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- 1 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
Jonathan A. Shapiro (257199) Andrea J. Robinson (pro hac vice) Timothy J. Perla (pro hac vice) jonathan.shapiro@wilmerhale.com andrea.robinson@wilmerhale.com timothy.perla@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Tel: (650) 858-6101 Fax: (650) 858-6100 Attorneys for Defendant Life Insurance Company of the Southwest UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated, Plaintiffs, vs. LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation, and DOES 1-50 Defendant.
Case No.: CV 10-9198-JVS(RNBx) Assigned for all purposes to the Honorable James V. Selna ORDER RE AMENDED PROTECTIVE ORDER
IT IS HEREBY ORDERED as follows:
1. Plaintiffs Joyce Walker, Kim Bruce Howlett, and Muriel Spooner
(“Plaintiffs”) and Defendant Life Insurance Company of the Southwest
(“Defendant” and, together with Plaintiff, the “Parties”) (and possibly third parties)
may produce materials during the course of discovery that are otherwise protected
NOTE: CHANGES MADE BY THE COURT
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- 2 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
from disclosure as confidential. A Party may designate discovery materials as
“Confidential Material” to the extent that the Party, through its counsel, believes in
good faith such discovery materials are confidential because they include any of the
following:
a) trade secrets;
b) confidential research, development, or commercial information
that, if disclosed to the general public or competitors of any
Party, could reasonably and in good faith be expected to result
in specific prejudice or harm to that Party;
c) individual personal information, such as:
i. names other than those of Parties or their employees or
agents;
ii. addresses;
iii. dates directly related to an individual, including birth
date and date of death;
iv. telephone numbers;
v. fax numbers;
vi. electronic mail addresses;
vii. social security numbers; and
viii. medical records.
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- 3 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
2. With respect to documents or information to be designated as
Confidential Material, the producing party or third party (the “Producing Party”)
will identify or otherwise designate such materials as follows:
a) For written material, by placing the following legend on each
applicable page of the document: “CONFIDENTIAL”; and
b) For depositions, by designating the material as
“CONFIDENTIAL INFORMATION – PROTECTIVE
ORDER.”
3. All documents and information produced in this action shall be used
only for the purpose of litigating this action (and any appeal taken therefrom) and
shall not be used for any other purpose whatsoever. However, nothing in this
Protective Order is intended to restrict a party’s lawful use of any information or
document covered by the Protective Order, if the same information or document is
obtained by the party through means independent of the discovery process.
4. By producing Confidential Material, the Parties do not waive any
objection regarding admissibility, relevancy, or any other evidentiary ground, all of
which are specifically reserved.
5. If documents and information subject to a claim of privacy, attorney-
client privilege or attorney work-product are inadvertently disclosed to another
party, such disclosure shall in no way prejudice or otherwise constitute a waiver of
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- 4 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
any claim of privacy, attorney-client privilege or attorney work product to which
the Producing Party or other person would be entitled, provided that the Producing
Party took reasonable steps to prevent disclosure and promptly took reasonable
steps to rectify the error. If a claim of inadvertent disclosure is made pursuant to
this paragraph with respect to information then in the custody of another party, such
party will promptly return to the claiming party or person that material as to which
the claim of inadvertent disclosure has been made. The party returning such
material may then move the Court for an order compelling production of the
material on the grounds that (i) the Producing Party waived any applicable privilege
by failing to take reasonable steps to prevent disclosure or promptly to take
reasonable steps to rectify the error; or (ii) the material is not subject to protection
under any claim of privacy, attorney-client privilege, or attorney work-product. To
the extent that any documents inadvertently disclosed have been designated as
Confidential Material, the returning party may also assert a challenge to the
designation of the documents as Confidential Material under Paragraph 12 of this
Order.
6. Confidential Material and any related copies, summaries, extracts,
notes or memoranda, shall not be disclosed except to the following persons, each of
whom shall be bound by the terms of this Order and subject to the jurisdiction of
this Court for purposes of enforcement of this Order:
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- 5 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
a) the Court and its officers or personnel;
b) attorneys at the law firms of record in this action only,
including such attorneys’ legal assistants, paralegals,
stenographic and clerical employees working under counsel’s
direct supervision in this action, as well as outside copying,
graphic, computer services and court reporters performing
services in connection with this action;
c) independent experts, consultants and their employees
specifically retained by the attorneys of record in this action to
assist them in the preparation of this action;
d) the individual plaintiffs and the defendant (including its current
officers, directors and employees) who are directly assisting
counsel with the conduct or resolution of this action;
e) third party witnesses who are being examined by counsel at a
deposition or trial;
f) the author(s), recipient(s), addressee(s), and person(s) copied
with respect to the particular Confidential Material, and their
counsel;
g) court reporters, including stenographers and video technicians
transcribing proceedings in the Litigation; and
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- 6 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
h) any mediator agreed upon by the Parties, and such mediator’s
employees and staff.
7. Before counsel discloses any Confidential Material or its contents
pursuant to Paragraph 5 to any person other than the Court or court personnel,
counsel shall provide that person a copy of this Protective Order. Any person to
whom Confidential Material or its contents is disclosed pursuant to Paragraphs 5(c)
and 5(e)-(f) shall sign a copy of Exhibit A to acknowledge receipt of a copy of this
Protective Order. Counsel who makes a disclosure pursuant to Paragraphs 5(c) and
5(e)-(f) shall sign a copy of Exhibit A to acknowledge delivery of a copy of this
Protective Order. Counsel who makes a disclosure pursuant to Paragraphs 5(c)
and 5(e)-(f) shall retain all executed copies of Exhibit A.
8. Any court reporter who transcribes deposition testimony in this action
shall be informed by any party who may seek to designate the deposition testimony
as Confidential Material before the beginning of any deposition about this Order
and shall be asked to take appropriate steps to preserve confidentiality under the
terms of this Order. Portions of deposition transcripts marked "CONFIDENTIAL
INFORMATION – PROTECTIVE ORDER" shall be treated as if they were
Confidential Material.
9. Every person given access to Confidential Material shall not make
copies, duplicates, extracts, summaries or descriptions of such material, or any
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- 7 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
portion thereof, except for use in connection with the litigation. Each and every
duplicate, extract, summary or description produced pursuant to this provision for
use in connection with the litigation shall be treated as Confidential Material subject
to the terms of this Order and may not be disclosed other than pursuant to the
terms hereof.
10. In accordance with Local Rule 79-5.1, if any papers to be filed with
the Court contain information and/or documents that have been designated as
“CONFIDENTIAL” or “CONFIDENTIAL INFORMATION – PROTECTIVE
ORDER,” the proposed filing shall be accompanied by an application to file the
papers or the portion thereof containing the designated information or documents (if
such portion is segregable) under seal; and the application shall be directed to the
judge to whom the papers are directed. For motions, the parties shall publicly file a
redacted version of the motion and supporting papers.
11. If any Party wishes to challenge the classification of a document or
testimony as Confidential Material, it shall specify in writing to counsel for the
Producing Party the document or testimony it wishes to have declassified. If there
is any dispute as to whether a document or testimony may be declassified, such
document or testimony shall be treated as Confidential Material until such dispute
is resolved. In any dispute as to whether a document or testimony should be
declassified, the burden shall be on the Party claiming confidentiality to prove that
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- 8 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
there is good cause why the document or information should be classified as
Confidential Material and should not be part of the public record in this case and to
articulate the specific prejudice or harm that will result if the documents are not
protected from disclosure. Any motion challenging a designation of material as
Confidential Material must be made in accordance with Local Rules 37-1 and 37-2.
12. If any Party wishes to disclose any Confidential Material to anyone
other than those permitted under Paragraph 5 above, prior written notice shall be
served on counsel for Producing Party, which notice shall include: the identity of
that person, the information to be disclosed, and a written acknowledgement as set
forth in Exhibit A, duly executed by that person. The Producing Party shall object
to such disclosure in writing within ten (10) calendar days of its receipt of such
written notice. If the Producing Party objects to the disclosure, no such disclosure
shall be made unless the receiving party obtains leave of Court. If the Producing
Party does not object to the disclosure within ten (10) calendar days of receiving
written notice, as set forth above, the identified material may be disclosed to the
specified party and shall be treated as Confidential Material in accordance with
this Order. Failure to object to disclosure of Confidential Material to a specified
third party in accordance with this paragraph shall not be deemed a waiver of the
provisions of this Order protecting such Confidential Material as to any other
party.
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- 9 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
13. Entering into or agreeing to this Order, and/or producing or receiving
Confidential Material or otherwise complying with the terms of this Order, shall
not: (i) prejudice in any way the rights of any Party to object to the production of
documents or information it considers not subject to discovery or to object to the
authenticity or admissibility into evidence of any document, testimony, or other
evidence subject to this Order; (ii) prejudice in any way the rights of a Party to
petition the Court for a further sealing order relating to any information deemed
confidential; (iii) prevent the Parties from agreeing to alter or waive the provisions
or protections provided for herein with respect to any particular Confidential
Material; (iv) constitute an agreement by any Party that any documents or
information designated Confidential Material under this Order are confidential
under Fed. R. Civ. P. 26(c)(1) or other applicable law and, therefore, subject to
protection from disclosure; or (v) prejudice in any way the rights of any Party to
challenge the designation of any documents or information as Confidential
Material.
14. If a Party to this Order receives a subpoena or other form of judicial
process compelling disclosure of Confidential Material, the Party shall, at least
fourteen (14) days prior to the demanded disclosure, provide counsel for the
Producing Party written notice by facsimile transmission or hand delivery of the
subpoena or other form of judicial process calling for the disclosure of Confidential
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- 10 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
Material. If written notice cannot be provided at least fourteen (14) days prior to
the time for production or other disclosure, the Party shall, in addition to the
written notice described above, give notice to counsel for the Producing Party by
telephone. In no event shall production or disclosure be made before reasonable
notice is given to counsel for the Producing Party. The purpose of this paragraph
is to give the Producing Party an opportunity to object to the production or
disclosure of Confidential Information pursuant to compulsory process.
However, nothing contained in this Order is intended to be construed as
authorizing a party to disobey a lawful subpoena issued in another action.
15. Nothing in this Order shall prevent any Producing Party from using or
disclosing its own documents or information in any way it chooses. In addition,
nothing in this Order shall be construed in any way to control the use of documents
or information received at any time outside the course of the discovery process in
this litigation by a Party to this Order.
16. Upon final determination of this action, whether by judgment,
settlement or otherwise, including all appeals:
a) counsel of record in this action and any other person who has
received Confidential Material shall immediately assemble all
such Confidential Material received, along with all copies,
extracts, summaries and compilations of that material (except
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- 11 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
material constituting the work-product of any counsel which
shall be treated as Confidential Material and kept confidential
indefinitely) and shall immediately either (1) return such
materials to the Producing Party, or (2) destroy such materials
and promptly provide written confirmation of such destruction;
and
b) counsel of record will continue to protect the confidentiality of
information contained in any work-product material retained
under subparagraph (a) above.
17. The execution of this Order shall not preclude any Party from moving
the Court for other or further protective orders in the course of this action.
18. This Order is subject to amendment and modification by further
written stipulation among counsel of record in this action and/or by order of this
Court. No amendment or modification pursuant to the stipulation of the parties
shall have the force or effect of a Court order unless the Court approves the
amendment or modification.
// // // // //
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- 12 - AMENDED PROTECTIVE ORDER, SACV 10-9198-JVS (RNBx)
19. To the extent not otherwise provided for herein, no Party shall file any
motion for a protective order or any motion to compel without first meeting and
conferring pursuant to Local Rules 37-1 and 37-2 with the other Parties regarding
such motion.
IT IS SO ORDERED. Dated: August 26, 2011 Honorable Robert N. Block United States Magistrate Judge
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