The opinion of the court was delivered by: Hon. Morrison C. England, Jr.
CONFIDENTIALITY AGREEMENT AND STIPULATED PROTECTIVE ORDER
1 Plaintiff Progressive Casualty Insurance Company, along with its managing 2 general agent, ABA Insurance Services, Inc. (collectively "Progressive"), and 3 Defendants Michael L. Dalton, Harold Hand, Kathleen M. Verner, Patricia A. Hatton, 4 Maxwell M. Freeman, Yoshikazu Mataga, George M. Schofield, Rick Simas, Gary A. 5 Stewart, Russell Munson, Steven Kikuchi, Steve Rosso, Justin Garner, Laura Maffei, 6 and Linda Ogato (collectively, the "Insureds") and the Federal Deposit Insurance 7 Corporation as Receiver for Pacific State Bank (hereinafter "FDIC-R"), by and through 8 their undersigned counsel, do hereby stipulate and agree to the following provisions 9 governing the handling and treatment of "Confidential Material" with respect to the captioned action.
A. On March 21, 2012, Progressive filed this action seeking a declaratory judgment. The Insureds and the FDIC-R have answered and asserted affirmative defenses. Insured Steve Rosso also asserted a counterclaim.
B. The parties wish to designate certain documents and information exchanged in connection with litigation confidential. Therefore, the parties have agreed to the following order.
Now, therefore, the Parties agree and the Court orders as follows:
1. Purpose and Scope. This Confidentiality Agreement and Stipulated Protective Order (the "Agreement") is entered into for the purpose of allowing the Parties to exchange Confidential Material, as defined in Paragraph 2 below, in order that they may prosecute and defend the captioned action, while simultaneously maintaining the confidential nature of Confidential Material they exchange. This Agreement shall govern Confidential Material that the Parties may produce in discovery and pursuant to their disclosure obligations in the captioned action.
1 2. Definition of Confidential Material. For purposes of this Agreement, 2 "Confidential Material" shall mean certain documents, records, and information that is/are 3 not publicly available exchanged among or produced by the Parties pursuant to this 4 Agreement, including, without limitation, any information identifying any names, 5 addresses, account information, personal information (such as social security number, date 6 of birth, and any other personal identification information) recognized by law as, or 7 required to be maintained as, confidential. Confidential Material specifically includes, 8 without limitation, the following:
9 a. Regulatory: Confidential Material related in any way to the regulation or supervision of Pacific State Bank (the "Bank"), in whatever form, whether preliminary or final, including reports of examination or inspection, regulatory correspondence, reports, orders, memoranda, or agreements by, from, or with the Federal Deposit Insurance Corporation ("FDIC"), the OTS, the Board of Governors of the Federal Reserve System, or any other federal or state regulatory authority, and any documents containing confidential information obtained from any documents and records related to the supervision or regulation of the Bank. The Parties understand and agree that the release of such regulatory documents may require approval from independent government agencies, and that no regulatory documents, however obtained, will be disclosed to anyone other than the Parties and other persons or entities identified in subparagraphs 5.a.--5.h. below without approval by the respective regulatory authority or a court order. Confidential Material includes documents that are confidential or exempt from disclosure as provided in the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), the federal regulations governing the disclosure of information, including but not limited to 12 C.F.R. Parts 261, 309, and 310, the laws of the State of California, or any other applicable federal or state laws.
1 b. Bank and Bank Customers: Confidential Material related to the 2 Bank, its customers, any trading company involved in placing orders for 3 commodities futures or options, or any other entity, including: Automatic Clearing 4 House items or transactions, chargebacks, merchant processing, bank account 5 information, signature cards, bank statements, general ledger entries, deposit or 6 reserve information, commodity trading statements, loans and lending transactions, 7 loan applications, financial statements and credit reports, business and personal state 8 and federal income tax forms, correspondence, and related loan documentation 9 relating to any extension of credit or loan to any borrower. Examples of Confidential Material include, without limitation, documents containing a customer's account number, credit card number, personal identification number, account balance, information relating to a deposit account, loan, or borrower relationship, and loan application materials.
c. Receivership: Confidential Material related to the receivership of the Bank, including any information on loss or estimates of such loss on the Bank's assets not publicly available. Notwithstanding the provisions of Paragraph 5 of this Agreement, no Confidential Material shall be disclosed to any person or entity (other than a Party hereto) known to have any current or prospective interest in such assets, whether or not that person or entity would otherwise be allowed access to documents and information under the terms of this Agreement. However, nothing in this paragraph shall preclude the disclosure of Confidential Material to those persons identified in Paragraphs 5.f. and 6.e. below.
d. Trade Secret/Proprietary Information: Documents and information that any of the Parties reasonably believes constitute(s), reflect(s), or disclose(s) trade secrets, proprietary data, or commercially sensitive information. Confidential Material includes, without limitation, documents and information obtained by Progressive from the Bank, the Insureds, or any person or entity acting on their 1 behalf, or provided by Progressive to such persons or entities, that is subject to an 2 agreement governing the confidentiality of such documents and information.
4 3. Confidential Designation and Treatment of Confidential Material. 5 Confidential Material shall be designated as such in the following matter: 6 a. Documents: Confidential Material contained in or consisting of paper 7 or electronic documents, in whatever form, shall be designated by the producing 8 Party as Confidential Material by stamping each page of such documents with the 9 legend "Confidential." Alternatively, in the case of a voluminous production of a specific type of document, the producing Party may designate such documents as Confidential Material by providing along with the documents, a written designation by Bates number of the documents so designated. As set forth in Paragraph 3.b. below, the failure to designate any documents with such legend shall not constitute a waiver by the producing Party of the right to assert that such documents contain or consist of Confidential Material. As set forth in Paragraph 3.c. below, the failure of the producing Party to designate documents as Confidential Material shall not preclude any other Party from designating such documents as Confidential Material.
b. Failure to Designate: In the event that any Party inadvertently produces confidential documents or information without designating the documents or information as Confidential Material, and if the producing Party subsequently notifies the other Parties and their counsel in writing within a reasonable time following production that the documents or information should have been designated Confidential Material, the Parties agree to treat any such subsequently identified documents or information as duly designated Confidential Material and subject to this Agreement. In the case of notice provided more than thirty (30) days following production, in the event of a dispute among the Parties as to the reasonableness of the notice, the burden shall be on the producing Party to 1 demonstrate that such notice was ...