AMENDED [PROPOSED] PROTECTIVE ORDER
[PROPOSED] STIPULATED PROTECTIVE ORDER
Pursuant to the Court's February 13, 2012 Memorandum and Order re Parties' Proposed Stipulated Protective Order (Dkt. #29), the parties hereby submit their Amended Proposed Stipulated Protective Order, which has been modified to address the Court's concerns set forth in the February 13, 2012 Order.
Upon the stipulation of the parties for entry of the following Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure to prevent disclosure of confidential information, the Court enters the following order:
1. Statement of Good Cause. Federal Rule of Civil Procedure 26(c)(1)(G) permits the grant of a protective order upon a showing of good cause, and provides that the protection of a trade secret or other confidential research, development, or commercial information is a proper basis for the issuance of a protective order. The parties have conferred and stipulate to the following:
This case involves a dispute between plaintiff Mayer Schmukler ("Plaintiff"), on behalf of himself, the general public and all others similarly situated, on the one hand, and defendants Farmers Insurance Exchange and Mid-Century Insurance Company ("Defendants"), on the other (collectively, the "Parties" or "parties"). Defendants anticipate that disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information relating to the Defendants' business activities and/or electronic systems, and of confidential financial or other sensitive information of third party policyholders of some of the Defendants. For example, Plaintiff has specifically requested, and Defendants intend to produce, the claim files generated in connection with Plaintiff's claim for homeowners' insurance benefits. The claim file contains private information, such as Plaintiff's home address, social security number, and home mortgage loan number, that is shielded from disclosure pursuant to Local Rule 79-5.4 and pursuant to California Ins. Code § 791.13, the Gramm Leach Bliley Act (15 U.S.C. §§ 6801-6809), and the United States and the California Constitutions. See also Meade Reinsurance Co. v. Superior Court, 188 Cal. App. 3d 313, 321-22 (1986). Similarly, it is anticipated that Plaintiff may subsequently request production of documents relating to claims for insurance benefits submitted by certain third parties and/or certain putative class members. While Defendants do not concede such materials are otherwise discoverable, and this Protective Order does not constitute a finding in that regard, those materials would contain similar personal identification and financial information and would be shielded from disclosure pursuant to the same statutes and authorities listed above.
Further, Plaintiff has requested, and Defendants intend to produce, certain financial data regarding the number of flooring damage claims handled by Defendants and the amount of estimated repair costs for the losses. Defendants further anticipate they will be requested to produce claims representative training manuals, instructional materials, and/or documents or other materials regarding the structure and financial impact of the flooring program that is at issue in this case, including the amount of benefits paid with respect to flooring claims. To the extent such materials exist and are otherwise discoverable, they would contain information which Defendants maintain is proprietary by virtue of the fact that it is not known to others in the industry. Defendants assert that public disclosure of this type of information would likely cause significant harm to the Defendants' competitive position in the marketplace, or to the security of third party policyholders' confidential financial or other sensitive information. See Cal. Civil Code § 3426.1(d); see also Hoffman v. Superior Court, 172 Cal. App. 3d 357, 362 (1985) ("a limited protection is given to sensitive information which people may wish to keep confidential, such as their financial dealings and assets"). As discovery has barely commenced, this is generally an illustrative, not exhaustive, list of the types of confidential material that may be the subject of discovery. Accordingly, the Parties submit there is good cause for entering a protective order.
Therefore, the Parties hereby stipulate and petition the Court to enter the following Stipulated Protective Order (the "Protective Order"). The Parties acknowledge that this Protective Order does not confer blanket protection on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under applicable legal principles to confidential treatment. The Parties further acknowledge that this Protective Order does not create an entitlement to file confidential information under seal. The procedures that must be followed when a party seeks permission from the Court to file material under seal are set forth in Paragraph 10 of this Protective Order and in Local Rule 79-5.
2. Nondisclosure of Protected Information.
Documents, tangible items, discovery responses, deposition testimony, or other material or media containing confidential information disclosed or produced by any party in this litigation are referred to as "Protected Information." Except as otherwise indicated below, all documents, tangible items, discovery responses, deposition testimony or other information designated by the producing party as "Confidential" and which are disclosed or produced to the attorneys for other parties to this litigation are Protected Information and are entitled to confidential treatment as described below.
3. Marking of Protected Information.
Any designation of Protected Information made in accordance with this Protective Order also shall apply to all documents that reproduce, paraphrase, summarize or otherwise contain information from the documents, materials, testimony, and information so designated. Documents, materials, testimony, and information shall be designated by marking the document or other material with a stamp stating "CONFIDENTIAL." If the Protected Information is produced in an electronic or native form and it is impractical to mark the document or other material containing the Protected Information with a stamp stating "CONFIDENTIAL", the designating party shall label the electronic file "CONFIDENTIAL" and provide a Bates stamp number for the electronic file.
Protected Information shall not include materials that have been published to the public.
If there is a dispute regarding a party's designation of Protected Information, the parties shall comply with the procedure set forth in Local Rule 37. If the parties want to file the Local Rule 37 Joint Stipulation under seal, they may file a stipulation to that effect, or the party contending that the subject material is properly designated as "CONFIDENTIAL" may file an ex parte application making the appropriate request (in either event, the stipulation or ex parte application must set forth good cause as to why the Joint Stipulation or portions thereof should be filed under seal). In resolving any such dispute, the party who designated the material as Protected Information will bear the burden of proof that such designation should not be removed.
This Order shall not abrogate the right of any party or other entity to refuse to produce Protected Information, or to redact certain portions thereof, upon proper grounds, including without limitation, on the basis of any applicable privilege or statute. Furthermore, any party may also seek further protective orders as they may deem appropriate to safeguard Protected Information.
7. Use of Protected Information.
Protected Information shall not be used or shown, disseminated, copied, or in any way communicated to anyone for any purpose whatsoever, except as provided in Paragraph 8 below. Protected Information shall be used solely for the purpose of preparation and trial of this litigation, and for no other purpose. This prohibition does not prevent a party or entity from using or disclosing information obtained independently of a Responding Entity and does not prevent any party from disclosing any of its own Protected Information to its counsel of record, employees of such counsel, to its experts, consultants and investigators or to the Qualified Persons designated below.
8. Permissible Disclosure of Protected Information.
All Protected Information shall be maintained in confidence and shall not be disclosed, directly or indirectly, to any person or entity, except as provided in this Protective Order. Access to and/or disclosure of information designated as "CONFIDENTIAL" shall be limited to the following individuals ("Qualified Persons"):
(a) The parties (or, when the party is not a natural person, their employees or representatives) and counsel of record in this action for the party or parties receiving the Protected Information;
(b) Employees of such counsel assigned to and necessary to assist such counsel in the preparation and trial of this action;
(c) Witnesses, including expert witnesses (and their staff), and consultants or investigators, who have agreed in writing (in the form attached as Exhibit A) to be bound by this Order, and their counsel, if any, provided such counsel also has agreed in writing (in the form attached as Exhibit A) to be bound by this Order. Those individuals' written agreements shall be retained by counsel for the non-designating party and furnished to counsel for the designating party when the witness is disclosed in the litigation;
(d) Court reporter(s) employed in this action; and (e) The Court, including its employees and the jury.
No provision in this section shall be construed as limiting the subpoena power of another court in a separate action. If a party receives a subpoena requesting documents or materials designated as Protected Information under this Protective Order, the party in receipt of the subpoena shall promptly notify the designating party so that the designating party may have an opportunity to seek a protective order.
The term "copy" as used herein means any photographic, mechanical or computerized copy or reproduction of any document or thing, or any verbatim transcript, in whole or in part, of such document or thing. No person shall make copies, extracts or summaries of Protected Information, except under the supervision of counsel when, in the judgment of counsel, such copies or other papers are necessary for the litigation of this action. Counsel and other persons to whom the Protected Information is disclosed pursuant to Paragraph 8 of this Order shall take all reasonable and appropriate precautions to avoid loss or inadvertent disclosure of such Protected Information.
10. Requirements to File Under Seal; Filing with the Court.
If Protected Information is included in any papers to be filed in court, such papers shall be accompanied by an application to file the papers (or the confidential portion thereof) under seal, directed to the Judge to whom the papers are directed. The application must show good cause for the under seal filing. Pending the ruling on the application, the papers or portions thereof subject to the sealing application shall be lodged under seal. The parties shall otherwise comply fully with Local Rule 79-5.1.
To the extent that Protected Information is used at depositions, such documents or information shall remain subject to the provisions of this Order, along with the transcript pages of the testimony referring to the Protected Information. Testimony is Protected Information under the terms of this Order only if counsel for a party advises the court reporter and opposing counsel of such designation at the deposition, or by written designation to all parties and the court reporter within fourteen (14) days after receiving the transcript of such deposition or hearing of the specific pages and lines of the transcript (or numbered exhibits) that should be treated as Protected Information thereafter. If the designation is made in writing after the deposition or hearing, each party shall attach a copy of such written notice to the face of the transcript and each copy thereof in his, her or its possession, custody or control.
To the extent possible, the court reporter shall identify in the transcript the designation ...