STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER; [PROPOSED] ORDER
Plaintiff Holly Kivlin ("Plaintiff") and Defendant Sun Life Assurance Company of Canada ("Defendant"), by and through their respective counsel of record, hereby agree and stipulate to the following protective order in the above-captioned case:
The purpose of this Stipulated Protective Order is to protect against the unnecessary disclosure of confidential, trade secret and/or proprietary information by parties and non-parties. All such documents and information protected by this Stipulated Protective Order will hereafter be referred to as "Protected Information." The Protected Information shall be used solely in connection with the litigation and trial of this case, and for no other purpose or in any other case.
Materials and information protected by this Stipulated Protective Order shall mean any documents, materials, items, or information designated by Plaintiff, Defendant or any third party as "Confidential," including information derived therefrom, and produced in response to a party's requests for production of documents, interrogatories, stipulation, subpoena, motion or deposition. "Protected Information" is confidential, trade secret and/or proprietary information (A) contained in or derived from Defendant's manuals, guidelines, instructions, policies and procedures or training materials used in connection with handling, processing or adjusting long term disability claims; (B) relating to Defendant's finances or business operations; (C) that Defendant is required to keep confidential by statute, regulation or other law; or (D) relating to Plaintiff's financial accounts or that may allow for the identification or misuse by third parties of Plaintiff's personal financial information. However, to the extent that redaction of Plaintiff's personal information pursuant to Fed.R.Civ.Proc. 5.2 and Eastern District L.R. 140 prevents identification of Plaintiff's private financial information, the entire document containing such redaction does not need to be marked "Confidential," does not need to be filed under seal and is not subject to the terms of this Stipulated Protective Order.
Protection of information in Categories (A) and (B) is required because this proprietary, commercially-sensitive information is a product of Defendant's experience and expertise in the insurance industry, and is not generally disseminated to the general public or to Defendant's insureds. Disclosure of information in this category would give Defendant's competitors an unfair business advantage and harm Defendant's competitive position. Protection of information in Category (C) is required because Defendant would violate statutes, regulations and/or other laws if it was required to produce the information in the absence of a Protective Order.
Protection of information in Category (D) is required to protect Plaintiff's rights of privacy and to prevent misuse by third parties of Plaintiff's identity and/or identity theft.
"Protected Information" does not include information that: (i) is in the public domain at the time of disclosure, through no fault of the party challenging the designation; (ii) becomes part of the public domain through no fault of the party challenging the designation, (iii) was in the receiving party's rightful and lawful possession at the time of disclosure (and is not otherwise subject to protective order, confidentiality agreement and/or otherwise restricted from public disclosure); (iv) is lawfully received by the receiving party from a third party at a later date and it is not subject to protective order, confidentiality agreement and/or otherwise restricted from disclosure, and provided such third party has the right to make the disclosure to the receiving party; or (v) is received by Defendant as part of the claims evaluation process and which becomes part of Plaintiff's claim and/or appeal file, provided, however, that any personal financial information that is filed with the Court or used at deposition will be redacted or, if redaction will not protect the information, marked confidential and treated as subject to the terms of this Stipulated Protective Order. Documents described in (i) through (v), above, shall not be designated as "Confidential," except under the limited exception set forth in (v). Designations shall be made by counsel in good faith.
The parties assert that the "Protected Information" should be protected by a Court order rather than by a private agreement because the entry of a protective order would carry the weight of the Court's imprimatur and authorize the exercise of its contempt power over any potential violations of this protective order. A private agreement between the parties would not serve to fully protect the confidential nature of the "Protected Information" from unwarranted disclosure, would not be as strong of a deterrent against such disclosure, and would not provide sufficient remedies in the event of disclosure.
3. Category of Protection.
There shall be only one category of protection. Documents or other material may be designated as "Confidential" by a party or a producing nonparty if they contain information of the type referred to in Paragraph 2 of this Stipulated Protective Order. Confidential Material may not be photocopied, reproduced or duplicated in any manner, whether in hard copy or electronic format, subject to the explicit exceptions contained in this Order.
Protected Information as designated above shall be used only for the purposes of conducting this litigation and shall be disclosed only to "Qualified Persons" which, as used herein, shall mean:
A. Outside counsel who have made an appearance in this litigation and outside counsel for any third party required to produce documents or give testimony in this lawsuit and secretarial, clerical, litigation support and paralegal personnel regularly employed by such outside counsel to whom it is necessary that the Protected Information be shown for purposes of this litigation.
B. Bonafide outside consultants and experts and their clerical and support staff specifically engaged by counsel or the parties to assist in this litigation, provided such experts are not a competitor of any party to or third party required to produce documents or give testimony in this litigation.
C. Officers, in-house counsel, or other employees of any party or any third party required to produce documents or give testimony in this lawsuit.
D. The Court, other court personnel (including court reporters in the courtroom) and the jury or other trier of fact.
E. Factual witnesses who agree to comply with and be bound by the requirements of this Order and whose role as a witness is such that they have a genuine need to ...