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STIPULATED PROTECTIVE ORDER - Case No. C 09-0671 CRB (EDL)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

STEPHEN ARNOLD,

Plaintiff,

vs.

UNUM LIFE INSURANCE COMPANY OF 

AMERICA, et al.,

Defendants.

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Case No. C 09-0671 CRB (EDL)

STIPULATED PROTECTIVE ORDER

1. 

Disclosure and discovery activity in this action are 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 would 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 extends only to the limited information or items that are entitled under 

the applicable legal principles to treatment as confidential. The parties further 

acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order 

PURPOSES AND LIMITATIONS

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 2

creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets 

forth the procedures that must be followed and reflects the standards that will be applied 

when a party seeks permission from the court to file material under seal.

2. DEFINITIONS

2.1 Party: any party to this action, including all of its officers, directors,

employees, consultants, retained experts, and outside counsel (and their support staff).

2.2 Disclosure or Discovery Material: all items or information, regardless 

of the medium or manner generated, stored, or maintained (including, among other things, 

testimony, transcripts, or tangible things) that are produced or generated in disclosures or 

responses to discovery in this matter.

2.3 “Confidential” Information or Items: information (regardless of how 

generated, stored or maintained) or tangible things that qualify for protection under 

standards developed under F.R.Civ.P. 26(c).

2.4 “Highly Confidential – Attorneys’ Eyes Only” Information or Items:

extremely sensitive “Confidential Information or Items” whose disclosure to another Party 

or nonparty would create a substantial risk of serious injury that could not be avoided by 

less restrictive means.

2.5 Receiving Party: a Party that receives Disclosure or Discovery 

Material from a Producing Party.

2.6 Producing Party: a Party or non-party that produces Disclosure or 

Discovery Material in this action.

2.7. Designating Party: a Party or non-party that designates information or 

items that it produces in disclosures or in responses to discovery as “Confidential” or 

“Highly Confidential— Attorneys’ Eyes Only.”

2.8 Protected Material

2.9. 

: any Disclosure or Discovery Material that is 

designated as “Confidential” or as “Highly Confidential – Attorneys’ Eyes Only.”

Outside Counsel: attorneys who are not employees of a Party but who 

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 3

are retained to represent or advise a Party in this action.

2.10 House Counsel: attorneys who are employees of a Party.

2.11 Counsel (without qualifier): Outside Counsel and House Counsel (as 

well as their support staffs).

2.12 Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as an 

expert witness or as a consultant in this action and who is not a past or a current employee 

of a Party or of a competitor of a Party’s and who, at the time of retention, is not 

anticipated to become an employee of a Party or a competitor of a Party’s. This definition 

includes a professional jury or trial consultant retained in connection with this litigation.

2.13 Professional Vendors: persons or entities that provide litigation 

support services (e.g., photocopying; videotaping; translating; preparing exhibits or 

demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their 

employees and subcontractors.

3. SCOPE

The protections conferred by this Stipulation and Order cover not only Protected 

Material (as defined above), but also any information copied or extracted therefrom, as 

well as all copies, excerpts, summaries, or compilations thereof, plus testimony, 

conversations, or presentations by parties or counsel to or in court or in other settings that 

might reveal Protected Material.

4. DURATION

Even after the termination 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.

5. 

5.1 

DESIGNATING PROTECTED MATERIAL

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or non-party that designates information or items for protection under this 

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 4

Order must take care to limit any such designation to specific material that qualifies under 

the appropriate standards. A Designating Party must take care to 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 unjustifiably within the ambit of this Order.

Mass, indiscriminate, or routinized designations are prohibited. Designations 

that are shown to be clearly unjustified, or that have been made for an improper purpose 

(e.g., to unnecessarily encumber or retard the case development process, or to impose 

unnecessary expenses and burdens on other parties), expose the Designating Party to 

sanctions.

If it comes to a Party’s or a non-party’s attention that information or items that 

it designated for protection do not qualify for protection at all, or do not qualify for the level 

of protection initially asserted, that Party or non-party must promptly notify all other parties 

that it is withdrawing the mistaken 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, 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 (apart from transcripts of 

depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” at the top 

of 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) and must 

specify, for each portion, the level of protection being asserted (either “CONFIDENTIAL” or 

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 5

A Party or non-party that makes original documents or materials 

available for inspection need not designate them for protection until after the inspecting 

Party has indicated which material it would like copied and produced. During the inspection 

and before the designation, all of the material made available for inspection shall be 

deemed “HIGHLY CONFIDENTIAL –ATTORNEYS’ EYES ONLY.” After the inspecting 

Party has identified the documents it wants copied and produced, the Producing Party 

must determine which documents, or portions thereof, qualify for protection under this 

Order, then, before producing the specified documents, the Producing Party must affix the 

appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 

EYES ONLY”) at the top of 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) and must specify, for each portion, the level of protection being asserted (either 

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

(b) for testimony given in deposition or in other pretrial or trial 

proceedings, that the Party or non-party offering or sponsoring the testimony identify on 

the record, before the close of the deposition, hearing, or other proceeding, all protected 

testimony, and further specify any portions of the testimony that qualify as “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” When it is impractical to identify 

separately each portion of testimony that is entitled to protection, and when it appears that 

substantial portions of the testimony may qualify for protection, the Party or non-party that 

sponsors, offers, or gives the testimony may invoke on the record (before the deposition or 

proceeding is concluded) a right to have up to 20 days to identify the specific portions of 

the testimony as to which protection is sought and to specify the level of protection being

asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

Only those portions of the testimony that are appropriately designated for protection within 

the 20 days shall be covered by the provisions of this Stipulated Protective Order.

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 6

Transcript pages containing Protected Material must be separately 

bound by the court reporter, who must affix to the top of each such page the legend 

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as 

instructed by the Party or nonparty offering or sponsoring the witness or presenting the 

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 or item is stored the legend 

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only 

portions of the information or item warrant protection, the Producing Party, to the extent 

practicable, shall identify the protected portions, specifying whether they qualify as 

“Confidential” or as “Highly Confidential – Attorneys’ Eyes Only.”

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 

failure to designate qualified information or items as “Confidential” or “Highly Confidential –

Attorneys’ Eyes Only” does not, standing alone, waive the Designating Party’s right to 

secure protection under this Order for such material. If material is appropriately designated 

as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” after the material was 

initially produced, the Receiving Party, on timely notification of the designation, must make 

reasonable efforts to assure that the material is treated in accordance with the provisions 

of this Order.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1 Timing of Challenges

6.2 

. Unless a prompt challenge to a Designating 

Party’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 

mount a challenge promptly after the original designation is disclosed.

Meet and Confer. A Party that elects to initiate a challenge to a 

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 7

Designating Party’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 Party. In conferring, the challenging 

Party must explain the basis for its belief that the confidentiality designation was not proper 

and must give the Designating Party 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.

6.3 Judicial Intervention. A Party that elects to press a challenge to a 

confidentiality designation after considering the justification offered by the Designating 

Party may file and serve a motion under Civil Local Rule 7 (and in compliance with Civil 

Local Rule 79-5, if applicable) that identifies the challenged material and sets forth in detail 

the basis for the challenge. Each such motion must be accompanied by a competent 

declaration that affirms that the movant has complied with the meet and confer 

requirements imposed in the preceding paragraph and that sets forth with specificity the 

justification for the confidentiality designation that was given by the Designating Party in 

the meet and confer dialogue.

The burden of persuasion in any such challenge proceeding shall be 

on the Designating Party. Until the court rules on the challenge, all parties shall continue to 

afford the material in question the level of protection to which it is entitled under the 

Producing Party’s designation.

7. 

7.1 

ACCESS TO AND USE OF PROTECTED MATERIAL

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 case only 

for prosecuting, defending, or attempting to settle this litigation. Such Protected Material 

may be disclosed only to the categories of persons and under the conditions described in 

this Order. When the litigation has been terminated, a Receiving Party must comply with 

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 8

the provisions of section 11, below (FINAL DISPOSITION).

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.

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:

(a) the Receiving Party’s Outside Counsel of record in this action, as 

well as employees of said Counsel to whom it is reasonably necessary to disclose the 

information for this litigation and who have signed the “Agreement to Be Bound by 

Protective Order” that is attached hereto as Exhibit A;

(b) the officers, directors, and employees (including House Counsel) 

of the Receiving Party to whom disclosure is reasonably necessary for this litigation and 

who have signed the “Agreement to Be Bound by Protective Order” (Exhibit A);

(c) experts (as defined in this Order) of the Receiving Party to whom

disclosure is reasonably necessary for this litigation and who have signed the “Agreement 

to Be Bound by Protective Order” (Exhibit A);

(d) the Court and its personnel;

(e) court reporters, their staffs, and professional vendors to whom 

disclosure is reasonably necessary for this litigation and who have signed the “Agreement 

to Be Bound by Protective Order” (Exhibit A);

(f) during their depositions, witnesses in the action to whom disclosure 

is reasonably necessary and who have signed the “Agreement to Be Bound by Protective 

Order” (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that 

reveal Protected Material must be separately bound by the court reporter and may not be 

disclosed to anyone except as permitted under this Stipulated Protective Order.

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 9

(g) the author of the document or the original source of the 

information.

7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 

ONLY” Information or Items

(a) Unless otherwise ordered by the court or agreed in writing by the

Designating Party, a Party that seeks to disclose to an “Expert” (as defined in this Order) 

any information or item that has been designated “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” first must make a written request to the Designating Party 

that (1) identifies the specific HIGHLY CONFIDENTIAL information that the Receiving 

. Unless otherwise ordered by the court or permitted in writing 

by the Designating Party, a Receiving Party may disclose any information or item 

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

(a) the Receiving Party’s Outside Counsel of record in this action, 

as well as employees of said Counsel to whom it is reasonably necessary to disclose the 

information for this litigation and who have signed the “Agreement to Be Bound by 

Protective Order” that is attached hereto as Exhibit A;

(b) Experts (as defined in this Order) (1) to whom disclosure is 

reasonably necessary for this litigation, (2) who have signed the “Agreement to Be Bound 

by Protective Order” (Exhibit A), [Optional: and (3) as to whom the procedures set forth in 

paragraph 7.4, below, have been followed];

(c) the Court and its personnel;

(d) court reporters, their staffs, and professional vendors to whom 

disclosure is reasonably necessary for this litigation and who have signed the “Agreement 

to Be Bound by Protective Order” (Exhibit A); and

(e) the author of the document or the original source of the 

information.

7.4 Procedures for Approving Disclosure of “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” Information or Items to “Experts”

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 10

Party seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert 

and the city and state of his or her primary residence, (3) attaches a copy of the Expert’s 

current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person or 

entity from whom the Expert has received compensation for work in his or her areas of 

expertise or to whom the expert has provided professional services at any time during the 

preceding five years, and (6) identifies (by name and number of the case, filing date, and 

location of court) any litigation in connection with which the Expert has provided any

professional services during the preceding five years.

(b) A Party that makes a request and provides the information 

specified in the preceding paragraph may disclose the subject Protected Material to the 

identified Expert unless, within seven court days of delivering the request, the Party 

receives a written objection from the Designating Party. Any such objection must set forth 

in detail the grounds on which it is based.

(c) A Party that receives a timely written objection must meet and 

confer with the Designating Party (through direct voice to voice dialogue) to try to resolve 

the matter by agreement. If no agreement is reached, the Party seeking to make the 

disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in 

compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to 

do so. Any such motion must describe the circumstances with specificity, set forth in detail 

the reasons for which the disclosure to the Expert is reasonably necessary, assess the risk 

of harm that the disclosure would entail and suggest any additional means that might be 

used to reduce that risk. In addition, any such motion must be accompanied by a 

competent declaration in which the movant describes the parties’ efforts to resolve the 

matter by agreement (i.e., the extent and the content of the meet and confer discussions) 

and sets forth the reasons advanced by the Designating Party for its refusal to approve the 

disclosure.

In any such proceeding the Party opposing disclosure to the Expert 

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 11

shall bear the burden of proving that the risk of harm that the disclosure would entail 

(under the safeguards proposed) outweighs the Receiving Party’s need to disclose the 

Protected Material to its Expert.

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 

OTHER LITIGATION.

If a Receiving Party is served with a subpoena or an order issued in other 

litigation that would compel disclosure of any information or items designated in this action 

as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the

Receiving Party must so notify the Designating Party, in writing (by fax, if possible) 

immediately and in no event more than three court days after receiving the subpoena or 

order. Such notification must include a copy of the subpoena or court order.

The Receiving Party also must immediately inform in writing the Party who 

caused the subpoena or order to issue in the other litigation that some or all the material 

covered by the subpoena or order is the subject of this Protective Order. In addition, the 

Receiving Party must deliver a copy of this Stipulated Protective Order promptly to the 

Party in the other action that caused the subpoena or order to issue.

The purpose of imposing these duties is to alert the interested parties to the 

existence of this Protective Order and to afford the Designating Party in this case an 

opportunity to try to protect its confidentiality interests in the court from which the 

subpoena or order issued. The Designating Party shall bear the burdens and the expenses 

of seeking 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. 

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 

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 12

the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all 

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 “Acknowledgment and Agreement to Be Bound” that is attached 

hereto as Exhibit A.

10. FILING PROTECTED MATERIAL. Without written permission from the 

Designating Party or a court order secured after appropriate notice to all interested 

persons, a Party may not file in the public record in this action any Protected Material. A 

Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 

79-5.

11. FINAL DISPOSITION. Unless otherwise ordered or agreed in writing by the 

Producing Party, within sixty days after the final termination of this action, each Receiving 

Party must return all Protected Material to the Producing Party. As used in this subdivision, 

“all Protected Material” includes all copies, abstracts, compilations, summaries or any 

other form of reproducing or capturing any of the Protected Material. With permission in 

writing from the Designating Party, the Receiving Party may destroy some or all of the 

Protected Material instead of returning it. Whether the Protected Material is returned or 

destroyed, the Receiving Party must submit a written certification to the Producing Party 

(and, if not the same person or entity, to the Designating Party) by the sixty day deadline 

that identifies (by category, where appropriate) all the Protected Material that was returned

or destroyed and that affirms that the Receiving Party has not retained any copies, 

abstracts, compilations, summaries or other forms of reproducing or capturing any of the 

Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 

archival copy of all pleadings, motion papers, transcripts, legal memoranda, 

correspondence or attorney 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), above.

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 13

12. MISCELLANEOUS

12.1 Right to Further Relief. Nothing in this Order abridges the right of any 

person to seek its 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.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

DATED: ________________________ _____________________________________

Attorneys for Plaintiff

DATED: ________________________ _____________________________________

Attorneys for Defendant

PURSUANT TO STIPULATION, IT IS SO ORDERED.

_____________________________________

Elizabeth D. LaPorte

United States Magistrate Judge

Case3:09-cv-00671-CRB Document53 Filed04/15/10 Page13 of 14

April15,2010 /s/K atherineO 'N eal

April15,2010 /s/H oraceW .G reen

Dated: April 16, 2010

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STIPULATION AND PROTECTIVE ORDER – Case No. C 09-0671 CRB (EDL) 14

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, _____________________________ [print or type full name], of 

_________________ [print or 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 Northern District of California on ________in the 

case of Stephen Arnold v. Unum Life Insurance Company of America and Chiron 

Corporation Long Term Disability Plan, Case No. C09-0671 CRB (EDL). 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. I 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 

Northern District of California for the purpose of enforcing the terms of this Stipulated 

Protective Order, even if such enforcement proceedings occur after 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 Protective Order.

Date: _________________________________

City and State where sworn and signed: _________________________________

Printed name: ______________________________

Signature: __________________________________

Case 3:09-cv-00671-CRB Document 54 Filed 04/16/10 Page 14 of 14 Case3:09-cv-00671-CRB Document53 Filed04/15/10 Page14 of 14