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U.S. Bank National Association, A National Association, As Securities v. Phl Variable Insurance Company

May 21, 2012

U.S. BANK NATIONAL ASSOCIATION, A NATIONAL ASSOCIATION, AS SECURITIES INTERMEDIARY FOR LIMA ACQUISITION LP, PLAINTIFF,
v.
PHL VARIABLE INSURANCE COMPANY, A CONNECTICUT CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Hon. Ralph Zarefsky United States Magistrate Judge

[PROPOSED] ORDER APPROVING AMENDED STIPULATED PROTECTIVE ORDER

NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT

The parties' Amended Stipulated Protective Order Governing the Production and Exchange of Confidential Information (the "Protective Order") is before the Court. The Court having read the order and good cause appearing therefore, the Court hereby enters the following Protective Order:

1. Statement of Good Cause: In the course of litigating and taking discovery in the above-captioned action (the "Action"), the parties, or third parties in connection with the Action, may need to produce competitively sensitive, confidential, and proprietary business information and/or private personal, medical, or financial information (collectively, "Confidential Information"), including the following categories of Confidential Information:

(a) commercially sensitive and proprietary internal marketing materials, financial, actuarial, valuation or pricing projections, including mortality, reserve, and premium funding analyses that reflect past, current or future experience or actions relating to the cost of insurance disputes at issue in this Action, and/or information otherwise recognized by laws and regulations such as The California Public Records Act, West's Ann. Cal. Gov. Code § 6254 (d)), as being excepted from disclosure under public access laws, and deserving of treatment as Confidential Information;

(b) non-public communications with governmental or non-governmental regulators, including but not limited to state departments of insurance, Securities Exchange Commission, and Financial Industry Regulatory Authority (FINRA, f/k/a NASD) that are intended to be kept confidential and/or are protected from disclosure by statute or regulation;

(c) non-public personal identifying information (including names, addresses, social security numbers and dates of birth), and health and financial information relating to policies affected by the cost of insurance adjustments at issue in this Action, the disclosure of which would potentially violate state and federal privacy laws, including but not limited to The California Insurance Information and Privacy Protection Act, Cal. Ins. Code § 791, et seq., The California Public Records Act, West's Ann. Cal. Gov. Code § 6254 (c), The California Financial Information Protection Act, Cal. Fin. Code § 4050, et seq., The GrammLeach-Bliley Act, 15 U.S.C. 6801, et seq., as well as local Court rules (see, e.g., Central Dist. of Cal. General Order No. 10-07, Sec. IV(E), (H));

(d) agreements subject to provisions of confidentiality and documents that reveal the confidential terms of such agreements;

(e) documents that reveal confidential financial information about a party's business or commercial information about a party's business that is not available to the public or its competitors, which if disclosed could place the party at a competitive disadvantage; and

(f) commercially sensitive and proprietary, confidential information that constitutes, discusses or reflects trade secrets entitled to protection under various laws and regulations, including but not limited to California's Uniform Trade Secret Act.

Confidential Information shall include the contents and all copies, excerpts, extracts, and summaries of documents, testimony, and information, designated by the parties as such, provided that such designation has not been successfully challenged and finally revoked pursuant to paragraph 9 herein.

2. This Protective Order shall, pursuant to Fed. R. Civ. P. 26(c), limit the copying, dissemination, and filing of Confidential Information to be produced or provided by any party and their respective counsel or by any non-party in the course of discovery in this matter, and shall govern the handling of documents and all other information produced by or between the parties to the Action or by third parties in connection with the Action, including all documents, information, and testimony produced or provided pursuant to interrogatories, depositions, requests for production of documents, subpoenas, requests for admissions, or other requests for disclosures (whether formal or informal), and all information provided, submitted, or exhibited by the parties hereto or third parties in connection with any evidentiary hearings or other proceedings conducted during the course of the Action.

3. As used herein:

(a) "Producing Party" shall mean the parties to this Action and any third-parties producing "Confidential Information" in connection with depositions, document production, or otherwise, or the party asserting the confidentiality privilege, as the case may be.

(b) "Receiving Party" shall mean the party to this Action and/or any non-party receiving "Confidential Information" in connection with depositions, document production, or otherwise.

(c) "Qualified Person" shall mean any person authorized to receive or review Confidential Information pursuant to paragraph 6 herein.

4. Any party, subpoenaed non-party, or other third party whose information may be disclosed in connection with this Action may designate documents produced, testimony given, or other information exchanged in connection with this action as "Confidential" either by notation on the document, statement on the record of the deposition, designation pursuant to paragraph 8 or 10 or 14 herein, or written advice to the respective undersigned counsel for the parties hereto. Electronic documents and information, if any, shall be designated as "confidential" by any of the foregoing methods or pursuant to a procedure to be agreed upon by the parties.

5. All Confidential Information shall be used solely in connection with this Action, and no person receiving such Confidential Information shall, directly or indirectly, use, transfer, disclose, or communicate in any way the Confidential Information to any person other than Qualified Persons. Any other use or disclosure is prohibited. The receipt of Confidential Information by persons or entities as defined in paragraph 5(f) below shall not prevent such person or entity from serving as an expert or consultant in connection with the action entitled Martin Fleisher v. Phoenix Life Insurance Company, No. CV 11-8405 (CM) (S.D.N.Y.) (the "Fleisher Action"), or prevent such person or entity from receiving information, including Confidential Information, in connection with the Fleisher Action.

6. Except with the prior written consent of the Producing Party or by order of the Court, Confidential Information shall not be furnished, shown or disclosed to any person or entity except to:

(a) the parties in this action, including employees of the parties who are assisting in this action;

(b) counsel for the parties to this action and their associated attorneys, paralegals and other professional personnel (including support staff) who are directly assisting such counsel in the preparation of this action for trial or other proceeding ...


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