Wunderlich v. State Farm Mutual Automobile Insurance Company

• Court: District Court, D. Nevada
• Decided: September 22, 2021
• Docket: 2:21-cv-00486
• Status: Unknown

Opinion

1 ||SEAN D. COONEY, ESQ. NV Bar # 12945 2 || ADAM C. EDWARDS, ESQ. NV Bar # 15405 3 || CARMAN COONEY FORBUSH PLLC 4045 Spencer Street Suite A47 4 || Las Vegas, NV 89119 Telephone: (702) 421-0111 5 || Facsimile: (702) 516-1033 service@ccfattorneys.com 6 || Attorneys for Defendant State Farm Mutual Auto Insurance Company 7 8 UNITED STATES DISTRICT COURT

9 DISTRICT OF NEVADA Ww 2 © 10 || THOMAS A. WUNDERLICH, 2:21-cv00486-JAD-EJY Oo

= 11 Plaintiff, STIPULATED Z CONFIDENTIALITY 12 || v. AGREEMENT AND z PROTECTIVE ORDER = 13 || STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Defendant 15 16 17 Plaintiff THOMAS A. WUNDERLICH and Defendant STATE FARM 18 || MUTUAL AUTOMOBILE INSURANCE COMPANY (“State Farm”) (collectively, 19 the “Parties”), through their undersigned counsel, hereby submit this Stipulated 20 || Confidentiality Agreement and Protective Order (“Protective Order’) and state as 21 || follows: 22 1. State Farm possesses certain information and documents that contain 23 confidential, proprietary, or trade secret information that may be subject to

1 || discovery in this action, but that should not be made publicly available. 2 2. The parties therefore request that the Court enter this Protective 3 || Order to properly balance the discovery rights of the Plaintiff with State Farm’s 4 || rights to protect its private, confidential, proprietary, or trade secret information. 5 3. All production and disclosure of information designated as 6 || CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER, by 7 State Farm during this litigation shall be governed by this Order, including, but 8 || not limited to, information contained in or derived from documents, deposition 9 || testimony, deposition exhibits, trial testimony, computer memory or archives, other 10 || written, recorded or graphic matter, and all copies, excerpts, or summaries thereof 11 || (collectively, “information”). : 12 4. Information subject to this Protective Order shall be designated 13 || CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER by 14 ||State Farm by stamping “CONFIDENTIAL,” “TRADE SECRET,” or otherwise 15 ||/indicating confidentiality, trade secret or produced subject to this Protective Order, 16 appropriate, on the face of a single-page document, on at least the initial page of 17 multi-page document, and in a prominent location on the exterior of any tangible 18 || object. Any electronically stored information may be designated as 19 || CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER 20 ||through a correspondence providing the media and a hard copy or printout shall be 21 ||treated as protected material of the same designation. Designation may only be 22 made after a good faith review by counsel of record and counsel making a 23

1 || designation shall comply with the standards set forth in FRCP 26(g) when 2 || designating information as CONFIDENTIAL, TRADE SECRET or SUBJECT TO 3 || PROTECTIVE ORDER. 4 5. With respect to deposition testimony and deposition exhibits, State 5 || Farm may, either on the record at the deposition or by written notice to counsel for 6 || Plaintiff no later than forty-five (45) days after receipt of the transcript of said 7 || deposition, designate portions of testimony and/or exhibits from the deposition as 8 || CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER. All 9 || testimony or exhibits, regardless of whether designated as CONFIDENTIAL, 10 || TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER on the record, shall be 11 || treated as CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE : 12 |] ORDER until forty-five (45) days after receipt of the transcript of said deposition by 13 all parties. Certain depositions may, in their entirety, be designated 14 || CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER 15 || prior to being taken because of the anticipated testimony. Furthermore, any 16 ||document designated as CONFIDENTIAL, TRADE SECRET, or SUBJECT 17 || TO PROTECTIVE ORDER shall maintain that designation and the 18 || protections afforded thereto if introduced or discussed during a 19 || deposition. 20 6. The inadvertent or unintentional disclosure by State Farm of 21 ||information considered to be CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 22 || PROTECTIVE ORDER shall not be deemed a waiver in whole or in part of State 23

1 || Farm’s claim of protection pursuant to this Protective Order, either as to the 2 || specific information disclosed or as to any other information relating thereto. Any 3 ||}such inadvertently or unintentionally disclosed information shall be designated as 4 |} CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER as 5 |}soon as reasonably practicable after State Farm becomes aware of the erroneous 6 || disclosure and shall thereafter be treated as such by all receiving persons absent 7 ||re-designation pursuant to Court order. Upon receipt of the properly designated 8 || documents, the recipient must return or destroy the non-designated set within 9 || three (3) days. If the recipient destroys the documents, then the recipient must 4 5 10 || provide written certification of the destruction to the producer of the information

zZ 11 || within three (3) days of receipt of the properly designated documents. In addition, : 12 ||the production or disclosure by State Farm of an attorney-client privileged, 13 || attorney work product, or other protected document or information, whether 14 |/inadvertent or otherwise, shall not be deemed a waiver of the privilege, work 15 || product, or other protection or immunity from discovery by State Farm in this or 16 subsequent state or federal proceeding pursuant to Federal Rule of Evidence 17 502 regardless of the circumstances of disclosure. If any party becomes aware of 18 ||the production or disclosure of such protected information by State Farm, that 19 || party shall provide written notice of such production or disclosure within three (8) 20 || days after it becomes aware that protected information has been disclosed or 21 || produced. 22 |I/// 23

1 7. When information which is CONFIDENTIAL, TRADE SECRET, or 2 ||SUBJECT TO PROTECTIVE ORDER is presented, quoted or referenced in any 3 || deposition, hearing, trial or other proceeding, counsel for the offering party shall 4 |}make arrangements or, when appropriate, request the Court to make 5 || arrangements, to ensure that only persons entitled to such information pursuant to 6 || Paragraph 10 are present during such presentation, quotation or reference. 7 8. Subject to the requirements of Paragraph 12 of this Agreement, no 8 || person receiving information designated as CONFIDENTIAL, TRADE SECRET, or 9 |} SUBJECT TO PROTECTIVE ORDER shall disclose it or its contents to any person 4 5 10 || other than those described in Paragraph 10 below; no such disclosure shall be made 11 ||for any purposes other than those specified in that paragraph; and in no event shall : 12 ||such person make any other use of such information. Counsel shall be responsible 13 || for obtaining prior written agreement to be bound to the terms of this Agreement 14 ||from all persons to whom any information so designated is disclosed, and shall be 15 || responsible for maintaining a list of all persons to whom any information so 16 || designated is disclosed and, for good cause shown, such list shall be available for 17 ||inspection by counsel for State Farm upon order of the Court; provided, however, 18 that the requirements of this sentence shall not apply to disclosures made pursuant 19 ||to Paragraphs 10(h) and/or 12 of this Protective Order. 20 9. Except as agreed by State Farm or as otherwise provided herein, 21 |)including in Paragraphs 10(h) and 12 of this Protective Order, information 22 || designated as CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 23

1 || PROTECTIVE ORDER shall (1) only be used in the preparation for trial and/or any 2 || appeal of this Action and (2) be maintained in confidence by the party(ies) to whom 3 is produced and not disclosed by such party(ies) except to persons entitled to 4 || access thereto pursuant to Paragraph 10 below. Except as provided in Paragraphs 5 || 10h), (g), (k), and 12 of this Protective Order, information which is 6 || CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER may 7 be used by any person receiving such material for any business or competitive 8 || purpose or for use in matters other than this lawsuit, including other matters 9 |}involving State Farm. 4 5 10 10. Information designated as CONFIDENTIAL, TRADE SECRET, or 11 SUBJECT TO PROTECTIVE ORDER by State Farm shall be disclosed only to the : 12 || following persons: 18 (a) attorneys actively working on or supervising the work on this case; 14 (b) persons regularly employed or associated with the attorneys actively 15 || working on this case whose assistance is required by said attorneys in the 16 || preparation for trial, at trial, or at other proceedings in this case; 17 (c) the parties, including designated representatives and counsel for the 18 || entity defendant; 19 (d) expert witnesses and consultants retained in connection with this 20 || proceeding, to the extent such disclosure is necessary for preparation, trial or other 21 || proceedings in this case and the expert or consultant has signed a written 22 || acknowledgement attached as Exhibit A that must be signed and returned to 23

1 || State Farm prior to the materials being provided to the expert; 2 (e) the Court and its employees (“Court Personnel”); 3 (f) stenographic and video reporters who are engaged in proceedings 4 necessarily incident to the conduct of this action; 5 (g) deponents, witnesses, or potential witnesses, who have first-hand 6 || knowledge of the document and have signed a written acknowledgment attached as 7 || Exhibit A; 8 (h) the Nevada Division of Insurance, Nevada Attorney General, law 9 || enforcement officers, and/or other government agencies, as permitted or required 4 5 10 || by applicable state and federal law, including, but not limited to, NRS 686A.283 to

zZ 11 || NRS 686A.289, inclusively; : 12 (i) jury involved in litigation concerning the claims and any defenses to 13 || any claims in this lawsuit; 14 (j) anyone as otherwise required by law; 15 (k) as authorized by State Farm in writing; and 16 (1) other persons by written agreement of the parties when the person 17 has signed a written acknowledgement attached as Exhibit A. 18 11. Subject to Paragraph 12 of this Protective Order, the recipient of any 19 ||information designated CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 20 |} PROTECTIVE ORDER pursuant to this Agreement shall maintain information in 21 secure and safe area and shall exercise due and proper care with respect to the 22 || storage, custody and use of all such information. 23

1 12. Nothing in this Protective Order disallows State Farm’s maintenance 2 or use of information and documents in or pursuant to: its electronic claim system; 3 the privacy requirements of the Nevada Division of Insurance and other applicable 4 ||state and federal laws; the records retention requirements of the Nevada Division 5 || of Insurance, the Nevada Rules of Professional Conduct, or other applicable state 6 || and federal laws; the records retention practices of State Farm; and any written 7 || Court Order. Further, nothing in this Protective Order disallows reporting of 8 ||information by State Farm as permitted and/or required by applicable state and 9 || federal law, including NRS 686A.283 to NRS 686A.289, inclusively, or reporting to 4 5 10 the Insurance Services Office, Inc. 11 13. Plaintiff may at any time request from State Farm, in writing, the : 12 || release of information designated as CONFIDENTIAL, TRADE SECRET, or 13 SUBJECT TO PROTECTIVE ORDER from the requirements of the terms and 14 || provisions of this Protective Order. After fourteen days of receiving a written 15 request, counsel for State Farm and Counsel for Plaintiff shall attempt to meet and 16 || confer in good faith. If the parties are unable to agree as to whether the 17 ||information at issue is properly designated CONFIDENTIAL TRADE SECRET, or 18 || SUBJECT TO PROTECTIVE ORDER, State Farm may raise the issue of such 19 || designation with the Court pursuant to FRCP 26. State Farm must raise the issue 20 || with the Court and/or move for protection within thirty days of the meet and 21 ||/confer. The burden of proving protection rests upon State Farm under FRCP 26 22 Ninth Circuit case law. Any information submitted to the Court for review 23

1 shall be submitted under seal and for in camera review. Pending a ruling from the 2 || Court, State Farm's designation shall control. 3 14. Nothing in this Protective Order shall preclude any party from 4 ||responding to a validly issued subpoena, provided, however, that the party 5 responding to the subpoena shall provide written notice of such subpoena to the 6 || attorney of the party that originally produced the documents within three (3) days 7 || of receipt of a subpoena, which seeks production or disclosure of the information 8 || which is designated CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 9 ||} PROTECTIVE ORDER. Production or disclosure of information which is 10 || designated CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE 11 |} ORDER may not occur until the deadline set forth in a validly issued subpoena, : 12 ||absent agreement of the parties. 13 15. Nothing in this Protective Order shall prevent or restrict counsel for 14 State Farm from inspecting, reviewing, using, or disclosing the information 15 || designated as CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 16 |] PROTECTIVE ORDER. No disclosure pursuant to this paragraph shall waive any 17 rights or privileges of any party granted by this Protective Order. 18 16. Nothing in this Protective Order shall be construed as a limitation on 19 the use of evidence in a submission to the Court or at trial, subject to such 20 || confidentiality provisions as may be ordered by the Court. However, prior to 21 || utilizing or filing a document which is designated CONFIDENTIAL, TRADE 22 ||SECRET, or SUBJECT TO PROTECTIVE ORDER, the party intending to utilize 23

1 document shall comply with LR JIA 10-5 and Kamakana v. City and County of 2 || Honolulu, 447 F.3d 1172 (9th Cir. 2006), or must provide notice to Counsel for 3 || State Farm within a reasonable time, but in any event not fewer than 10 judicial 4 || days, to file a motion pursuant to LR JA 10-5 and Kamakana to show particularized 5 || good cause or particularized compelling reasons to file those documents under seal. 6 LR IA 10-5(a) provides: 7 Unless otherwise permitted by statute, rule or prior court order, papers filed with the court under seal must be accompanied by a 8 motion for leave to file those documents under seal. If papers are ~ filed under seal under prior court order, the papers must state 9 on the first page, directly under the case number: “FILED UNDER SEAL PURSUANT TO COURT ORDER (ECF 2 10 No. ).” All papers filed under seal will remain sealed until > the court either denies the motion to seal or enters an order z 11 unsealing them. Oo 12 Pursuant to Kamakana and LR JA 10-5(a), any documents designated as

= © 13 ||“CONFIDENTIAL’ and attached to a non-dispositive motion shall be accompanied O 14 by a motion showing a particularized good cause for leave to file those documents 15 || under seal, including but not limited to citation to this protective order. 16 || Furthermore, any documents designated as “CONFIDENTIAL” and attached to a 17 || dispositive motion shall be accompanied by a motion showing a particularized 18 || compelling reason for leave to file those documents under seal. Should the Court 19 || request further reasons or cause for the sealing of the documents, the burden 20 ||remains with State Farm to respond to the Court’s request in the time and manner 21 || requested by the Court. 22 WWII 23

1 17. The obligations of this Protective Order shall survive the termination 2 of this action and continue to bind the parties and their counsel. The Court will 3 || have continuing jurisdiction to enforce this Protective Order irrespective of the 4 |}manner in which this action is terminated. 5 18. Within thirty-five (35) days of the final determination of this action, 6 ||}each person or party who has received information designated CONFIDENTIAL, 7 || TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER shall return all 8 || documents and information subject to this Protective Order, including any copies or 9 || extracts or summaries thereof, or to destroy such information and certify that it

5 10 || has been destroyed, except that the recipient need not destroy or return transcripts 11 || of depositions and materials filed with the Court, and party may retain one : 12 || archival copy of all pleadings in the action, regardless of whether such pleadings 13 || Gncluding appendices) contain or refer to information designated CONFIDENTIAL, 14 || TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER; provided, however, 15 that the requirements of this Paragraph are subject to the requirements of 16 || Paragraphs 10(h) and 12 of this Protective Order and to the routine business 17 || practices of State Farm, and also subject to the regular business practices for 18 || maintenance and destruction of client files by the parties’ counsel. Within seven (7) 19 || days of the final determination of this action, counsel of record who has provided 20 information designated CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 21 || PROTECTIVE ORDER to other individuals must inform those individuals that the 22 matter has reached final determination and remind them of the return or 23

1 || destruction obligation. To the extent that this Protective Order requires the 2 || destruction or return of documents at the conclusion of this case, this requirement 3 |/is not intended to require State Farm or its counsel to return or destroy any 4 || documents that they are otherwise required by law to maintain. 5 19. This Protective Order may be modified by the Court at any time for 6 || good cause shown following notice to all parties and an opportunity for them to be 7 heard. The Court shall retain jurisdiction to modify the terms of this Protective 8 || Order. 9 20. Nothing in this Protective Order shall prohibit any party from filing a 4 5 10 || motion seeking further or different protection from the Court, or from filing a 11 || motion with respect to the manner in which the information designated : 12 || CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER shall 13 || be treated at trial. 14 21. Subject to the requirements of Paragraph 16 of this Protective Order, 15 || State Farm or any party wishing to use any CONFIDENTIAL, TRADE SECRET, 16 ||or SUBJECT TO PROTECTIVE ORDER information or document in any brief, 17 ||memorandum, motion, affidavit, or other paper filed with the Court shall file a 18 || motion to restrict access pursuant to LR IC 1-1G) and referencing this Protective 19 || Order, and shall request access restriction to limit access to the parties and the 20 court in CM/ECF - PACER. 21 22. This Protective Order may be executed in counterparts, each of which 22 shall constitute one and the same agreement. 23

1 || DATED September 21, 2021 DATED September 21, 2021 2 |} CARMAN COONEY FORBUSH THE COTTLE FIRM PLLC 3 4 /s/ Daniel M. Ryan 5 || SEAN D. COONEY, ESQ. ROBERT W. COTTLE, ESQ. ADAM C. EDWARDS, ESQ. DANIEL M. RYAN, ESQ. 6 Attorneys for Defendant Attorneys for Plaintiff State Farm Mutual Auto Thomas A. Wunderlich 7 |! Insurance Company 8

11 ORDER

5 12

2 13 IT IS SO ORDERED. <

14 Dated: September 22, 2021 15 16 . UNITEA) STA [AGISTRATE JUDGE

18 19 20 21 22 23

EXHIBIT A 9 ACKNOWLEDGMENT OF RECEIPT AND AGREEMENT TO COMPLY WITH STIPULATED CONFIDENTIALITY AGREEMENT AND 3 PROTECTIVE ORDER

4 The undersigned, , hereby acknowledges that 5 || he/she has been provided with a copy of the Parties’ Stipulated Confidentiality 6 Agreement and Protective Order entered in the case no. 2:21-cv00486-JAD- EJY, captioned WUNDERLICH v. STATE FARM MUTUAL AUTOMOBILE 7 INSURANCE COMPANY, in the United States District Court for the District of 8 Nevada. The undersigned has reviewed said Stipulated Confidentiality Agreement = 9 |! and Protective Order and hereby agrees to be bound by the terms thereof.

5 10 DATED this day of ,20_.

By: _ C49 Litigation Participant - Signature 2 = = 13 || O Name (Printed) 14 15 WQS Street Address 16 17 |}?! City State Zip 18 □□ Occupation / Business 20 21 22 23