UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
March 18, 2011
COBLENTZ, PATCH, DUFFY & BASS, LLP LONG TERM DISABILITY INSURANCE
DEFENDANT. THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, REAL PARTY IN INTEREST.
The opinion of the court was delivered by: Judge: Hon. Bernard Zimmerman
TAD A. DEVLIN (SBN: 190355) JOEL A. MORGAN (SBN: 262937) 2 GORDON & REES LLP 275 Battery Street, Suite 2000 3 San Francisco, CA 94111 Telephone: (415) 986-5900 4 Facsimile: (415) 986-8054 5 Attorneys for Defendants COBLENTZ, PATCH, DUFFY & BASS, LLP LONG TERM DISABILITY INSURANCE PLAN, And THE PRUDENTIAL INSURANCE CO. OF AMERICA, 7 Real Party in Interest 8 LAURENCE F. PADWAY (SBN: 089314) LAW OFFICES OF LAURENCE F. PADWAY 1516 Oak Street, Suite 109 10 Alameda, CA 94501 Telephone: (510) 814-0680 11 Facsimile: (510) 814-0650 12 Attorneys for Plaintiff, PATRICIA WHITE
Courtroom: G PLAN,
STIPULATED PROTECTIVE ORDER
1. PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of 28 confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 2
Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 4 protections on all disclosures or responses to discovery and that the protection it affords from 5 public disclosure and use extends only to the limited information or items that are entitled to 6 confidential treatment tinder the applicable legal principles. The parties further acknowledge, as 7 set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file 8 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 9 followed and the standards that will be applied when a party seeks permission from the court to 10 file material under seal.
2.1Challenging, Party: a Party or Non-Party that challenges the designation of information or items under this Order.
2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(e).
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2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).
2.4 Designating, Party: a Party or Non-Party that designates
items that it produces in disclosures or in responses to discovery
2.5 Disclosure or Discovery Material: all items or information,
the medium or manner in which it is generated, stored, or
maintained (including, among other 23 things, testimony, transcripts,
and tangible things), that are produced or generated in disclosures 24
or responses to discovery in this matter.
2.6 Expert: a person with specialized knowledge or experience in a
pertinent to the litigation who has been retained by a Party or its
counsel to serve as an expert 27 witness or as a consultant in this
2.7 House Counsel: attorneys who are employees of a party to this action.
House Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 4
2.9 Outside Counsel of Record: attorneys who are not employees of a
this action but are retained to represent or advise a party to this
action and have appeared in this 6 action on behalf of that party or
are affiliated with a law firm which has appeared on behalf of 7 that
2.10 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support 10 staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.
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2.13 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL."
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.
The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected 24 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 25 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Stipulation and Order do not cover the 27 following information: (a) any information that is in the public domain at the time of disclosure 28 to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including becoming part 2 of the public record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source 4 who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate 6 agreement or order.
Even after final disposition of this litigation, the confidentiality
imposed by this Order shall remain in effect until a Designating
Party agrees otherwise in writing 10 or a court order otherwise
directs. Final disposition shall be deemed to be the later of (1) 11
dismissal of all claims and defenses in this action, with or without
prejudice; and (2) final 12 judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials,
or reviews of this action, including the time limits for filing any
motions or applications for
extension of time pursuant to applicable law.
5. DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under this Order 18 must take care to limit any such designation to specific material that qualifies under the 19 appropriate standards. The Designating Party must designate for protection only those parts of 20 material, documents, items, or oral or written communications that qualify so that other portions 21 of the material, documents, items, or communications for which protection is not warranted are 22 not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited.
are shown to be clearly unjustified or that have been made for an
improper purpose (e.g., to 25 unnecessarily encumber or retard the
case development process or to impose unnecessary 26 expenses and
burdens on other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party's attention that information or
items that it
designated for protection do not qualify for protection, that
Designating Party must promptly
notify all other Parties that it is withdrawing the mistaken
5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 5 designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing
Party affix the legend "CONFIDENTIAL" to each page that contains protected material. If only 10 a portion or portions of the material on a page qualifies for protection, the Producing Party also 11 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 12 margins).
A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed "CONFIDENTIAL." After the inspecting Party has identified the documents it wants copied and 18 produced, the Producing Party must determine which documents, or portions thereof, qualify for 19 protection under this Order. Then, before producing the specified documents, the Producing Party must affix the "CONFIDENTIAL" legend to each page that contains Protected Material. If 21 only a portion or portions of the material on a page qualifies for protection, the Producing Party 22 also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 23 margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings, 25 that the Designating Party identify on the record, before the close of the deposition, hearing, or 26 other proceeding, all protected testimony.
(c) for information produced in some form other than documentary and
any other tangible items, that the Producing Party affix in a
prominent place on the exterior of
the container or containers in which the information or item is stored
CONFIDENTIAL." If only a portion or portions of the information or
item warrant protection, 3 the Producing Party, to the extent
practicable, shall identify the protected portion(s).
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. Upon timely 7 correction of a designation, the Receiving Party must make reasonable efforts to assure that the 8 material is treated in accordance with the provisions of this Order.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge
designation of confidentiality at any time. Unless a prompt
challenge to a Designating Party's 12 confidentiality designation is
necessary to avoid foreseeable, substantial unfairness,
economic burdens, or a significant disruption or delay of the
litigation, a Party does not waive its
right to challenge a confidentiality designation by electing not to
mount a challenge promptly
after the original designation is disclosed.
6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and 18 describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been 19 made, the written notice must recite that the challenge to confidentiality is being made in 20 accordance with this specific paragraph of the Protective Order. The parties shall attempt to 21 resolve each challenge in good faith and must begin the process by conferring directly (in voice 22 to voice dialogue; other forms of communication are not sufficient) within 14 days of the date of 23 service of notice. In conferring, the Challenging Party must explain the basis for its belief that 24 the confidentiality designation was not proper and must give the Designating Party an 25 opportunity to review the designated material, to reconsider the circumstances, and, if no change 26 in designation is offered, to explain the basis for the chosen designation. A Challenging Party 27 may proceed to the next stage of the challenge process only if it has engaged in this meet and 28 confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner.
6.3 Judicial Intervention. If the Parties cannot resolve a challenge
court intervention, the Designating Party shall file and serve a
motion to retain confidentiality 4 under Civil Local Rule 7 (and in
compliance with Civil Local Rule 79-5, if applicable) within 21 5 days
of the initial notice of challenge or within 14 days of the parties
agreeing that the meet and 6 confer process will not resolve their
dispute, whichever is earlier. Each such motion must be 7 accompanied
by a competent declaration affirming that the movant has complied with
the meet 8 and confer requirements imposed in the preceding paragraph.
Failure by the Designating Party 9 to make such a motion including the
required declaration within 21 days (or 14 days, if 10 applicable)
shall automatically waive the confidentiality designation for each
challenged 11 designation. In addition, the Challenging Party may file
a motion challenging a confidentiality 12 designation at ally time if
there is good cause for doing so, including a challenge to
designation of a deposition transcript or any portions thereof. Any
motion brought pursuant to
this provision must be accompanied by a competent declaration
affirming that the movant has
complied with the meet and confer requirements imposed by the
The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 18 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 19 to sanctions. Unless the Designating Party has waived the confidentiality designation by failing 20 to file a motion to retain confidentiality as described above, all parties shall continue to afford 21 the material in question the level of protection to which it is entitled under the Producing Party's 22 designation until the court rules on the challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material
disclosed or produced by another Party or by a Non-Party in
connection with this case only for 26 prosecuting, defending, or
attempting to settle this litigation. Such Protected Material may be
27 disclosed only to the categories of persons and under the
conditions described in this Order.
When the litigation has been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized 4 under this Order.
7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "CONFIDENTIAL" only to:
(a) the Receiving Party's Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 10 information for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock 20 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation 21 and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 25 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 26 separately bound by the court reporter and may not be disclosed to anyone except as permitted 27 under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as "CONFIDENTIAL," 6 that Party must:
(a) promptly notify in writing the Designating Party. Such
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or
issue in the other litigation that some or all of the material
covered by the subpoena or order is 11 subject to this Protective
Order. Such notification shall include a copy of this Stipulated
Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as "CONFIDENTIAL" before a determination by the court from which the subpoena or order 18 issued, unless the Party has obtained the Designating Party's permission. The Designating Party 19 shall bear the burden and expense of seeking protection in that court of its confidential material 20 and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court.
9. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non- Party in this action and designated as "CONFIDENTIAL." Such information produced by Non-26 Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 28 additional protections.
(b) In the event that a Party is required, by a valid discovery
produce a Non-Party's confidential information in its possession,
and the Party is subject to an 3 agreement with the Non-Party not to
produce the Non-Party's confidential information, then the
1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party;
2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 10 description of the information requested; and
3. make the information requested available for inspection by the
(c) If the Non-Party fails to object or seek a protective order from this court within 14 days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party's confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party 18 before a determination by the court.*fn1 Absent a court order to the contrary, the Non-Party shall 19 bear the burden and expense of seeking protection in this court of its Protected Material.
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated
Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of 25 the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 26 made of all the terms of this Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.
11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
When a Producing Party gives notice to Receiving Parties that
inadvertently produced material is subject to a claim of privilege
or other protection, the 6 obligations of the Receiving Parties are
those set forth in Federal Rule of Civil Procedure
26(b)(5)(B). This provision is not intended to modify whatever
procedure may be established in 8 an e-discovery order that provides
for production without prior privilege review. Pursuant to
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach
an agreement on the effect 10 of disclosure of a communication or
information covered by the attorney-client privilege or work 11
product protection, the parties may incorporate their agreement in the
stipulated protective order 12 submitted to the court.
12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or 18 producing any information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of 20 the material covered by this Protective Order.
12.3 Filing Protected Material. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks 24 to file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of the 26 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue 27 only upon a request establishing that the Protected Material at issue is privileged, protectable as a 28 trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file Protected Material tinder seal pursuant to Civil Local Rule 79-5(d) is denied by the court, 2 then the Receiving Party may file the information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.
13. FINAL DISPOSITION. Within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, all Protected Material" 7 includes all copies, abstracts, compilations, summaries, and any other format reproducing or 8 capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, 9 the Receiving Party must submit a written certification to the Producing Party (and, if not the 10 same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 11 category, where appropriate) all the Protected Material that was returned or destroyed and (2) 12 affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute
Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION).
IT IS SO AGREED AND STIPULATED.
PURSUANT TO STIPULATION, IT IS SO ORDERED.
The Honorable Bernard Zimmerman United States Magistrate Judge
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, ____________________________ [print or type full name], of [print or type full address], declare under 5 penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order 6 that was issued by the United States District Court for the Northern District of California on 7 ______________ in the case of Patricia White v. Coblentz, Patch, Duffy & Bass, LLP Long 8 Term Disability Insurance Plan, CV10-1855 (BZ). I agree to comply with and to be bound by 9 all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to 10 so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 11 promise that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States
District Court for the
Northern District of California for the purpose of enforcing the
terms of this Stipulated
Protective Order, even if such enforcement proceedings occur
after termination of this action.
I hereby appoint ____________________ [print or type full name]
__________________ [print or type full address and telephone
number] as my California agent 19 for service of process in connection
with this action or any proceedings related to enforcement of 20 this
Stipulated Protective Order. 21
City and State where sworn and signed: _____________________________
Printed name: __________________________________