Opinion
3:24-cv-00558-JAH-AHG
06-18-2024
JANA ANDRADE, Plaintiff/Counter-Defendant, v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Defendant/Counter-Claimant.
PROTECTIVE ORDER [ECF NO. 11]
Honorable Allison H. Goddard United States Magistrate Judge
Before the Court is the parties' Joint Motion for entry of their Stipulated Proposed Protective Order. ECF No. 11. Upon due consideration, the Court GRANTS the Motion, except to the extent the proposed order is inconsistent with chambers rules governing motion practice on discovery disputes. The Court has modified Paragraph 14 herein to achieve consistency with chambers rules but otherwise enters the following Stipulated Protective Order exactly as submitted by the parties:
INTRODUCTION
1. The Court recognizes that at least some of the documents and information (“materials”) being sought through discovery in the above-captioned action are, for competitive or privacy reasons, normally kept confidential by the parties. The parties have agreed to be bound by the terms of this Protective Order (“Order”) in this action.
2. The materials to be exchanged throughout the course of the litigation between the parties may contain personal or private information. Discovery may also involve trade secret or other confidential research, technical, cost, price, marketing or other commercial information, as is contemplated by Federal Rule of Civil Procedure 26(c)(1)(G), or information that could be potentially prejudicial to the business or operations of such party if disclosed without restriction. The purpose of this Order is to protect the confidentiality of such materials as much as practical during the litigation. THEREFORE:
DEFINITIONS
3. The term “confidential information” will mean and include information contained or disclosed in any materials, including documents, portions of documents, answers to interrogatories, responses to requests for admissions, trial testimony, deposition testimony, and transcripts of trial testimony and depositions, including data, summaries, and compilations derived therefrom that is deemed to be confidential information by any party to which it belongs.
4. The term “materials” will include, but is not be limited to: documents; correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other material that identify customers or potential customers; price lists or schedules or other matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks; contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk diaries; appointment books; expense accounts; recordings; photographs; motion pictures; compilations from which information can be obtained and translated into reasonably usable form through detection devices; sketches; drawings; notes (including laboratory notebooks and records); reports; instructions; disclosures; other writings; models and prototypes and other physical objects.
5. The term “counsel” will mean outside counsel of record, and other attorneys, paralegals, secretaries, and other support staff employed in the law firms Gianelli & Morris, ALC and Burke, Williams, and Sorensen, LLP. “Counsel” also includes the in-house attorneys for Defendant.
GENERAL RULES
6. Each party to this litigation that produces or discloses any materials, answers to interrogatories, responses to requests for admission, trial testimony, deposition testimony, and transcripts of trial testimony and depositions, or information that the producing party believes should be subject to this Protective Order may designate the same as “CONFIDENTIAL.” Designation as “CONFIDENTIAL”: Any party may designate information as “CONFIDENTIAL” only if, in the good faith belief of such party and its counsel, the information qualifies for protection under Federal Rule of Civil Procedure 26(c) or under other applicable law.
7. Whenever a deposition taken on behalf of any party involves a disclosure of confidential information of any party:
a. the deposition or portions of the deposition must be designated as containing confidential information subject to the provisions of this Order; such designation must be made on the record whenever possible, but a party may designate portions of depositions as containing confidential information after transcription of the proceedings; a party will have until fourteen (14) days after receipt of the deposition
transcript to inform the other party or parties to the action of the portions of the transcript to be designated “CONFIDENTIAL.”
b. the disclosing party will have the right to exclude from attendance at the deposition, during such time as the confidential information is to be disclosed, any person other than the deponent, counsel (including their staff and associates), the court reporter, and the person(s) agreed upon pursuant to paragraph 9 below; and c. the originals of the deposition transcripts and all copies of the deposition must bear the legend “CONFIDENTIAL,” as appropriate, and the original or any copy ultimately presented to a court for filing must not be filed unless the procedures for such filing set forth in this Order are followed.
8. All confidential information designated as “CONFIDENTIAL” must not be disclosed by the receiving party to anyone other than those persons designated within this order and must be handled in the manner set forth below and, in any event, must not be used for any purpose other than in connection with this litigation, unless and until such designation is removed either by agreement of the parties, or by order of the Court.
9. Information designated “confidential” must be viewed only by counsel (as defined in paragraph 3) of the receiving party, by court personnel, and by the additional individuals listed below:
a) The officers, directors, and employees (including in-house counsel) to whom disclosure is reasonably necessary for this litigation;
b) Technical personnel of the parties with whom Counsel for the parties find it necessary to consult, in the discretion of such counsel, in preparation for trial of this action;
c) Stenographic and clerical employees associated with the individuals identified above; and
d) The author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
e) Any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions or ordered by the court.
f) During their depositions, witnesses, and attorneys for witnesses, in the litigation to whom disclosure is reasonably necessary provided: (1) the deposing party requests that the witness sign the “Acknowledgement and Agreement to Be Bound” (Exhibit A); and (2) they will not be permitted to keep any confidential information unless otherwise agreed by the designating party;
g) Experts to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and h) Professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A).
10. All information which has been designated as “CONFIDENTIAL” by the producing or disclosing party, and any and all reproductions of that information, must be retained in the custody of the counsel for the receiving party identified in paragraph 3, except that independent experts authorized to view such information under the terms of this Order may retain custody of copies such as are necessary for their participation in this litigation.
11. No document shall be filed under seal without a court order allowing the filing of a document, or portion thereof, under seal. If a designating party seeks to file a “CONFIDENTIAL” document(s), an application to file a document under seal shall be served on opposing counsel, and on the person or entity that has custody and control of the document, if different from opposing counsel. If opposing counsel, or the person or entity who has custody and control of the document, wishes to oppose the application, they must contact the chambers of the judge who will rule on the application to notify the Court that an opposition to the application will be filed.
12. If a non-designating party wishes to file “CONFIDENTIAL” document(s) it must give the designating party notice of its intent to file. The designating party will then have ten (10) days within which to file a motion seeking Court permission to file the documents under seal. If the designating party fails to file the motion or if the motion is denied, then the designated documents will lose their “CONFIDENTIAL” status and may be filed with the Court.
13. Nothing contained in this order, nor any action taken in compliance with it, shall operate as an admission by any party that a particular document or information is, or is not, “Confidential,” or is, or is not, admissible evidence for any purpose.
14. At any stage of these proceedings, any party may object to a designation of the materials as confidential information. The party objecting to confidentiality must notify, in writing, counsel for the designating party of the objected-to materials and the grounds for the objection. If the dispute is not resolved consensually between the parties within seven (7) days of receipt of such a notice of objections, the objecting party may contact the Court to address the dispute in accordance with the discovery dispute procedures set forth in Judge Goddard's Chambers Rules.The materials at issue must be treated as confidential information, as designated by the designating party, until the Court has ruled on the objection or the matter has been otherwise resolved.
Judge Goddard's Chambers Rules are available on the Court website at: https://www.casd.uscourts.gov/judges/goddard/docs/Goddard%20Civil%20Pretrial%20Pr ocedures.pdf.
15. All confidential information must be held in confidence by those inspecting or receiving it, and must be used only for purposes of this action. Counsel for each party, and each person receiving confidential information must take reasonable precautions to prevent the unauthorized or inadvertent disclosure of such information. If confidential information is disclosed to any person other than a person authorized by this Order, the party responsible for the unauthorized disclosure must immediately bring all pertinent facts relating to the unauthorized disclosure to the attention of the other parties and, without prejudice to any rights and remedies of the other parties, make every effort to prevent further disclosure by the party and by the person(s) receiving the unauthorized disclosure.
16. No party will be responsible to another party for disclosure of confidential information under this Order if the information in question is not labeled or otherwise identified as such in accordance with this Order.
17. If a party, through inadvertence, produces any confidential information without labeling or marking or otherwise designating it as such in accordance with this Order, the designating party may give written notice to the receiving party that the document or thing produced is deemed confidential information, and that the document or thing produced should be treated as such in accordance with that designation under this Order. The receiving party must treat the materials as confidential, once the designating party so notifies the receiving party. If the receiving party has disclosed the materials before receiving the designation, the receiving party must notify the designating party in writing of each such disclosure. Counsel for the parties will agree on a mutually acceptable manner of labeling or marking the inadvertently produced materials as ‘CONFIDENTIAL.”
18. Nothing within this order will prejudice the right of any party to object to the production of any discovery material on the grounds that the material is protected as privileged or as attorney work product.
19. Nothing in this Order will bar counsel from rendering advice to their clients with respect to this litigation and, in the course thereof, relying upon any information designated as confidential information, provided that the contents of the information must not be disclosed.
20. This Order will be without prejudice to the right of any party to oppose production of any information for lack of relevance or any other ground other than the mere presence of confidential information. The existence of this Order must not be used by either party as a basis for discovery that is otherwise improper under the Federal Rules of Civil Procedure.
21. Nothing within this order will be construed to prevent disclosure of confidential information if such disclosure is required by law or by order of the Court.
22. Upon final termination of this action, including any and all appeals, counsel for each party must, upon request of the producing party, return all confidential information to the party that produced the information, including any copies, excerpts, and summaries of that information, or must destroy same at the option of the receiving party, and must purge all such information from all machine-readable media on which it resides. Notwithstanding the foregoing, counsel for each party may retain all pleadings, briefs, memoranda, motions, and other documents filed with the Court that refer to or incorporate confidential information, and will continue to be bound by this Order with respect to all such retained information. Further, attorney work product materials that contain confidential information need not be destroyed, but, if they are not destroyed, the person in possession of the attorney work product will continue to be bound by this Order with respect to all such retained information.
23. The restrictions and obligations set forth within this order will not apply to any information that: (a) the parties agree should not be designated confidential information; (b) the parties agree, or the Court rules, is already public knowledge; (c) the parties agree, or the Court rules, has become public knowledge other than as a result of disclosure by the receiving party, its employees, or its agents in violation of this Order; or (d) has come or will come into the receiving party's legitimate knowledge independently of the production by the designating party. Prior knowledge must be established by preproduction documentation.
24. The restrictions and obligations within this order will not be deemed to prohibit discussions of any confidential information with anyone if that person already has or obtains legitimate possession of that information.
25. Transmission by email or some other currently utilized method of transmission is acceptable for all notification purposes within this Order.
26. This Order may be modified by agreement of the parties, subject to approval by the Court.
27. The Court may modify the protective order sua sponte in the interests of justice or for public policy reasons. The parties prefer that the Court provide them with notice of the Court's intent to modify the Order and the content of those modifications, prior to entry of such an order.
IT IS SO ORDERED.
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, __ [full name], of [full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Southern District of California on [date] in the case of JANA ANDRADE v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Case No. 3:24-cv-00558-JAH-AHG. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the Southern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint [full name] of [full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order.