UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
December 14, 2011
GRANITE STATE INSURANCE COMPANY, A PENNSYLVANIA CORPORATION, AND FEDERAL INSURANCE CONSENT PROTECTIVE COMPANY, AN INDIANA CORPORATION, PLAINTIFFS,
GENERAL MOTORS LLC, A LIMITED LIABILITY COMPANY, DEFENDANT.
The opinion of the court was delivered by: Magistrate Judge Andrew J. Wistrich
Gregory R. Oxford (# 62333) firstname.lastname@example.org ISAACS CLOUSE CROSE & OXFORD LLP 21515 Hawthorne Boulevard, Suite 950 Torrance, CA 90503 Telephone: (310) 316-1990 Facsimile: (310) 316-1330 Philip E. Holladay, Jr. (Admitted Pro Hac Vice) email@example.com Robert B. Friedman (Admitted Pro Hac Vice) firstname.lastname@example.org KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, GA 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 Attorneys for Defendant GENERAL MOTORS, LLC
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the documents and other information, including the substance and content thereof, designated by either Plaintiffs Granite State Insurance Company ("Granite State") and Federal Insurance Company ("Federal") or Defendant General Motors LLC ("GM LLC") as privileged, confidential, and/or proprietary, according to the terms and conditions of this order, and produced in response to any formal or informal request for discovery in this litigation, shall be subject to the terms of this Consent Protective Order of Confidentiality, as set forth below:
For purposes of this Order, "Confidential Information" means:
(a) those documents and written responses ("Writings") produced by any party in response to any formal or informal discovery request in this case which are specifically designated on the face of the writing with the words "SUBJECT TO PROTECTIVE ORDER" because the party has a good faith belief that the Writing: (i) would otherwise be protected by the attorney-client privilege or work-product doctrine but for the nature of this case; (ii) contains information that is private or confidential; or (iii) is or contains information that is proprietary or a trade secret;
(b) those pleadings or other papers served upon any party or filed under seal with the Court which are designated on the face of the Writing with the words "SUBJECT TO PROTECTIVE ORDER" because the party has a good faith belief that that the Writing: (i) would otherwise be protected by the attorney-client privilege or work-product doctrine but for the nature of this case; (ii) contains information that is private or confidential; or (iii) is or contains information that is proprietary or a trade secret;
(c) those pleadings or other papers filed with the Court that quote from Writings, pleadings or other papers that have been disclosed as "SUBJECT TO PROTECTIVE ORDER"; and
(d) those portions of any deposition transcripts or exhibits that have been designated as "SUBJECT TO PROTECTIVE ORDER" in accordance with the terms of this paragraph. Deposition transcripts or exhibits are designated as "SUBJECT TO PROTECTIVE ORDER" if: (i) Counsel for Granite State, Federal, or GM LLC orally designate certain testimony or exhibits as subject to this order on the record at a deposition; or (ii) within sixty (60) days after the initial receipt of a deposition transcript, counsel for Granite State, Federal, or GM LLC designate in writing, by specific page and line numbers, testimony or exhibits as subject to this order.
Except with prior written consent of counsel for the opposing party, Confidential Information may be shown or disclosed only to the following persons:
(a) Counsel in this action;
(b) Actual employees of counsel assigned to and necessary to assist counsel in the preparation of this action;
(c) Parties to this action; and
(d) Independent experts and consultants retained by counsel whose assistance is deemed necessary by counsel for the prosecution or defense of this action, and employees of such experts and consultants necessary to assist such persons in performing their duties, provided that such person has signed an affidavit in the form set forth as Exhibit "A" and that no confidential documents and information shall be disseminated to any expert or consultant:
(i) who is an employee of a direct business competitor of the party producing the information; or
(ii) who is employed by a direct business competitor of the party producing the information and who directly participates in design, manufacturing, marketing, or service activities of direct business competitors.
Any party may apply to the Court for the imposition of further limitations upon the disclosure of specific information if such party deems further limitations are required in specific instances given the nature of the information.
The parties agree that the designation "SUBJECT TO PROTECTIVE ORDER" shall not deface or be printed over any of the language of any document disclosed in this litigation.
Any recipient of such Confidential Information shall not disclose the same to any other person to whom disclosure is not authorized by the terms of this Protective Order, and shall not use such Confidential Information for purposes other than preparation for trial or settlement of this action, except as allowed under paragraph 2. Any recipient of such Confidential Information shall exercise reasonable and appropriate care with regard to the storage, custody, and/or use of such Confidential Information in order to ensure that the confidential nature of the same is maintained.
No party shall give, show or otherwise divulge or disclose the substance or existence of the documents or other information designated as Confidential Information, or any copies, prints, negatives or summaries thereof, to any entity or person with the exception of those individuals identified in paragraph 2. Any recipient of such Confidential Information, pursuant to paragraph 2(d) above, prior to receipt thereof, shall be furnished with a copy of this Protective Order, and shall be required to execute an affidavit of the type attached as Exhibit "A", certifying that the recipient will not use any such Confidential Information in any way whatsoever except as allowed under paragraph 2 herein, and that the recipient has read and is familiar with this Protective Order and agrees to be bound by its terms. The original of each affidavit of the type attached as Exhibit "A", executed by a recipient of Confidential Information pursuant to paragraph 2(d), shall be furnished to counsel who provided such information. Counsel for the party disclosing Confidential Information pursuant to this Protective Order shall deliver to counsel for the other parties copies of all such affidavits executed by recipients of Confidential Information at the close of the litigation.
The parties agree that all Confidential Information and any pleading, motion, deposition transcript or other paper filed with the Court disclosing any Confidential Information should be filed under seal and shall be kept under seal until further order of the Court, should the Court deem such a procedure appropriate; however, said information shall continue to be available to the Court and to such persons permitted access to such information under this Order. Where possible, only the confidential portions of filings with the Court shall be filed under seal.
If any confidential documents are provided by a party to any expert or to any other qualified person pursuant to paragraph 2(d), the attorney for that party shall ensure that all confidential documents in the possession of such persons, and all copies thereof, are recovered from that person within forty-five (45) days of the conclusion of this action.
This Order does not apply to any party's use of:
(a) its own documents or information;
(b) documents in its possession, custody or control prior to the filing of this lawsuit;
(c) documents or information concerning or reflecting transactions or communications to which it was a party; and
(d) documents or information developed or obtained lawfully and independently of discovery in this action.
However, to the extent that any party has possession, custody, or control of a copy of any document that has been produced by another party and designated as "Confidential Information," all such copies shall be considered Confidential Information for all purposes.
Nothing in this Order shall be deemed a waiver of any party's right to (a) oppose discovery on grounds other than that the documents and information sought constitute or contain Confidential Information; or (b) object on any ground to the admission in evidence, at trial of this action, of any Confidential Information.
In the event that any party disagrees with a party's designation of any item as Confidential Information and subject to this Protective Order, that party shall send a written notice to counsel of record for the designating party specifying the item in question. The parties shall attempt in good faith to resolve any disagreement over the confidentiality of the item. Should the parties fail to reach agreement, the designating party will file a Motion to Preserve Confidential Status. Any item in dispute shall continue to be treated as confidential and subject to this Order until such time as the court rules that it is not. Failure to challenge a "Confidential Information" designation shall not preclude a subsequent challenge thereto.
Nothing herein shall prevent any party from using the Confidential Information in connection with any trial, hearing or other public proceeding in this matter or from seeking further protection with respect to the use of any such Confidential Information in connection with such trial, hearing or other public proceeding in this matter.
The Parties agree that the production of any document by a party -- whether or not that document is designated as "Subject to Protective Order" or otherwise constitutes Confidential Information -- shall not result in the waiver of any applicable privilege (whether attorney-client, work product, or other) with respect to other documents addressing the same, or any other, subject matter. The Parties agree not to assert that the disclosure of any document in this action constitutes a subject matter waiver with regard to other documents, regardless of whether the disclosure was intentional or inadvertent. The intention of this paragraph is to enable the parties to reasonably limit their use confidentiality designations without creating a risk of subject-matter waiver. Nothing in this paragraph shall affect the applicability of this Protective Order to any document that is produced.
Neither entering into this Protective Order, nor receiving any documents or other information designated as "Confidential Information" is or shall be construed as an agreement or admission (1) that any document or information designated as "Confidential Information" is in fact Confidential Information; (2) as to the correctness or truth of any allegation made or position taken relative to any matter designated as "Confidential Information"; or, (3) as to the authenticity, competency, relevancy, or materiality of any information or document designated "Confidential Information."
Nothing in this Order will prejudice any party from seeking amendments broadening or restricting the rights of access to and the use of confidential documents or information, or contesting the designation of a confidential document or qualified person.
This Order shall remain in force after the completion of this action.
The Court retains jurisdiction to enforce the provisions of this Order.
CONSENTED AND AGREED:
EXHIBIT A UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
GRANITE STATE INSURANCE COMPANY, a Pennsylvania corporation, and FEDERAL INSURANCE COMPANY, an Indiana corporation, Plaintiffs, v. GENERAL MOTORS LLC, a limited liability company, Defendant.
Case No: 2:11-CV-02611-CAS-AJW
EXHIBIT A TO PROTECTIVE
ORDER - AGREEMENT
I, ___________________________________________________, certify that I have read the Protective Order dated __________, entered in the above-captioned action and further certify that I fully understand the procedural and substantive requirements of that Protective Order, a copy of which is attached hereto. Before reviewing or receiving access to any document, material, information and/or discovery subject to the protection of that Order and as a condition for such review and/or access, I understand and agree that I am personally bound by and subject to all of the terms and provisions of the Order. I subject myself to the jurisdiction and venue of said Court for purposes of enforcement of the Order.
___________________________ (signature) ___________________________ (print name)
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