Great American Alliance Insurance Company v. Continental Casualty Company, No. 3:2023cv01796 - Document 14 (S.D. Cal. 2024)
Court Description: ORDER Granting Joint Motion for Entry of Protective Order [ECF No. 13 ]. Signed by Magistrate Judge Jill L. Burkhardt on 01/02/2024. (mjw)
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Great American Alliance Insurance Company v. Continental Casualty Company Doc. 14 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 GREAT AMERICAN ALLIANCE INSURANCE COMPANY, 17 18 ORDER GRANTING JOINT MOTION FOR ENTRY OF PROTECTIVE ORDER Plaintiff, 15 16 Case No.: 23-cv-01796-BAS-JLB v. CONTINENTAL CASUALTY COMPANY, [ECF No. 13] Defendant. 19 20 21 Before the Court is the parties’ Joint Motion for Entry of Protective Order. (ECF 22 No. 13.) Good cause appearing, the parties Joint Motion is GRANTED, and the following 23 stipulated Protective Order is entered: 24 PROTECTIVE ORDER 25 The Court recognizes that at least some of the documents and information 26 (“materials”) being sought through discovery in the above-captioned action are, for 27 competitive reasons, normally kept confidential by the parties. The parties have agreed to 28 be bound by the terms of this Protective Order (“Order”) in this action. 1 23-cv-01796-BAS-JLB Dockets.Justia.com 1 The materials to be exchanged throughout the course of the litigation between the 2 parties may contain trade secret or other confidential research, technical, cost, price, 3 marketing or other commercial information, as is contemplated by Federal Rule of Civil 4 Procedure 26(c)(1)(G). The parties also agree that any information that may be subject to 5 attorney-client privilege, attorney work product, or any other basis for privilege in the 6 lawsuit entitled Eric Lovato, an individual v. Windward Community Association, a 7 corporation, Curtis Management Company, a corporation, and Does 1 to 10 in the 8 Superior Court of California, County of San Diego, under Case No. 37-2020-00024751- 9 CU-PO-NC (the “Underlying Litigation”), shall be subject this Order. The purpose of this 10 Order is to protect the confidentiality of such materials as much as practical during the 11 litigation. THEREFORE: 12 13 DEFINITIONS 1. The term “confidential information” will mean and include information 14 contained or disclosed in any materials, including documents, portions of documents, 15 answers to interrogatories and requests for admissions, trial testimony, deposition 16 testimony, and transcripts of trial testimony and depositions, including data, summaries, 17 and compilations derived therefrom that is deemed to be confidential information by any 18 party to which it belongs. 19 2. The term “materials” will include, but will not be limited to: documents; 20 correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other 21 material that identify customers or potential customers; price lists or schedules or other 22 matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks; 23 contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk 24 diaries; appointment books; expense accounts; recordings; photographs; motion pictures; 25 compilations from which information can be obtained and translated into reasonably usable 26 form through detection devices; sketches; drawings; notes (including laboratory notebooks 27 and records); reports; instructions; disclosures; other writings; models, prototypes, and 28 other physical objects. 2 23-cv-01796-BAS-JLB 1 3. The term “counsel” will mean outside counsel of record, and other attorneys, 2 paralegals, secretaries, and other support staff employed in the law firms identified below: 3 Vogrin & Frimet, LLP. “Counsel” also includes in-house attorneys for Plaintiff, as well as 4 Edward Tafe, counsel of record for Defendant, and other attorneys representing Defendant 5 and other CNA-affiliated insurers. 6 10 EDWARD J. TAFE (Cal. SBN 175888) Corporate Litigation CNA 555 Mission Street, Suite 200 San Francisco, CA 94105 Direct Phone: (415) 932-7408 E-mail: edward.tafe@cna.com 11 and other attorneys representing Defendant and other CNA-affiliated insurers. 12 GENERAL RULES 7 8 9 13 4. Each party to this litigation that produces or discloses any materials, answers 14 to interrogatories and requests for admission, trial testimony, deposition testimony, and 15 transcripts of trial testimony and depositions, or information that the producing party 16 believes should be subject to this Order may designate the same as “CONFIDENTIAL” or 17 “CONFIDENTIAL – FOR COUNSEL ONLY.” 18 a. Designation as “CONFIDENTIAL”: A party or non-party subject to 19 this Order may only designate documents or other information in this action as 20 “CONFIDENTIAL” if the designating party or non-party has an articulable, good 21 faith basis to believe that each document or other information designated as 22 confidential qualifies for protection under Federal Rule of Civil Procedure 26(c) or 23 if it is subject to attorney-client privilege, attorney work product, or any other basis 24 for privilege in the Underlying Litigation. 25 b. Designation as “CONFIDENTIAL – FOR COUNSEL ONLY”: Any 26 party may designate information as “CONFIDENTIAL – FOR COUNSEL ONLY” 27 only if, in the good faith belief of such party and its counsel, the information is 28 among that considered to be most sensitive by the party, including but not limited to 3 23-cv-01796-BAS-JLB 1 trade secret or other confidential research, development, financial or other 2 commercial information. 3 5. In the event the producing party elects to produce materials for inspection, no 4 marking need be made by the producing party in advance of the initial inspection. For 5 purposes of the initial inspection, all materials produced will be considered as 6 “CONFIDENTIAL – FOR COUNSEL ONLY,” and must be treated as such pursuant to 7 the terms of this Order. Thereafter, upon selection of specified materials for copying by 8 the inspecting party, the producing party must, within a reasonable time prior to producing 9 those materials to the inspecting party, mark the copies of those materials that contain 10 11 12 13 confidential information with the appropriate confidentiality marking. 6. 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 as 14 containing confidential information subject to the provisions of this Order; such 15 designation must be made on the record whenever possible, but a party may 16 designate portions of depositions as containing confidential information after 17 transcription of the proceedings; a party will have until 14 calendar days after receipt 18 of the deposition transcript to inform the other party or parties to the action of the 19 portions 20 “CONFIDENTIAL – FOR COUNSEL ONLY.” 21 b. of the transcript to be designated “CONFIDENTIAL” or the disclosing party will have the right to exclude from attendance at 22 the deposition, during such time as the confidential information is to be disclosed, 23 any person other than the deponent, counsel (including their staff and associates), 24 the court reporter, and the person(s) agreed upon pursuant to Paragraph 9 below; and 25 c. the originals of the deposition transcripts and all copies of the 26 deposition must bear the legend “CONFIDENTIAL” or “CONFIDENTIAL – FOR 27 COUNSEL ONLY,” as appropriate, and the original or any copy ultimately 28 presented to a court for filing must not be filed unless it can be accomplished under 4 23-cv-01796-BAS-JLB 1 seal, identified as being subject to this Order, and protected from being opened 2 except by order of the Court. 3 7. All confidential information designated as “CONFIDENTIAL” or 4 “CONFIDENTIAL – FOR COUNSEL ONLY” must not be disclosed by the receiving 5 party to anyone other than those persons designated within this Order (including in-house 6 counsel as designated by the Parties in Paragraph 3) and must be handled in the manner set 7 forth below and, in any event, must not be used for any purpose other than in connection 8 with this litigation, unless and until such designation is removed either by agreement of the 9 parties or by order of the Court. 10 8. Information designated “CONFIDENTIAL – FOR COUNSEL ONLY” must 11 be viewed only by counsel (as defined in Paragraph 3) of the receiving party, and by 12 independent experts under the conditions set forth in this Paragraph. The right of any 13 independent expert to receive any confidential information will be subject to the advance 14 approval of such expert by the producing party or by permission of the Court. The party 15 seeking approval of an independent expert must provide the producing party with the name 16 and curriculum vitae of the proposed independent expert, and an executed copy of the form 17 attached hereto as Exhibit A, in advance of providing any confidential information of the 18 producing party to the expert. Any objection by the producing party to an independent 19 expert receiving confidential information must be made in writing within 14 calendar days 20 following receipt of the identification of the proposed expert. Confidential information 21 may be disclosed to an independent expert if the fourteen-day period has passed and no 22 objection has been made. The approval of independent experts must not be unreasonably 23 withheld. 24 9. Information designated “confidential” must be viewed only by counsel (as 25 defined in Paragraph 3) of the receiving party, by independent experts (pursuant to the 26 terms of Paragraph 8), by court personnel, and by the additional individuals listed below, 27 provided each such individual has read this Order in advance of disclosure and has 28 executed a copy of the form attached hereto as Exhibit A: 5 23-cv-01796-BAS-JLB 1 2 a. Executives who are required to participate in policy decisions with reference to this action; 3 b. Technical personnel of the parties with whom counsel for the parties 4 find it necessary to consult, in the discretion of such counsel, in preparation for trial 5 of this action; and 6 c. Stenographic and clerical employees associated with the individuals 7 identified above. 8 10. With respect to material designated “CONFIDENTIAL” or 9 “CONFIDENTIAL – FOR COUNSEL ONLY,” any person indicated on the face of the 10 document to be its originator, author, or a recipient of a copy of the document, may be 11 shown the same. 12 11. All information which has been designated as “CONFIDENTIAL” or 13 “CONFIDENTIAL – FOR COUNSEL ONLY” by the producing or disclosing party, and 14 any and all reproductions of that information, must be retained in the custody of the counsel 15 for the receiving party identified in Paragraph 3, except that independent experts authorized 16 to view such information under the terms of this Order may retain custody of copies such 17 as are necessary for their participation in this litigation. 18 12. Before any materials produced in discovery, answers to interrogatories or 19 requests for admissions, deposition transcripts, or other documents which are designated 20 as confidential information are filed with the Court for any purpose, the party seeking to 21 file such material must seek permission of the Court to file the material under seal. An 22 application to file a document under seal shall be served on opposing counsel, and on the 23 person or entity that has custody and control of the document, if different from opposing 24 counsel. If the application to file a document designated as confidential under seal is being 25 made by the non-designating party, then, upon request, the designating party must promptly 26 provide the applicant with a legal basis for the confidential designation to include in the 27 application. If opposing counsel, or the person or entity that has custody and control of the 28 document, wishes to oppose the application, he/she must contact the chambers of the judge 6 23-cv-01796-BAS-JLB 1 who will rule on the application, to notify the judge’s staff that an opposition to the 2 application will be filed. 3 13. At any stage of these proceedings, any party may object to a designation of 4 materials as confidential information. The party objecting to confidentiality must notify, 5 in writing, counsel for the designating party of the objected-to materials and the grounds 6 for the objection. If the dispute is not resolved consensually between the parties after 7 meeting and conferring within 14 calendar days of receipt of such a notice of objections, 8 the parties may jointly request the Court’s assistance with the dispute, in accordance with 9 Judge Burkhardt’s Civil Chambers Rules. The materials at issue must be treated as 10 confidential information, as designated by the designating party, until the Court has ruled 11 on the objection or the matter has been otherwise resolved. 12 14. All confidential information must be held in confidence by those inspecting 13 or receiving it and must be used only for purposes of this action. Counsel for each party, 14 and each person receiving confidential information, must take reasonable precautions to 15 prevent the unauthorized or inadvertent disclosure of such information. If confidential 16 information is disclosed to any person other than a person authorized by this Order, the 17 party responsible for the unauthorized disclosure must immediately bring all pertinent facts 18 relating to the unauthorized disclosure to the attention of the other parties and, without 19 prejudice to any rights and remedies of the other parties, make every effort to prevent 20 further disclosure by the party and by the person(s) receiving the unauthorized disclosure. 21 15. No party will be responsible to another party for disclosure of confidential 22 information under this Order if the information in question is not labeled or otherwise 23 identified as such in accordance with this Order. 24 16. If a party, through inadvertence, produces any confidential information 25 without labeling or marking or otherwise designating it as such in accordance with this 26 Order, the designating party may give written notice to the receiving party that the 27 document or thing produced is deemed confidential information, and that the document or 28 thing produced should be treated as such in accordance with that designation under this 7 23-cv-01796-BAS-JLB 1 Order. The receiving party must treat the materials as confidential, once the designating 2 party so notifies the receiving party. If the receiving party has disclosed the materials 3 before receiving the designation, the receiving party must notify the designating party in 4 writing of each such disclosure. 5 17. Nothing within this Order will prejudice the right of any party to object to the 6 production of any discovery material on the grounds that the material is protected as 7 privileged or as attorney work product. 8 18. Nothing in this Order will bar counsel from rendering advice to their clients 9 with respect to this litigation and, in the course thereof, relying upon any information 10 designated as confidential information, provided that the contents of the information must 11 not be disclosed. 12 19. This Order will be without prejudice to the right of any party to oppose 13 production of any information for lack of relevance or any other ground other than the mere 14 presence of confidential information. The existence of this Order must not be used by 15 either party as a basis for discovery that is otherwise improper under the Federal Rules of 16 Civil Procedure. 17 20. 18 19 Nothing within this Order will be construed to prevent disclosure of confidential information if such disclosure is required by law or by order of the Court. 21. Upon final termination of this action, including any and all appeals, counsel 20 for each party must, upon request of the producing party, return all confidential information 21 to the party that produced the information, including any copies, excerpts, and summaries 22 of that information, or must destroy same at the option of the receiving party, and must 23 purge all such information from all machine-readable media on which it resides. 24 Notwithstanding the foregoing, counsel for each party may retain all pleadings, briefs, 25 memoranda, motions, and other documents filed with the Court that refer to or incorporate 26 confidential information, and will continue to be bound by this Order with respect to all 27 such retained information. 28 confidential information need not be destroyed, but, if they are not destroyed, the person Further, attorney work product materials that contain 8 23-cv-01796-BAS-JLB 1 in possession of the attorney work product will continue to be bound by this Order with 2 respect to all such retained information. 3 22. Absent an ex parte motion made within 10 calendar days of the termination 4 of the case, the parties understand that the Court will destroy any confidential documents 5 in its possession. 6 23. 7 The restrictions and obligations set forth within this Order will not apply to any information that: 8 a. the parties agree should not be designated confidential information; 9 b. the parties agree, or the Court rules, is already public knowledge; 10 c. the parties agree, or the Court rules, has become public knowledge other 11 than as a result of disclosure by the receiving party, its employees, or its agents in 12 violation of this Order; or 13 d. has come or will come into the receiving party’s legitimate knowledge 14 independently of the production by the designating party. Prior knowledge must be 15 established by pre-production documentation. 16 24. The restrictions and obligations within this Order will not be deemed to 17 prohibit discussions of any confidential information with anyone if that person already has 18 or obtains legitimate possession of that information. 19 20 25. transmission is acceptable for all notification purposes within this Order. 21 22 Transmission by e-mail or some other currently utilized method of 26. This Order may be modified by agreement of the parties, subject to approval by the Court. 23 27. The Court may modify the terms and conditions of this Order for good cause, 24 or in the interest of justice, or on its own order at any time in these proceedings. 25 /// 26 /// 27 /// 28 /// 9 23-cv-01796-BAS-JLB 1 2 3 4 28. Without separate court order, this Order and the parties’ stipulation do not change, amend, or circumvent any court rule or local rule. IT IS SO ORDERED. Dated: January 2, 2024 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 23-cv-01796-BAS-JLB
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