Starline Windows Inc. v. Insurance Company of the State of Pennsylvania, No. 3:2021cv00578 - Document 17 (S.D. Cal. 2021)
Court Description: ORDER Granting 16 Joint Motion and Entering Stipulated Protective Order. Signed by Magistrate Judge Daniel E. Butcher on 10/1/21. (sxa)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 12 13 SOUTHERN DISTRICT OF CALIFORNIA STARLINE WINDOWS INC., a Washington Corporation, 14 Plaintiff, 15 16 17 18 v. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, an Illinois Corporation, Case No. 3:21-cv-00578-TWR-DEB ORDER GRANTING JOINT MOTION AND ENTERING STIPULATED PROTECTIVE ORDER DKT. NO. 16 19 20 Defendant. 21 22 The Court recognizes that at least some of the documents and information 23 (“materials”) being sought through discovery in the above-captioned action are, for 24 competitive and/or other valid business reasons, normally kept confidential by the 25 parties. The parties have agreed to be bound by the terms of this Protective Order 26 (“Order”) in this action. 27 The materials to be exchanged throughout the course of the litigation between 28 the parties may contain trade secret or other confidential research, technical, cost, _____________________________________________________________________ -121cv0578 1 price, marketing, or other commercial information, as is contemplated by Federal 2 Rule of Civil Procedure 26(c)(1)(G). The purpose of this Order is to protect the 3 confidentiality of such materials as much as practical during the litigation. 4 THEREFORE: DEFINITIONS 5 6 1. The term "confidential information" will mean and include 7 information contained or disclosed in any materials, including documents, portions 8 of documents, answers to interrogatories, responses to requests for admissions, trial 9 testimony, deposition testimony, and transcripts of trial testimony and depositions, 10 including data, summaries, and compilations derived therefrom that is deemed to 11 be confidential information by any party to which it belongs, regardless of how it is 12 generated, stored, or maintained. 13 2. The term "counsel" will mean outside counsel of record, house counsel, 14 and other attorneys, paralegals, secretaries, and other support staff employed in the 15 law firms representing the parties to this action, which currently are the law firms 16 identified below: 17 • Procopio, Cory, Hargreaves & Savitch, LLP 18 • Heffernan Law Group PLLC 19 • Nicolaides Fink Thorpe Michaelides Sullivan LLP 20 3. The term “designating party” will mean a party or non-party that 21 designates information or items that it produces in disclosures or in responses to 22 discovery as “CONFIDENTIAL.” 23 4. The term “expert” will mean a person with specialized knowledge or 24 experience in a matter pertinent to the litigation who has been retained by a Party 25 or its Counsel to serve as an expert witness or as a consultant in this action. 26 5. The term “house counsel” will mean attorneys who are employees of 27 a party to this action, including their support staffs. House counsel does not include 28 outside counsel of record or any other outside counsel. _____________________________________________________________________ -221cv0578 6. 1 The term "materials" will include, but is not limited to: documents; 2 correspondence; memoranda; bulletins; blueprints; specifications; files; manuals; 3 customer lists or other material that identify customers or potential customers; price 4 lists or schedules or other matter identifying pricing; minutes; telegrams; letters; 5 statements; cancelled checks; contracts; invoices; drafts; books of account; 6 worksheets; notes of conversations; desk diaries; appointment books; expense 7 accounts; recordings; photographs; motion pictures; compilations from which 8 information can be obtained and translated into reasonably usable form through 9 detection devices; sketches; drawings; notes (including laboratory notebooks and 10 records); reports; instructions; disclosures; other writings; and models, prototypes, 11 and other physical objects. 7. 12 13 The term “non-party” will mean any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 8. 14 The term “outside counsel of record” will mean attorneys who are not 15 employees of a party to this action but are retained to represent or advise a party to 16 this action and have appeared in this action on behalf of that party or are affiliated 17 with a law firm which has appeared on behalf of that party, including their support 18 staffs. 19 9. The term “party” will mean any party to this action, including all of its 20 officers, directors, employees, claim administrators, consultants, retained experts, 21 and outside counsel of record. 22 23 24 10. The term “producing party” will mean any party or non-party that produces material in this action. 11. The term “protected material” will mean any materials, answers to 25 interrogatories, responses to requests for admission, trial testimony, deposition 26 testimony, and transcripts of trial testimony and depositions, or information that the 27 producing party designates as "CONFIDENTIAL" or "CONFIDENTIAL - FOR 28 COUNSEL ONLY." _____________________________________________________________________ -321cv0578 1 2 12. The term “receiving party” will mean any party that receives protected material from a producing party. 3 GENERAL RULES 4 DURATION 5 13. Even after final disposition of this litigation, the confidentiality 6 obligations imposed by this Order shall remain in effect until a designating party 7 agrees otherwise in writing or a court order otherwise directs. Final disposition 8 shall be deemed to be the later of (1) dismissal of all claims and defenses in this 9 action, with or without prejudice; and (2) final judgment herein after the completion 10 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 11 including the time limits for filing any motions or applications for extension of time 12 pursuant to applicable law. DESIGNATING PROTECTED MATERIAL 13 14 14. Each party to this litigation that produces or discloses any materials, 15 answers to interrogatories, responses to requests for admission, trial testimony, 16 deposition testimony, and transcripts of trial testimony and depositions, or 17 information that the producing party believes should be subject to this Protective 18 Order may designate the same as "CONFIDENTIAL" or "CONFIDENTIAL - FOR 19 COUNSEL ONLY." 20 a. Designation as "CONFIDENTIAL": Any party may designate 21 information as "CONFIDENTIAL" only if, in the good faith 22 belief of such party and its counsel, the unrestricted disclosure 23 of such information could be potentially prejudicial to the 24 business or operations of such party. 25 b. Designation as "CONFIDENTIAL - FOR COUNSEL ONLY": 26 Any party may designate information as "CONFIDENTIAL - 27 FOR COUNSEL ONLY" only if, in the good faith belief of such 28 party and its counsel, the information is among that considered _____________________________________________________________________ -421cv0578 1 to be most sensitive by the party, including but not limited to 2 trade secret or other confidential research, development, 3 financial or other commercial information. 4 15. In the event the producing party elects to produce materials for 5 inspection, no marking need be made by the producing party in advance of the initial 6 inspection. For purposes of the initial inspection, all materials produced will be 7 considered as "CONFIDENTIAL - FOR COUNSEL ONLY," and must be treated 8 as such pursuant to the terms of this Order. Thereafter, upon selection of specified 9 materials for copying by the inspecting party, the producing party must, within a 10 reasonable time prior to producing those materials to the inspecting party, mark the 11 copies of those materials that contain confidential information with the appropriate 12 confidentiality marking. 13 14 15 16. Whenever a deposition taken on behalf of any party involves a disclosure of confidential information of any party: a. The deposition or portions of the deposition must be designated 16 as containing confidential information subject to the provisions 17 of this Order; such designation must be made on the record 18 whenever possible, but a party may designate portions of 19 depositions as containing confidential information after 20 transcription of the proceedings; [A] party will have until 21 fourteen (14) days after receipt of the deposition transcript to 22 inform the other party or parties to the action of the portions of 23 the transcript to be designated "CONFIDENTIAL" or 24 "CONFIDENTIAL - FOR COUNSEL ONLY.” 25 b. The disclosing party will have the right to exclude from 26 attendance at the deposition, during such time as the confidential 27 information is to be disclosed, any person other than the 28 deponent, counsel (including their staff and associates), the _____________________________________________________________________ -521cv0578 1 court reporter, and the person(s) agreed upon pursuant to 2 paragraph 8 below; and c. 3 The originals of the deposition transcripts and all copies of the 4 deposition must bear the legend "CONFIDENTIAL" or 5 "CONFIDENTIAL - FOR COUNSEL ONLY," as appropriate, 6 and the original or any copy ultimately presented to a court for 7 filing must not be filed unless it can be accomplished under seal, 8 identified as being subject to this Order, and protected from 9 being opened except by order of this Court. 17. 10 Each party or non-party that designates information or items for 11 protection under this Order must take care to limit any such designation to specific 12 material that qualifies under the appropriate standards. The designating party must 13 designate for protection only those parts of material, documents, items, or oral or 14 written communications that qualify – so that other portions of the material, 15 documents, items, or communications for which protection is not warranted are not 16 swept unjustifiably within the ambit of this Order. Mass, indiscriminate, routinized 17 designations, or designations that are shown to be clearly unjustified or that have 18 been made for an improper purpose (e.g., to unnecessarily encumber or delay the 19 case development process or to impose unnecessary expenses and burdens on other 20 parties) are prohibited. ACCESS TO AND USE OF PROTECTED MATERIAL 21 18. 22 All confidential information designated as "CONFIDENTIAL" or 23 "CONFIDENTIAL - FOR COUNSEL ONLY" must not be disclosed by the 24 receiving party to anyone other than those persons designated within this Order and 25 must be handled in the manner set forth below and, in any event, must not be used 26 for any purpose other than in connection with this litigation, unless and until such 27 designation is removed either by agreement of the parties, or by order of the Court. 28 /// _____________________________________________________________________ -621cv0578 1 19. Information designated "CONFIDENTIAL - FOR COUNSEL 2 ONLY" must be viewed only by the receiving party, counsel (as defined in 3 paragraph 2) of the receiving party, and by independent experts under the conditions 4 set forth in this Paragraph. The right of any independent expert to receive any 5 confidential information will be subject to the advance approval of such expert by 6 the producing party or by permission of the Court. The party seeking approval of 7 an independent expert must provide the producing party with the name and 8 curriculum vitae of the proposed independent expert in advance of providing any 9 confidential information of the producing party to the expert. Any objection by the 10 producing party to an independent expert receiving confidential information must 11 be made in writing within fourteen (14) days following receipt of the identification 12 of the proposed expert. 13 independent expert if the fourteen (14) day period has passed and no objection has 14 been made. 15 withheld. 16 20. Confidential information may be disclosed to an The approval of independent experts must not be unreasonably Information designated "CONFIDENTIAL" must be viewed only by 17 the receiving party, counsel (as defined in paragraph 2) of the receiving party, by 18 independent experts (pursuant to the terms of paragraph 19), by court personnel, 19 and by the additional individuals listed below, provided each such individual has 20 read this Order in advance of disclosure and has agreed in writing to be bound by 21 its terms: 22 a. with reference to this action; 23 24 Executives who are required to participate in policy decisions b. Technical personnel of the parties with whom Counsel for the 25 parties find it necessary to consult, in the discretion of such 26 counsel, in preparation for trial of this action; and 27 28 c. Stenographic and clerical employees associated with the individuals identified above. _____________________________________________________________________ -721cv0578 1 21. With respect to material designated "CONFIDENTIAL" or 2 "CONFIDENTIAL – FOR COUNSEL ONLY," any person indicated on the face of 3 the document to be its originator, author, or a recipient of a copy of the document, 4 may be shown the same. 5 22. All information which has been designated as "CONFIDENTIAL" or 6 "CONFIDENTIAL - FOR COUNSEL ONLY" by the producing or disclosing party, 7 and any and all reproductions of that information, must be retained in the custody 8 of the receiving party and/or counsel for the receiving party identified in paragraph 9 3, except that independent experts authorized to view such information under the 10 terms of this Order may retain custody of copies such as are necessary for their 11 participation in this litigation. 12 23. Before any materials produced in discovery, answers to interrogatories, 13 responses to requests for admissions, deposition transcripts, or other documents 14 which are designated as confidential information are filed with the Court for any 15 purpose, the party seeking to file such material must seek permission of the Court 16 to file the material under seal. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 18 24. At any stage of these proceedings, any party may object to a 19 designation of the materials as confidential information. The party objecting to 20 confidentiality must notify, in writing, counsel for the designating party of the 21 objected-to materials and the ground(s) for the objection. Thereafter, lead counsel 22 (or attorneys with full authority to make decisions and bind the client without later 23 seeking approval from a supervising attorney) must promptly meet and confer, 24 pursuant to Local Rule 26.1.a. If the dispute is not resolved within seven (7) days 25 of receipt of the objections, and after counsel have thoroughly and completely met 26 and conferred, the parties must place a joint call to the assigned magistrate judge’s 27 chambers to explain the dispute and the parties’ respective positions. The materials 28 _____________________________________________________________________ -821cv0578 1 at issue must be treated as confidential until the Court has ruled on the objection, or 2 the matter has been otherwise resolved. 3 FILING PROTECTED MATERIAL PURSUANT TO JUDGE BUTCHER’S 4 CHAMBERS RULES 25. 5 No party may file any document under seal, except pursuant to a court 6 order that authorizes the filing of the document, or portion of the document, under 7 seal. A sealing order will issue only upon a showing that the information is 8 privileged or protectable under the law. The party seeking to file under seal must 9 limit its sealing request to the specific portion of the document that contains the 10 confidential or privileged material. 26. 11 To file a document under seal, the parties must comply with the 12 procedures explained in Section 2.j of the Electronic Case Filing Administrative 13 Policies and Procedures Manual for the United States District Court for the 14 Southern District of California and Civil Local Rule 79.2. In addition, a party must 15 file a redacted version of any document that it seeks to file under seal. The 16 document must be titled to show that it corresponds to an item filed under seal, e.g., 17 ‘Redacted Copy of Sealed Declaration of John Smith in Support of Motion for 18 Summary Judgment.’ 19 simultaneously with a joint motion or ex parte application requesting that the 20 confidential portions of the document(s) be filed under seal and setting forth good 21 cause for the request.” The party should file the redacted document(s) DISCLOSURE OF “CONFIDENTIAL” INFORMATION OR ITEMS 22 27. 23 Unless otherwise ordered by the court or permitted in writing by the 24 designating party, a receiving party may disclose any information or item 25 designated “CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL ONLY” 26 only to: 27 /// 28 /// _____________________________________________________________________ -921cv0578 a. 1 the receiving party’s counsel in this Action, as well as 2 employees of said counsel to whom it is reasonably necessary to 3 disclose the information for this action; b. 4 the officers, directors, claim administrators, and employees 5 (including house counsel) of the receiving party to whom 6 disclosure is reasonably necessary for this action; c. 7 experts (as defined in this Order) of the receiving party to whom disclosure is reasonably necessary for this action; 8 9 d. the court and its personnel; 10 e. court reporters and their staff; 11 f. professional jury or trial consultants, mock jurors, and 12 professional vendors to whom disclosure is reasonably 13 necessary for this action; g. 14 the author or recipient of a document containing the information 15 or a custodian or other person who otherwise possessed or knew 16 the information; h. 17 any mediator or settlement officer, and their supporting 18 personnel, mutually agreed upon by any of the parties engaged 19 in settlement discussions; and i. 20 auditors, accountants, regulators, reinsurers, reinsurance 21 intermediaries or retrocessionaires of a party to whom 22 disclosure is reasonably necessary for this action and/or who 23 demand access and have a contractual, business, legal or other 24 regulatory right to review such protected material; and j. 25 any other person or entity that the designating party agrees to in writing. 26 27 /// 28 /// _____________________________________________________________________ - 10 21cv0578 1 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 2 IN OTHER LITIGATION 3 28. If a party is served with a subpoena or a court order issued in other 4 litigation that compels disclosure of any information or items designated in this 5 action as “CONFIDENTIAL,” that party must: a. 6 promptly notify in writing the designating party. Such notification shall include a copy of the subpoena or court order; 7 b. 8 promptly notify in writing the party who caused the subpoena or 9 order to issue in the other litigation that some or all of the 10 material covered by the subpoena or order is subject to this 11 Protective Order. Such notification shall include a copy of this 12 Protective Order; and c. 13 cooperate with respect to all reasonable procedures sought to be 14 pursued by the designating party whose protected material may 15 be affected. 16 29. If the designating party timely seeks a protective order, the party 17 served with the subpoena or court order shall not produce any information 18 designated in this action as “CONFIDENTIAL” before a determination by the court 19 from which the subpoena or order issued, unless the party has obtained the 20 designating party’s permission. The designating party shall bear the burden and 21 expense of seeking protection in that court of its confidential material. Nothing in 22 these provisions should be construed as authorizing or encouraging a receiving 23 party in this action to disobey a lawful directive from another court. 24 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 25 PRODUCED IN THIS LITIGATION 26 30. The terms of this Protective Order are applicable to information 27 produced by a non-party to this action and designated as “CONFIDENTIAL.” Such 28 information produced by non-parties in connection with this litigation is protected _____________________________________________________________________ - 11 21cv0578 1 by the remedies and relief provided by this Protective Order. Nothing in these 2 provisions should be construed as prohibiting a non-party from seeking additional 3 protections. 4 31. In the event that a party is required, by a valid discovery request, to 5 produce a non-party’s confidential information in its possession, and the party is 6 subject to an agreement with the non-party not to produce the non-party’s 7 confidential information, then the party shall: a. 8 promptly notify in writing the requesting party and the non-party that some or all of the information requested is subject to a 9 confidentiality agreement with a non-party; 10 b. 11 promptly provide the non-party with a copy of this Protective 12 Order, the relevant discovery request(s), and a reasonably 13 specific description of the information requested; and c. 14 non-party. 15 16 make the information requested available for inspection by the 32. If the non-party fails to object or seek a protective order from this 17 Court within 14 days of receiving the notice and accompanying information, the 18 receiving party may produce the non-party’s confidential information responsive to 19 the discovery request. If the non-party timely seeks a protective order, the receiving 20 party shall not produce any information in its possession or control that is subject 21 to the confidentiality agreement with the non-party before a determination by the 22 Court. Absent an order to the contrary, the non-party shall bear the burden and 23 expense of seeking protection in this Court of its protected material. 24 25 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 33. All confidential information must be held in confidence by those 26 inspecting or receiving it, and must be used only for purposes of this action. 27 Counsel for each party, and each person receiving confidential information must 28 take reasonable precautions to prevent the unauthorized or inadvertent disclosure of _____________________________________________________________________ - 12 21cv0578 1 such information. If confidential information is disclosed to any person other than 2 a person authorized by this Order, the party responsible for the unauthorized 3 disclosure must immediately: (a) notify in writing the designating party of the 4 unauthorized disclosures; (b) use its best efforts to retrieve all unauthorized copies 5 of the protected material; and (c) inform the person or persons to whom 6 unauthorized disclosures were made of all the terms of this Order. 7 34. No party will be responsible to another party for disclosure of 8 confidential information under this Order if the information in question is not 9 labeled or otherwise identified as such in accordance with this Order. 10 INADVERTENT DISCLOSURE OF PROTECTED MATERIAL 11 35. If a party, through inadvertence, produces any confidential information 12 without labeling or marking or otherwise designating it as such in accordance with 13 this Order, the designating party may give written notice to the receiving party that 14 the document or thing produced is deemed confidential information, and that the 15 document or thing produced should be treated as such in accordance with that 16 designation under this Order. The receiving party must treat the materials as 17 confidential once the designating party so notifies the receiving party. If the 18 receiving party has disclosed the materials before receiving the designation, the 19 receiving party must notify the designating party in writing of each such disclosure. 20 Counsel for the parties will agree on a mutually acceptable manner of labeling or 21 marking the inadvertently produced materials as "CONFIDENTIAL" or 22 "CONFIDENTIAL - FOR COUNSEL ONLY" - SUBJECT TO PROTECTIVE 23 ORDER. FINAL DISPOSITION 24 25 36. Upon the final disposition of this action, including all appeals, the 26 receiving party and/or counsel (as defined in paragraph 2) of the receiving party 27 may maintain copies of any confidential information, however, all retained 28 confidential information shall continue to be treated as confidential in accordance _____________________________________________________________________ - 13 21cv0578 1 with the terms of this Agreement. The parties, on their own or by and through their 2 counsel, may also return the confidential information or certify by affidavit or 3 attestation that the confidential information has been destroyed within sixty (60) 4 days of the final disposition of this matter. 5 maintained will remain subject to this Protective Order as set forth in Section 2 6 (DURATION). MISCELLANEOUS 7 37. 8 9 10 Any Protected Material that is Nothing within this Order will prejudice the right of any party to object to the production of any discovery material on the grounds that the material is protected as privileged or as attorney work product. 38. 11 Nothing in this Order will bar counsel from rendering advice to their 12 clients with respect to this litigation and, in the course thereof, relying upon any 13 information designated as confidential information, provided that the contents of 14 the information must not be disclosed. 39. 15 This Order will be without prejudice to the right of any party to oppose 16 production of any information for lack of relevance or any other ground other than 17 the mere presence of confidential information. The existence of this Order must not 18 be used by either party as a basis for discovery that is otherwise improper under the 19 Federal Rules of Civil Procedure. 40. 20 Nothing within this Order will be construed to prevent disclosure of 21 confidential information if such disclosure is required by law or by order of the 22 Court. 23 41. The restrictions and obligations set forth within this Order will not 24 apply to any information that: (a) the parties agree should not be designated 25 confidential information; (b) the parties agree, or the Court rules, is already public 26 knowledge; (c) the parties agree, or the Court rules, has become public knowledge 27 other than as a result of disclosure by the receiving party, its employees, or its agents 28 in violation of this Order; or (d) has come or will come into the receiving party's _____________________________________________________________________ - 14 21cv0578 1 legitimate knowledge independently of the production by the designating party. 2 Prior knowledge must be established by pre-production documentation. 42. 3 The restrictions and obligations within this Order will not be deemed 4 to prohibit discussions of any confidential information with anyone if that person 5 already has or obtains legitimate possession of that information. 43. 6 7 transmission is acceptable for all notification purposes within this Order. 44. 8 9 Transmission by email or some other currently utilized method of This Order may be modified by agreement of the parties, subject to approval by the Court. 45. 10 The Court may modify the Order in the interest of justice or for public 11 policy reasons, for good cause, or on its own order at any time in these proceedings. 12 The parties prefer that the Court provide them with notice of the Court's intent to 13 modify the Order and the content of those modifications, prior to entry of such an 14 order. 15 16 IT IS SO ORDERED. Dated: October 1, 2021 17 18 19 20 21 22 23 24 25 26 27 28 _____________________________________________________________________ - 15 21cv0578
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