Garland Connect, LLC v. Travelers Casualty Insurance Company of America

] GREENE BROILLET & WHEELER, LLP (SPACE BELOW FOR FILING STAMP ONLY) une oem ras G10) Stes

SCOTT H. CARR, SBN 156664 (sear @ebw law)

CHRISTIAN T. F. NICKERSON, SBN 281084 (cnickerson@gbw. law) Attorneys for __ Plaintiff

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GARLAND CONNECT, LLC, a CASE NO. 2:20-cv-09252

California Limited Liability Company, [Assigned to for all purposes Hon.

Andre Birotte Jr] Plaintiffs,

VS. STIPULATED PROTECTIVE ORDER

TRAVELERS CASUALTY

INSURANCE COMPANY OF

AMERICA, a corporation, and DOES 1 through 50, inclusive, Complaint filed August 13, 2020 Defendants.

1. A. PURPOSE AND LIMITATIONS

Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in -l-

1 |) Section 12.3, below, that this Stipulated Protective Order does not entitle them to || file confidential information under seal; Civil Local Rule 79-5 sets forth the || procedures that must be followed and the standards that will be applied when a party || seeks permission from the court to file material under seal.

5 B. GOOD CAUSE STATEMENT

6 Good cause exists for this Protective Order. This case arises out of claims regarding Breach of Written Contract and Breach of Implied Covenant of Good || Faith. Given the nature of Plaintiff’s claims and Travelers’ defenses, discovery in || this litigation may potentially call for the production of confidential, proprietary and/or private information, including but not limited to, confidential, non-public information disclosed during the course of discovery in this action. This action is = 12] likely to involve trade secrets, customer and pricing lists, and/or confidential _ 13 || business or financial information. Accordingly, to expedite the flow of information, N 14 || to facilitate prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep || confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record of this case.

2. DEFINITIONS

2.1 Action: [this pending federal lawsuit - CASE NO. 2:20-cv-09252 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order.

1 2.3. “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for || protection under Federal Rule of Civil Procedure 26(c), and as specified above in || the Good Cause Statement.

5 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as || their support staff).

7 2.5 Designating Party: a Party or Non-Party that designates information or || items that it produces in disclosures or in responses to discovery as |) “CONFIDENTIAL.”

2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it was generated, stored, or maintained = 12] (including, among other things, testimony, transcripts, and tangible things), that are _ 13 || produced or generated in disclosures or responses to discovery in this matter. N 14 2.7 Expert: a person with specialized knowledge or experience in a matter g 15 || pertinent to the litigation who has been retained by a Party or its counsel to serve as || an expert witness or as a consultation in this Action.

2.8 House Counsel: attorneys who are employees of a party to this Action. House Counsel does not include Outside Counsel of Record or any other outside counsel.

2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.

2.10 Qutside Counsel of Record: attorneys who are not employees of a party to this Action but are retained to represent or advise a party to this Action and have appeared in this Action on behalf of that party or are affiliated with a law firm which appeared on behalf of that party, and includes support staff.

2.11 Party: any party to this Action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). _3-

1 2.12 Producing Party: a Party or Non-Party that produces Disclosure or || Discovery Material in this Action.

3 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or || demonstrations, and organizing, storing, or retrieving data in any form or medium) || and their employees and subcontractors.

7 2.14 Protected Material: any Disclosure or Discovery Material that is || designated as “CONFIDENTIAL.”

9 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.

3. SCOPE

The protections conferred by this Stipulation and Order cover not only _ 13 || Protected Material (as defined above), but also (1) any information copied or N 14 || extracted from Protected Material; (2) all copies, excerpts, summaries, or g 15 || compilations of Protected Material; and (3) any testimony, conversations, or os

16 || presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the trial judge. This Order does not govern the use of the Protected Material at trial. 4. DURATION

Once a case proceeds to trial, information that was designated as Confidential or maintained pursuant to this protective order used or introduced as an exhibit at trial becomes public and will be presumptively available to all members of the public, including the press, unless compelling reasons supported by specific factual findings to proceed otherwise are made to the trial judge in advance of the trial. See Kamakana v. City and County of Honolulu,, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing documents produced in discovery from “compelling reasons” standard when merits-related documents are part of court record). Accordingly, the terms of this protective order do not extend beyond the || commencement of the trial as it relates to those documents introduced and marked || as exhibits at the time of trial. For all other documents subject to this protective || order, the terms of the order will remain in effect.

4 5. DESIGNATING PROTECTED MATERIAL

5 5.1 Exercise of Restraint and Care in Designating Material for Protection. 6 Each Party or Non-Party that designates information or items for protection || under this Order must take care to limit any such designation to specific material || that qualifies under the appropriate standards. The Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept = 12] unjustifiably within the ambit of this order. _ 13 Mass, indiscriminate, or routinized designations are prohibited. Designations || that are shown to be clearly unjustified or that have been made for improper purpose g 15 || (e.g., to unnecessarily encumber the case development process or to impose || unnecessary expenses and burdens on other parties) may expose the Designating Party to sanctions.

If it comes to a Designating Party’s attention that information or items that it designated for protection do not qualify for protection, that Designating Party must promptly notify all other Parties that it is withdrawing the inapplicable designation. 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced.

Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that _5-

1 |) the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereafter || “CONFIDENTIAL legend”), to each page that contains protected material. If only a || portion or portions of the material on a page qualifies for protection, the Producing || Party also must clearly identify the protected portion(s) (e.g., by making appropriate || markings in the margins).

6 A Party or Non-Party that makes original documents available for inspection || need not designate them for protection until after the inspecting Party has indicated || which documents it would like copied and produced. During the inspection and || before the designation, all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and produced the Producing Party must determine which = 12 documents, or portions thereof, qualify for protection under this Order. Then, before _ 13 || producing the specified documents, the Producing Party must affix the N 14 || “CONFIDENTIAL legend” to each page that contains Protected Material. If only a g 15 || portion or portions of the material on a page qualifies for protection, the Producing os

16 || Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). (b) for testimony given in depositions that the Designating Party identify the Disclosure or Discovery Material on the record, before the close of the deposition all protected testimony. (c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information is stored the legend “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, the Producing Party, to the extent practicable, shall identify the protected portion(s).

5.3 Inadvertent Failures to Designate. If timely corrected on, an inadvertent failure to designate qualified information or items does not, standing alone, waive _6-

1 || the Designating Party’s right to secure protection under this Order for such material. 2 || Upon timely correction of a designation, the Receiving Party must make reasonable || efforts to assure that the material is treated in accordance with the provisions of this | Order.

5 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6 6.1 Timing of Challenges. Any Party or Non-Party may challenge a || designation of confidentiality at any time that is consistent with the Court’s || Scheduling Order.

9 6.2 Meet _and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq.

6.3. The burden of persuasion is any such challenge proceeding shall be on = 12] the Designating Party. Frivolous challenges, and those made for an improper || purpose (e.g., to harass or impose unnecessary expenses and burdens on other || parties) may expose the Challenging Party to sanctions. Unless the Designating ss 15 || Party has waived or withdrawn the confidentiality designation, all parties shall os

16 || continue to afford the material in question the level of protection to which it is entitled under the Producing Party’s designation until the Court rules on the challenge.

7. ACCESS TO AND USE OF PROTECTED MATERIAL

7.1. Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this Action only for prosecuting, defending, or attempting to settle this Action. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the Action has been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

_7-

1 Protected Material must be stored and maintained by a Receiving Party at a || location and in a secure manner that ensures that access is limited to the persons || authorized under this Order.

4 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless || otherwise ordered by the court or permitted in writing by the Designating Party, a || Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to:

8 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as || employees of said Outside Counsel of Record to whom it was reasonably necessary to disclose the information for this Action; (b) the officers, directors, and employee (including House Counsel) of the = 12] Receiving Party to whom disclosure is reasonably necessary for this Action; 13 (c) Experts (as defined in this Order) of the Receiving Party to whom N 14 || disclosure is reasonably for this Action and who have signed the “Acknowledgment g 15 || and Agreement to Be Bound” (Exhibit A);

16 (d) the court and its personnel;

317 (e) court reporter and their staff; (f) professional jury and trial consultants, mock juror, and Professional Vendors to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonably necessary provided: (1) the deposing party requests that the witness sign the form attached as Exhibit A hereto; and (2) they will not be permitted to keep any confidential information unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed | deposition testimony or exhibits to depositions that reveal Protected Material may || be separately bound by the court reporter and may not be disclosed to anyone except || as permitted under this Stipulated Protective order. In the event that the witness or || deponent refuses or otherwise fails to sign the “Acknowledgment and Agreement to || Be Bound” (Exhibit A), the witness or deponent shall be advised that any || confidential information shown to them in deposition is subject to the Protective || Order and that any disclosure of such confidential information may be a violation of || the Protective Order.; and

9 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions.

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN = 12] OTHER LITIGATION _ 13 If a Party is served with a subpoena or a court order issued in other litigation || that compels disclosure of any information or items designated in this Action as g 15 || “CONFIDENTIAL,” that Party must: os

16 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.

If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL” before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burden of the expense of seeking _9-

1 |) protection in that court of its confidential material and nothing in these provisions || should be construed as authorizing or encouraging a Receiving Party in this Action || to disobey a lawful directive from another court.

9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED || IN THIS LITIGATION

6 (a) The terms of this Order are applicable to information produced by a Non- Party in this Action and designated as “CONFIDENTIAL.” Such information || produced by Non-Parties in connection with this litigation is protected by the || remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to = 12) produce a Non-Party’s confidential information in its possession, and the Party is _ 13 || subject to an agreement with the Non-Party not to produce the Non-Party’s N 14 | confidential information, then the Party shall: ss 15 (1) promptly notify in writing the Requesting Party and the Non-Party that os

16 || some or all of the information requested is subject to a confidentiality agreement with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this Action, the relevant discovery request(s), and a reasonably specific description of the information requested; and (3) make the information requested available for the inspection by the Non- Party, if requested. (c) If the Non-Party fails to seek a protective order from this court within 14 days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party before a determination by the court.

1 |) Absent a court order to the contrary, the Non-Party shall bear the burden and || expense of seeking protection in this court of its Protected Material.

3 || 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed || Protected Material to any person or in any circumstance not authorized under this || Stipulated Protective order, the Receiving Party must immediately (a) notify in || writing the Designating Party of the unauthorized disclosures, (b) use its best efforts || to retrieve all unauthorized copies of the Protected Material, (c) inform the person or || persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the “Acknowledgement and Agreement to Be Bound” that is attached hereto as Exhibit A. = 12] 11. INADVERTENT PROTECTION OF PRIVILEGED OR OTHERWISE _ 13 || PROTECTED MATERIAL

N 14 When a Producing Party gives notice to Receiving Parties that certain g 15 || inadvertently produced material is subject to a claim of privilege or other protection, os

16 || the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 317 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order that provides for production without prior privilege review.

12. MISCELLANEOUS

12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek it modification by the Court in the future.

12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order.

-ll-

1 12.3. Filing Protected Material. A Party that seeks to file under seal any || Protected Material must comply with Civil Local Rule 79-5. Protected Material may || only be filed under seal pursuant to a court order authorizing the sealing of the || specific Protected Material at issue. If a Party’s request to file Protected Material is || denied by the court, then the Receiving Party may file the information in the public || record unless otherwise instructed by the court.

13. FINAL DISPOSITION

8 After the final disposition of this Action, as defined in Paragraph 4, within 60 days of a written request by the Designating Party, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, || summaries, and any other format reproducing or capturing any of the Protected || Material. Whether the Protected Material is returned or destroyed, the Receiving N 14 || Party must submit a written certification to the Producing Party (and, if not the same || person or entity, to the Designating Party) by the 60 day deadline that (1) identifies || (by category, where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultation and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section 4. (DURATION).

14. NON-WAIVER Producing or receiving materials or otherwise complying with the terms of this Stipulation and Protective Order shall not:

1 (a) Operate as an admission by any Party that any particular Information || is Confidential, constitutes a trade secret, or is otherwise protected by the right to || privacy under California and/or federal law;

4 (b) Prejudice, in any way, the rights of a Party to seek determinations by || this Court regarding whether particular Information should be produced, or whether || such Information, if produced, should be subject to the terms of this Stipulation and || Protective Order;

8 (c) Constitute a waiver of a Party’s rights to claim in this lawsuit or 9|| hereafter that any Information is Confidential, privileged, otherwise non- discoverable, or inadmissible for any reason including relevance; (d) Prevent the parties to this Stipulation and Protective Order from = agreeing in writing to alter or waive the provisions or protections provided for _ 13 || herein with respect to particular Information; or

14 (e) In any manner affect a Party’s right to use Confidential Information at g 15 || trial. The trier of fact will not be informed of the existence of this order, or that any || Information is Confidential. Further, any Confidential Information marked Confidential shall have such marking redacted for use at trial.

15. This Stipulation and Protective Order has no effect upon, and its scope shall not extend to, any Party’s use of his, her or its own Information regardless of whether that Information has been designated as Confidential under this Stipulation and Protective Order.

16. Nothing in this Stipulation and Protective Order shall be interpreted to require the disclosure of information protected by the attorney-client privilege or work product doctrine.

17. Any violation of this Order may be punished by any and all appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions.

1 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2 Greene Broillet & Wheeler LLP 3 U, f || Dated: _February 4, 2021 cott H. Carr, wea 5 Christian T.F. Nickerson, Esq.

Attorney for Plaintiff 7 Weston & Mcelvain, LLP 8 ( on f) || Dated: _ February 4, 2021 ye sifort Randy M. McElvain, Esq.

Joel A/ Graboff, Esq.

Attorneys for Defendant FOR GOOD CAUSE SHOWN, IT IS SO ORDERED

DATED: Febmuary 4, 2021 Se

13 Honorable Steve Kim United Sates Magistrate Judge Ag 14 aS = < 16 o 17

1 EXHIBIT A

5 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, [print or type full name], □□ 4 [print of type full address], ; declare under penalty of perjury that I have read in its entirety and understand the ‘ Stipulated Protective Order that was issued by the United States District Court for ; the Central District of California on [date] in the case of [insert formal name of the case and the number and initials assigned to it by the court] I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. | solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order.

I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the terms of this a Stipulated Protective Order, even if such enforcement proceedings occur after ig termination of this action. I hereby appoint [print or type full name] of [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement » of this Stipulated Order.

Date:

34 City and State where sworn and signed Printed Name:

3g Signature;

PROOF OF SERVICE (C.C.P. I013A, 2015.5)

STATE OF CALIFORNIA

I am employed in the county of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action; my business address is 100 Wilshire Boulevard, 21st Floor, Santa Monica, California 90401.

On Februaty 4, 2021 I served the foregoing document, described as STIPULATED PROTECTIVE ORDER on the interested parties in this action. by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list. by placing the original a true copy enclosed in sealed envelopes addressed as follows: _s-—s BY MAIL.

I deposited such envelope in the mail at Santa Monica, California.

The envelope was mailed with postage thereon fully prepaid.

As follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Santa Monica, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

Executed on February 4, 2021 at Santa Monica, California.

BY PERSONAL SERVICE. I delivered such envelope by hand to the offices of the addressee.

BY OVERNIGHT DELIVERY. I caused such envelope to be deposited with a delivery service (Federal Express) in Santa Monica, California, for overnight delivery to the addresses set forth on the attached mailing list.

X BY E-MAIL OR ELECTRONIC TRANSMISSION. I caused the document(s) to be sent to the person(s) at the e-mail address(es) listed on the Service List. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission was unsuccessful.

Executed on February 4, 2021 at Santa Monica, California.

X__ (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. — _ Vivian Winn OF □ ote // Yo Name Signat

SERVICE LIST

Garland Connect LLC v Travelers Casualty Insurance Co. of America Case No. 2:20-cv-09252 (United States District Court, Central District) Randy M. McElvain, Esq. T: 213-596-8000

Joel Graboff, Esq. F: 213-596-8039

Weston and McElvain LLP Email: [email protected] 1960 East Grand Avenue, Suite 400 [email protected]

El Segundo, CA 90245 [email protected];

Attorney(s) for Travelers Casualty Insurance Company of America