1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 10 11 MCCARTHY BUILDING COMPANIES, CASE NO. 2:20-cv-07540 DSF INC., a Missouri Corporation, (AFMx) 12 Plaintiff, [PROPOSED] ORDER RE: 13 STIPULATED PROTECTIVE v. ORDER 14

MT. HAWLEY INSURANCE DISCOVERY MATTER

15 COMPANY, an Illinois Insurance company, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 1 Upon consideration of the [Proposed] Stipulated Protective Order submitted 2 by Plaintiff McCarthy Building Companies, Inc. and Defendant Mt. Hawley 3 Insurance Company (the “Stipulated Protective Order,” and for good cause 4 appearing, the Court hereby orders as follows: 5 1. A. PURPOSES AND LIMITATIONS 6 Discovery in this action is likely to involve production of confidential, 7 proprietary or private information for which special protection from public 8 disclosure and from use for any purpose other than prosecuting this litigation may 9 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 10 enter the following Stipulated Protective Order. The parties acknowledge that this 11 Order does not confer blanket protections on all disclosures or responses to 12 discovery and that the protection it affords from public disclosure and use extends 13 only to the limited information or items that are entitled to confidential treatment 14 under the applicable legal principles. 15

B. GOOD CAUSE STATEMENT

16 [*The “Good Cause Statement” should be edited to include or exclude specific 17 information that applies to the particular case, i.e., what harm will result from 18 the disclosure of the confidential information likely to be produced in this 19 case? Below is an example]: 20 This action is likely to involve trade secrets, customer and pricing 21 information, valuable commercial, financial, and/or proprietary information for 22 which special protection from public disclosure and from use for any purpose other 23 than prosecution of this action is warranted. Such confidential and proprietary 24 materials and information consist of, among other things, confidential information 25 regarding insurance premiums and specially negotiated insurance policy provisions 26 and language, business or financial information, information regarding confidential 27 business practices, or other confidential research, development, or commercial 28 1 may be privileged or otherwise protected from disclosure under state or federal 2 statutes, court rules, case decisions, or common law. Accordingly, to expedite the 3 flow of information, to facilitate the prompt resolution of disputes over 4 confidentiality of discovery materials, to adequately protect information the parties 5 are entitled to keep confidential, to ensure that the parties are permitted reasonable 6 necessary uses of such material in preparation for and in the conduct of trial, to 7 address their handling at the end of the litigation, and serve the ends of justice, a 8 protective order for such information is justified in this matter. It is the intent of the 9 parties that information will not be designated as confidential for tactical reasons 10 and that nothing be so designated without a good faith belief that it has been 11 maintained in a confidential, on-public manner, and there is good cause why it 12 should not be part of the public record of this case. 13 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING 14 UNDER SEAL 15 The parties further acknowledge, as set forth in Section 12.3, below, that this 16 Stipulated Protective Order does not entitle them to file confidential information 17 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 18 and the standards that will be applied when a party seeks permission from the court 19 to file material under seal. 20 There is a strong presumption that the public has a right of access to judicial 21 proceedings and records in civil cases. In connection with non-dispositive motions, 22 good cause must be shown to support a filing under seal. See Kamakana v. City 23 and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. 24 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony 25 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective 26 orders require good cause showing), and a specific showing of good cause or 27 compelling reasons with proper evidentiary support and legal justification, must be 28 made with respect to Protected Material that a party seeks to file under seal. The 1 parties’ mere designation of Disclosure or Discovery Material as 2 CONFIDENTIAL does not— without the submission of competent evidence by 3 declaration, establishing that the material sought to be filed under seal qualifies as 4 confidential, privileged, or otherwise protectable—constitute good cause. 5 Further, if a party requests sealing related to a dispositive motion or trial, 6 then compelling reasons, not only good cause, for the sealing must be shown, and 7 the relief sought shall be narrowly tailored to serve the specific interest to be 8 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 9 2010). For each item or type of information, document, or thing sought to be filed 10 or introduced under seal in connection with a dispositive motion or trial, the party 11 seeking protection must articulate compelling reasons, supported by specific facts 12 and legal justification, for the requested sealing order. Again, competent evidence 13 supporting the application to file documents under seal must be provided by 14 declaration. 15 Any document that is not confidential, privileged, or otherwise protectable 16 in its entirety will not be filed under seal if the confidential portions can be 17 redacted. If documents can be redacted, then a redacted version for public viewing, 18 omitting only the confidential, privileged, or otherwise protectable portions of the 19 document, shall be filed. Any application that seeks to file documents under seal in 20 their entirety should include an explanation of why redaction is not feasible. 21 2. DEFINITIONS 22 2.1 Action: the above-captioned action, McCarthy Building 23 Companies, Inc. v. Mt. Hawley Insurance Company, Case No. 2:20-cv- 24 07540 (C.D. Cal.). 25 2.2 Challenging Party: a Party or Non-Party that challenges the 26 designation of information or items under this Order. 27 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 28 how it is generated, stored or maintained) or tangible things that qualify for 1 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 2 the Good Cause Statement. 3 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 4 their support staff). 5 2.5 Designating Party: a Party or Non-Party that designates information or 6 items that it produces in disclosures or in responses to discovery as 7 “CONFIDENTIAL.” 8 2.6 Disclosure or Discovery Material: all items or information, regardless 9 of the medium or manner in which it is generated, stored, or maintained (including, 10 among other things, testimony, transcripts, and tangible things), that are produced 11 or generated in disclosures or responses to discovery in this matter. 12 2.7 Expert: a person with specialized knowledge or experience in a matter 13 pertinent to the litigation who has been retained by a Party or its counsel to serve 14 as an expert witness or as a consultant in this Action. 15 2.8 House Counsel: attorneys who are employees of a party to this Action. 16 House Counsel does not include Outside Counsel of Record or any other outside 17 counsel. 18 2.9 Non-Party: any natural person, partnership, corporation, association or 19 other legal entity not named as a Party to this action. 20 2.10 Outside Counsel of Record: attorneys who are not employees of a party 21 to this Action but are retained to represent or advise a party to this Action and have 22 appeared in this Action on behalf of that party or are affiliated with a law firm that 23 has appeared on behalf of that party, and includes support staff. 24 2.11 Party: any party to this Action, including all of its officers, directors, 25 employees, consultants, retained experts, and Outside Counsel of Record (and their 26 support staffs). 27 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 28 Discovery Material in this Action. 1 2.13 Professional Vendors: persons or entities that provide litigation support 2 services (e.g., photocopying, videotaping, translating, preparing exhibits or 3 demonstrations, and organizing, storing, or retrieving data in any form or medium) 4 and their employees and subcontractors. 5 2.14 Protected Material: any Disclosure or Discovery Material that is 6 designated as “CONFIDENTIAL.” 7 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 8 from a Producing Party. 9 3. SCOPE 10 The protections conferred by this Stipulation and Order cover not only 11 Protected Material (as defined above), but also (1) any information copied or 12 extracted from Protected Material; (2) all copies, excerpts, summaries, or 13 compilations of Protected Material; and (3) any testimony, conversations, or 14 presentations by Parties or their Counsel that might reveal Protected Material. 15 Any use of Protected Material at trial shall be governed by the orders of the 16 trial judge. This Order does not govern the use of Protected Material at trial. 17 4. DURATION 18 Once a case proceeds to trial, information that was designated as 19 CONFIDENTIAL or maintained pursuant to this protective order used or 20 introduced as an exhibit at trial becomes public and will be presumptively 21 available to all members of the public, including the press, unless compelling 22 reasons supported by specific factual findings to proceed otherwise are made to the 23 trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 24 (distinguishing “good cause” showing for sealing documents produced in 25 discovery from “compelling reasons” standard when merits-related documents are 26 part of court record). Accordingly, the terms of this protective order do not extend 27 beyond the commencement of the trial. 28 1 5. DESIGNATING PROTECTED MATERIAL 2 5.1 Exercise of Restraint and Care in Designating Material for Protection. 3 Each Party or Non-Party that designates information or items for protection under 4 this Order must take care to limit any such designation to specific material that 5 qualifies under the appropriate standards. The Designating Party must designate for 6 protection only those parts of material, documents, items or oral or written 7 communications that qualify so that other portions of the material, documents, 8 items or communications for which protection is not warranted are not swept 9 unjustifiably within the ambit of this Order. 10 Mass, indiscriminate or routinized designations are prohibited. Designations 11 that are shown to be clearly unjustified or that have been made for an improper 12 purpose (e.g., to unnecessarily encumber the case development process or to 13 impose unnecessary expenses and burdens on other parties) may expose the 14 Designating Party to sanctions. 15 If it comes to a Designating Party’s attention that information or items that it 16 designated for protection do not qualify for protection, that Designating Party must 17 promptly notify all other Parties that it is withdrawing the inapplicable designation. 18 5.2 Manner and Timing of Designations. Except as otherwise provided in 19 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 20 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 21 under this Order must be clearly so designated before the material is disclosed or 22 produced. 23 Designation in conformity with this Order requires: 24 (a) for information in documentary form (e.g., paper or electronic 25 documents, but excluding transcripts of depositions or other pretrial or trial 26 proceedings), that the Producing Party affix at a minimum, the legend 27 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 28 contains protected material. If only a portion of the material on a page qualifies for 1 protection, the Producing Party also must clearly identify the protected portion(s) 2 (e.g., by making appropriate markings in the margins). 3 A Party or Non-Party that makes original documents available for inspection 4 need not designate them for protection until after the inspecting Party has indicated 5 which documents it would like copied and produced. During the inspection and 6 before the designation, all of the material made available for inspection shall be 7 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 8 documents it wants copied and produced, the Producing Party must determine 9 which documents, or portions thereof, qualify for protection under this Order. 10 Then, before producing the specified documents, the Producing Party must affix 11 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 12 only a portion of the material on a page qualifies for protection, the Producing 13 Party also must clearly identify the protected portion(s) (e.g., by making 14 appropriate markings in the margins). 15 (b) for testimony given in depositions that the Designating Party 16 identifies the Disclosure or Discovery Material on the record, before the close of 17 the deposition all protected testimony. 18 (c) for information produced in some form other than documentary and 19 for any other tangible items, that the Producing Party affix in a prominent place on 20 the exterior of the container or containers in which the information is stored the 21 legend “CONFIDENTIAL.” If only a portion or portions of the information 22 warrants protection, the Producing Party, to the extent practicable, shall identify 23 the protected portion(s). 24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 25 failure to designate qualified information or items does not, standing alone, waive 26 the Designating Party’s right to secure protection under this Order for such 27 material. Upon timely correction of a designation, the Receiving Party must make 28 reasonable efforts to assure that the material is treated in accordance with the 1 provisions of this Order. 2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 3 6.1 Timing of Challenges. Any Party or Non-Party may challenge 4 a designation of confidentiality at any time that is consistent with the 5 Court’s Scheduling Order. 6 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 7 resolution process under Local Rule 37-1 et seq. 8 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 9 joint stipulation pursuant to Local Rule 37-2. 10 6.4 The burden of persuasion in any such challenge proceeding shall be 11 on the Designating Party. Frivolous challenges, and those made for an improper 12 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 13 parties) may expose the Challenging Party to sanctions. Unless the Designating 14 Party has waived or withdrawn the confidentiality designation, all parties shall 15 continue to afford the material in question the level of protection to which it is 16 entitled under the Producing Party’s designation until the Court rules on the 17 challenge. 18 7. ACCESS TO AND USE OF PROTECTED MATERIAL 19 7.1 Basic Principles. A Receiving Party may use Protected Material that 20 is disclosed or produced by another Party or by a Non-Party in connection with 21 this Action only for prosecuting, defending or attempting to settle this Action. 22 Such Protected Material may be disclosed only to the categories of persons and 23 under the conditions described in this Order. When the Action has been 24 terminated, a Receiving Party must comply with the provisions of section 13 25 below (FINAL DISPOSITION). 26 Protected Material must be stored and maintained by a Receiving Party at a 27 location and in a secure manner that ensures that access is limited to the persons 28 authorized under this Order. 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 2 otherwise ordered by the court or permitted in writing by the Designating Party, 3 a Receiving Party may disclose any information or item designated 4 “CONFIDENTIAL” only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 6 well as employees of said Outside Counsel of Record to whom it is reasonably 7 necessary to disclose the information for this Action; 8 (b) the officers, directors, and employees (including House Counsel) of 9 the Receiving Party to whom disclosure is reasonably necessary for this Action; 10 (c) Experts (as defined in this Order) of the Receiving Party to whom 11 disclosure is reasonably necessary for this Action and who have signed the 12 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 13 (d) the court and its personnel; 14 (e) court reporters and their staff; 15 (f) professional jury or trial consultants, mock jurors, and Professional 16 Vendors to whom disclosure is reasonably necessary for this Action and who have 17 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (g) the author or recipient of a document containing the information or a 19 custodian or other person who otherwise possessed or knew the information; 20 (h) during their depositions, witnesses, and attorneys for witnesses, in 21 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 22 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 23 they will not be permitted to keep any confidential information unless they sign the 24 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 25 agreed by the Designating Party or ordered by the court. Pages of transcribed 26 deposition testimony or exhibits to depositions that reveal Protected Material may 27 be separately bound by the court reporter and may not be disclosed to anyone 28 except as permitted under this Stipulated Protective Order; and 1 (i) any mediator or settlement officer, and their supporting personnel, 2 mutually agreed upon by any of the parties engaged in settlement discussions. 3 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 4 IN OTHER LITIGATION 5 If a Party is served with a subpoena or a court order issued in other 6 litigation that compels disclosure of any information or items designated in this 7 Action as “CONFIDENTIAL,” that Party must: 8 (a) promptly notify in writing the Designating Party. Such notification 9 shall include a copy of the subpoena or court order; 10 (b) promptly notify in writing the party who caused the subpoena or 11 order to issue in the other litigation that some or all of the material covered by the 12 subpoena or order is subject to this Protective Order. Such notification shall 13 include a copy of this Stipulated Protective Order; and 14 (c) cooperate with respect to all reasonable procedures sought to be 15 pursued by the Designating Party whose Protected Material may be affected. 16 If the Designating Party timely seeks a protective order, the Party served 17 with the subpoena or court order shall not produce any information designated in 18 this action as “CONFIDENTIAL” before a determination by the court from which 19 the subpoena or order issued, unless the Party has obtained the Designating 20 Party’s permission. The Designating Party shall bear the burden and expense of 21 seeking protection in that court of its confidential material and nothing in these 22 provisions should be construed as authorizing or encouraging a Receiving Party in 23 this Action to disobey a lawful directive from another court. 24 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 25 PRODUCED IN THIS LITIGATION 26 (a) The terms of this Order are applicable to information produced by a Non-Party 27 in this Action and designated as “CONFIDENTIAL.” Such information produced 28 by Non-Parties in connection with this litigation is protected by the remedies and 1 relief provided by this Order. Nothing in these provisions should be construed as 2 prohibiting a Non-Party from seeking additional protections. 3 (b) In the event that a Party is required, by a valid discovery request, to produce a 4 Non-Party’s confidential information in its possession, and the Party is subject to 5 an agreement with the Non-Party not to produce the Non-Party’s confidential 6 information, then the Party shall: 7 (1) promptly notify in writing the Requesting Party and the Non-Party that some 8 or all of the information requested is subject to a confidentiality agreement with a 9 Non-Party; 10 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order 11 in this Action, the relevant discovery request(s), and a reasonably specific 12 description of the information requested; and 13 (3) make the information requested available for inspection by the Non-Party, if 14 requested. 15 (c) If the Non-Party fails to seek a protective order from this court within 16 14 days of receiving the notice and accompanying information, the Receiving 17 Party may produce the Non-Party’s confidential information responsive to the 18 discovery request. If the Non-Party timely seeks a protective order, the Receiving 19 Party shall not produce any information in its possession or control that is subject 20 to the confidentiality agreement with the Non-Party before a determination by the 21 court. Absent a court order to the contrary, the Non-Party shall bear the burden and 22 expense of seeking protection in this court of its Protected Material. 23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has 25 disclosed Protected Material to any person or in any circumstance not authorized 26 under this Stipulated Protective Order, the Receiving Party must immediately (a) 27 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 28 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 1 the person or persons to whom unauthorized disclosures were made of all the terms 2 of this Order, and (d) request such person or persons to execute the 3 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 4 A. 5 11. INADVERTET PRODUCTION OF PRIVILEGED OR OTHERWISE 6 PROTECTED MATERIAL 7 When a Producing Party gives notice to Receiving Parties that certain 8 inadvertently produced material is subject to a claim of privilege or other 9 protection, the obligations of the Receiving Parties are those set forth in Federal 10 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 11 whatever procedure may be established in an e-discovery order that provides for 12 production without prior privilege review. Pursuant to Federal Rule of Evidence 13 502(d) and (e), insofar as the parties reach an agreement on the effect of 14 disclosure of a communication or information covered by the attorney-client 15 privilege or work product protection, the parties may incorporate their agreement 16 in the stipulated protective order submitted to the court. 17 12. MISCELLANEOUS 18 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 19 person to seek its modification by the Court in the future. 20 12.2 Right to Assert Other Objections. By stipulating to the entry of this 21 Protective Order, no Party waives any right it otherwise would have to object to 22 disclosing or producing any information or item on any ground not addressed in 23 this Stipulated Protective Order. Similarly, no Party waives any right to object on 24 any ground to use in evidence of any of the material covered by this Protective 25 Order. 26 12.3 Filing Protected Material. A Party that seeks to file under seal any 27 Protected Material must comply with Local Civil Rule 79-5. Protected Material 28 may only be filed under seal pursuant to a court order authorizing the sealing of the 1 specific Protected Material at issue. If a Party’s request to file Protected Material 2 under seal is denied by the court, then the Receiving Party may file the information 3 in the public record unless otherwise instructed by the court. 4 13. FINAL DISPOSITION 5 After the final disposition of this Action, as defined in paragraph 4, within 6 60 days of a written request by the Designating Party, each Receiving Party must 7 return all Protected Material to the Producing Party or destroy such material. As 8 used in this subdivision, “all Protected Material” includes all copies, abstracts, 9 compilations, summaries, and any other format reproducing or capturing any of the 10 Protected Material. Whether the Protected Material is returned or destroyed, the 11 Receiving Party must submit a written certification to the Producing Party (and, if 12 not the same person or entity, to the Designating Party) by the 60 day deadline that 13 (1) identifies (by category, where appropriate) all the Protected Material that was 14 returned or destroyed and (2) affirms that the Receiving Party has not retained any 15 copies, abstracts, compilations, summaries or any other format reproducing or 16 capturing any of the Protected Material. Notwithstanding this provision, Counsel 17 are entitled to retain an archival copy of all pleadings, motion papers, trial, 18 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 19 and trial exhibits, expert reports, attorney work product, and consultant and expert 20 work product, even if such materials contain Protected Material. Any such archival 21 copies that contain or constitute Protected Material remain subject to this 22 Protective Order as set forth in Section 4 (DURATION). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 |} 14. VIOLATION 2 Any violation of this Order may be punished by appropriate measures 3 |} including, without limitation, contempt proceedings and/or monetary sanctions. 4 ||} IT ISSO ORDERED. 5 6 || Dated: 1/15/2021 □ Chk Woxke— 8 9 United States Masistrate ludec 10 11 12 13 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 I, __________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of____________ [insert formal name of the case and the 8 number and initials assigned to it by the court]. I agree to comply with and to be 9 bound by all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not disclose in 12 any manner any information or item that is subject to this Stipulated Protective 13 Order to any person or entity except in strict compliance with the provisions of this 14 Order. I further agree to submit to the jurisdiction of the United States District 15 Court for the Central District of California for enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint___________________________ [print 18 or type full name] of __________________________ [print or type full address 19 and telephone number] as my California agent for service of process in connection 20 with this action or any proceedings related to enforcement of this Stipulated 21 Protective Order. 22 Date: 23 City and State where sworn and signed: 24 25 Printed Name: 26 Signature: 27 28