St. Paul Fire and Marine Insurance Company v. Kinsale Insurance Company

Opinion

1 McCormick, Barstow, Sheppard, Wayte & Carruth LLP 2 James P. Wagoner, #58553 Kevin D. Hansen, #119831 3 Brandon M. Fish, #203880 7647 North Fresno Street 4 Fresno, California 93720 Telephone: (559) 433-1300 5 Facsimile: (559) 433-2300

6 Attorneys for Plaintiff New York Marine and General Insurance Company 7

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION 10 11 ST. PAUL FIRE AND MARINE Case No. 1:20-cv-00967-JLT-BAK INSURANCE COMPANY, (BAM) 12 Plaintiff, Consolidated With Case No. 1:20-cv- 13 01085-NONE-JLT KINSALE INSURANCE COMPANY, 14 [PROPOSED] STIPULATED Defendant. PROTECTIVE ORDER 15 Hon. Jennifer L. Thurston 16 NEW YORK MARINE AND Complaint Filed: August 5, 2020 17 GENERAL INSURANCE COMPANY, Trial Date: None a Delaware corporation, 18 [Concurrently Filed With Stipulation To Plaintiff, Lift Stay For Limited Purpose Of 19 Obtaining A Protective Order; v. Declaration of James P. Wagoner] 20 KINSALE INSURANCE COMPANY, 21 an Arkansas corporation,

22 Defendant.

23 TRC OPERATING COMPANY, INC., 24 a California corporation, TRC CYPRESS GROUP, LLC, a California 25 Limited Liability Company,

26 Real PARTIES in Interest.

27 1 2 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff St. 3 Paul Fire and Marine Insurance Company (“St. Paul”) in case no. 1:20-cv-00967- 4 NONE-JLT, Plaintiff New York Marine and General Insurance Company (“New 5 York Marine”) in case no. 1:20-cv-01085-NONE-JLT, Defendant Kinsale Insurance 6 Company (“Kinsale”) in case nos. 1:20-cv-00967-NONE-JLT and 1:20-cv-01085- 7 NONE-JLT, and Real Parties in Interest TRC Operating Company, Inc. and TRC 8 Cypress Group, LLC (collectively referred to as the “TRC Entities”) in case no. 9 1:20-cv-01085-NONE-JLT (St. Paul, New York Marine, Kinsale and the TRC 10 Entities are collectively referred to as the “PARTIES”), through their undersigned 11 counsel, jointly submit this Stipulated Protective Order (“PROTECTIVE ORDER”) 12 to govern the handling of information and materials produced in the course of 13 discovery or filed with the Court in advance of trial in this ACTION. 14 I. PURPOSES AND LIMITATIONS 15 DISCLOSURE and discovery activity in this ACTION are likely to involve 16 production of confidential, proprietary, or private information for which special 17 protection from public disclosure and from use for any purpose other than 18 prosecuting this litigation may be warranted. Accordingly, the PARTIES to this 19 ACTION hereby stipulate to and petition the Court to enter the following 20 PROTECTIVE ORDER. 21 The PARTIES acknowledge that this PROTECTIVE ORDER does not confer 22 blanket protections on all disclosures or responses to discovery and that the 23 protection it affords from public disclosure and use extends only to the limited 24 information or items that are entitled to confidential treatment under established 25 legal principles. The PARTIES further acknowledge, as set forth in Section 12.3, 26 below, that this PROTECTIVE ORDER does not automatically entitle them to file 27 confidential information under seal; rather Eastern District Local Rule 141 sets forth 1 PARTY seeks permission from the Court to file material under seal. 2 Nothing in this PROTECTIVE ORDER shall be deemed an admission by any 3 PARTY that certain categories or types of DOCUMENTS or information contain 4 proprietary or confidential information. Each PARTY retains the right to challenge 5 any and all information designated “CONFIDENTIAL,” as defined in Paragraph 3.3 6 below, through the procedures detailed in this PROTECTIVE ORDER. Nothing in 7 this PROTECTIVE ORDER shall be deemed a waiver of any such rights. 8 THEREFORE, IT IS HEREBY STIPULATED, AGREED, AND JOINTLY 9 REQUESTED by and between the PARTIES to St. Paul Fire and Marine Ins. Co. v. 10 Kinsale Ins. Co. (Case No. 1:20-cv-00967-NONE-JLT) and New York Marine and 11 General Ins. Co. v. Kinsale Ins. Co. (Case No. 1:20-cv-01085-NONE-JLT), which 12 are consolidated as of February 2, 2021 (Dkt. No. 12), with the scheduling order 13 issued in Case No. 1:20-cv-01085 NONE JLT controlling the consolidated action, 14 by and through their respective counsel of record, that this COURT enter this 15 PROTECTIVE ORDER to govern the proceedings in this ACTION for good cause 16 shown and according to the following terms and provisions. 17 II. GOOD CAUSE STATEMENT PURSUANT TO L.R. 141.1(C) 18 This ACTION is likely to involve CONFIDENTIAL and proprietary business 19 and commercial information and trade secrets of the PARTIES, as well as sensitive 20 and private information about PARTIES and NON-PARTIES for which special 21 protection from public disclosure and from use for any purpose other than 22 prosecution and defense of this ACTION is warranted. Such CONFIDENTIAL and 23 proprietary materials and information consist of, among other things, 24 CONFIDENTIAL business or financial information; information regarding 25 CONFIDENTIAL business practices; other CONFIDENTIAL research, 26 development, or commercial information (including information implicating privacy 27 rights of third PARTIES); information otherwise generally unavailable to the public; 1 federal statutes, court rules, case decisions, or common law. 2 Accordingly, to expedite the flow of information, to facilitate the prompt 3 resolution of disputes over confidentiality of discovery materials, to adequately 4 protect information the PARTIES are entitled to keep CONFIDENTIAL, to ensure 5 that the PARTIES are permitted reasonably necessary use of such material in 6 preparation for and in the conduct of proceedings in this ACTION, to address their 7 handling at the end of the litigation, and to serve the ends of justice, a protective 8 order for such information is justified in this matter. It is the intent of the PARTIES 9 that information will not be designated as CONFIDENTIAL for tactical reasons and 10 that nothing be so designated without a good-faith belief that it has been maintained 11 in a CONFIDENTIAL, nonpublic manner, and there is good cause why it should not 12 be part of the public record of this case. 13 Statement Under L.R. 141.1(c)(1): Examples of CONFIDENTIAL 14 information that the PARTIES may seek to protect from unrestricted or unprotected 15 DISCLOSURE include: 16 a) Information that is the subject of a non-disclosure or confidentiality 17 agreement or obligation or subject to the mediation or settlement 18 privileges; 19 b) Agreements with third-parties, including liability coverage agreements, 20 reservation of rights letters, underwriting information, insurance 21 contracts and financial information (such as premium, rating 22 information, and rating basis (e.g. gross sales), which may be set forth 23 in insurance contracts); 24 c) Information related to claims administration and management, 25 including but not limited to costs, margins, or other internal 26 financial/accounting information, including non-public information 27 related to financial condition or performance and income or other non- 1 d) Information related to past, current, and future market analyses and 2 business and marketing development, including plans, strategies, 3 forecasts and competition. 4 e) All documents, materials and testimony marked confidential in the in 5 the underlying litigation TRC Operating Company, Inc. v. Chevron 6 U.S.A., Inc., Superior Court of the State of California, County of Kern, 7 Case No.: S-1500-CV-282520-DRL. 8 f) The TRC Entities’ trade secrets, business and financial information. 9 Statement Under L.R. 141.1(c)(2): Generally speaking, information and 10 DOCUMENTS shall only be designated under this PROTECTIVE ORDER because 11 the DESIGNATING PARTY believes the information or DOCUMENTS are 12 proprietary and/or CONFIDENTIAL that the DESIGNATING PARTY would not 13 release publicly. Unrestricted or unprotected disclosure of such CONFIDENTIAL 14 or commercial information would result in prejudice or harm to the PRODUCING 15 PARTY by revealing the PRODUCING PARTY’s methods for items such as 16 insurance claims administration and claims management, marketing of insurance 17 products, methodology for underwriting insurance risks, actuarial information, 18 including risk factors, rating and pricing of insurance policies, and insurance 19 industry contacts. Such information will have been developed at the expense of the 20 PRODUCING PARTY and represent valuable tangible and intangible assets of that 21 PARTY. Additionally, privacy interests of Third Parties, such as financial 22 information, must be safeguarded. Accordingly, the PARTIES respectfully submit 23 that there is good cause for the entry of this PROTECTIVE ORDER. 24 Statement Under L.R. 141.1(c)(3): The PARTIES submit that protecting 25 the CONFIDENTIAL nature of information in this way will be most efficient for the 26 PARTIES and the COURT. DOCUMENTS likely sought in the instant litigation are 27 subject to a protective order in the underlying litigation TRC Operating Company, 1 Kern, Case No.: S-1500-CV-282520-DRL. Additionally, the underlying litigation is 2 still pending and the production of DOCUMENTS may prejudice the defense of the 3 TRC Entities in that action. The PARTIES have met and conferred on this issue and 4 agree that any private agreement between the PARTIES to safeguard this 5 information will need to be replicated through orders of this COURT at the time of 6 filing dispositive or non-dispositive motions. The burden shall be on the PARTY 7 that designated information “CONFIDENTIAL” to take all steps necessary to 8 protect that information in information filed with the Court. However, the 9 PARTIES also agree that if a PARTY seeks to file information previously 10 designated as CONFIDENTIAL under seal and the Court does not deem the 11 information to be worthy of such protection, the PARTY may proceed with its filing 12 containing otherwise CONFIDENTIAL DOCUMENTS and information without an 13 Order sealing the record so long as (a) the PARTY has made a good faith effort to 14 obtain an Order sealing the record; and (b) the PARTY takes no further steps to 15 draw public attention to the Court filing of information formerly designated as 16 CONFIDENTIAL. 17 III. DEFINITIONS 18 In this PROTECTIVE ORDER, the words set forth below shall have the 19 following meanings: 20 3.1. “ACTION” or “PROCEEDING” means the above-entitled 21 proceeding, consolidated case no. 1:20-CV-00967-NONE-JLT. 22 3.2. “CHALLENGING PARTY” shall mean a PARTY or NON- 23 PARTY that challenges the designation of information or items under this 24 PROTECTIVE ORDER. 25 3.3. “CONFIDENTIAL” Information or Items means 26 DOCUMENTS, materials, depositions or other TESTIMONY, deposition exhibits, 27 interrogatory responses, responses to requests for admission, and other information 1 PARTY believes in good faith contains or comprises any proprietary, confidential, 2 or sensitive information that is related to research and development or is a trade 3 secret or is of a commercial, technical, financial, or personal nature or qualifies for 4 protection under Federal Rule of Civil Procedure 26(c)(1)(A-H). 5 3.4. “COUNSEL” shall mean OUTSIDE COUNSEL OF RECORD 6 and IN-HOUSE COUNSEL (each as defined herein), as well as their respective 7 support staff. 8 3.5. “COURT” shall mean the United States District Court, Eastern 9 District of California, Fresno Division. 10 3.6. “DESIGNATING PARTY” means the PARTY that designates 11 Materials as “CONFIDENTIAL.” 12 3.7. “DISCLOSE” or “DISCLOSED” or “DISCLOSURE” means to 13 reveal, divulge, give, or make available Materials, or any part thereof, or any 14 information contained therein. 15 3.8. “DISCLOSURE OF DISCOVERY MATERIAL” means all 16 items or information, regardless of the medium or manner in which it is generated, 17 stored, or maintained (including, among other things, TESTIMONY, transcripts, and 18 tangible things), that are produced or generated in disclosures or responses to 19 discovery in this matter. 20 3.9. “DOCUMENTS” shall have the same meaning as the terms 21 “documents and electronically stored information” as used in Rule 34 of the Federal 22 Rules of Civil Procedure and include any “writing,” “recording,” “photograph,” 23 “original,” or “duplicate,” as those terms are defined by Federal Rule of Evidence 24 1001. 25 3.10. “EXPERT” shall mean a person with specialized knowledge or 26 experience in a matter pertinent to the litigation who has been retained by a PARTY 27 or its COUNSEL to serve as an expert witness or as a consultant in this ACTION. 1 TESTIMONY. 2 3.12. “IN-HOUSE COUNSEL” means attorneys who are employees 3 of a PARTY to this ACTION. IN-HOUSE COUNSEL does not include OUTSIDE 4 COUNSEL OF RECORD or any other outside counsel. 5 3.13. “NON-PARTY” or “NON-PARTIES” means any natural person, 6 partnership, corporation, association, or other legal entity not named as a PARTY to 7 this ACTION who/that agrees to be bound by this PROTECTIVE ORDER by 8 signing the “Acknowledgement and Agreement to Be Bound” that is attached to this 9 PROTECTIVE ORDER as Exhibit A. 10 3.14. “OUTSIDE COUNSEL OF RECORD” means attorneys who are 11 not employees of a PARTY to this ACTION but are retained to represent or advise a 12 PARTY to this ACTION and have appeared in this ACTION on behalf of that 13 PARTY or are affiliated with a law firm which has appeared on behalf of that 14 PARTY. 15 3.15. “PARTIES” shall mean Plaintiff New York Marine and General 16 Insurance Company (“New York Marine”), Plaintiff St. Paul Fire and Marine 17 Insurance Company (“St. Paul”), Defendant Kinsale Insurance Company 18 (“Kinsale”), and real PARTIES in interest TRC Operating Company, Inc. and TRC 19 Cypress Group, LLC (collectively “TRC Entities”). 20 3.16. “PARTY” shall mean one of the aforementioned five PARTIES. 21 3.17. “PRODUCING PARTY” shall mean a PARTY or NON-PARTY 22 that produces INFORMATION or other discovery material in this ACTION. 23 3.18. “PROFESSIONAL VENDORS” means persons or entities that 24 provide litigation support services (e.g., photocopying, videotaping, translating, 25 preparing exhibits or demonstrations, and organizing, storing, or retrieving data in 26 any form or medium) and their employees and subcontractors. 27 3.19. “PROTECTED MATERIAL” means any DISCLOSURE OF 1 had that designation removed according to the terms of this PROTECTIVE 2 ORDER. 3 3.20. “PROTECTIVE ORDER” means this Stipulated Protective 4 Order entered in the ACTION. 5 3.21. “RECEIVING PARTY” means a PARTY that receives 6 DISCLOSURE OF DISCOVERY MATERIAL from a PRODUCING PARTY. 7 3.22. “TESTIMONY” means all depositions, declarations or other 8 testimony taken or used in this PROCEEDING. 9 IV. SCOPE AND DURATION 10 4.1 Scope. The protections conferred by this Stipulation and 11 PROTECTIVE ORDER cover not only PROTECTED MATERIAL (as defined 12 above), but also (1) any INFORMATION copied or extracted from PROTECTED 13 MATERIAL; (2) all copies, excerpts, summaries, or compilations of PROTECTED 14 MATERIAL; and (3) any TESTIMONY, conversations, or presentations by 15 PARTIES or their COUNSEL that might reveal PROTECTED MATERIAL. 16 However, the protections conferred by this PROTECTIVE ORDER do not cover the 17 following INFORMATION: (a) any INFORMATION that is in the public domain at 18 the time of DISCLOSURE to a RECEIVING PARTY or becomes part of the public 19 domain after its DISCLOSURE to a RECEIVING PARTY as a result of publication 20 not involving a violation of this PROTECTIVE ORDER, including becoming part 21 of the public record through trial or otherwise; and (b) any INFORMATION known 22 to the RECEIVING PARTY prior to the DISCLOSURE or obtained by the 23 RECEIVING PARTY after the DISCLOSURE from a source who obtained the 24 INFORMATION lawfully and under no obligation of confidentiality to the 25 DESIGNATING PARTY. Any use of PROTECTED MATERIAL at trial shall be 26 governed by a separate agreement or order. 27 4.2 Duration. Even after final disposition of this litigation, the 1 effect until a DESIGNATING PARTY agrees otherwise in writing or a court order 2 otherwise directs. Final disposition shall be deemed to be upon (1) dismissal of all 3 claims and defenses in this ACTION, with or without prejudice; or (2) final 4 judgment herein after the completion and exhaustion of all appeals, rehearings, 5 remands, trials, or reviews of this ACTION, including the time limits for filing any 6 motions or applications for extension of time pursuant to applicable law. 7 V. DESIGNATING PROTECTED MATERIAL 8 5.1 Manner and Timing of Designations. Except as otherwise provided in 9 this PROTECTIVE ORDER or as otherwise stipulated or ordered, DISCLOSURE 10 OF DISCOVERY MATERIAL that qualifies for protection under this 11 PROTECTIVE ORDER must be clearly so designated before the material is 12 DISCLOSED or produced. 13 Designation in conformity with this PROTECTIVE ORDER requires: 14 (a) for DOCUMENTS (e.g., paper or electronic DOCUMENTS, but 15 excluding transcripts of depositions or other pretrial or trial proceedings), that the 16 PRODUCING PARTY affix the legend “CONFIDENTIAL” to each page that 17 contains PROTECTED MATERIAL. If only a portion or portions of the material on 18 a page qualifies for protection, the PRODUCING PARTY also must clearly identify 19 the protected portion(s) (e.g., by making appropriate markings in the margins). A 20 PARTY or NON-PARTY that makes original materials available for inspection 21 need not designate them for protection until after the inspecting PARTY has 22 indicated which material it would like copied and produced. During the inspection 23 and before the designation, all of the material made available for inspection shall be 24 deemed “CONFIDENTIAL.” After the inspecting PARTY has identified the 25 materials it wants copied and produced, the PRODUCING PARTY must determine 26 which materials, or portions thereof, qualify for protection under this PROTECTIVE 27 ORDER. Then, before producing the specified materials, the PRODUCING PARTY 1 MATERIAL. If only a portion or portions of the material on a page qualifies for 2 protection, the PRODUCING PARTY also must clearly identify the protected 3 portion(s) (e.g., by making appropriate markings in the margins). 4 (b) for TESTIMONY, that the DESIGNATING PARTY may either 5 identify on the record all protected TESTIMONY, or may invoke, on the record or 6 by written notice to all parties on or before the next business day, a right to have up 7 to twenty-one (21) days from the deposition, hearing or proceeding to make its 8 designation. The designation shall indicate the page and line numbers of any 9 transcript of material deemed to be CONFIDENTIAL. 10 (c) for INFORMATION produced in some form other than 11 documentary and for any other tangible items, that the PRODUCING PARTY affix 12 in a prominent place on the exterior of the container or containers in which the 13 INFORMATION or item is stored the legend “CONFIDENTIAL.” If only a portion 14 or portions of the INFORMATION or item warrant protection, the PRODUCING 15 PARTY, to the extent practicable, shall identify the protected portion(s). 16 (d) Parties shall give advance notice if they expect a deposition or 17 other proceeding to include PROTECTED MATERIAL so that the other PARTIES 18 can ensure that only authorized individuals are present at those proceedings when 19 such material is disclosed or used. The use of a DOCUMENT as an exhibit at a 20 deposition shall not in any way affect its designation. Transcripts containing 21 PROTECTED MATERIAL shall have a legend on the title page noting the presence 22 of PROTECTED MATERIAL, and the title page shall be followed by a list of all 23 pages (including line numbers as appropriate) that have been designated, and the 24 level of protection being asserted. The DESIGNATING PARTY shall inform the 25 court reporter of these requirements. Any transcript that is prepared before the 26 expiration of the twenty-one (21) day period for designation shall be treated during 27 that period as if it had been designated CONFIDENTIAL unless otherwise agreed. 1 only as actually designated. 2 5.2 Materials Subject to Designation. Each PARTY may designate any 3 DOCUMENT, thing, interrogatory answer, admission, deposition TESTIMONY, 4 and portions of such materials, or other INFORMATION which it has provided or 5 which a NON-PARTY has provided as “CONFIDENTIAL” in accordance with this 6 PROTECTIVE ORDER. In designating DOCUMENTS, TESTIMONY or 7 INFORMATION as “CONFIDENTIAL,” the DESIGNATING PARTY’s 8 COUNSEL shall make a good faith determination, before applying the designation, 9 that the DOCUMENTS, TESTIMONY or INFORMATION warrants protection 10 under Rule 26(c) of the Federal Rules of Civil Procedure. 11 5.3 Inadvertent Failure to Designate. If timely corrected, an inadvertent 12 failure to designate qualified INFORMATION or items does not, standing alone, 13 waive the DESIGNATING PARTY’s right to secure protection under this 14 PROTECTIVE ORDER for such material. If a DESIGNATING PARTY 15 inadvertently fails to designate material which, in good faith, might otherwise be 16 deemed CONFIDENTIAL, that DESIGNATING PARTY shall provide written 17 notice of such designation within a reasonable time of discovering the inadvertent 18 failure to so designate the material as CONFIDENTIAL. Any RECEIVING 19 PARTY who objects to the late designation must do so in writing within seven (7) 20 days of the late designation. In the absence of such an objection, the late 21 designation shall be deemed timely and treated as if made within the time(s) set 22 forth above. Upon timely assertion or correction of a designation, all recipients 23 must make reasonable efforts to ensure that the materials are treated according to 24 this PROTECTIVE ORDER. 25 VI. CHALLENGING CONFIDENTIALITY DESIGNATIONS 26 6.1 Timing of Challenges. Any PARTY or NON-PARTY may challenge a 27 designation of confidentiality at any time. Unless an immediate challenge to a 1 foreseeable, substantial unfairness, unnecessary economic burdens, or a significant 2 disruption or delay of the litigation, a PARTY does not waive its right to challenge a 3 confidentiality designation by electing not to mount a challenge promptly after the 4 original designation is DISCLOSED. 5 6.2 Meet and Confer. The CHALLENGING PARTY shall initiate the 6 dispute resolution process by providing written notice of each designation it is 7 challenging and describing the basis for each challenge. To avoid ambiguity as to 8 whether a challenge has been made, the written notice must recite that the challenge 9 to confidentiality is being made in accordance with this specific paragraph of the 10 PROTECTIVE ORDER. The PARTIES shall attempt to resolve each challenge in 11 good faith and must begin the process by conferring directly (in a verbal dialogue; 12 other forms of communication are not sufficient) within fourteen (14) days of the 13 date of service of notice. In conferring, the CHALLENGING PARTY must explain 14 the basis for its belief that the confidentiality designation was not proper and must 15 give the DESIGNATING PARTY an opportunity to review the designated material, 16 to reconsider the circumstances, and, if no change in designation is offered, to 17 explain the basis for the chosen designation. A CHALLENGING PARTY may 18 proceed to the next stage of the challenge process only if it has engaged in this meet 19 and confer process first or establishes that the DESIGNATING PARTY is unwilling 20 to participate in the meet and confer process in a timely manner. 21 6.3 Joint Statement. If the PARTIES cannot resolve a challenge without 22 court intervention, the CHALLENGING PARTY shall submit a challenge to the 23 COURT via joint stipulation pursuant to Local Rule 251(c). The burden of 24 persuasion in any such challenge proceeding shall be on the DESIGNATING 25 PARTY. Unless the DESIGNATING PARTY has expressly waived the 26 confidentiality designation, all PARTIES shall continue to afford the material in 27 question the level of protection to which it is entitled under the PRODUCING 1 VII. ACCESS TO AND USE OF PROTECTED MATERIAL 2 7.1 Basic Principles. A RECEIVING PARTY may use PROTECTED 3 MATERIAL that is DISCLOSED or produced by another PARTY or by a NON- 4 PARTY in connection with this case only for prosecuting, defending, or attempting 5 to settle this litigation. Such PROTECTED MATERIAL may be DISCLOSED only 6 to the categories of persons and under the conditions described in this 7 PROTECTIVE ORDER. When the litigation has been terminated, a RECEIVING 8 PARTY must comply with the provisions of section 12.4 below regarding final 9 disposition. 10 PROTECTED MATERIAL must be stored and maintained by a RECEIVING 11 PARTY at a location and in a secure manner that ensures that access is limited to the 12 persons authorized under this PROTECTIVE ORDER. 13 7.2 DISCLOSURE of PROTECTED MATERIAL. Unless otherwise 14 ordered by the COURT or permitted in writing by the DESIGNATING PARTY, a 15 RECEIVING PARTY may DISCLOSE any INFORMATION or item designated 16 “CONFIDENTIAL” only to: 17 (a) the RECEIVING PARTY’s OUTSIDE COUNSEL OF 18 RECORD, as well as employees of said OUTSIDE COUNSEL OF RECORD to 19 whom it is reasonably necessary to DISCLOSE the INFORMATION for this 20 ACTION; 21 (b) the officers, directors, and employees (including IN-HOUSE 22 COUNSEL) of the RECEIVING PARTY to whom DISCLOSURE is reasonably 23 necessary for this ACTION or who access the INFORMATION in the ordinary 24 course of business; 25 (c) EXPERTS (as defined in this PROTECTIVE ORDER) of the 26 RECEIVING PARTY to whom DISCLOSURE is reasonably necessary for this 27 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” 1 (d) the COURT and its personnel; 2 (e) court reporters in this PROCEEDING, to whom DISCLOSURE 3 is reasonably necessary for this ACTION; 4 (f) professional jury or trial consultants, mock jurors, and 5 PROFESSIONAL VENDORS to whom DISCLOSURE is reasonably necessary for 6 this litigation and who have signed the “Acknowledgment and Agreement to Be 7 Bound” (Exhibit A); 8 (g) during their depositions, NON-PARTY witnesses in the 9 ACTION to whom DISCLOSURE is reasonably necessary and who have signed the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 11 agreed by the DESIGNATING PARTY or ordered by the COURT. Pages of 12 transcribed deposition TESTIMONY or exhibits to depositions that reveal 13 PROTECTED MATERIAL must be separately bound by the court reporter and may 14 not be DISCLOSED to anyone except as permitted under this PROTECTIVE 15 ORDER; 16 (h) the author or recipient of a document containing the information 17 or a custodian or other person who otherwise possessed or knew the information 18 prior to its designation as CONFIDENTIAL; 19 (i) a PARTY’s auditors, regulators, or reinsurers in connection with 20 that PARTY’s regular business practices. 21 VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 22 23 8.1 If a PARTY is served with a subpoena or a court order issued in other 24 litigation that compels DISCLOSURE of any PROTECTED MATERIAL, that 25 PARTY must: 26 (a) promptly notify in writing the DESIGNATING PARTY. Such 27 notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the PARTY who caused the subpoena 1 or order to issue in the other litigation that some or all of the material covered by the 2 subpoena or order is subject to this PROTECTIVE ORDER. Such notification shall 3 include a copy of this PROTECTIVE ORDER; and 4 (c) cooperate with respect to all reasonable procedures sought to be 5 pursued by the DESIGNATING PARTY whose PROTECTED MATERIAL may be 6 affected. 7 8.2 If the DESIGNATING PARTY timely seeks a protective order, the 8 PARTY served with the subpoena or court order shall not produce PROTECTED 9 MATERIAL before a determination by the COURT from which the subpoena or 10 order issued, unless the PARTY has obtained the DESIGNATING PARTY’s 11 permission. The DESIGNATING PARTY shall bear the burden and expense of 12 seeking protection in that court of its PROTECTED MATERIAL – and nothing in 13 these provisions should be construed as authorizing or encouraging a RECEIVING 14 PARTY in this ACTION to disobey a lawful directive from another court. 15 IX. PROTECTED MATERIAL OF A NON-PARTY SOUGHT TO BE PRODUCED IN THIS LITIGATION 16 17 9.1 The terms of this PROTECTIVE ORDER are applicable to 18 DOCUMENTS, INFORMATION or TESTIMONY produced by a NON-PARTY 19 and designated as “CONFIDENTIAL.” Such DOCUMENTS, INFORMATION or 20 TESTIMONY are protected by the remedies and relief provided by this 21 PROTECTIVE ORDER. Nothing in these provisions should be construed as 22 prohibiting a NON-PARTY from seeking additional protections. 23 9.2 If a PARTY is required, by a valid discovery request, to produce a 24 NON-PARTY’s CONFIDENTIAL DOCUMENTS, INFORMATION or 25 TESTIMONY in its possession, the PARTY shall: 26 (a) promptly notify in writing the REQUESTING PARTY and the 27 NON-PARTY that some or all of the DOCUMENTS, INFORMATION or TESTIMONY requested are subject to a confidentiality agreement with a NON- 1 PARTY; 2 (b) promptly provide the NON-PARTY with a copy of the 3 PROTECTIVE ORDER in this ACTION, the relevant discovery request(s), and a 4 reasonably specific description of the DOCUMENTS, INFORMATION or 5 TESTIMONY requested; and 6 (c) make the DOCUMENTS, INFORMATION or TESTIMONY 7 requested available for inspection by the NON-PARTY. 8 9.3 If the NON-PARTY fails to object or seek a protective order from this 9 COURT within fourteen (14) days of receiving the notice and accompanying 10 DOCUMENTS, INFORMATION or TESTIMONY, the RECEIVING PARTY may 11 produce the NON-PARTY’s CONFIDENTIAL DOCUMENTS, INFORMATION 12 or TESTIMONY responsive to the discovery request. If the NON-PARTY timely 13 seeks a protective order, the RECEIVING PARTY shall not produce any 14 information in its possession or control that is subject to the confidentiality 15 agreement with the NON-PARTY before a determination by the COURT. Absent a 16 court order to the contrary, the NON-PARTY shall bear the burden and expense of 17 seeking protection in this COURT of its PROTECTED MATERIAL. 18 X. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 19 If a RECEIVING PARTY learns that, by inadvertence or otherwise, it has 20 DISCLOSED PROTECTED MATERIAL to any person or in any circumstance not 21 authorized under this PROTECTIVE ORDER, the RECEIVING PARTY must 22 immediately (a) notify in writing the PRODUCING PARTY and the 23 DESIGNATING PARTY (if not the same party) of the unauthorized disclosures, (b) 24 use its best efforts to retrieve all unauthorized copies of the PROTECTED 25 MATERIAL, (c) inform the person or persons to whom unauthorized 26 DISCLOSURES were made of all the terms of this PROTECTIVE ORDER, and (d) 27 request such person or persons to execute the “Acknowledgment and Agreement to 1 XI. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 2 3 When a PRODUCING PARTY gives notice to RECEIVING PARTIES that 4 certain inadvertently produced material is subject to a claim of privilege or other 5 protection, the obligations of the RECEIVING PARTIES are those set forth in 6 Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 7 modify whatever procedure may be established in an e-discovery order that provides 8 for production without prior privilege review. Pursuant to Federal Rule of Evidence 9 502(d) and (e), insofar as the PARTIES reach an agreement on the effect of 10 DISCLOSURE of a communication or information covered by the attorney-client 11 privilege or work product protection, the PARTIES may incorporate their agreement 12 in the stipulated protective order submitted to the COURT. 13 XII. MISCELLANEOUS 14 12.1 Right to Further Relief. Nothing in this PROTECTIVE ORDER 15 abridges the right of any person to seek its modification by the COURT in the 16 future. 17 12.2 Right to Assert Other Objections. By stipulating to the entry of this 18 PROTECTIVE ORDER no PARTY waives any right it otherwise would have to 19 object to disclosing or producing any information or item on any ground not 20 addressed in this PROTECTIVE ORDER. Similarly, no PARTY waives any right to 21 object on any ground to use in evidence of any of the material covered by this 22 PROTECTIVE ORDER. 23 12.3 Filing PROTECTED MATERIAL. Without written permission from 24 the DESIGNATING PARTY or a court order secured after appropriate notice to all 25 interested persons, a PARTY may not file in the public record in this ACTION any 26 PROTECTED MATERIAL. A PARTY that seeks to file under seal any 27 PROTECTED MATERIAL must follow the procedure set forth in Local Rule 141. PROTECTED MATERIAL may only be filed under seal pursuant to a court order 1 authorizing the sealing of the specific PROTECTED MATERIAL at issue. The fact 2 that a document has been designated under this PROTECTIVE ORDER is 3 insufficient to justify filing under seal. Instead, PARTIES must explain the basis for 4 confidentiality of each document sought to be filed under seal. Because a PARTY 5 other than the DESIGNATING PARTY will often be seeking to file PROTECTED 6 MATERIAL, cooperation among the PARTIES in preparing, and in reducing the 7 number and extent of, requests for under seal filing is essential. If a RECEIVING 8 PARTY’s request to file PROTECTED MATERIAL under seal pursuant to Local 9 Rule 141 is denied by the COURT, then the RECEIVING PARTY may file the 10 material in the public record unless (1) the DESIGNATING PARTY seeks 11 reconsideration within four (4) days of the denial, or (2) as otherwise instructed by 12 the COURT. Notwithstanding the above, the filing PARTY shall, in good faith, 13 refrain from drawing public attention to the COURT filing of information formerly 14 designated as CONFIDENTIAL so long as the original designation was made in 15 good faith. 16 12.4 Storage of Protected Information by RECEIVING PARTY. The 17 recipient of any PROTECTED MATERIAL provided under this PROTECTIVE 18 ORDER (including copies or excerpts made thereof) shall maintain such 19 information in a secure and safe area, and shall exercise reasonable and proper care 20 with respect to the storage, custody, use, and/or dissemination of such information. 21 12.5 Final Disposition. Within sixty (60) days after the final disposition of 22 this ACTION, each RECEIVING PARTY must return all PROTECTED 23 MATERIAL to the PRODUCING PARTY or make a good faith effort to destroy 24 such material. As used in this subdivision, “all PROTECTED MATERIAL” 25 includes all copies, abstracts, compilations, summaries, and any other format 26 reproducing or capturing any of the PROTECTED MATERIAL. Whether the 27 PROTECTED MATERIAL is returned or destroyed, the RECEIVING PARTY 1 same person or entity, to the DESIGNATING PARTY) by the sixty (60) day 2 deadline that (1) identifies (by category, where appropriate) all the PROTECTED 3 MATERIAL that was returned or destroyed and (2) affirms that the RECEIVING 4 PARTY has not intentionally retained any copies, abstracts, compilations, 5 summaries or any other format reproducing or capturing any of the PROTECTED 6 MATERIAL. Notwithstanding the foregoing portion of this Section, (1) COUNSEL 7 are entitled to retain an archival copy of all pleadings, motion papers, trial, 8 deposition, and hearing transcripts, legal memoranda, correspondence, email, 9 deposition and trial exhibits, EXPERT reports, attorney work product, and 10 consultant and EXPERT work product, even if such materials contain PROTECTED 11 MATERIAL; and (2) the undersigned PARTIES may retain any PROTECTED 12 MATERIAL to the extent necessary pursuant to legal requirements, professional 13 duties or bona fide document retention policies, provided however that the 14 PARTIES shall continue to be bound by the terms of this PROTECTIVE ORDER 15 for such time period as they retain such PROTECTED MATERIAL. Any such 16 archival copies or retained DOCUMENTS that contain or constitute PROTECTED 17 MATERIAL remain subject to this PROTECTIVE ORDER as set forth in Section 18 4.2 regarding duration. 19 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 20 21 Dated: January 26, 2022 McCLOSKEY, WARING, WAISMAN & DRURY LLP 22

23 By: /s/ Sonia S. Waisman (as approved 1/13/22) 24 25 26 27 1 Sonia S. Waisman Attorneys for Plaintiff St. Paul Fire and Marine 2 Insurance Company 3 Dated: January 26, 2022 McCORMICK, BARSTOW, SHEPPARD, 4 WAYTE & CARRUTH LLP 5

6 By: /s/ James P. Wagoner James P. Wagoner 7 Kevin D. Hansen 8 Brandon M. Fish Attorneys for Plaintiff New York Marine and 9 General Insurance Company 10

13 14 Dated: January 26, 2022 NEMECEK & COLE, a PC

By: /s/Matthew J. Hafey (as approved 1/26/22) 16 Matthew J. Hafey Attorneys for Defendant Kinsale Insurance 17 Company 18

19 Dated: January 26, 2022 PLEDGER LAW, PC 20

21 By: /s/Jean M. Pledger (as approved 1/13/22) 22 Jean M. Pledger Attorneys for Real PARTIES in Interest TRC 23 Operating Company, Inc. and TRC Cypress 24 Group, LLC

26 27 1 ORDER 2 Pursuant to the above stipulation of the PARTIES and good cause showing, 3 the Court adopts the stipulated protective order. 4 The parties are advised that pursuant to the Local Rules of the United States 5 District Court, Eastern District of California, any documents subject to the 6 protective order to be filed under seal must be accompanied by a written request 7 which complies with Local Rule 141 prior to sealing. The party making a request to 8 file documents under seal shall be required to show good cause for documents 9 attached to a non-dispositive motion or compelling reasons for documents attached 10 to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-78 11 (9th Cir. 2009). 12 Within five (5) days of any approved document filed under seal, the party 13 shall file a redacted copy of the sealed document. The redactions shall be narrowly 14 tailored to protect only the information that is confidential or was deemed 15 confidential. 16 17 IT IS SO ORDERED.

18 Dated: February 10, 2022 /s/ Barbara A. McAuliffe _ 19 UNITED STATES MAGISTRATE JUDGE

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