Kinder v. Liberty Mutual Insurance Company

Opinion

44 55 66 77 88 UNITED STATES DISTRICT COURT 99 DISTRICT OFNEVADA 1100 1111 HARRY STUART KINDER, Case No. 2:23-cv-01338-JAD-BNW 1122 Plaintiff, [AMENDED PROPOSED] PROTECTIVEORDER 1133 v. LIBERTYMUTUAL INSURANCE 1155 COMPANY,and Does1 through 100, 1166 Defendants. 1177 1188 1199 2200 2211 2222 2233 2244 2255 2266 2277 1. OVERVIEW OF PROTECTIVE ORDER 1.1 Purposes and Limitations Discoveryinthisactionislikelytoinvolveproductionofconfidential,proprietaryorprivate informationforwhichspecialprotectionfrompublicdisclosureandfromuseforanypurposeother than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petitiontheCourttoenterthe followingStipulatedProtectiveOrder.Thepartiesacknowledgethat this Order doesnot confer blanketprotections on all disclosures orresponses to discoveryand that the protection it affords from public disclosure and use extends only to the limited information or items thatareentitledto confidentialtreatment undertheapplicable legal principles. 1.2. Good Cause Statement This action is likely to involve commercial, financial, technical, and/or proprietary informationforwhichspecialprotectionfrompublicdisclosureandfromuseforanypurposeother than prosecution of this action is warranted. Such confidential and proprietary materials and information consist of, among other things, confidential business or proprietary information, information regarding confidential business practices, or other confidential commercial information,informationotherwisegenerallyunavailabletothepublic,orwhichmaybeprivileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end ofthelitigation,andservetheendsofjustice, aprotectiveorderforsuchinformationisjustifiedin this matter. 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 maintainedinaconfidential,non-publicmanner,andthere is good cause why it should not be part of the public recordof this case. 1.3 Acknowledgement of Procedurefor Filing UnderSeal The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Local Rule IA 10-5 sets forth the procedures that must be followed and the standards that will be applied when a partyseeks permission from the courtto file materialunderseal. There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown tosupportafilingunderseal. SeeKamakanav.CityandCountyofHonolulu,447F.3d1172,1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause showing), and a specific showing of good cause or compelling reasons with proper evidentiary support and legal justification, must be made with respect to Protected Material that a party seeks to file under seal. The parties’ mere designation of Disclosure of Discovery Material as HIGHLY CONFIDENTIAL and/or CONFIDENTIAL does not—without the submission of competent evidence by declaration, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable—constitute good cause. Further, if a party requests sealing related to a dispositive motion or trial, then compelling reasons,notonlygoodcause,forthesealingmustbeshown,andthereliefsoughtshallbenarrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought tobefiledorintroducedundersealinconnectionwithadispositivemotionortrial,thepartyseeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Competent evidence supporting the application to file documents undersealmust beprovidedbydeclaration. Any document that is not confidential, privileged, or otherwise protectable in its entirety will not be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible. 2. DEFINITIONS 2.1 Action:Thispendingfederallawsuit intheUnited StatesFederalDistrictCourtfor the District of Nevada, CaseNo. 2:23-cv-01338-JAD-BNW. 2.2 Challenging Party: A Party or Non-Party that challenges the designation of information oritems underthis Order. 2.3 “HIGHLYCONFIDENTIAL”InformationorItems: Information(regardlessof howitisgenerated,storedormaintained)ortangiblethingsthatqualifyforprotectionunderFederal Rule ofCivil Procedure 26(c). 2.4 “CONFIDENTIAL” Information or Items: Information (regardless of how it is generated, stored or maintained) or tangible things that constitute private business information, as specified abovein theGood CauseStatement. 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.6 Designating Party: A Partyor Non-Partythat designates information or items that it produces in disclosures or in responses to discovery as “HIGHLY CONFIDENTIAL” or “CONFIDENTIAL.” 2.7 Disclosure or Discovery Material: All items or information, regardless of the mediumormannerin whichitis generated,stored,ormaintained(including, amongotherthings, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discoveryin this matter. 2.8 Expert:Apersonwithspecializedknowledgeorexperienceinamatterpertinentto the litigation who has been retained bya Partyor its counsel to serve as an expert witness or as a consultant in this Action. 2.9 House Counsel: Attorneys who are employees of a party to this Action. House Counsel does notinclude Outside Counsel of Recordoranyotheroutsidecounsel. 2.10 Non-Party:Anynaturalperson,partnership,corporation,associationorotherlegal entitynot named as aPartyto this action. Thedefinitionof“Non-Party” does not include a party affiliateand/orsubsidiary. 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 that has appeared on behalf of that party, and includes support staff. 2.12 Party:Anypartyto this Action, including allof its officers, directors, employees, consultants, retained experts,and OutsideCounselof Record (and their support staffs). 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 isdesignated as“HIGHLYCONFIDENTIAL”or“CONFIDENTIAL.” 2.16 Receiving Party: A Party that receives Disclosure or Discovery Material from a ProducingParty. 3. SCOPE TheprotectionsconferredbythisStipulationand Ordercovernot onlyProtectedMaterial (asdefined above), butalso:(1)anyinformation copiedorextracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, orpresentations byParties or their Counselthat might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the trial judge. This Orderdoes not governtheuse of Protected Material attrial. 4. DURATION Once a case proceeds to trial, information that was designated as HIGHLY CONFIDENTIAL or CONFIDENTIAL or maintained pursuant to this protective order used or introducedasanexhibitattrialbecomespublicandwillbepresumptivelyavailabletoallmembers ofthepublic,includingthepress,unless compellingreasonssupportedbyspecificfactual findings at 1180-81 (distinguishing “good cause” showing for sealing documents produced in discovery from “compelling reasons” standard when merits-related documents are part of court record). Accordingly, the terms of this protective order do not extend beyond the commencement of the trial. 5. DESIGNATING PROTECTEDMATERIAL 5.1 Exercise of Restraintand Carein Designating Material for Protection EachPartyorNon-PartythatdesignatesinformationoritemsforprotectionunderthisOrder musttakecaretolimitanysuchdesignationtospecificmaterialthatqualifiesundertheappropriate standards. 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,itemsorcommunicationsforwhichprotectionisnotwarrantedarenotswept unjustifiablywithin theambit of this Order. Mass,indiscriminateorroutinizeddesignationsareprohibited.Designationsthatareshown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber the case development process or to impose unnecessary expenses and burdens on other parties)mayexposethe DesignatingPartyto sanctions. IfitcomestoaDesignatingParty’sattentionthatinformationoritemsthatitdesignatedfor protection do not qualify for protection, that Designating Party must promptly notify all other Parties that it is withdrawingtheinapplicable designation. 5.2 Mannerand Timing ofDesignations 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 the material is disclosed or produced. Designation in conformitywith this Orderrequires: (a) For information in documentary form (e.g., paper or electronic documents, but excludingtranscripts ofdepositions or other pretrial ortrial proceedings),that theProducingParty affix ata minimum,the legend “HIGHLY CONFIDENTIAL”or“CONFIDENTIAL” (hereinafter “legend”),to each pagethatcontainsprotected material. Ifonlyaportionofthematerialon apage qualifiesforprotection,theProducingPartyalsomustclearlyidentifytheprotectedportion(s)(e.g., bymakingappropriate markings in the margins). A Party or Non-Party that makes original documents available for inspection need not designate them for protection until after the inspecting Party has indicated which documents it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and produced, the Producing Party mustdeterminewhichdocuments,orportionsthereof,qualifyforprotectionunderthisOrder. Then, before producingthespecifieddocuments,theProducingPartymust affix thelegend to each page thatcontainsProtectedMaterial. Ifonlyaportionofthematerialonapagequalifiesforprotection, theProducingPartyalso mustclearlyidentifytheprotectedportion(s)(e.g.,bymakingappropriate markings in the margins). (b) For testimony given in depositions that the Designating Party identifies the Disclosure or Discovery Material on the record, before the close of the deposition all protected testimony. (c) For information produced insome formotherthan documentaryand for any other tangibleitems,thattheProducingPartyaffix inaprominentplaceontheexteriorofthecontainer or containers in which the information is stored the legend “HIGHLY CONFIDENTIAL” or “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, the ProducingParty,totheextentpracticable, shallidentifytheprotectedportion(s). Ifadocumentis produced in its native format, then the filename shall also include the term HIGHLY CONFIDENTIALorCONFIDENTIALat the beginningof the file name. 5.3 Inadvertent Failures to Designate If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party’s right to secure protection under this Order for such material. Upon timelycorrection ofa designation, theReceiving Party mustmake reasonable effortstoassurethatthematerialistreatedinaccordancewiththeprovisionsofthisOrder.AParty may retroactively designate documents previously produced before the entry of this Protective Orderin accordancewith its terms. 6. CHALLENGINGCONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court’s Scheduling Order. In the event that counsel for a Party receiving documents, testimony, or information in discovery designated as Highly Confidential or Confidential objects to such designation with respect to anyor all of such items, said counselshall advise counsel for the Designating Party, in writing, of such objections, setting forth the specific documents,testimony,orinformationtowhicheachobjectionpertainsandthespecificreasonsand supportforsuchobjections(the“DesignationObjections”).CounselfortheDesignatingPartyshall have fourteen (14) calendar days after service of the written Designation Objections to meet and confer with the objecting Party in an attempt to resolve the Designation Objections. If the parties are not able to resolve the dispute during the meet-and-confer process, the Designating Party may then, after advising the Requesting Party, file a motion with the Court seeking to preserve any or alldesignationsondocuments,testimony,orinformationaddressedbytheDesignationObjections (the “Designation Motion”). Pending a resolution of the Designation Motion by the Court, any and all existing designationsonthedocuments,testimony,orinformationatissueinsuchDesignationMotionshall remain in place. The Designating Party shall have the burden on any Designation Motion of establishing the applicability of its Highly Confidential or Confidential designation. In the event that the Designating Party does not timely respond to the Designation Objections or fails to file a motion with the Court after the meet and confer, then such documents, testimony, or information shall be de-designated in accordance with the Designation Objections applicable to such material. ThefailureofareceivingPartyexpresslytochallengethedesignationofanydocuments,testimony, orinformation asHighlyConfidentialorConfidentialatthetimeofDisclosureshall not constitute a waiverof the right to challenge thedesignation at anysubsequent time. 6.2 Meetand Confer The ChallengingPartyshall initiate the dispute resolution process. 6.3 The burden of persuasion in any such challenge proceeding shall be on the Designating Party Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessaryexpensesandburdensonotherparties)mayexposetheChallengingPartytosanctions. Unless the Designating Party has waived or withdrawn the confidentiality designation, all parties shall continue to afford the materialin question the levelof protection to which it is entitledunder the ProducingParty’s designation until theCourtrules on the challenge. 7. ACCESS TO AND USE OF PROTECTEDMATERIAL 7.1 Basic Principles A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this Action only for prosecuting, defending or attempting to settle this Action. “HIGHLY CONFIDENTIAL” Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the Action has been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL Protected Material mustbe storedand maintained bya ReceivingPartyat alocation and in a secure mannerthatensures thataccess is limited to the persons authorized under this Order. 7.2 Disclosure of “HIGHLY CONFIDENTIAL” Information orItems Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL” onlyto: (a) The Receiving Party’s Outside Counsel of Record in this Action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information forthis Action; (b) The in-house counsel, officers, directors, and managerial employees of the ReceivingPartyto whom disclosureis reasonablynecessaryfor this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (d) The courtand its personnel; (e) Courtreporters and their staff; (f) Professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (ExhibitA); (g) The author or recipient of a document containing the information or a custodian or other person who otherwise possessedorknew the information; (h) During their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonablynecessaryprovided: (1) The deposing party requests that the witness sign the form attached as Exhibit Ahereto; and (2) The deponent will not be permitted to keep any confidential information unlesstheysignthe“AcknowledgmentandAgreementtoBeBound”(ExhibitA),unlessotherwise agreedbytheDesignatingPartyorordered bythe court.Pagesoftranscribeddepositiontestimony or exhibits to depositions that reveal Protected Material may be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Orderand the deponentforthepurposes of reviewingand correctingthe deposition transcript; and (i) Anymediatororsettlementofficer,andtheirsupportingpersonnel,mutuallyagreed upon byanyof the parties engagedin settlement discussions. 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN IfaPartyis served withasubpoenaoracourtorderissuedin otherlitigationthatcompels disclosureofanyinformationoritemsdesignatedinthisActionas“HIGHLYCONFIDENTIAL” or “CONFIDENTIAL,” thatPartymust: (a) Promptlynotifyin writingtheDesignatingParty. Suchnotificationshallincludea copyof thesubpoena or court order; (b) Promptly notify in writing the party who caused the subpoena or court order to notify all interested parties that some or all of the material covered by the subpoena or order is subjecttothisProtectiveOrder. SuchnotificationshallincludeacopyofthisStipulatedProtective Order; and (c) Cooperate with respect to all reasonable procedures sought to be pursued by the DesignatingPartywhose ProtectedMaterialmay beaffected. IftheDesignatingPartytimelyseeksaprotectiveorder,thePartyservedwiththesubpoena or court order shall not produce any information designated in this action as “HIGHLY CONFIDENTIAL” or “CONFIDENTIAL” before a determination by the court from which the subpoena or order issued unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burden and expense of seeking protection in that court of its confidential material and nothing in these provisions should be construed as authorizing or encouraging aReceiving Partyin this Action to disobeya lawful directivefrom anothercourt. 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE (a) The terms of this Order are applicable to information produced by a Non-Party in this Action and designated as “HIGHLY CONFIDENTIAL” or “CONFIDENTIAL.” Such informationproducedbyNon-Partiesinconnectionwiththislitigationisprotectedbytheremedies andreliefprovidedbythisOrder.Nothingin these provisionsshouldbe construedas prohibitinga Non-Partyfrom seeking additionalprotections. (b) Inthe eventthataPartyisrequired,byavaliddiscoveryrequest, toproduceaNon- Party’s Confidential or Highly Confidential information in its possession, and the Party is subject to an agreement with the Non-Partynot to produce the Non-Party’s confidential information, then the Partyshall: (1) Promptly notify in writing the Requesting Party and the Non- Party that someoralloftheinformationrequestedissubjecttoaconfidentialityagreementwithaNon-Party; (2) Promptly provide the Non-Party with a copy of the Stipulated Protective Orderinthis Action,therelevant discoveryrequest(s),and a reasonablyspecificdescriptionofthe information requested; and (3) Make the information requested available for inspection by the Non-Party, if requested. (c) If the Non-Party fails to seek a protective order from this court within 14 days of receiving the notice and accompanying information, the Receiving Party may produce the Non- Party’s confidentialinformationresponsivetothediscoveryrequest. Ifthe Non-Partytimelyseeks aprotectiveorder,theReceivingPartyshallnotproduceanyinformationinitspossessionorcontrol that is subject to the confidentiality agreement with the Non-Party before a determination by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seekingprotection in this court ofits Protected Material. 10. UNAUTHORIZED DISCLOSURE OFPROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected MaterialtoanypersonorinanycircumstancenotauthorizedunderthisStipulatedProtectiveOrder, the Receiving Party must immediately: (a) notify in writing the Designating Party of the unauthorizeddisclosures;(b)useitsbesteffortsto retrieveallunauthorizedcopiesoftheProtected Material; (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order; and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as ExhibitA. 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the ReceivingParties arethoseset forth in Federal Rule of Civil Procedure 26(b)(5)(B). 12. MISCELLANEOUS 12.1 Right to FurtherRelief Nothingin thisOrder abridgestheright of anypersontoseekitsmodificationbytheCourt in thefuture. 12.2 Right to AssertOther Objections By stipulating to the entry of this Protective Order, no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressedin thisStipulatedProtectiveOrder.Similarly,noPartywaivesanyrighttoobjectonany ground to use in evidenceof anyofthematerial covered bythis Protective Order. 12.3 Filing Protected Material A Party that seeks to file under seal any “HIGHLY CONFIDENTIAL” and/or “CONFIDENTIAL” Materialmust complywith Local Rule IA 10-5. ProtectedMaterialmayonly be filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a Party’s request to file Protected Material under seal is denied by the court, then the Receiving Party may file the information in the public record unless otherwise instructed bythecourt. 13. FINAL DISPOSITION After the Final Disposition of this Action, within 60 days of a written request by the Designating Party, each Receiving Partymust return all Protected Material to the Producing Party or destroy such material. “Final disposition” shall be defined as the final determination of this Action,whether bysettlement, dismissal,or the entryof judgmentbya court of law, includingthe exhaustionorexpirationoftherighttoexerciseanyappellateremedies.Asusedinthissubdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material that was returned o1 destroyed; and (2) affirms that the Receiving Party has not retained any copies, abstracts compilations, summaries or any other format reproducing or capturing any of the Protectec Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of al pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultan 8} and expert work product, even if such materials contain Protected Material. Any such archiva copies that contain or constitute Protected Material remain subject to this Protective Order as se forth in Section 4 (DURATION). 11} 14. VIOLATION Any violation of this Order may be punished by appropriate measures including, withou limitation, contempt proceedings and/or monetary sanctions. IT IS SO ORDERED. Dated: September 11, 2024 © ZK gam les We Ene Hon. Brenda Weksler U.S. Magistrate Judge 2]

I, ___________________________ [print or type full name], of____________________ [print or type full address],declareunder penaltyofperjurythat Ihave read in its entiretyand understand the Stipulated Protective Orderthatwas issuedbytheUnited States District Court for the District of Nevada on [date] in thecaseof Kinderv. LM Insurance Corporation, etal.,Case No.2:23-cv-01338-JAD-BNW. Iagree to complywith and to be bound byall the terms ofthis StipulatedProtectiveOrderand Iunderstand and acknowledge thatfailureto so complycould exposemeto sanctions and punishment in the nature ofcontempt. Isolemnlypromise that Iwill not disclose in anymanneranyinformation oritem thatis subjectto this Stipulated Protective Orderto anyperson or entityexceptin strict compliancewith the provisions of this Order. I furtheragree to submit tothe jurisdiction of the United States District Courtfor theDistrict of Nevada for thepurposeof enforcingtheterms ofthis Stipulated Protective Order, even ifsuch enforcement proceedings occuraftertermination ofthis action. Iherebyappoint________________________________ [print ortypefull name] of ________________________ [printor type full address and telephone number] as myNevada agent for serviceofprocess in connection with this action or anyproceedings related to enforcement of this Stipulated Protective Order. Date: _________________________________ Cityand State whereswornand signed: ______________________________ Printed name:_______________________________ Signature: _______________________________