Feller v. Transamerica Life Insurance Co.

          DAN MARMALEFSKY SYLVIA RIVERA NANCY R. THOMAS MORRISON & FOERSTER LLP Nancy R. Thomas Attorneys for Defendant

          ANDREW S. FRIEDMAN BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. Andrew S. Friedman Attorneys for Plaintiffs

          HARVERY ROSENFIELD CONSUMER WATCHDOG Harvey Rosenfield Attorneys for Plaintiffs

          WILLIAM M. SHERNOFF SHERNOFF BIDART ECHEVERRIA BENTLEY LLP William M. Shernoff Attorneys for Plaintiffs

          [PROPOSED] STIPULATED PROTECTIVE ORDER

         1. PURPOSES AND LIMITATIONS/GOOD CAUSE STATEMENT

         Discovery in this action is likely to involve production of confidential and proprietary actuarial, business, technical, and financial information as well as private information of Plaintiffs Gordon and Mary Feller, and George and Margaret Zacharia (collectively, "Plaintiffs") for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, Plaintiffs and Defendant Transamerica Life Insurance Company ("Defendant" or "Transamerica") hereby stipulate to and petition the Court to enter the following Stipulated Protective Order ("Protective Order" or "Order"). The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3 (Filing Protected Material), below, that this Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 and the Court's Guide to Electronically Filing Under Seal Documents in Civil Cases set forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal.

         2. DEFINITIONS

         2.1 Action: Gordon Feller, et al. v. Transamerica Life Insurance Company, Case No. 2:16-cv-01378-CAS-AJW.

         2.2 Challenging Party: A Party or Non-Party that challenges the designation of information or items under this Order.

         2.3 "CONFIDENTIAL" Information or Items: Confidential proprietary or commercially sensitive business and financial information, trade secrets, and personal information which is not generally known or publicly available and which the Designating Party would not normally reveal to third parties or information that otherwise meets the standard for protection set forth in Rule 26(c) of the Federal Rules of Civil Procedure. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential non-public manner, and there is good cause why it should not be part of the public record of this Action.

         2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff).

         2.5 Designating Party: A Party or Non-Party that designates information or items that it produces or that are produced in disclosures or in response to discovery as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY."

         2.6 Disclosure or Discovery Material: All items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.

         2.7 Expert: A person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this Action and who is not a past or current employee of a Party or a current employee of a Party's competitor and who, at the time of retention, is not anticipated to become an employee of a Party or a competitor of a Party. This definition includes a professional jury or trial consultant retained in connection with this litigation.

         2.8 "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" Information or Items: Extremely sensitive "Confidential Information or Items, " disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.

         2.9 House Counsel: Attorneys who are employees of a party to this Action. House Counsel does not include Outside Counsel of Record or any other outside counsel.

         2.10 Non-Party: Any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.

         2.11 Outside Counsel of Record: Attorneys who are not employees of a party to this Action but are retained to represent or advise a party to this Action and have appeared in this Action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party, and includes support staff.

         2.12 Party: Any party to this Action, including all of its officers, directors, and employees.

         2.13 Producing Party: A Party or Non-Party that produces Disclosure or Discovery Material in this Action.

         2.14 Professional Vendors: Persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.

         2.15 Protected Material: Any Disclosure or Discovery Material that is designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY."

         2.16 Receiving Party: A Party that receives Disclosure or Discovery Material from a Producing Party.

         3. SCOPE

         The protections conferred by this Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties, their Counsel or their Experts that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the trial judge. This Order does not govern the use of Protected Material at trial.

         4. DURATION

         Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law.

         5. DESIGNATING PROTECTED MATERIAL

         5.1 Exercise of Restraint and Care in Designating Material for Protection: Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is practical to do so, the Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection, that Designating Party must promptly notify all other Parties that it is withdrawing the inapplicable designation.

         5.2 Manner and Timing of Designations: Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before ...