroyed. Upon a reasonable request by the receiving party as to whether a
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document was inadvertently produced, the producing party shall have fifteen
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calendar days to respond. The producing party's response shall: (1) state whether
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the document was or was not inadvertently produced, (2) if applicable, designate
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the document as within the attorney-client privilege or work product immunity, and
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(3) state whether return of the document is requested. In the event the receiving
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party challenges the propriety of the attorney-client privilege or work product
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immunity designation, the party asserting privilege may file an appropriate motion
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with the Court. In such a motion, the burden of establishing privilege shall remain
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on the party asserting the privilege. If a document or information has been used
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during a deposition, used at a hearing, identified in a pleading filed with the Court,
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identified in a pretrial order or interrogatory response, identified for use at trial, or
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disclosed to the Court, no claim of inadvertent production may be made unless such
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claim is made within fifteen (15) calendar days of such use, identification or
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disclosure.
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Court Retains Final Authority. The Court retains final authority to
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determine what is or is not “Protected Information” as defined by Paragraph 2 and 3
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of this Stipulated Protective Order and to remove the “Protected Information”
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designation from any document governed by this Stipulated Protective Order as
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necessary to protect the public interest. Further, and notwithstanding any
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provisions stated in Paragraph 10, should the Court determine that documents may
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not be filed under seal, parties are permitted to file documents containing Protected
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Information without limitation.
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Conclusion of Litigation. Within sixty (60) days after the termination
of this litigation and any appeal thereof, all Protected Information produced by a
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ATTO RNEY S AT LAW
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CASE NO. 11-CV-00014-AWI-GSA
FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
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party or third party, including originals and copies (including electronic copies),
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that are in the possession of any of the persons who are Qualified Persons pursuant
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to Paragraph 4, except those in subparagraph 4(h), shall be returned to the
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producing party or third party, except as this Court may otherwise order. Following
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termination of this litigation, the provisions of this Order relating to the
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confidentiality of Protected Information shall continue to be binding, except with
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respect to documents and information which are no longer Protected Information.
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This Court retains jurisdiction over all persons provided access to Protected
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Information for enforcement of the provisions of this Order following termination
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of this action and the final conclusion of this action.
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Violation of Order. Willful violation by any person of any provision
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of this Order may be punishable as contempt of Court. Further, any party hereto
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may pursue any and all civil remedies available to him or it for breach of the terms
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of this Order.
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This Stipulated Protective Order shall be effective and enforced
according to its terms from and after entry of the Order by this Court.
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DATED: November 28, 2011
WILKINS, DROLSHAGEN &
CZESHINSKI LLP
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By: s/James H. Wilkins
as authorized on 11/28/11
JAMES H. WILKINS
Attorney for Plaintiffs
Gary Brunsvik, Lillian Brunsvik and
Dan Andersen, Executor for The
Estate of Ben Brunsvik
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B URKE , W ILLIAMS &
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LA #4833-9742-0302 v1
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CASE NO. 11-CV-00014-AWI-GSA
FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
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DATED: November 28, 2011
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BURKE, WILLIAMS & SORENSEN, LLP
MELISSA M. COWAN
By: s/Keiko J. Kojima
KEIKO J. KOJIMA
Attorneys for Defendants
Hartford Life and Accident Insurance
Company
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B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES
LA #4833-9742-0302 v1
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CASE NO. 11-CV-00014-AWI-GSA
FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
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EXHIBIT A
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NONDISCLOSURE ORDER
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I _________________, have reviewed the First Amended Stipulated
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Protective Order entered by the Court in Gary Brunsvik, et al. v. Hartford Life and
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Accident Insurance Company, et al., Case No. 11-CV-00014-OWW-GSA, pending
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in the United States District Court, Eastern District of California. I have had an
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opportunity to review it and seek independent counsel about its contents. Having
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read the First Amended Stipulated Protective Order, understanding its contents,
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including the obligations and duties it imposes upon me, and agreeing to abide by
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it, I voluntarily, knowingly, and by my own hand execute this Non-Disclosure
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Agreement, which obligates me to adhere to the terms of the Stipulated Protective
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Order.
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Dated: ________________
______________________________
Signature
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_____________________________
Printed Name
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______________________________
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______________________________
Address
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B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES
LA #4833-9742-0302 v1
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CASE NO. 11-CV-00014-AWI-GSA
FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
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PROTECTIVE ORDER
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The Court has reviewed the instant protective order. The parties’ First
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Amended Stipulated Confidentiality Agreement and Protective Order is adopted
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and the parties are ordered to comply with the provisions outlined in the agreement.
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IT IS SO ORDERED.
Dated:
November 29, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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DEAC_Signature-END:
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B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES
LA #4833-9742-0302 v1
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CASE NO. 11-CV-00014-AWI-GSA
FIRST AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
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