ALICIA G. ROSENBERG, Magistrate Judge.
HEREBY ADOPTS SAID PROTECTIVE ORDER and ORDER AS FOLLOWS:
The Parties' Protective Order as modified by the court shall govern the disclosure and use of confidential documents in discovery.
1. Definitions.
2. This Order shall govern the handling of all Confidential Material provided during the course ofthe Action either voluntarily, as initial disclosures or in response to discovery requests made pursuant to the Federal Rule of Civil Procedure, or as required or permitted by Court order. The provision of this Order shall apply to any Person.
3. All Confidential Material shall be used only for the purpose of preparing for, and conducting the Action, including any appeals thereof, and shall not be used by the Parties or any other person for any other purpose. The Court reserves the right to modify this Order for good cause shown.
4. All Material produced in the Action, whether voluntarily or as required by Court order or under the Federal Rules of Civil Procedure, if such documents or things contain Confidential Material, shall bear a stamp stating "Confidential" on each page of any such document or on a sticker affixed to any such tangible thing. It shall be the responsibility ofthe Producing Person to cause all Confidential Material to be stamped by the time such Confidential Material is produced.
5. For information produced in some form other than Documents, and for any other tangible item, including, without limitation, compact discs or DVD's, the Designating Party must affix a prominent place on the exterior of the container or containers in which the information is stored the prefix "Confidential". If only portion ofthe information provided warrants protection, the Designating Party, to the extent applicable, shall identify the "Confidential" portion.
6. Information or testimony disclosed at a deposition may be designated as Confidential Material by the person providing such testimony, by a Party, or by a Producing Person, if such person either:
The entire transcript of any deposition shall be treated as Confidential Material until thirty(30) calendar days after the conclusion of the deposition. Each page of deposition transcript designated as Confidential Material shall be stamped, as set forth in paragraph 4 above, by the court reporter or counsel.
7. Each Party and each Producing Person shall have twenty(20)business days from the actual receipt of any Material to designate any such Material as "Confidential." During this 20-business day period, any person receiving any such Material shall treat the Material as "Confidential" under the terms of this Order.
8. Any Material designated as "Confidential" in accordance with this Order also will render "Confidential" any copies, excerpts, summaries or other documents reflecting or referring to the substance or contents of such Material.
9. Any Party may designate as "Confidential" any document that is produced or disclosed without such designation by a third party, within ten (10) business days of production of such document(or such other time as maybe agreed), provided that such document contains Confidential Material of a designating Party and was given to the non-Party on a confidential basis.
10. Confidential Material shall be subject to the following restrictions:
11. Each Qualified Person described in paragraph 10(b)(3) or 10(b)(4), above to whom Confidential Material is disclosed shall first be provided with a copy of this Order and advised that such Confidential Material is being disclosed pursuant to and subject to the terms of this Order and that Confidential Material may not be disclosed other than pursuant to the terms hereof. It shall be the responsibility of counsel providing such access to provide to each person to whom Confidential Material is disclosed a copy of this Order. Prior to disclosing Confidential Material to each person described in subparagraphs (10)(b)(3) and (10)(b)(4) above, counsel shall cause each such person to execute a certificate in the form attached as Exhibit A to this Order; Counsel disclosing Confidential Material to persons under subparagraph (10)(b) shall be responsible for holding executed certificates.
12. No Material that has been designated "Confidential" by this Order, by any Party or by any Producing Person shall be filed, independently or as an attachment or exhibit to any other document, in the public court file except as provided in Civil Local Rule 79-5 and the Honorable Dale S. Fischer Sealed Document Pilot Program.
13. In the event it becomes necessary at a deposition or hearing to show any Confidential Material to a witness, as described in subparagraph 10(b), above, any testimony related to the Confidential Material shall be deemed to be Confidential Material, and the pages and lines of the transcript that set forth such testimony shall be stamped as set forth in paragraph 4 of this Order.
14. No Party concedes that any Material designated by any other person as Confidential Material does in fact contain or reflect confidential information or has been properly designated as Confidential Material. There shall be no prejudice to the right of a Party to seek a determination by the Court of whether any particular document or information should be subject to the terms of this Order.
15. Unless a prompt challenge to a Designating Person's confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to amount a challenge promptly after the original designation is disclosed.
16. Meet and Confer.
A Party that elects to initiate a challenge to a Designating Person's confidentiality designation must do so in good faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) with counsel for the designating Person. In conferring, the challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Person an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first.
17. Judicial Intervention.
A Party who elects to press a challenge to a confidentiality designation after considering the justification offered by the Designating Person may file and serve a motion under Civil Local Rule 37(and in compliance with Civil Local Rule 79-5 and the Honorable Dale S. Fischer Sealed Document Pilot Program, if applicable) that identifies the challenged material and sets forth in detail the basis for challenging. Each such motion must be accompanied by a declaration that sets forth with specificity the justification for the confidentiality designation that was given by the Designating Person in the meet and confer dialogue. The burden of persuasion in any such challenge proceeding shall be on the Designating Person. Phillips Ex Rel. Byrd v. General Motors Corp., (9
18. Subject to paragraph 3, above, should any non-party seek access to Confidential Material, by request, subpoena or otherwise, the Party or other recipient of the Confidential Material from whom such access is sought, as applicable, shall promptly notify the Producing Person who produced such Confidential Material of such requested access. If any Receiving Person(a)is subpoenaed in another action, (b)is served with a demand in another action to which he, she or it is a party, or(c)is served with any other legal process by one not a party to this Action seeking Material which was produced and designated as Confidential, the Receiving Person shall give written notice, by hand, e-mail, or facsimile transmission, within five (5) business days of receipt of such subpoena, demand, or legal process, to those who produced the Confidential Material. The Receiving Person shall not produce any of the Producing Person's Confidential Material, unless ordered by a court to do so, until the later of(a) at least ten(10)business days after providing the required notice to the Producing Person, or(b)the date of production specified in, or required by, the subpoena, demand or other legal process. The Producing Person shall be solely responsible for asserting any objection to the requested production.
19. This Order, insofar as it restricts the communication and use of Confidential Material, shall continue to be binding throughout and after the conclusion of the Action, including any appeals. However, when offered in evidence at trial or motions more than tangentially related to the merits, Confidential Material will become available to the public, absent a separate court order upon motion and compelling reasons shown in advance of the scheduled trial date to proceed otherwise In order to permit a Designating Person to assess whether to move the Court for additional protection, and if appropriate to file a timely motion, the proponent of the evidence must give notice of intent to introduce the evidence to counsel for the Designating Person at least thirty (30) calendar days before trial. Any party may then move the Court in advance of the trial for an order that the evidence be received in camera or under other conditions to prevent unnecessary disclosure pursuant to applicable federal and local rules. The Court will determine whether the proffered evidence should continue to be treated as Confidential Material and, if so, what protection may be offered to such Material at trial.
20. Within sixty (60) calendar days after the conclusion of the Action, including all appeals, all Confidential Material, copies thereof and documents reflecting such Confidential Material(other than materials contained in the court's unsealed/non-sealed records) shall be returned to the Producing Person who produced such Confidential Material or destroyed, at the discretion of the Producing Person.
21. The Court retains jurisdiction for a period of six (6) months after termination of this Action, to enforce the terms of this Order to make such amendments, or additions to this Order as it may from time to time deem appropriate or may be appropriate upon a motion by any Party.
22. Even after the final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final Disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final judgement herein after the completion and exhaustion of all appeals, rehearing, remands, trials or reviews of this Action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law.
23. The protection of Confidential Material at trial may be addressed in the pre-trial order.
24. Any inadvertent disclosure or production of documents protected by the attorney-client privilege or work-product protection shall not constitute a waiver of either any available privilege or protection by the disclosing party. In the event that the Receiving Party discovers that it has received either attorney-client privilege or work-product documents, it shall bring that fact to the attention of the Producing Party immediately upon that discovery. Upon the request of the Producing Party, the Receiving Party will promptly disclose the names of any individuals who have read or have had access to the attorney-client privilege or work-product document. No such inadvertently produced attorney-client privilege or work-product protected document maybe used in evidence against the Producing Party.
25. In the event that any Party discovers that any Confidential Material has been disclosed to any person not entitled under this Protective Order to receive such information, the Party, upon discovering the unauthorized disclosure, shall immediately(a)inform the other Party of the circumstances of the disclosure;(b) inform the Receiving Person or entity of the existence and terms of this Protective Order;(c) make its best efforts to retrieve any unauthorized disclosed documents or Material; and(d) make its best efforts to obtain an undertaking in the form attached hereto from the person who was not entitled to receive such information. Such unauthorized disclosure shall not cause the disclosed information to lose its Confidential status.
26. The inadvertent failure to designate information under this Stipulated Protective Order prior to or at the time of disclosure shall not operate as a waiver of the Producing Party's right to designate such information under this Order so long as such Party takes steps to correct the designation of such information within a reasonable time and as set forth in paragraph 4.
27. In the event that Confidential Material is designated as Confidential after production, the Receiving Party shall employ reasonable efforts to ensure that any inadvertently disclosed information is subsequently treated as required pursuant to the terms of this Order.
28. After this Stipulation and Protective Order has been signed by counsel for all Parties, it shall be presented to the Court for entry. Counsel agree to be bound by the terms set forth herein with regard to any Confidential Materials that have been produced before the Court sings this Stipulation and Protective Order.
29. The Parties and all signatories to the Certification attached hereto as Exhibit A agree to be bound by this Stipulation and Protective Order pending its approval and entry by the Court. In the event that the Court modifies this Stipulation and Protective Order, or in the event that the Court enters a different Protective Order, the Parties agree to be bound by this Stipulation and Protective Order until such time as the Court may enter such a different Order. It is the Parties' intent to be bound by the terms of this Stipulation and Protective Order pending its entry so as to allow for immediate production of Confidential Material under the terms herein.
I hereby acknowledge that I, _____________________________, am about to receive Confidential Material supplied in connection with the Action, captioned Adel F. Samaan, M.D. v. Aetna Life Insurance Company; Aetna Life and Casualty (Bermuda) Ltd., Case No. 2:17-cv-01690-DSF(AGRx). I certify that I understand that the Confidential Material are provided to me subject to the terms and restrictions of the Stipulated Protective Order filed in this Proceeding. I have been a given a copy of the Stipulated Protective Order; I have read it, and I agree to be bound by its terms.
I understand that Confidential Material, as defined in the Stipulated Protective Order, including any notes or other records that may be made regarding any such materials, shall not be disclosed to anyone except as expressly permitted by the Stipulated and Protective Order. I will not copy or use, except solely for the purposes of this Action, any Confidential Materials obtained pursuant to this Protective Order, except as provided therein or otherwise ordered by the Court in the Action.
I further understand that I am to retain all copies of all Confidential Materials provided to me in the Action in a secure manner, and that all copies of such Confidential Materials are to remain in my personal custody until termination of my participation in this Proceeding, whereupon the copies of such Confidential Materials will be returned to counsel who provided me with such Confidential Materials.
I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed this ____ (day)of ____ (month), ________________(year).
