Brighton Trustees, LLC v. Transamerica Life Insurance Company

Opinion

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5 6 7 10 11 BRIGHTON TRUSTEES, LLC, on Case No. 2:19-cv-04210-CAS-GJSx behalf of and as trustee for COOK 12 STREET MASTER TRUST and [PROPOSED] STIPULATED DIAMOND LS TRUST; and BANK OF PROTECTIVE ORDER 13 UTAH, solely as securities intermediary for COOK STREET MASTER TRUST 14 and DIAMOND LS TRUST,

15 Plaintiffs, 16 v. COMPANY, 18 Defendant. 19 20 21 22 23 24 25 26 27 28 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential and 3 proprietary actuarial, business, technical, and financial information of Plaintiffs 4 Brighton Trustees, LLC, on behalf of and as trustee for Cook Street Master Trust and 5 Diamond LS Trust; and Bank of Utah, solely as securities intermediary for Cook 6 Street Master Trust and Diamond LS Trust (collectively, “Plaintiffs”) and Defendant 7 Transamerica Life Insurance Company (“TLIC”) for which special protection from 8 public disclosure and from use for any purpose other than prosecuting this litigation 9 may be warranted. Accordingly, Plaintiffs and TLIC hereby stipulate to and petition 10 the Court to enter the following Stipulated Protective Order (“Order”). The parties 11 acknowledge that this Order does not confer blanket protections on all disclosures or 12 responses to discovery and that the protection it affords from public disclosure and 13 use extends only to the limited information or items that are entitled to confidential 14 treatment under the applicable legal principles. 16 This action is likely to involve trade secrets, customer and pricing lists and 17 other valuable research, development, commercial, financial, technical and/or 18 proprietary information for which special protection from public disclosure and from 19 use for any purpose other than prosecution of this action is warranted. Such 20 confidential and proprietary materials and information consist of, among other 21 things, confidential business or financial information, information regarding 22 confidential business practices, or other confidential research, development, or 23 commercial information (including information implicating privacy rights of third 24 parties), information otherwise generally unavailable to the public, or which may be 25 privileged or otherwise protected from disclosure under state or federal statutes, court 26 rules, case decisions, or common law. Accordingly, to expedite the flow of 27 information, to facilitate the prompt resolution of disputes over confidentiality of 28 discovery materials, to adequately protect information the parties are entitled to keep 1 confidential, to ensure that the parties are permitted reasonable necessary uses of such 2 material in preparation for and in the conduct of trial, to address their handling at the 3 end of the litigation, and serve the ends of justice, a protective order for such 4 information is justified in this matter. It is the intent of the parties that information 5 will not be designated as confidential for tactical reasons and that nothing be so 6 designated without a good faith belief that it has been maintained in a confidential, 7 non-public manner, and there is good cause why it should not be part of the public 8 record of this case. 9 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 11 The parties further acknowledge, as set forth in Section 12.3 (Filing Protected 12 Material), below, that this Protective Order does not entitle them to file confidential 13 information under seal; Local Civil Rule 79-5 and the Court’s Guide to Electronically 14 Filing Under Seal Documents in Civil Cases set forth the procedures that must be 15 followed and the standards that will be applied when a party seeks permission from 16 the Court to file material under seal. 17 There is a strong presumption that the public has a right of access to judicial 18 proceedings and records in civil cases. In connection with non-dispositive motions, 19 good cause must be shown to support a filing under seal. See Kamakana v. City and 20 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors 21 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics, 22 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require 23 good cause showing). A specific showing of good cause or compelling reasons with 24 proper evidentiary support and legal justification must be made with respect to 25 Protected Material that a party seeks to file under seal. The parties’ mere designation 26 of Disclosure or Discovery Material as “CONFIDENTIAL,” or “HIGHLY 27 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” does not—without the 28 submission of competent evidence by declaration establishing that the material 1 sought to be filed under seal qualifies as confidential, privileged, or otherwise 2 protectable—constitute good cause. 3 Further, if a party requests sealing related to a dispositive motion or trial, then 4 compelling reasons, not only good cause, for the sealing must be shown, and the 5 relief sought shall be narrowly tailored to serve the specific interest to be protected. 6 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each 7 item or type of information, document, or thing sought to be filed or introduced under 8 seal in connection with a dispositive motion or trial, the party seeking protection must 9 articulate compelling reasons, supported by specific facts and legal justification, for 10 the requested sealing order. Again, competent evidence supporting the application to 11 file documents under seal must be provided by declaration. 12 Any document that is not confidential, privileged, or otherwise protectable in 13 its entirety will not be filed under seal if the confidential portions can be redacted. If 14 documents can be redacted, then a redacted version for public viewing, omitting only 15 the confidential, privileged, or otherwise protectable portions of the document, shall 16 be filed. Any application that seeks to file documents under seal in their entirety 17 should include an explanation of why redaction is not feasible. 18 2. DEFINITIONS 19 2.1 Acknowledgment: the “Acknowledgment and Agreement to be Bound” 20 form attached as Exhibit A to this Order. 21 2.2 Action: Brighton Trustees, LLC, on behalf of and as trustee for Cook 22 Street Master Trust and Diamond LS Trust; and Bank of Utah, solely as securities 23 intermediary for Cook Street Master Trust and Diamond LS Trust v. Transamerica 24 Life Insurance Company, Case No. 2:19-cv-04210-CAS-GJSx. 25 2.3 Challenging Party: A Party or Non-Party that challenges the designation 26 of information or items under this Order. 27 2.4 “CONFIDENTIAL” Information or Items: Confidential proprietary or 28 commercially sensitive business and financial information, trade secrets, and 1 personal information which is not generally known or publicly available and which 2 the Designating Party would not normally reveal to third parties or information that 3 otherwise meets the standard for protection set forth in Rule 26(c) of the Federal 4 Rules of Civil Procedure. It is the intent of the parties that information will not be 5 designated as confidential for tactical reasons and that nothing be so designated 6 without a good faith belief that it has been maintained in a confidential non-public 7 manner, and there is good cause why it should not be part of the public record of this 8 Action. 9 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as 10 their support staff). 11 2.6 Designating Party: A Party or Non-Party that designates information or 12 items that it produces or that are produced in disclosures or in response to discovery 13 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 14 ONLY.” 15 2.7 Disclosure or Discovery Material: All items or information, regardless 16 of the medium or manner in which it is generated, stored, or maintained (including, 17 among other things, testimony, transcripts, and tangible things), that are produced or 18 generated in disclosures or responses to discovery in this matter. 19 2.8 Expert: A person with specialized knowledge or experience in a matter 20 pertinent to the litigation who has been retained by a Party or its counsel to serve as 21 an expert witness or as a consultant in this Action and who is not a past or current 22 employee of a Party or a current employee of a Party’s competitor and who, at the 23 time of retention, is not anticipated to become an employee of a Party or a competitor 24 of a Party. This definition includes a professional jury or trial consultant retained in 25 connection with this litigation. 26 2.9 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 27 Information or Items: Extremely sensitive “CONFIDENTIAL” Information or Items, 28 1 the disclosure of which to another Party or Non-Party would create a substantial risk 2 of serious harm that could not be avoided by less restrictive means. 3 2.10 House Counsel: Attorneys who are employees of a Party or of an entity 4 that owns an interest in a Party and is responsible for controlling or directing the 5 litigation. House Counsel does not include Outside Counsel of Record or any other 6 outside counsel. 7 2.11 Non-Party: Any natural person, partnership, corporation, association, or 8 other legal entity not named as a Party to this action. 9 2.12 Outside Counsel of Record: Attorneys who are not employees of a party 10 to this Action but who are retained to represent or advise a party to this Action and 11 have appeared in this Action on behalf of that party or are affiliated with a law firm 12 that has appeared on behalf of that party, including support staff. 13 2.13 Party: Any party to this Action, including its House Counsel, officers, 14 directors, employees, consultants, and retained experts. 15 2.14 Producing Party: A Party or Non-Party that produces Disclosure or 16 Discovery Material in this Action. 17 2.15 Professional Vendors: Persons or entities that provide litigation support 18 services (e.g., photocopying, videotaping, translating, preparing exhibits or 19 demonstrations, and organizing, storing or retrieving data in any form or medium) 20 and their employees and subcontractors. 21 2.16 Protected Material: Any Disclosure or Discovery Material that is 22 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 23 ATTORNEYS’ EYES ONLY.” 24 2.17 Receiving Party: A Party that receives Disclosure or Discovery Material 25 from a Producing Party. 26 3. SCOPE 27 The protections conferred by this Order cover not only Protected Material (as 28 defined above), but also (1) any information copied or extracted from Protected 1 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 2 and (3) any testimony, conversations, or presentations by Parties or their Counsel or 3 their Experts that reveals Protected Material. Any use of Protected Material at trial 4 shall be governed by the orders of the trial judge. This Order does not govern the use 5 of Protected Material at trial. 6 4. DURATION 7 FINAL DISPOSITION of the action is defined as the conclusion of any 8 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal 9 has run. Except as set forth below, the terms of this protective order apply through 10 FINAL DISPOSITION of the action. The parties stipulate that they will be 11 contractually bound by the terms of this agreement beyond FINAL DISPOSITION, 12 and that they will have to file a separate action for enforcement of the agreement once 13 FINAL DISPOSITION of the action occurs. 14 Once a case proceeds to trial, information that was designated as 15 CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, or 16 maintained pursuant to this protective order used or introduced as an exhibit at trial 17 becomes public and will be presumptively available to all members of the public, 18 including the press, unless compelling reasons supported by specific factual findings 19 to proceed otherwise are made to the trial judge in advance of the trial. See 20 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing 21 documents produced in discovery from “compelling reasons” standard when merits- 22 related documents are part of court record). Accordingly, for such materials, the 23 terms of this protective order do not extend beyond the commencement of the trial. 24 5. DESIGNATING PROTECTED MATERIAL 25 5.1 Exercise of Restraint and Care in Designating Material for Protection. 26 Each Party or Non-Party that designates information or items for protection under 27 this Order must take care to limit any such designation to specific material that 28 qualifies under the appropriate standards. To the extent it is practical to do so, the 1 Designating Party must designate for protection only those parts of material, 2 documents, items or oral or written communications that qualify so that other 3 portions of the material, documents, items or communications for which protection 4 is not warranted are not swept unjustifiably within the ambit of this Order. 5 Mass, indiscriminate or routinized designations are prohibited. Designations 6 that are shown to be clearly unjustified or that have been made for an improper 7 purpose (e.g., to unnecessarily encumber the case development process or to impose 8 unnecessary expenses and burdens on other parties) may expose the Designating 9 Party to sanctions. 10 If it comes to a Designating Party’s attention that information or items that it 11 designated for protection do not qualify for protection, that Designating Party must 12 promptly notify all other Parties that it is withdrawing the inapplicable designation. 13 5.2 Manner and Timing of Designations. Except as otherwise provided in 14 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 15 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 16 under this Order must be clearly so designated before the material is disclosed or 17 produced. Designation in conformity with this Order requires: 18 (a) for information in documentary form (e.g., paper or electronic 19 documents, but excluding transcripts of depositions or other pretrial or trial 20 proceedings), that the Producing Party affix at a minimum, the legend 21 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 22 ONLY” to each page that contains protected material. If only a portion of the material 23 on a page qualifies for protection, the Producing Party also must clearly identify the 24 protected portion(s) (e.g., by making appropriate markings in the margins). 25 A Party or Non-Party that makes original documents available for inspection 26 need not designate them for protection until after the inspecting Party has indicated 27 which documents it would like copied and produced. During the inspection and 28 before the designation, all of the material made available for inspection shall be 1 deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the 2 inspecting Party has identified the documents it wants copied and produced, the 3 Producing Party must determine which documents, or portions thereof, qualify for 4 protection under this Order. Then, before producing the specified documents, the 5 Producing Party must affix the legend “CONFIDENTIAL” or “HIGHLY 6 CONFIDENTIAL - ATTORNEYS’ EYES ONLY” to each page that contains 7 Protected Material. If only a portion of the material on a page qualifies for protection, 8 the Producing Party also must clearly identify the protected portion(s) (e.g., by 9 making appropriate markings in the margins). 10 (b) any Party may designate as Protected Material testimony given in a 11 deposition or in other pretrial or trial proceedings by informing the reporter during 12 the deposition or by sending a letter to all Outside Counsel of Record and to the 13 deposition reporter designating by page and line any portions of the transcript to be 14 so restricted, or the entire transcript if applicable, within thirty (30) days after 15 receiving the deposition transcript and specifying the level of protection being 16 asserted. 17 During this 30-day period, a transcript will be treated as if it had been 18 designated “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” in its 19 entirety unless otherwise agreed. After the expiration of that period, the transcript 20 shall be treated only as actually designated. 21 When deposition testimony is designated Protected Material by informing the 22 reporter during the deposition, the transcript containing Protected Material shall have 23 an obvious legend on the title page that the transcript contains Protected Material, 24 and the title page shall be followed by a list of all pages (including line numbers) that 25 have been designated as Protected Material and the level of protection being asserted 26 by the Designating Party. The Designating Party shall inform the court reporter of 27 these requirements. 28 1 Parties shall give the other parties notice if they reasonably expect a deposition, 2 hearing, or other proceeding to include Protected Material so that the other parties 3 can ensure that only authorized individuals who have signed the Acknowledgment 4 are present at those proceedings. The use of a document as an exhibit at a deposition 5 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 6 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 7 (c) for information produced in some form other than documentary and 8 for any other tangible items, that the Producing Party affix in a prominent place on 9 the exterior of the container or containers in which the information is stored the 10 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 11 EYES ONLY.” If only a portion or portions of the information warrants protection, 12 the Producing Party, to the extent practicable, shall identify the protected portion(s). 13 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 14 failure to designate qualified information or items does not, standing alone, waive 15 the Designating Party’s right to secure protection under this Order for such material. 16 Upon timely correction of a designation, the Receiving Party must make reasonable 17 efforts to assure that the material is treated in accordance with the provisions of this 18 Order. 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 21 designation of confidentiality at any time that is consistent with the Court’s 22 Scheduling Order. Unless a prompt challenge to a Designating Party’s confidentiality 23 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 24 economic burdens, or a significant disruption or delay of the litigation, a Party does 25 not waive its right to challenge a confidentiality designation by electing not to mount 26 a challenge promptly after the original designation is disclosed. 27 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 28 resolution process under Local Rule 37-1. In conferring, the Challenging Party must 1 explain the basis for its belief that the confidentiality designation was not proper and 2 must give the Designating Party an opportunity to review the designated material, to 3 reconsider the circumstances, and, if no change in designation is offered, to explain 4 the basis for the chosen designation. 5 6.3 The burden of persuasion in any such challenge proceeding shall be on 6 the Designating Party. Frivolous designations or challenges, and those designations 7 or challenges made for an improper purpose (e.g., to harass or impose unnecessary 8 expenses and burdens on other parties) may expose the respective Designating Party 9 or Challenging Party to sanctions. Unless the Designating Party has waived or 10 withdrawn the confidentiality designation, all parties shall continue to afford the 11 material in question the level of protection to which it is entitled under the 12 Designating Party’s designation until the Court rules on the challenge. 13 7. ACCESS TO AND USE OF PROTECTED MATERIAL 14 7.1 Basic Principles. A Receiving Party may use Protected Material that is 15 disclosed or produced by another Party or by a Non-Party in connection with this 16 Action only for prosecuting, defending or attempting to settle this Action. Such 17 Protected Material may be disclosed only to the categories of persons and under the 18 conditions described in this Order. When the Action has been terminated, a Receiving 19 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 20 Protected Material must be stored and maintained by a Receiving Party at a location 21 and in a secure manner that ensures that access is limited to the persons authorized 22 under this Order. 23 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 24 otherwise ordered by the Court or permitted in writing by the Designating Party, a 25 Receiving Party may disclose any information or item designated 26 “CONFIDENTIAL” only to: 27 28 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 2 well as employees of said Outside Counsel of Record to whom it is reasonably 3 necessary to disclose the information for this Action; 4 (b) the Receiving Party, including officers, directors, and employees 5 (including House Counsel) of the Receiving Party to whom disclosure is reasonably 6 necessary for this Action; 7 (c) the Receiving Party’s Parents’ officers, directors, employees, or 8 consultants/advisors (1) to whom disclosure is reasonably necessary for this Action, 9 and (2) who have signed the Acknowledgment; 10 (d) Experts (as defined in this Order) of the Receiving Party to whom 11 disclosure is reasonably necessary for this Action and who have signed the 12 Acknowledgment; 13 (e) the Court and its personnel; 14 (f) court reporters and their staff; 15 (g) professional jury or trial consultants, mock jurors, and Professional 16 Vendors to whom disclosure is reasonably necessary for this Action and who have 17 signed the Acknowledgement; 18 (h) the author or recipient of a document containing the information or 19 a custodian or other person who otherwise possessed or knew the information; 20 (i) during their depositions, witnesses, and attorneys for witnesses, in 21 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 22 party requests that the witness sign the Acknowledgment; and (2) they will not be 23 permitted to keep any confidential information unless they sign the 24 Acknowledgment, unless otherwise agreed by the Designating Party or ordered by 25 the Court; and 26 (j) any mediator or settlement officer, and their supporting personnel, 27 mutually agreed upon by any of the parties engaged in settlement discussions and 28 who have signed the Acknowledgment. 1 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 2 ONLY” Information or Items. Unless otherwise ordered by the Court or permitted in 3 writing by the Designating Party, a Receiving Party may disclose any information or 4 item designated “HIGHLY CONFIDENTIAL- ATTORNEYS’ EYES ONLY” only 5 to: 6 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 7 well as employees of said Outside Counsel of Record, to whom it is reasonably 8 necessary to disclose the information for this Action; 9 (b) One member of the Receiving Party’s House Counsel, so long as 10 that individual (1) is a licensed attorney authorized to practice law, (2) at least ten 11 days in advance of first being provided any of the Designating Party’s Highly 12 Confidential – Attorneys’ Eyes Only materials, is identified in writing to the 13 Designating Party’s Outside Counsel, with information summarizing that 14 individual’s job responsibilities, (3) signs the Acknowledgement. If a Designating 15 Party objects to the disclosure of information to the Receiving Party’s House Counsel 16 identified pursuant to this subpart, the Designating Party shall, within 10 days of 17 receipt of the job responsibility information identified above, meet and confer with 18 the Receiving Party concerning the objection. If the objection is not resolved during 19 the meet and confer, the Designating Party shall promptly begin the discovery dispute 20 resolution process. The Receiving Party shall not disclose HIGHLY 21 CONFIDENTIAL - ATTORNEYS’ EYES ONLY information to the identified 22 House Counsel until the final resolution of the discovery dispute. 23 (c) Experts (as defined in this Order) of the Receiving Party to whom 24 disclosure is reasonably necessary for this Action and who have signed the 25 Acknowledgment; 26 (d) the Court and its personnel; 27 (e) court reporters and their staff; 28 1 (f) professional jury or trial consultants, mock jurors, and Professional 2 Vendors to whom disclosure is reasonably necessary for this Action and who have 3 signed the Acknowledgement; 4 (g) the author or recipient of a document containing the information or 5 a custodian or other person who otherwise possessed or knew the information; 6 (h) during their depositions, witnesses, and attorneys for witnesses, in 7 the Action to whom disclosure is reasonably necessary provided the witness signs 8 the Acknowledgment; and 9 (i) any mediator or settlement officer, and their supporting personnel, 10 mutually agreed upon by any of the parties engaged in settlement discussions and 11 who have signed the Acknowledgment. 12 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 14 If a Party is served with a subpoena or a court order issued in other litigation 15 that compels disclosure of any information or items designated in this Action as 16 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES 17 ONLY” that Party must: 18 (a) promptly notify in writing the Designating Party. Such notification shall 19 include a copy of the subpoena or court order; 20 (b) promptly notify in writing the party who caused the subpoena or order to 21 issue in the other litigation that some or all of the material covered by the subpoena 22 or order is subject to this Protective Order. Such notification shall include a copy of 23 this Order; and 24 (c) cooperate with respect to all reasonable procedures sought to be pursued 25 by the Designating Party whose Protected Material may be affected. 26 If the Designating Party timely seeks a protective order, the Party served with 27 the subpoena or court order shall not produce any information designated in this 28 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ 1 EYES ONLY” before a determination by the court from which the subpoena or order 2 issued, unless the Party has obtained the Designating Party’s permission. The 3 Designating Party shall bear the burden and expense of seeking protection in that 4 court of its confidential material and nothing in these provisions should be construed 5 as authorizing or encouraging a Receiving Party in this Action to disobey a lawful 6 directive from another court. 7 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 9 (a) The terms of this Order are applicable to information produced by a Non- 10 Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 11 CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” Such information produced by 12 Non-Parties in connection with this litigation is protected by the remedies and relief 13 provided by this Order. Nothing in these provisions should be construed as 14 prohibiting a Non-Party from seeking additional protections. 15 (b) In the event that a Party is required, by a valid discovery request, to 16 produce a Non-Party’s confidential information in its possession, and the Party is 17 subject to an agreement with the Non-Party not to produce the Non-Party’s 18 confidential information, then the Party shall: 19 (1) promptly notify in writing the Requesting Party and the Non-Party 20 that some or all of the information requested is subject to a confidentiality agreement 21 with a Non-Party; 22 (2) promptly provide the Non-Party with a copy of the Order in this 23 Action, the relevant discovery request(s), and a reasonably specific description of the 24 information requested; and 25 (3) make the information requested available for inspection by the Non- 26 Party, if requested. 27 (c) If the Non-Party fails to seek a protective order from this court within 21 28 days of receiving the notice and accompanying information, the Receiving Party may 1 produce the Non-Party’s confidential information responsive to the discovery 2 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 3 not produce any information in its possession or control that is subject to the 4 confidentiality agreement with the Non-Party before a determination by the court. 5 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 6 of seeking protection in this court of its Protected Material. 7 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 8 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 9 Protected Material to any person or in any circumstance not authorized under this 10 Order, the Receiving Party must immediately (a) notify in writing the Designating 11 Party of the unauthorized disclosures, (b) use its best efforts to retrieve all 12 unauthorized copies of the Protected Material, (c) inform the person or persons to 13 whom unauthorized disclosures were made of all the terms of this Order, and (d) 14 request such person or persons to execute the Acknowledgment. 15 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 17 When a Producing Party gives notice to Receiving Parties that certain 18 inadvertently produced material is subject to a claim of privilege or other protection 19 (e.g., work product immunity), the obligations of the Receiving Parties are those set 20 forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended 21 to modify whatever procedure may be established in an e-discovery order that 22 provides for production without prior privilege review. Pursuant to Federal Rule of 23 Evidence 502(d) and (e), the parties agree that the inadvertent or unintentional 24 disclosure by the Producing Party of material that is privileged or subject to other 25 protection shall not be deemed a waiver in whole or in part of the claim of privilege 26 or other protection, either as to the specific information disclosed or as to any other 27 information relating thereto on the same or related subject matter. 28 1 Upon learning of an inadvertent or unintentional disclosure of privileged 2 information, the Producing Party shall provide written notice to the parties who have 3 received such information. Within ten (10) business days of the date of that written 4 notice, the documents or materials described in that notice shall be returned to 5 counsel for the Producing Party, destroyed, or sequestered by the Receiving Party, 6 and in the same time frame, any notes or other writing or recordings that copy, 7 summarize, reflect, or discuss the content of the documents or materials shall be 8 destroyed or sequestered by the Receiving Party. No use shall be made of such 9 documents or materials from such inadvertent production during deposition or at 10 trial, nor shall such documents or materials be provided to anyone who did not 11 already have access to them prior to the request by the Producing Party that they be 12 returned. 13 If the Receiving Party intends to challenge the assertion of privilege, it must 14 provide written notice within this ten-day period, explaining the grounds for its 15 challenge. The Receiving Party shall initiate the dispute resolution process under 16 Local Rule 37.1 within ten (10) business days of date of service of the Receiving 17 Party’s notice disputing a claim of inadvertent production. 18 If the Parties cannot resolve a challenge without court intervention, the 19 Receiving Party may move the Court for an order compelling production of any 20 inadvertently produced or disclosed document or material in compliance with Local 21 Rule 37, but the motion shall not assert as a ground for production the fact of the 22 inadvertent production or disclosure. Pending the Court’s ruling, the party 23 challenging the assertion of privilege shall sequester the affected documents and 24 materials and shall not make any use of such information. 25 12. MISCELLANEOUS 26 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 27 person to seek its modification by the Court in the future. 28 1 12.2 Right to Assert Other Objections. By stipulating to the entry of this 2 Order, no Party waives any right it otherwise would have to object to disclosing or 3 producing any information or item on any ground not addressed in this Order. 4 Similarly, no Party waives any right to object on any ground to use in evidence of 5 any of the material covered by this Protective Order. 6 12.3 Filing Protected Material. A Party that seeks to file under seal any 7 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 8 only be filed under seal pursuant to a court order authorizing the sealing of the 9 specific Protected Material at issue. If a Party’s request to file Protected Material 10 under seal is denied by the court, then the Receiving Party may file the information 11 in the public record unless otherwise instructed by the court. 12 13. FINAL DISPOSITION 13 After the final disposition of this Action, as defined in Section 4 14 (DURATION), within 60 days of a written request by the Designating Party, each 15 Receiving Party must return all Protected Material to the Producing Party or destroy 16 such material. As used in this subdivision, “all Protected Material” includes all 17 copies, abstracts, compilations, summaries, and any other format reproducing or 18 capturing any of the Protected Material. Whether the Protected Material is returned 19 or destroyed, the Receiving Party must submit a written certification to the Producing 20 Party (and, if not the same person or entity, to the Designating Party) by the 60 day 21 deadline that (1) identifies (by category, where appropriate) all the Protected Material 22 that was returned or destroyed and (2) affirms that the Receiving Party has not 23 retained any copies, abstracts, compilations, summaries or any other format 24 reproducing or capturing any of the Protected Material. Notwithstanding this 25 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 26 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 27 deposition and trial exhibits, expert reports, attorney work product, and consultant 28 and expert work product, even if such materials contain Protected Material. Any such 1 || archival copies that contain or constitute Protected Material remain subject to this 2 || Protective Order as set forth in Section 4 (DURATION). 3 4 || Dated: March 2, 2020 ORRICK, HERRINGTON & 6 By: _/s/ Khai LeQuang RICHARD W. KREBS 8 9 Attorneys for Plaintiffs 10 11 |) Dated: March 2, 2020 McDOWELL HETHERINGTON LLP 12 By: /s/ Hutson B. Smelley ERIN E. BENNETT 15 16 Attorneys for Defendant 17 18 19 | FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 20 21 || DATED: March 6, 2020 22 23 24, pam AAA GAIL J. STANDISH 25 || UNITED STATES MAGISTRATE JUDGE 26 27 28

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2 I, Khai LeQuang, am the ECF User whose ID and password are being used to 3 file this [PROPOSED] STIPULATED PROTECTIVE ORDER. In accordance with 4 Local Rule 5-4.3.4, concurrence in and authorization of the filing of this document 5 has been obtained from Hutson Smelley, counsel for Defendant, and I shall 6 maintain records to support this concurrence for subsequent production for the 7 Court if so ordered or for inspection upon request by a party.

8 9 Dated: March 2, 2020 ORRICK, HERRINGTON & SUTCLIFFE LLP 10

11 By: /s/ Khai LeQuang_______________ KHAI LEQUANG 12

13 Attorneys for Plaintiffs

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 I, _____________________________ [print or type full name], of 4 _____________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Protective Order that was 6 issued by the United States District Court for the Central District of California on 7 _______________________________ [date] in the case of Brighton Trustees, LLC, 8 et al. v. Transamerica Life Insurance Company, Case No. 2:19-cv-04210-CAS- 9 GJSx. I agree to comply with and to be bound by all the terms of this Protective 10 Order and I understand and acknowledge that failure to so comply could expose me 11 to sanctions and punishment in the nature of contempt. I solemnly promise that I 12 will not disclose in any manner any information or item that is subject to this 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Protective Order. I further agree to submit to the jurisdiction of 15 the United States District Court for the Central District of California for enforcing 16 the terms of this Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint _____________________ [print or type 18 full name] of _______________________________________ [print or type full 19 address and telephone number] as my California agent for service of process in 20 connection with this action or any proceedings related to enforcement of this 21 Protective Order. 22 Date: 23 City and State where sworn and signed: 24 Printed name: ____________________ 25 Signature: _______________________ 26 27 28