There is just enough time for a few questions in this special Thursday edition of Insurance Claims and Bad Faith Blog.
- How did it happen that so many lawyers in so many cases used the same language for their Stipulated Protective Orders? The lawyers in these and other cases used much the same language when they drew up their Stipulated Protective Orders. Some of that language has already been quoted in past articles posted here.
At the moment, I have been addressing three unrelated cases from the Central District of California because they were all decided on the same day. The lawyers in these cases all used the same or substantially similar language when they wrote and signed the proposed orders they sent to the Courts in their separate cases.
I cannot find a Model Protective Order in the Local Rules of the Central District of California and these stipulations did not reference any. So where did this same language come from, to which each of these lawyers had the same access? If any readers know the answer to this question, or if any reader knows of a Model Protective Order, please let me know. I gratefully appreciate the information in advance.
- Who drew up these stipulations for protective orders in these cases? In many cases it is impossible to tell who drew up the Stipulated Protective Orders that somehow find their way to Judges and Magistrates, who sign them. In most cases, the dockets just do not reveal how these proposed orders got to there in the first place.
In at least one of these three cases, on the other hand, the docket reveals who filed the proposed order. Clearly, the party that files the proposed order is the party that wants it the most. It is reasonable to assume of course that the party that wants it the most is also the party that wrote it. In the Orellana case, it was Target, the main defendant, that filed the proposed Stipulated Protective Order. Orellana v. Target Corp., DE 30, proposed Stipulated Protective Order (C.D. Cal. Case No. 2:20-cv-06665 SVW (KSx)).
- What do they mean when they say "return or destroy" any material in "any format reproducing or capturing any of the Protected Material"? In basic terms, a "return or destroy" provision requires that a person bound by the Protective Order shall either return what all the lawyers call "Protected Material" in all these cases, or destroy it. The Premier Valley Bank stipulation in a fourth case is typical. The Premier Valley Bank case was also decided on March 26, 2021, but in the Eastern and not the Central District of California. It is typical in this regard not only among the subset of what has now become four cases, but it is also typical of the SPO case law at large.
The Premier Valley Bank stipulation contains the requirement in its "return or destroy" provision that "'all Protected Material' includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material." Premier Valley Bank v. Nguyen, No. 1:20-CV-00900-NONE-EPG, 2021 WL 1164684, ¶ 13, at *7 (E.D. Cal. March 26, 2021) (emphasis added). What does this mean? Each of the three Central District cases contains the identical language that has been quoted here. However, none of these cases offers much if any insight into what this language means.
In particular, the reach of this provision to "any other format" "capturing any of the Protected Material" is vague. It is also overly broad. A Nondisclosure Agreement purporting to keep matters from being disclosed was recently held void for vagueness and overbreadth in Denton v. Donald J. Trump for President, Inc., No. 20 Civ. 4737 (PGG), 2021 WL 1198666 (S.D.N.Y. March 30, 2021). If the same reasoning is applied to the language quoted here, it too should be held "invalid and unenforceable" for the same reasons.
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