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National Casualty Co. v. National Strength and Conditioning Association

United States District Court, S.D. California

September 11, 2019

NATIONAL CASUALTY COMPANY, Plaintiff,
v.
NATIONAL STRENGTH AND CONDITIONING ASSOCIATION, Defendant. NATIONAL STRENGTH AND CONDITIONING ASSOCIATION, Counterclaimant,
v.
NATIONAL CASUALTY COMPANY, Cross-Defendant.

          Mary Craig Calkins, Daniel H. Rylaarsdam, Nancy L. Stagg Attorneys for Defendant/Counterclaimant NATIONAL STRENGTH AND CONDITIONING ASSOCIATION.

          HON. JANIS L. SAMMARTINO JUDGE.

          PROTECTIVE ORDER

          HONORABLE KAREN S. CRAWFORD U.S. MAGISTRATE JUDGE.

         Action Filed: June 14, 2018 Trial Dated: Not Set Please take notice that Plaintifl7Counter-Defendant National Casualty Company ("National Casualty") and Defendant/Counterclaimant National Strength and Conditioning Association ("NSCA") jointly stipulate and move the Court to enter a Protective Order in this insurance coverage litigation (the "Coverage Lawsuit") based on the following grounds:

         WHEREAS, in the course of this action, disclosure may be sought and made of information that National Casualty or NSCA regards as being of a confidential, personal, private, privileged, trade secret, proprietary, technical, commercial, or financial nature (hereinafter collectively referred to as "Confidential Information"), or, solely with respect to documents produced by CrossFit, Inc. ("CrossFit") in the underlying lawsuit entitled (1) CrossFit, Inc. v. National Strength and Conditioning Association, United States District Court, Southern District of California, Case No. 3:14-cv-01191-HKS-KCS (the "Federal Lawsuit"); and (2) the now-dismissed underlying lawsuit entitled National Strength and Conditioning Association v. Glassman, et al, San Diego Superior Court, Case No. 37-2016-00014339-CU-DF-CTL (the "State Lawsuit"), Confidential Information that has been designated by CrossFit in the underlying actions as so highly sensitive that the actual parties themselves (i.e., National Casualty and NSCA) should not be permitted to view, use or know about such highly sensitive Confidential Information (herein collectively referred to as "Counsel Only Information"). The parties agree that, except for documents designated by CrossFit as "Counsel Only" in the underlying lawsuits, they will not designate any other documents as "Counsel Only" in this action. For purposes of this Protective Order, Counsel Only Information is included in the term Confidential Information except were specifically noted;

         WHEREAS, National Casualty and NSCA desire to protect against the unauthorized disclosure, use or publication of Confidential Information, especially privileged or protected communications between NSCA, its counsel and insurers (including National Casualty) in this Coverage Lawsuit and as it relates to the (1) the Federal Lawsuit; (2) the State Lawsuit; or (3) NSCA's claims against appointed defense panel counsel Manning & Kass, Ellrod, Ramirez, Trester LLP ("Manning & Kass") regarding the Federal and State Lawsuits;

         WHEREAS, this Protective Order is meant to encompass all forms of disclosure that may contain Confidential Information, including any discovery request, discovery response, document production, pleading, motion, exhibit, declaration, affidavit, deposition transcript, inspection and all other tangible items (electronic or digital media, photographs, video, etc.);

         WHEREAS, National Casualty and NSCA agree that good cause exists under Rule 26(c) of the Federal Rules of Civil Procedure for entry of this Protective Order because, while at this stage of this Coverage Lawsuit National Casualty and NSCA are not necessarily able to anticipate every item that may be used, requested, produced or ordered to be produced in discovery in this Coverage Lawsuit, National Casualty and NSCA presently anticipate that one or more of them will seek to disclose, discover or use information that is private, privileged, or confidential and that in the interests of justice should remain so;

         NOW, THEREFORE, IT IS HEREBY STIPULATED by and between National Casualty and NSCA, through their respective counsel of record, that the following Protective Order shall govern the use and disclosure of Confidential Information in this Coverage Lawsuit:

         1. Any party to this Coverage Lawsuit and any third party shall have the right to designate as "Confidential" and subject to this Protective Order any information, document or thing, or portion of any document or thing, that: (a) contains trade secrets, competitively sensitive technical, marketing, financial, sales or other confidential business information, (b) contains private or confidential personal information, (c) contains information received in confidence from third parties, (d) the producing party otherwise believes in good faith to be entitled to protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, or (e) privileged or protected communications concerning the Federal or State Lawsuits. Any party to this Coverage Lawsuit or any third party covered by this Protective Order that produces or discloses any Confidential Information (but not Counsel Only Information), including, without limitation, any information, document, thing, interrogatory answer, admission, pleading or testimony, shall mark the same with the foregoing or similar legend: "CONFIDENTIAL" or "CONFIDENTIAL - SUBJECT TO DISCOVERY CONFIDENTIALITY/PROTECTIVE ORDER" (hereinafter "Confidential"). Any party that receives from another party or third-party information or documents that the receiving party believes should be designated Confidential is entitled under this Protective Order to designate such information or documents as Confidential. This paragraph applies equally to Counsel Only Information but such material shall be marked with the foregoing or similar legend: "CONFIDENTIAL - COUNSEL ONLY" or "CONFIDENTIAL - COUNSEL ONLY - SUBJECT TO DISCOVERY CONFIDENTIALITY/PROTECTIVE ORDER".

         2. The use or production of Confidential Information in this Coverage Lawsuit in any manner shall not constitute a waiver of any claims of privilege, work-product immunity or protections otherwise afforded such Confidential Information vis-a-vis third persons or entities not parties in this Coverage Lawsuit.

         3. All Confidential Information used, disclosed or produced in this Coverage Lawsuit shall be used by the parties solely for purposes of the prosecution or defense of this Coverage Lawsuit. Further, to the extent such Confidential Information would otherwise be discoverable, it can be used (1) as part of NSCA's defense of the Federal Lawsuit; (2) as part of NSCA's defense of any claim or litigation made by CrossFit (and its related persons or entities) concerning the State Lawsuit; or (3) in connection with NSCA's claims against Manning & Kass. Except to the extent permitted by this Protective Order, Confidential Information used, disclosed or produced in this Coverage Lawsuit shall not be used by any party for any business, commercial, competitive, personal or other purpose not authorized herein, and shall not be disclosed by any party to anyone other than those individuals and entities set forth in Paragraph 3 of this Protective Order, unless and until the restrictions herein are removed either by written agreement of counsel for the parties or by order of the Court. It is, however, understood that counsel for a party may give advice and opinions to his or her client and that client's other counsel based on his or her evaluation of Confidential Information.

         4. Confidential Information (but not Counsel Only Information) may be disclosed only to the following individuals and entities under the following conditions:

a. The parties (with respect to parties that are corporations or other business entities, "party" shall mean past and current company executives, past and current employees who participate or are contacted to assist in this Coverage Lawsuit, or any third party professionals assisting with this Coverage Lawsuit and facts related thereto);
b. Outside counsel (herein defined as any attorney, paralegal or employee of the parties' outside law firms) and in-house counsel for the parties, whether employed or serving as such;
c. Outside experts or consultants retained or used by a party or outside counsel for purposes of this Coverage Lawsuit, provided they have reviewed this Protective Order and have signed a non-disclosure agreement in the form attached hereto as Exhibit A;
d. Secretarial, paralegal, clerical, duplicating and data processing personnel ...

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