The Travelers Indemnity Company of Connecticut v. Walking U Ranch, LLC

Opinion

7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 THE TRAVELERS INDEMNITY Case No. 2:18-cv-2482-CAS (GJSx) 11 COMPANY OF CONNECTICUT, a Hon. Christina A. Snyder Connecticut corporation; Hon. Gail J. Standish 12 TRAVELERS CASUALTY INSURANCE COMPANY OF 13 AMERICA, a Connecticut PROTECTIVE ORDER1 corporation, 14

15 Plaintiff,

16 v.

17 WALKING U RANCH, LLC, a California limited liability company; 18 KATHLEEN P. MARCH, an individual; PATRICK F. BRIGHT, an 19 individual; and DOES 1 through 10, Inclusive, 20 21 Defendant. 22 AND RELATED CROSS-ACTION 23

24 25 26 27 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the Court shall enter the following Protective Order. 6 The parties acknowledge that this Order does not confer blanket protections on all 7 disclosures or responses to discovery and that the protection it affords from public 8 disclosure and use extends only to the limited information or items that are entitled 9 to confidential treatment under the applicable legal principles. 10 B. GOOD CAUSE STATEMENT 11 This action is likely to involve trade secrets, customer and pricing lists and 12 other valuable research, development, commercial, financial, technical and/or 13 proprietary information for which special protection from public disclosure and 14 from use for any purpose other than prosecution of this action is warranted. Such 15 confidential and proprietary materials and information consist of, among other 16 things, confidential business or financial information, information regarding 17 confidential business practices, or other confidential research, development, or 18 commercial information (including information implicating privacy rights of third 19 parties), information otherwise generally unavailable to the public, or which may be 20 privileged or otherwise protected from disclosure under state or federal statutes, 21 court rules, case decisions, or common law. Accordingly, to expedite the flow of 22 information, to facilitate the prompt resolution of disputes over confidentiality of 23 discovery materials, to adequately protect information the parties are entitled to keep 24 confidential, to ensure that the parties are permitted reasonable necessary uses of 25 such material in preparation for and in the conduct of trial, to address their handling 26 at the end of the litigation, and serve the ends of justice, a protective order for such 27 information is justified in this matter. It is the intent of the parties that information 1 designated without a good faith belief that it has been maintained in a confidential, 2 non-public manner, and there is good cause why it should not be part of the public 3 record of this case. 4 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 5 The parties further acknowledge, as set forth in Section 12.3, below, that this 6 Protective Order does not entitle them to file confidential information under seal; 7 Local Civil Rule 79-5 sets forth the procedures that must be followed and the 8 standards that will be applied when a party seeks permission from the court to file 9 material under seal. 10 There is a strong presumption that the public has a right of access to judicial 11 proceedings and records in civil cases. In connection with non-dispositive motions, 12 good cause must be shown to support a filing under seal. See Kamakana v. City and 13 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 14 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 15 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 16 require good cause showing), and a specific showing of good cause or compelling 17 reasons with proper evidentiary support and legal justification, must be made with 18 respect to Protected Material that a party seeks to file under seal. The parties’ mere 19 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 20 without the submission of competent evidence by declaration, establishing that the 21 material sought to be filed under seal qualifies as confidential, privileged, or 22 otherwise protectable—constitute good cause. 23 Further, if a party requests sealing related to a dispositive motion or trial, then 24 compelling reasons, not only good cause, for the sealing must be shown, and the 25 relief sought shall be narrowly tailored to serve the specific interest to be protected. 26 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 27 each item or type of information, document, or thing sought to be filed or introduced 1 protection must articulate compelling reasons, supported by specific facts and legal 2 justification, for the requested sealing order. Again, competent evidence supporting 3 the application to file documents under seal must be provided by declaration. 4 Any document that is not confidential, privileged, or otherwise protectable in 5 its entirety will not be filed under seal if the confidential portions can be redacted. 6 If documents can be redacted, then a redacted version for public viewing, omitting 7 only the confidential, privileged, or otherwise protectable portions of the document, 8 shall be filed. Any application that seeks to file documents under seal in their 9 entirety should include an explanation of why redaction is not feasible. 10 2. DEFINITIONS 11 2.1 Action: This pending federal lawsuit. 12 2.2 Challenging Party: a Party or Non-Party that challenges the 13 designation of information or items under this Order. 14 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 15 how it is generated, stored or maintained) or tangible things that qualify for 16 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 17 the Good Cause Statement. 18 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 19 their support staff). 20 2.5 Designating Party: a Party or Non-Party that designates information or 21 items that it produces in disclosures or in responses to discovery as 22 “CONFIDENTIAL.” 23 2.6 Disclosure or Discovery Material: all items or information, regardless 24 of the medium or manner in which it is generated, stored, or maintained (including, 25 among other things, testimony, transcripts, and tangible things), that are produced or 26 generated in disclosures or responses to discovery in this matter. 27 2.7 Expert: a person with specialized knowledge or experience in a matter 1 an expert witness or as a consultant in this Action. 2 2.8 House Counsel: attorneys who are employees of a party to this Action. 3 House Counsel does not include Outside Counsel of Record or any other outside 4 counsel. 5 2.9 Non-Party: any natural person, partnership, corporation, association or 6 other legal entity not named as a Party to this action. 7 2.10 Outside Counsel of Record: attorneys who are not employees of a 8 party to this Action but are retained to represent or advise a party to this Action and 9 have appeared in this Action on behalf of that party or are affiliated with a law firm 10 that has appeared on behalf of that party, and includes support staff. 11 2.11 Party: any party to this Action, including all of its officers, directors, 12 employees, consultants, retained experts, and Outside Counsel of Record (and their 13 support staffs). 14 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 15 Discovery Material in this Action. 16 2.13 Professional Vendors: persons or entities that provide litigation 17 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 18 demonstrations, and organizing, storing, or retrieving data in any form or medium) 19 and their employees and subcontractors. 20 2.14 Protected Material: any Disclosure or Discovery Material that is 21 designated as “CONFIDENTIAL.” 22 2.15 Receiving Party: a Party that receives Disclosure or Discovery 23 Material from a Producing Party. 3. SCOPE 24 The protections conferred by this Order cover not only Protected Material (as 25 defined above), but also (1) any information copied or extracted from Protected 26 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 27 1 and (3) any testimony, conversations, or presentations by Parties or their Counsel 2 that might reveal Protected Material. 3 Any use of Protected Material at trial shall be governed by the orders of the 4 trial judge. This Order does not govern the use of Protected Material at trial. 5 4. DURATION 6 FINAL DISPOSITION of the action is defined as the conclusion of any 7 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal 8 has run. Except as set forth below, the terms of this protective order apply through 9 FINAL DISPOSITION of the action. The parties may stipulate that the they will be 10 contractually bound by the terms of this agreement beyond FINAL DISPOSITION, 11 but will have to file a separate action for enforcement of the agreement once all 12 proceedings in this case are complete. 13 Once a case proceeds to trial, information that was designated as 14 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 15 as an exhibit at trial becomes public and will be presumptively available to all 16 members of the public, including the press, unless compelling reasons supported by 17 specific factual findings to proceed otherwise are made to the trial judge in advance 18 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 19 showing for sealing documents produced in discovery from “compelling reasons” 20 standard when merits-related documents are part of court record). Accordingly, for 21 such materials, the terms of this protective order do not extend beyond the 22 commencement of the trial. 23 5. DESIGNATING PROTECTED MATERIAL 24 5.1 Exercise of Restraint and Care in Designating Material for Protection. 25 Each Party or Non-Party that designates information or items for protection under 26 this Order must take care to limit any such designation to specific material that 27 qualifies under the appropriate standards. The Designating Party must designate for 1 communications that qualify so that other portions of the material, documents, items 2 or communications for which protection is not warranted are not swept unjustifiably 3 within the ambit of this Order. 4 Mass, indiscriminate or routinized designations are prohibited. Designations 5 that are shown to be clearly unjustified or that have been made for an improper 6 purpose (e.g., to unnecessarily encumber the case development process or to impose 7 unnecessary expenses and burdens on other parties) may expose the Designating 8 Party to sanctions. 9 If it comes to a Designating Party’s attention that information or items that it 10 designated for protection do not qualify for protection, that Designating Party must 11 promptly notify all other Parties that it is withdrawing the inapplicable designation. 12 5.2 Manner and Timing of Designations. Except as otherwise provided in 13 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 14 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 15 under this Order must be clearly so designated before the material is disclosed or 16 produced. 17 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” (hereinafter “CONFIDENTIAL legend”), to each page that 22 contains protected material. If only a portion of the material on a page qualifies for 23 protection, the Producing Party also must clearly identify the protected portion(s) 24 (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 1 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 2 documents it wants copied and produced, the Producing Party must determine which 3 documents, or portions thereof, qualify for protection under this Order. Then, 4 before producing the specified documents, the Producing Party must affix the 5 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 6 portion of the material on a page qualifies for protection, the Producing Party also 7 must clearly identify the protected portion(s) (e.g., by making appropriate markings 8 in the margins). 9 (b) for testimony given in depositions that the Designating Party identifies 10 the Disclosure or Discovery Material on the record, before the close of the 11 deposition all protected testimony. 12 (c) for information produced in some form other than documentary and 13 for any other tangible items, that the Producing Party affix in a prominent place on 14 the exterior of the container or containers in which the information is stored the 15 legend “CONFIDENTIAL.” If only a portion or portions of the information 16 warrants protection, the Producing Party, to the extent practicable, shall identify the 17 protected portion(s). 18 5.3 Materials Designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 19 EYES ONLY.” The parties anticipate that there may be documents subject to 20 protection under Federal Rules of Civil Procedure 26(c) that are of an extremely 21 sensitive nature, would cause substantial and concrete competitive injury if 22 disclosed to an opposing party in this litigation, and that such injury could not be 23 avoided by less restrictive means. The types of documents that might warrant a 24 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation, 25 assuming they otherwise meet the above criteria, may include, but are not limited to, 26 confidential attorney-client privilege communications, attorney work product, as 27 well as attorney-client strategies. Designations with a higher confidentiality level 1 allowed only if the designation is necessary to protect material that, if disclosed to 2 persons not authorized to view it, would cause competitive or other recognized 3 harm. Material may not be designated if it has been made public, or if designation is 4 otherwise unnecessary to protect a secrecy interest. If a designator learns that 5 information or items that it designated for protection do not qualify for protection at 6 all or do not qualify for the level of protection initially asserted, that designator must 7 promptly notify all parties that it is withdrawing the mistaken designation. 8 5.4 Inadvertent Failures to Designate. If timely corrected, an inadvertent 9 failure to designate qualified information or items does not, standing alone, waive 10 the Designating Party’s right to secure protection under this Order for such material. 11 Upon timely correction of a designation, the Receiving Party must make reasonable 12 efforts to assure that the material is treated in accordance with the provisions of this 13 Order. 14 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 15 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 16 designation of confidentiality at any time that is consistent with the Court’s 17 Scheduling Order. 18 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 19 resolution process under Local Rule 37.1 et seq. 20 6.3 The burden of persuasion in any such challenge proceeding shall be on 21 the Designating Party. Frivolous challenges, and those made for an improper 22 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 23 parties) may expose the Challenging Party to sanctions. Unless the Designating 24 Party has waived or withdrawn the confidentiality designation, all parties shall 25 continue to afford the material in question the level of protection to which it is 26 entitled under the Producing Party’s designation until the Court rules on the 27 challenge. 1 7.1 Basic Principles. A Receiving Party may use Protected Material that is 2 disclosed or produced by another Party or by a Non-Party in connection with this 3 Action only for prosecuting, defending or attempting to settle this Action. Such 4 Protected Material may be disclosed only to the categories of persons and under the 5 conditions described in this Order. When the Action has been terminated, a 6 Receiving Party must comply with the provisions of section 13 below (FINAL 7 DISPOSITION). 8 Protected Material must be stored and maintained by a Receiving Party at a 9 location and in a secure manner that ensures that access is limited to the persons 10 authorized under this Order. 11 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 12 otherwise ordered by the court or permitted in writing by the Designating Party, a 13 Receiving Party may disclose any information or item designated 14 “CONFIDENTIAL” only to: 15 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 16 well as employees of said Outside Counsel of Record to whom it is reasonably 17 necessary to disclose the information for this Action; 18 (b) the officers, directors, and employees (including House Counsel) of 19 the Receiving Party to whom disclosure is reasonably necessary for this Action; 20 (c) Experts (as defined in this Order) of the Receiving Party to whom 21 disclosure is reasonably necessary for this Action and who have signed the 22 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 23 (d) the court and its personnel; 24 (e) court reporters and their staff; 25 (f) professional jury or trial consultants, mock jurors, and Professional 26 Vendors to whom disclosure is reasonably necessary for this Action and who have 27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 custodian or other person who otherwise possessed or knew the information; 2 (h) during their depositions, witnesses, and attorneys for witnesses, in the 3 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 4 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 5 not be permitted to keep any confidential information unless they sign the 6 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 7 agreed by the Designating Party or ordered by the court. Pages of transcribed 8 deposition testimony or exhibits to depositions that reveal Protected Material may 9 be separately bound by the court reporter and may not be disclosed to anyone except 10 as permitted under this Protective Order; and 11 (i) any mediator or settlement officer, and their supporting personnel, 12 mutually agreed upon by any of the parties engaged in settlement discussions. 13 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 14 IN OTHER LITIGATION 15 If a Party is served with a subpoena or a court order issued in other litigation 16 that compels disclosure of any information or items designated in this Action as 17 “CONFIDENTIAL,” that Party must: 18 (a) promptly notify in writing the Designating Party. Such notification 19 shall include a copy of the subpoena or court order; 20 (b) promptly notify in writing the party who caused the subpoena or order 21 to issue in the other litigation that some or all of the material covered by the 22 subpoena or order is subject to this Protective Order. Such notification shall include 23 a copy of this Protective Order; and 24 (c) cooperate with respect to all reasonable procedures sought to be 25 pursued 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 1 subpoena or order issued, unless the Party has obtained the Designating Party’s 2 permission. The Designating Party shall bear the burden and expense of seeking 3 protection in that court of its confidential material and nothing in these provisions 4 should be construed as authorizing or encouraging a Receiving Party in this Action 5 to disobey a lawful directive from another court. 6 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 7 PRODUCED IN THIS LITIGATION 8 (a) The terms of this Order are applicable to information produced by a 9 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 10 produced by Non-Parties in connection with this litigation is protected by the 11 remedies and relief provided by this Order. Nothing in these provisions should be 12 construed as prohibiting a Non-Party from seeking additional protections. 13 (b) In the event that a Party is required, by a valid discovery request, to 14 produce a Non-Party’s confidential information in its possession, and the Party is 15 subject to an agreement with the Non-Party not to produce the Non-Party’s 16 confidential information, then the Party shall: 17 (1) promptly notify in writing the Requesting Party and the Non-Party 18 that some or all of the information requested is subject to a confidentiality 19 agreement with a Non-Party; 20 (2) promptly provide the Non-Party with a copy of the Protective 21 Order in this Action, the relevant discovery request(s), and a reasonably specific 22 description of the information requested; and 23 (3) make the information requested available for inspection by the 24 Non-Party, if requested. 25 (c) If the Non-Party fails to seek a protective order from this court within 26 14 days of receiving the notice and accompanying information, the Receiving Party 27 may produce the Non-Party’s confidential information responsive to the discovery 1 not produce any information in its possession or control that is subject to the 2 confidentiality agreement with the Non-Party before a determination by the court. 3 Absent a court order to the contrary, the Non-Party shall bear the burden and 4 expense of seeking protection in this court of its Protected Material. 5 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 6 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 7 Protected Material to any person or in any circumstance not authorized under this 8 Protective Order, the Receiving Party must immediately (a) notify in writing the 9 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 10 all unauthorized copies of the Protected Material, (c) inform the person or persons to 11 whom unauthorized disclosures were made of all the terms of this Order, and (d) 12 request such person or persons to execute the “Acknowledgment and Agreement to 13 Be Bound” that is attached hereto as Exhibit A. 14 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 15 PROTECTED MATERIAL 16 When a Producing Party gives notice to Receiving Parties that certain 17 inadvertently produced material is subject to a claim of privilege or other protection, 18 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 19 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 20 procedure may be established in an e-discovery order that provides for production 21 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 22 (e), insofar as the parties reach an agreement on the effect of disclosure of a 23 communication or information covered by the attorney-client privilege or work 24 product protection, the parties may incorporate their agreement in the stipulated 25 protective order submitted to the court. 26 12. MISCELLANEOUS 27 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 1 12.2 Right to Assert Other Objections. No Party waives any right it 2 otherwise would have to object to disclosing or producing any information or item 3 on any ground not addressed in this Protective Order. Similarly, no Party waives 4 any right to object on any ground to use in evidence of any of the material covered 5 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 8 may 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 paragraph 4, within 60 14 days of a written request by the Designating Party, each Receiving Party must return 15 all Protected Material to the Producing Party or destroy such material. As used in 16 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 17 summaries, and any other format reproducing or capturing any of the Protected 18 Material. Whether the Protected Material is returned or destroyed, the Receiving 19 Party must submit a written certification to the Producing Party (and, if not the same 20 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 21 (by category, where appropriate) all the Protected Material that was returned or 22 destroyed and (2) affirms that the Receiving Party has not retained any copies, 23 abstracts, compilations, summaries or any other format reproducing or capturing any 24 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 25 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 26 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 27 reports, attorney work product, and consultant and expert work product, even if such 1 |} constitute Protected Material remain subject to this Protective Order as set forth in 2 || Section 4 (DURATION). 3 || 14. VIOLATION 4 Any violation of this Order may be punished by appropriate measures 5 || including, without limitation, contempt proceedings and/or monetary sanctions. 6 7 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 8 9 || DATED: January 21, 2021 10 ul 12 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Protective Order that was issued 7 by the United States District Court for the Central District of California on 8 __________________, 2021 in the case of Travelers, etc. et al., v. Walking U, etc. et 9 al., United States District Court (C.D. Cal.) Case No.: 2:18-cv-2482-CAS (GJSx). I 10 agree to comply with and to be bound by all the terms of this Protective Order and I 11 understand and acknowledge that failure to so comply could expose me to sanctions 12 and punishment in the nature of contempt. I solemnly promise that I will not 13 disclose in any manner any information or item that is subject to this Protective 14 Order to any person or entity except in strict compliance with the provisions of this 15 Order. 16 I further agree to submit to the jurisdiction of the United States District Court for the 17 Central District of California for enforcing the terms of this Protective Order, even if 18 such enforcement proceedings occur after termination of this action. I hereby 19 appoint __________________________ [print or type full name] of 20 _______________________________________ [print or type full address and 21 telephone number] as my California agent for service of process in connection with 22 this action or any proceedings related to enforcement of this Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 Printed name: _______________________________ 27 Signature: __________________________________