.mmonl'aw duty of good faith ,and1fair dealing, Plaintiffs"fore.'entitie·d.
to com:pens.11iory ·damages, i_nclµding al Lforms· of'loss··resultiiig:Jro-in the ~ihsurer'5(brea:th .
of duty, such, ci.s _additio_nal costs, economic: hardship,. losses due to· nonpaymeiit;·ofdle:
afno1.:nt the_:i'nsurer .owed, exem8lary qarn?ges, _a_nd' aamages"for emotional .distress.
Page 15
.69 .. Ear fraud.~ . Piaiiltiffs :are entitiec;t JO r~cqye_r:actl:la.1 dam_ages ·and . exemplary damag~s for:
kno\.\'. ln&iy fra\idU!ent and malicious repr~sent1:1~ions; al.orig with a'ttomey"'s. fees, interest~
anci court costs.
70. Fi:fr tlie prosecution and collection of this cl~ii:n, .Plaintjff~ hav~ been. cqmpelled: to engage
the services of the attorney Whose. narne is; stib~.cdpeq !o i_ht:? p]eading,, Therefore,
Plaintiffs are enti&d to receiver, a sum for 'the , rea_s.~:mable a11d · n.e~~ssary s~syic~s of'
Plaihti ffs' attoi'ney'ln the P,reparation and·' tfial ·of this;action; h1ciu~i!1g'any app_e!llyto tl}e
Gourt ofAppeals and/oHhe,SLlpfcme Court of Texas.
JURY DEMAND
7i . .Plaintiffs her~_by "requ~st that al I causes of actiori ·alleged' herein·\)~ tried before a.Jury
co_nsisting of'cjtiz.ens :resi_ding in Webb Courit:x,, Texas. Piaintrffs hereby tender- the
appropriat_e jury fee .
"*·;· .
~ITTEN. DiSCO:VERY
.REQUf:STS FOR DISCLOSURE
72. Pldiiitiffs' Requestfdr Disclos_ure to .D_efenil.wit'$(aie fiarlJ! LJoyd~·; is attachedms "Exhibir
A." Plainriffi' ;·RecjuestfofDisdo§zire,19.fJ..efe.n{i.q}1t Fe'f.ipe Farias. is attached as '~Exhi bit
Acl ."
\i./i:.JEREFQRE, PREMISES CQNSIDEREB, -p1<1..intiffs .Pr'!y that upon triaLh.ereof?, s·aid
Rfaintiffs nave ?nd recover such sums intereser;i,b,le
Judge Jose A. l:ope_z, Yo~ pres_ence ~is MANDATORYunfess CounseLf6r,Plairitiff(s) and
Defendant(s) have l'n plate;a,,pre-tf.i~\ guidelin~ order ~i.tJi·:boih_ G_ouns~I:anclJudge's .signatures
prior to calendar call .date .. This1guideline order should hav:e aJl a,pproprtate ,dates in{:Illifrt a-nd·c.i.i1.th.e r:.e.::ord~licforc•the· Hori'otab.ie
]udgeJose A., Lopez. Yoill"prt;sence is-MANDATORY urilcs.s Gounsel f9d~l~in~iff(~) arid.
Defendant(s)"have .in··pl'ace a pre -triaFgui'.c.all .appropriate«lates in~luding,
prectri~I. jury sc:l ect'io11 an (J .a II deadliiies _.
Counsel for PlaintilT(s)'·please note ,that if you do :not appear for·calcndar call your case mav
be dismissed for fackofprosecut.ion.
Cow1sei for Defondant(s):please r~c)~e that iLy ou do-mifappear fordlendar- call'.·a.pre-tiial
guideli1ie order ma5' lK shall retain the original written
for
acknowledgment, and furnish a copy of the signed written acknowledgment to counsel
the party dcsiiating the infonnation as confidential within ten (10) business days.
of
6. Infonitation shall he designated as Confidential Infonnation within the meaning
tills
produced:
Protective Order hy following the protocol below that con’esponds to the formal
the
a. For hard—copy documents, hv marking (lie first Bates—stamped page of
document and each subsequent Bales—stamped page thereof containing Confidential
ProprielaryProdneed
Information with the following legend: “Confidential &
Pursuant to a Conf A’ee./Prot. Order” or “Confidential Prcpnetarv & Trade
Secret. Produced Pursuant to a Conf. Agree.,Prot. Order,” but not so as to obscure.
the content of the document.
the
h. For static image productions by marking the lirst Bates—stamped page ol’
document and cach subsequent Bates-stamped page thereol containing Coatidcntial
hrtbrniation with (he following legend: “Confidential .s Propr:ctar’v Produced
Pursuant to a Conf. Agree./Prot. Order” or “Confidential Propnctarv & Trade
i’aec 3
868 CO DISTRICT CLERIC Fax:955-523-5121 S 28 2015 O2:1i P010/018
Secret/Produced Pursuant to a Cont Agree./Prot. Order.” but not so as
to obscure
the content of the image.
media for ESI
c. For native format productions, by prominently labeling the delivery
Confidential Jnfomiation as follows: “Confidential &
designated as
“Confideiflüil
Pmprietazy’roduced Anuant to a Coil. Agree./Prot. Order” or
” In
Proprietary & Trade Secret/Produced Pursuant to a Con!: Agree.: hot. Order.
may have
addition, at the election of the producing party, the electronic file
identifier) the
appended to the file’s name (immediately following its Bates
following protective legend: “CONFIDENTIAL
J1?OOlO48DI: Alma
SUBJ_TQPROTECTIVE9RDERJN Cause Na 2OJ4C
Webb
Pena v. State Farm Lloyds and Betty Limier: in the 49th District Cowl.
copy or static
County, Texas.” When any file so designated is converted to a hard
each page a
image for any purpose, the document or image shall bear cm
file containing
protective legend as described in 6.a. and 6.b. above. Ii’ a native
r, trial, or is
Confidential Information is used during a deposition, mcci and conl
relrendng, or
otherwise disclosed post-production, the parry introducing,
submitting the native file must append the the file’s name
(immediately following
FII)ENTIAL
its Bates identifier) the following protective legend: “CON
olO4WI: Alma
SUBJ_TQPRC)TECTIVE_ORDERJN Cause Na 2OIWlF-O
t Court, Webb
Pena v. &ate Farm Lloyds and Becky Lanier; in the 49th Distric
name. Any
County, Texas,” if such legend does not already appear in the file
deposition.
party using a native tile containing Confidential Information in a
so that ills reflected
hearing, or at trial must indicate the designation on the record
Page 4
WEBB CD DISTRICT CLERK Fax:956—523—5121 Jan 262015 02:lOpm P011/018
in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may niace en any
hard—copy documents that are subject to this Protective Order ‘ aternoirks or seals
to indicate the document is subject to a Protective Order and is produced under tile
specific cause number.
7. Airy’ party who inadvertently discloses Conlidential Information during the discovery
process shall. iinniediateiv upon discovery of the inadvertent dsciosure, give notice in
writing to the party or parties in possession of such intbmiation that the inforniation is
designated as “Confidential” and shall request its immediate return. Alter reCeIpt of such
notice, the parties shall treat the information so designated as ConficienIia int’omiation
iindei’ the terms of this Order, unless released of this duty by ilirther order of this Court,
Additionally, an party who inadvertently discloses Confidential Information during the
discovery process shall, immediately upon discovery of the inacverlen’. dselositre give
notice in writing to the lrty which produced and provided this information, the nanies and
addresses of the persons to whom it was disclosed and the date of the disclosure together
with a copy of the notice by which the inadvertently disclosing party rcquested the
ininiedi ale return of the documents.
8. Information previously produced during this litigation and not already marked as
Confidential Infhmiation shall be retroactively designated within thirty t3h,i days of entry
of this Order by providing written notice to the receiving parties of the Bates identifier or
other identifying characteristics for the Confidential Infonriation.
a. Within thirty (30) days of receipt of such notice, or such oilier Lime as may be
agreed upon by the parties. any parties recev ing such notice shall sciurn to the
Pace S
WEBB CO DISTRICT CLERK Fax:956—523—5121 Jan 262015 02:lOpm P012/018
designating party all undesiRnated copies of such inlonnaton in their custody and
possession, in exchange tbr the pmduction of properly designated jnfhnnation. or
alternatively (upon the a’eement of the palies) shall ti)atffix the legend to all
copies of such designated information in the party’s possession. custody, or control
consistent with the terms of this Protective Order. and:or (ii) with respect to ESI.
take such reasonabLe steps as will reliably identify the item(s) as having been
designated as Confidential Information.
h. Information that is unintentionally or inadvertently produced \v:tnoUt being
designated as Confidential Information may he retroactively designated by the
producing party in the manner described in paragraph Ta. above, it’ a retroactive
designation is provided to the receiving party in accordance with texas Rule of
Civil Procedure 1933(d) the receiving party mnst (i) make 110 further disclosure ot’
such designated infhrmation except as allowed under this Order: ii; take reasonable
steps to notify any persons sho were provided copies of such designated
information of the terms of (his Order: and (ni) take reasonable steps to reclaim any
such designated information in the possession of any person riot permtted access to
such in,tbrmation under (lie terms of this Order. No party shall he deemed to have
violated this Order for any disclosures made prior to notification of any subsequent
desinnation.
9. Any party may’ request the party designating intbrniaton as “Confidential’ to consent to re
designate confidential information as not confidential, which request shall not he rejected
absent a good—faith determination by the designating part that the Confidential
Information is entitled to protection.
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WEBB CO DISTRICT CLERK Fax:856—523—5121 Jan 262015 02:llpni P013/018
this Order on! if
10. Deposition testimony is Confidential lnftjmiation under the terms of
counsel for a party advises the court reporter and opposng counse
l of that desgnaton at
r within thirtY
the deposition, or by written designation to all parties and the court reporte
(3O business da\s after receiving the deposition transcript II deposition Iranseripls shall
the deposition
be considered confidential until thirty (30) days following the receipt
of
aion of said information as
transcript. The court reporter shall note on the record the design
Confidential and shall separately transcribe those portions of the testimom and mark the
may use Confidential
fhce of such portion of the transcript as “Confidential.” Ilie patties
d of the terms of’ this
Information during any deposition, provided the witness is apprise
“A.” i1ie parties may
Order and executes the acknowledgment attached hereto as Ediihit
the room rcared of all
use Confidential Information during a depostlion only if
is first
persons except the court reporter, the witness being deposed, counsel for the parties and
any expert entitled to attend, and only it’ said witnes
s executes the acknowledgement
attached as Exhibit ‘A.”
ses to
Ii. In the case of inleiTogatorv answers, responses to request for production. and respon
In fonnation will he made by
requests for admissions, the designation of Confidential
:irig that the answers or responses
means nt a statement in the answers or responses specitS
ation A producing party
or specific parts thereof’ are designated as Confidential Inform
gatory answers or responses to
shall place the thilowing legend on each page of the interro
requests fhr admission: “Contains Confidential Infoniianon.”
confer or otherwise exchanged in
12. Confidential Information disclosed during a meet and
counsel flr the disclosing
informal discovery’, shall be protected pursuant to this Order ti’
ential inibimathm. II’ the
party ad ises the receiving party the information is Confid
Pace 7
WEBB CO DISTRICT CLERK Fax:956—523—5121 Jan 262015 02:11p P014/018
Confidential Information discloser! during a meet and confer or other\\ se excianged in
informal discovery is in the form of hard-copy documents. static’ images. or native tiles.
that information shall he designated as Confidential Information pursuant to paragraphs 6
a., h., and; or c. depending on the format of Ih materials introduced.
13. Al any time afler the de1iver’ of Confldential Docuntents. and afler making a good-faith
effort to resolve any disputes regarding whether any designated mnatcriats constitute
Confidential Information, counsel of the party or partles receiving the Conlidential
Documents may challenge the Confidential designation of all or am portion thereof’ by
proviclmg written notice of the challenge to counsel for the party disclosing or producing
the Confidential Documents. The party or parties disclosing or producing the Confidential
Documents shall have twenty (20) days from the date of receipt ol a nttcn challenge to
dispute.
file a motion for specific protection with regard to any Coni-idential Documenis in
If the party or parties producing the Confidential Documents does not timely iltC ii motion
he
for specific protection, then the Confidential Documents in dtspute shad no longer
subtect to confidential treatment as provided in this Order.
14. If a timely motion for specific protection is tiled. am disputed document will remain
confidential until a contrary determination is made by the Court and all such documents,
this
inIbnmiation or testimony shall continue to be treated as Confidential Information uniil
Court makes a contrary decision regarding the status of the documents, inf’onnation or
testjmony. At any hearing to resolve a challenge of a Conlidential designation, the party
designating the information as “Confidential’ shall have the burden to c’sahlish that prt\’s
i’ight to protection as if this Order did not Cyisi A partvs fiulure to challenge the
designation ot’ documents. information, or testimony as “Confidential” information does
Pa 8
WEBB CO DISTRICT CLERK Fax:956—523—5121 Jan 26 2015 D2:l2pio P015/018
testimon’, fhct.
not constitute an admission that the document, inlLimation or
is. in
d at trod or hearing
sensitive, confidential, or proprietary. No party waives its right to conten
that such document. intrirmation or testimony is ttot sensitive, confid
ential. ontiegcd or
at least twenty (20)
proprietary, provided the party provides noilce of intention to do so
days he(bre such trial or hearing.
that make reference toContidentiai
15. Any papers flied with the Court in this actton
be considered Confidential
Information, or contain information derived therefrom, shall
These papers shall be tiled
Intonriation and shall he governed by the terms of this Order,
Office so long as the materials
tinder seal and shall remain sealed with the District Clerk’s
retain their stratus as Confidential Inibrmation.
ure. production, or exchange of
16. Pursuant to the agreement of the pae1es. no disclos
ble attoniev—cttcnt privilege
infbnnation in this case shall constitute a waiver ofaity’ applica
this oranv otler federal or slate
or of any applicable work product protection in
ed, exeliaaged.
proceeding. This Protective Order applies to any information disclos
whether intentionally’ or inadvertently among the parties, their
produced. or discussed
—
—
) in the course of th!s litigation.
counsel and/or any agents (such as vendors and experts
product protected ritoi’niatiOn, tile
Upon learning of a production of’ privileged or work
counsel at record notice of the
producnig party shall within ten (tO) days give all
193.3(d). ‘11w receiving party must
production pursuant to Texas Rule of Civil Procedure
ation and all copies and destroy
promptly return, sequester or destroy the produced inform
the substance of the privileged or
am notes that reproduce. copy, or otherwise disclose
work product protected information.
shall not he deemed a waIver of:
17. Further. production pursuant to this Protective Order
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WEBB CD DISTRICT CLERK Fax:956—523—5121 Jan 26 2015 02:12pm P016/018
a. Any pony’s right to ohect to aviv discovery request on any ground.
b. Any party’s right to seek an order compelling discovery with respeci to any
discovery request.
c Any party’s use and review of its own Confidential hiforniation in its sole and
eoup1ete discretion,
ci. The status of any material as a trade secret.
18. Any Qualified Person who obtains inibnnation pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
ibis Order shall remain in effect unless or until amended, altered. modified, or
vacated h the Court or by the written agreement of all parties to this action filed with
the Court. pursuant to Rule 11 of the Te’sas Rules of Civil Procedure.
It [S SO ORDERED on this day of_______ . 2015.
JUDGE PRESIDING
Page 10
________
___________
_______
W88 Co DISTRICT CLERK Fax:956—523—5121 .ian 26 2015 02:12pm P017/018
EXHIBIT “A”
CAUSE NO. 2014-CVF.-0011J48-l)1
ALMA PP NA. § IN THE DISTRICT COURT OF
Plain ii if, §
§
V. § WEBB COUNTY. TEXAS
§
STATE FARM LLOYDS ANI) §
BECKY LANIER, §
Dc fencE aids. § 49TH JUDICIAL i)ISTRICT
R
AGREEMENT TO BE BOUND BY PROTECTflE ORDE
of at order to ae orovtdcd access to
1. ,
-
,
entered in the 49th Judicial
__
—__________________
information designated as “Confidentiaf’ under the Brat earl ye Order
2014-CVF-OOit)4X-D1 .Alma
District Court of Webb County. Texas (the ‘Court”) iii Cause No.
nt and agree as thilows:
Bena v. State Farm Lloyds ant/Becky Lamer (the “La\ssuit”). represe
entered Lw the Court in the
1 1 have been provided with a copy of the Protective Order
Lawsuit, 1 have reviewed said copy and I ant familiar with its terms.
which I am given access in
2. With regard to any and all ‘Confidenliar information to
ions 0! nc Protective
connection with the Lawsuit. I agree to be hound by the provis
Order.
Court with respect to the
3 1 consent to the exercise of jurisdiction over me by the
Protect we Order.
l of record for al i parties in
4. 1 agree that copies of this undertaking will he sent to counse
the Lawsuit.
S1GNVFt. ‘RE.
DATED:
By
TAB 8
OF THE RECORD
Filed
2/23/2015 11:18:35AM
Esther Degollado
District Clerk
Webb District
2014CVF001162 Dl
NO. 2OI4CVFOOI 162-Di
RAUL RODRIGUEZ §AND NOEMI IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE AND OBJECTIONS TO
PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER AND
MOTION FOR ENTRY OF STATE FARM’S PROPOSED PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF THIS COURT:
Defendants State Farm Lloyds (“State Farm”), Felipe Farias (collectively, “Defendants”)
file their Response and Objections to Plaintiffs’ Motion for Protective Order and Motion for
Entry of State Farm’s Proposed Protective Order. In support thereof, and pursuant to the Texas
Rules of Civil Procedure, Defendants show as follows:
I.
INTRODUCTION
I. The case presently before the Court is a suit arising out of a wind/hail insurance
claim Plaintiffs filed with State Farm. Defendants object to the entry of Plaintiffs’ Proposed
Protective Order because it is inadequate. By insisting that State Farm produce or disclose
Confidential Information without an appropriate and standard agreement that such information is
confidential and should be handled accordingly, Plaintiffs have put State Farm in an impossible
position: State Farm can either disclose its protected materials without the basic protections that
they warrant, and risk losing the confidential or trade secret status of the materials, or State Farm
must withhold relevant discovery and risk sanctions from the Court.
2. The three-part argument Plaintiffs offer in support of their proposed order is
conclusory, and ultimately the Protective Order proposed by Plaintiffs does not meet the
criterions Plaintiffs proffered.
3. First, Plaintiffs argue that “Plaintiffs’ Proposed Protective Order provides all
parties, including State Farm Lloyds, adequate protection from disclosure of trade secret and
proprietary information.” (See Plaintiffs’ Motion, at ¶ l.A.) However, Plaintiffs’ Proposed
Protective Order is deficient in its protections of Confidential Information, while State Farm’s
Proposed Protective Order provides more complete protections, particularly with regard to
electronically stored information (“ESI”), and better overall procedures. Specifically, Plaintiffs’
Proposed Protective Order does not provide adequate procedures because:
I. It does not contain terms related to the designation and handling of electronically
stored information (“ES!”) that is confidential, proprietary, or trade secret.
ii. It fails to recognize all persons whom will ordinarily handle Confidential
Information during the course of this litigation.
iii. It overlooks important procedures regarding the handling of Confidential
Information and the duties of the parties that clearly should be preserved.
4. Second, Plaintiffs argue that “Plaintiffs’ Proposed Protective Order is consistent
with protective orders previously entered and used for substantially similar litigation involving
Plaintiffs’ counsel and State Farm.” (See Plaintiffs’ Motion, at ¶ LB.) However, Plaintiffs fail
to advise the court that State Farm has consistently objected to the sharing provisions put
forward by Plaintiffs, and the lack of safeguards for their Confidential Information
following the resolution of each matter.
5. Third, Plaintiffs argue that “Plaintiffs’ Proposed Protective Order contains a
‘Shared Discovery’ provision which will provide for more efficient discovery.” (See Plaintiffs’
Motion, at ¶ I .C.) However, the wide-spread sharing of Confidential information greatly
2
increases the risk that such information will be improperly disclosed, dilutes the Court’s ability
to monitor and enforce the protections of a protective order, and poses an unreasonable risk to
State Farm’s property rights. State Farm is entitled to a confidentiality order that will reasonably
limit the dissemination of its confidential information.
6. With few exceptions, State Farm’s Proposed Protective Order (see Exhibit A)
includes the terms proposed by Plaintiffs but also adds much needed procedures that will ensure
all forms of State Farm’s Confidential Information are protected, regardless of the mode of
production, without any adverse impact to the Plaintiffs.’ For these reasons, Defendants
respectfully request this Court to deny Plaintiffs’ Motion for Entry of a Protective Order and
move the Court to enter State Farm’s Proposed Protective Order in this case.
II.
ARGUMENT & AUTHORITIES
7. Texas law encourages courts to grant protective orders to “protect [a] movant
from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal,
constitutional, or property rights.” Tex. R. Civ. P. § 192.6(b). Under the Texas discovery rules,
privileged information is not discoverable. See Tex. R. Civ. P. 192.3(a) (defining general scope
of discovery as “any matter that is not privileged and is relevant to the subject matter of the
pending action ....“) (emphasis added). Before a court can permit discovery of any confidential,
trade secret, or proprietary information, a plaintiff must first establish the threshold requirements
of relevance and a particularized need to discover the information and documents. In re
C’ontinenlal Gen’l Tire, 979 S.W.2d 609, 610-11 (Tex. 1998); In re Union PacUic, 249 S.W.3d
589, 592 (Tex. 2009) (a plaintiff must demonstrate the information sought is “material and
See Exhibit B attached hereto for a paragraph-by-paragraph comparison of Plaintiffs’ Proposed
Protective Order and State Farm’s Proposed Protective Order.
3
necessary” to presentation of the case in which it is sought). This is a case-specific inquiry. See
In re Allstate County Mitt. Ins. Co. 227 S.W.3d 667, 668 (Tex. 2007) (granting mandamus in
case involving overbroad requests for insurer personnel files and emphasizing that trial courts
“must make an effort to impose reasonable discovery limits”); In re CSX Corp., 124 S.W.3d 149,
152 (Tex. 2003) (holding party requesting discovery has burden of demonstrating that the
discovery is “tailored to include only matters relevant to the case”). Once the necessary
thresholds are established, a trial court’s duty is to protect confidential and trade secret
documents through an appropriate protective order. Garcia v. Peeples, 734 S.W.2d 343 (Tex.
1987).
8. The Texas Supreme Court has explicitly recognized that confidential information
can and should be the subject of an appropriately tailored protective order. See In re George, 28
S.W.3d 511, 514 (Tex. 2000) (“We recognize that the possibility exists that the disqualified
attorneys could conceivably have revealed confidential information in discovery,
correspondence, or other documents. If this has happened, the former client can protect
against tills disclosure ... by seeking a protective order under Texas Rule of Civil Procedure
192.6.”) (emphasis added). Other courts from around the state and nation also routinely provide
protection over the exchange of confidential materials during discovery. (See, e.g., Exhibit C,
Southern District of Texas form Protective Order, at p. 1 (protecting confidential information);
see also Exhibit D, Western District of Texas form Confidentiality and Protective Order, at pp.
2-3, protecting “information that the party in good faith believes in fact is confidential.”) As
discussed below, the information Plaintiffs seek from State Farm is confidential, proprietary, and
deserving of protection.
4
9. In addition, Texas law defines a trade secret as “any formula, pattern, device or
compilation of information which is used in one’s business, and which gives him an opportunity
to obtain an advantage over competitors who do not know or use it.” Hyde Corp. v. Hufjines,
158 Tex. 566, 314 S.W.2d 763, 776 (1958); accord In re Bass, 113 S.W.3d 735, 739 (Tex. 2003)
(orig. proceeding); see also Tex. Civ. Rem. & Prac. Code § 134A.002(6) (the recently enacted
Texas Uniform Trade Secrets Act defines a trade secret as any “information, including a formula,
pattern, compilation, program, device, method, technique, process, financial data, or list of actual
or potential customers or suppliers that (A) derives independent economic value, actual or
potential, from not being generally known to, and tiot being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or use; and (B) is the
subject of efforts that are reasonable under the circumstances to maintain its secrecy.”). As
discussed below, the information Plaintiffs seek from State Farm is not only confidential and
proprietary, but also contains trade secret information, deserving of protection.
10. The Texas Supreme Court described an “appropriate” protective order as one that
“limits access to the information to the parties in [the instant] litigation, their lawyers,
consultants, investigators, experts and other necessary persons employed by counsel to assist in
the preparation of this case.” In re Continental Gen ‘1 Tire, 979 S.W.2d at 613, n. 3 (emphasis
added); see also Zappe v. Medironic USA, Inc., No. C-08-369, 2009 U.S. Dist. LEXIS 23727
(S.D. Tex. March 23, 2009) (noting the Texas Supreme Court’s move away from Garcia and
entering a protective order that restricted the sharing of information). Moreover, an
“appropriate” protective order requires return of the documents at the end of the case and
requires that each person given access to the trade secret information agree in writing to maintain
the information as confidential. In re Continental Gen ‘1 Tire, 979 S.W.2d at 613, n.3; see also In
5
re Remington Arms Co., 952 F.2d 1029, 1033 (8th Cir. 1991) (describing ‘appropriate”
protective order for trade secrets as one that limits use to the case at hand, limits persons to
whom trade secrets are disclosed and forbids reproduction of documents containing trade secret
information).
A. State Farm’s business information warrants confidential treatment.
11. State Farm has produced non-privileged claim-specific documents from its
Enterprise Claim System and the relevant insurance policy. State Farm disagrees that the scope
of all of Plaintiffs’ discovery requests are proper; however, State Farm is willing to produce
additional responsive documents that are potentially relevant to the issues in this litigation,
including policies, procedures, and training materials applicable to the adjustment of claims
arising out of the weather event at issue a proper protective order is entered in this case.
12. State Farm’s Confidential Information warrants trade secret status because (1) the
information is not known outside of State Farm or by others who compete with State Farm (i.e.,
other insurance carriers); (2) State Farm takes reasonable efforts to guard the secrecy of this
information (such as not sharing it with others absent an appropriate confidentiality agreement or
protective order, as is the case here); (3) this information is valuable to State Farm because it is
vital to the efficient analysis and processing of claims; (4) State Farm has invested significant
amounts of time, human resources, and money developing and implementing the systems
described above; and (5) the information described above would not easily be acquired or
duplicated by others. In re Bass, 113 S.W.3d at 737.
13. Indeed, under Texas law, a trade secret is at risk of losing its trade secret status if
its owners are not diligent in their efforts to protect its secrecy or otherwise treat it as
confidential. Id. (factors relevant to determining whether a trade secret exists include, among
6
other things, the extent of the measures taken by the party to guard the secrecy of the
information). In recognition of an owner’s responsibility to protect its trade secrets, and in
addition to Tex. R. Civ. P. § 192.6(b) discussed above, the Texas Rules of Evidence specifically
provide that a litigant may claim a privilege to refuse to disclose a trade secret so long as the
allowance of the privilege will not tend to conceal fraud or otherwise work injustice. See Tex. R.
Evid. 507. “When disclosure is directed, the judge shall take such protective measure as the
interests of the holder of the privilege and of the parties and the furtherance ofjustice may
require.” Id. (emphasis added); see also Tex. Civ. Rem. & Prac. Code § 134A.006 (the recently
enacted Texas Uniform Trade Secrets Act providing that “[tJhere is a presumption in favor of
granting protective orders to preserve the secrecy of trade secrets. Protective orders may
include provisions limiting access to confidential information to only the attorneys and their
experts, holding in camera hearings, sealing the records of the action, and ordering any person
involved in the litigation not to disclose an alleged trade secret without prior court approval.”)
(emphasis added).
14. To be clear, State Farm is not refusing to share its responsive confidential and
proprietary information outright; it is merely requesting an appropriate confidentiality order that
would allow it to do so without sacrificing the protections Texas law plainly affords. With few
2 State Farm’s Proposed Protective Order (see Exhibit A) includes the terms proposed
exceptions,
by Plaintiffs and simply adds much needed procedures that will ensure the protection of all forms
of State Farm’s Confidential Information regardless of the mode of production, without any
adverse impact to the plaintiffs. Thus, there is no principled basis for Plaintiffs’ opposition.
2
For the reasons stated in Section II. E. i,fta, State Farm does not agree to the broad sharing provisions
included in Plaintiffs’ Proposed Protective Order.
7
B. State Farm’s Proposed Protective Order addresses the designation and handling of
ESI that contains Confidential Information.
1 5. Plaintiffs have requested that State Farm produce ESI responsive to the discovery
requests, but Plaintiffs’ Proposed Protective Order does not fully protect the confidential ES!
State Farm will produce. Critically, Plaintiffs’ Proposed Protective Order is inadequate with
respect to the handling of ESI for five reasons.
16. First, the general protections for Confidential Information should be met by
limiting the unnecessary duplication of Confidential Information. ESI can be duplicated and
circulated with ease, which increases the risk that confidential, propriety, or trade secret
information will be disclosed in violation of the protective order. The last sentence of
paragraph I of State Farm’s Proposed Protective Order strengthens the general protections
afforded by the order by expressly limiting unnecessary duplication and limiting the receiving
party’s right to use other parties’ Confidential lnlbrmation to the current litigation. This is ever
more important in light of the increased volumes of ES1 in litigation. As such, the provisions are
in line with the protections contemplated by Rule 5O7 and should be adopted by the Court.
1 7. Second, Plaintiffs’ definition of Confidential Information does not specifically
include ES!. ESI is distinct from hard copy documents or other information. For this reason, the
Court should find that Plaintiffs’ Proposed Protective Order, which fails to account for the need
to protect ESI, is deficient, and instead adopt paragraph 2 of State Farm’s Proposed Protective
Order.
1 8. Third, the protective legend that Plaintiffs propose the parties append to the file
name (see Exhibit E, at ¶ 6) is so lengthy that it is unmanageable, and there is a risk the Windows
operating system will cut it short. The Windows operating system has a 255 character limit for
See paragraph 8 supra.
8
the combined file name and file path information. When Plaintiffs’ proposed legend in
subparagraph 6.c is combined with standard path, file name, and Bates identifier information, it
is very likely the combined information will exceed 255 characters. State Farm has proposed
that the protective legend stop after the cause number. State Farm’s proposed protective legend
will allow the parties to accurately identify electronic files and the matter in which the file was
produced, and is not likely to exceed the Windows 255 character limit. Consequently, State
Farm requests the Court reject Plaintiffs’ proposed paragraph 6 and accept the paragraph 6
proposed by State Farm.
19. Fourth, Plaintiffs’ Proposed Protective Order fails to require the destruction of
confidential ESI if it is improperly disclosed to a non-Qua] ified Person. (See Exhibit E, at ¶ 7.)
Since it would be impractical to return copies of confidential ESI once it is placed on new
, it is essential that all non-authorized copies of confidential ESI be destroyed in order to
4
media
ensure the confidentiality of the information contained on the unauthorized media. Paragraph 8
of State Farm’s Proposed Protective Order specifically requires a party that improperly discloses
Confidential Information to a non-Qualified Person to request the destruction of any such ESI.
This procedure enhances the safeguards for Confidential Information, without impacting the
rights of the parties to use such information during the course of this litigation. This type of
language is typical and non-controversial in other cases. For that reason, the Court should adopt
the tenhis of paragraph 8 of State Farm’s Proposed Protective Order that provide for the
destruction of ESI that contains Confidential Information.
20. Fifth, Plaintiffs’ Proposed Protective Order is impractical because it omits clear
procedures for the destruction or return of State Farm’s Confidential Information after the
in order to return confidential ESI, the receiving party would have to turn over the actual media, such as
the computer hard drive, that contains the copy of the confidential ESI.
9
resolution of the matter. Plaintiffs’ proposal effectively grants an unlimited use license to each
plaintiff or their counsel to retain and use all State Farm Confidential Information received for an
unlimited period of time. Such unlimited use is clearly beyond the scope of use necessary for the
fair adjudication of this matter and should not be allowed. See generally In re
BrIdgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. 2003, orig. proceeding). The causes of action
asserted in this litigation require proof of State Farm’s alleged misconduct with regard to these
particular plaintiffs only and return of confidential materials at the end of this litigation will not
hamper Plaintiffs’ ability to examine witnesses or prove the elements of their case. Paragraph 20
in State Farm’s Proposed Protective Order reasonably provides that within forty-five days of the
iinai adjudication of the matter, all the confidentia], proprietary and trade secret material
produced or disclosed by State Farm in the course of this litigation must be returned or
destroyed. Because Plaintiffs’ Proposed Protective Order is not reasonably tailored to protect
State Farm’s Confidential Information after this litigation concludes, the Court should deny
Plaintiffs’ request for entry of Plaintiffs’ Proposed Protective Order and adopt paragraph 20 from
State Farm’s Proposed Protective Order.
C. The confidentiality order should address all persons to whom it will be provided.
21. A protective order is easily vitiated without specific procedures to enforce the
handling of protected information. The protective order entered by this Court should recognize
all persons who reasonably will be required to handle Confidential Information in this matter,
and designate only those persons as “Qualified Persons.” Plaintiffs’ definition of “Qualified
Person” is both unreasonably under-inclusive and improperly over-inclusive in light of the facts
of this case.
22. Plaintiffs’ definition of Qualified Persons is under-inclusive because it omits
counsel’s staff; outside service-providers and consultants providing services related to document
10
and ESI processing, hosting, review, and production; the Court; other court officials (including
court reporters); and the trier of fact pursuant to a sealing order. Persons in all of these
categories naturally will receive Confidential Information during the course of this litigation.
Thus, it is unreasonably under-inclusive to omit them from the protective order from the outset.
For these reasons, the Court should accept paragraph 3 in State Farm’s Proposed Protective
Order.
23. For the reasons stated in section E. below, Plaintiffs’ inclusion of parties to other
litigation (including State Farm’s competitors) within the definition of Qualified Persons is
improperly over-inclusive and should be rejected by the Court.
B. The Protective Order should clearly preserve the general rights and duties of the
parties.
24. State Farm’s Proposed Protective Order includes additional terms that provide
clear and consistent procedures regarding the handling of Confidential Information throughout
the litigation.
25. First, State Farm’s Proposed Protective Order adds paragraph 9 which
acknowledges that information in its possession, custody, or control may be the confidential
information of non-parties. State Farm’s proposed paragraph 9 acknowledges the general duties
that a party may owe to a non-party to protect the confidentiality of the non-party’s Confidential
Information provided. Such practical duties do not impinge on the interest ofjustice in this case.
Therefore, State Farm requests that the Court adopt paragraph 9 of State Farm’s Proposed
Protective Order.
26. Second, State Farm modified paragraph 10 to ensure that all Qualified Persons
may remain during testimony regarding Confidential Information provided they are otherwise
entitled to attend the deposition. Plaintiffs’ proposed paragraph 10 impractically limits the
11
persons that can attend a deposition during testimony regarding Confidential Information. Under
Plaintiffs’ proposal, all persons other than “the court reporter, the witness being deposed, counsel
for the parties and any expert entitled to attend,” must leave the room, even if they are a
Qualified Person who is otherwise entitled to attend the deposition. For example, it is common
practice to have a party representative attend depositions and party representatives are Qualified
Persons under the terms of Plaintiffs’ Proposed Protective Order. There is no reason to exclude
Qualified Persons from a deposition if they are otherwise entitled to attend the deposition. The
simplified procedure provided in State Farm’s proposal clarifies the standard procedures and
rights related to depositions. For these reasons, the Court should adopt the terms of paragraph 10
of State Farm’s Proposed Protective Order.
27. Third, State Farm proposed paragraph 13 expands upon paragraph 9 of Plaintiffs’
Proposed Protective Order and provides that a receiving party must have a good-faith basis to
request that Confidential Information be re-designated. This requirement is clearly contemplated
under the rules and therefore State Farm requests that the Court adopt its paragraph 13.
28. Fourth, State Farm amended paragraph 14 of Plaintiffs’ Proposed Protective
Order (c.f Exhibit A, at ¶ 15) regarding the procedure for the Court to hear objections to any
designation. These amended provisions extend the deadline to thirty days so that it is consistent
with other time requirements in the protective order. The paragraph otherwise parallels the
Plaintiffs’ proposal, and State Farm requests that the Court adopt its paragraph 15 in order to
simplif’ the administration of this case.
29. None of State Farm’s proposed additions and changes impinge upon the rights of
Plaintiffs. Rather, they help protect the rights of all parties and streamline procedures in this
12
case. Because Plaintiffs have no practical or legal basis to object to these terms, Plaintiffs’
objections merely obstruct the unbiased adjudication of this matter.
E. Plaintiffs’ Proposed Protective Order provides for improper sharing of confidential,
proprietary, or trade secret information outside of this litigation.
30. State Farm will be prejudiced, and its property interests in its Confidential
Information are likely to be compromised, if Plaintiffs’ counsel is allowed to share Slate Farm’s
Confidential Information outside of this litigation. The wording in paragraph 1 of Plaintiffs’
Proposed Protective Order allows Plaintiffs’ counsel to share State Farm’s confidential and
proprietary information directly with any party, attorney, or expert witness “arising out of
hal/storms and/or windsiorms in Texas with a date of loss in 2012, andfor no other purpose.”
The Protective Order specifically states:
“Related Litigation” means a first-party lawsuit in Texas by an insured against
State Farm Lloyds and its adjusters or adjusting companies that produced the
Confidential Information for damages to insured property arising out of
hailsiorms andJor windstorms in Texas with a date of loss in 2012.
Confidential Information shall not be disclosed to any person except in
accordance with the terms of this Order.
(See Exhibit F, at ¶ 1.) The wide-spread sharing of Confidential Information greatly increases
the risk that such information will be improperly disclosed, dilutes the Court’s ability to monitor
and enforce the protections of a protective order, and poses an unreasonable risk to State Farm’s
property rights. State Farm is entitled to a protective order that will reasonably limit the
dissemination of its confidential information.
31. Plaintiffs cite In re Stale Farm Lloyds, No. 09-03-311 -CV, 2003 Tex. App.
LEXIS 8115 at *l..2 (Tex. App.—Beaumont Sept. 18, 2003, orig. proceeding), to justify their
proposed provisions for sharing discovery. I1owever, in that case the Court of Appeals merely
made a conclusory holding, without providing any substantive analysis that shared discovery was
13
permissible in that case. That holding was never reviewed by Texas Supreme Court. When a
similar issue was brought before the Texas Supreme Court in, In re Fire Insurance Exchange,
No. 09-04-301-CV, 2004 Tex. App. LEXIS 8494 at *2 (Tex. App.—Beaumont Sept. 23, 2004,
orig. proceeding), the plaintiffs’ counsel — the same as Plaintiffs’ counsel as in this case —
withdrew the protective order and made the issue moot. Consequently, there is no support in
Texas law for the overbroad sharing provisions that Plaintiffs seek in this case.
32. Plaintiffs’ reliance on the shared discovery doctrine is also misplaced because the
doctrine arose out of a products liability case, Garcia v. Peeples, and relates to the unique nature
of such litigation, the nature of the discovery documents requested, and the public health and
safety concerns implicated by the defendant’s discovery objections in that case. 734 S.W.2d
343; see also, Steenbergen v. Ford Motor Co., 814 S.W.2d 755 (Tex. App.—Dallas 1991, writ
denied) (automobile products liability case); American Honda Motor Co. v. Dibrell, 736 S,W.2d
257 (Tex. App.—Austin 1987, no writ) (all-terrain vehicle product liability case). The public
health concerns at play in a product liability matter, where every potential consumer is equally
impacted by the same design specification and manufacture process, are not present in the
individual insurance claims that arose out of June 14, 2013, weather event. Moreover, each State
Farm insurance policy at issue will be unique to the claimants and each insurance claim was
independently adjusted. In fact, in most cases, the commonality between plaintiffs will not reach
beyond the fact that they each purchased a policy from State Farm and allege they suffered
property damage in the weather events. Plaintiffs cannot meet the burden to establish that a
public benefit accrues from sharing discovery related to the specific insurance claims that have
arisen regarding property damage from 2013.
14
33. Crucially, Garcia was decided nearly thirty years ago. Since that time, the ability
to transmit vast quantities of information electronically has increased exponentially. Indeed, a
single violation of the Protective Order could send State Farm’s trade secrets around the country
in a matter of minutes. Once that happens, retrieval would be impossible. The ease with which
information can now he spread substantially undermines any argument that trade secrets will be
protected under a protective order that allows sharing. See, e.g., Gil v. Ford Motor Co., Civ.
Action No. 1:06CV122, 2007 U.S. Dist. LEXIS 65269 (N.D.W. Va. 2007) (questioning
plaintiff’s assertion that sharing provisions in a protective order would adequately protect trade
secrets).
34. Garcia v. Peeples was also decided more than a decade before the Texas Supreme
Court directly addressed the scope and application of the trade-secret privilege under Texas Rule
of Evidence 507. See in re Continental Gen ‘1 Tire, Inc., 979 S.W.2d 609 (Tex. 1998).
Underlying the holding and reasoning of In re Continental is the Court’s recognition that “trade
secrets are an important property interest, worthy of protection.” Id. at 612. It is axiomatic that
“once a trade secret is made public all ownership is lost.” Computer Assocs., In! ‘1, Inc. v. A/tai,
Inc., 918 S.W.2d 453, 457 (Tex. 1996). This is true regardless of whether the production is
requested in a case involving two business competitors or involving non-competitors. In re
Continental Gen’l Tire, 979 S.W.2d at 613.
35. While extolling the general values of the civil litigation system, Plaintiffs fail to
explain how a sharing provision in the protective order is necessary for discovery in their case.
Nor can they explain it because giving State Farm’s trade secrets to other litigants has nothing to
do with the prosecution of the case at hand. In contrast, the risk that State Farm’s trade secrets
15
will be improperly disclosed is drastically increased once sharing outside the confines of this
litigation has occurred.
36. The language of Plaintiffs’ proposed order condones the widespread distribution
of every confidential and proprietary document, confidential deposition transcript, or discovery
response produced in this case to all lawyers who file a lawsuit against State Farm on a wind/hail
claim in Texas with a date of loss of 2012 without regard to the causes of action and factual
allegations contained therein, the relationship to the present litigation, and without any obligation
to return or destroy the information afier a definite period of time. This allows Plaintiffs’
counsel to become a repository for such information for years to come, and will encourage
associations and collusion with other counsel bringing claims against State Farm. Even under
Garcia, the Plaintiffs’ Proposed Protective Order is deficient because it is not limited to
similarly-situated litigants.
37. State Farm’s concerns about any protective order that allows a plaintiff’s counsel
to become a repository are not unfounded. The litigation marketplace contains websites and
exchanges devoted to dissemination of confidential and proprietary information, with few
controls and no access to information about who has the trade secret information, or where it
may be used. Allowing use of confidential documents without limitation is problematic not just
because of the risk that Confidential Information will fall into the hands of State Farm’s
competitors, but because the documents applying to or used in the handling of the claim at issue
in this case may not be the same documents used or seen by adjusters in other cases; plaintiffs
are thus allowed to falsely impeach parties and witnesses in other cases.
38. The protective order State Farm has proposed does not deny Plaintiffs any
relevant Confidential Information that may be necessary for them to prove their case. But,
16
unlike Plaintiffs’ Proposed Protective Order, it also does not jeopardize the confidentiality of
those materials by permitting an essentially ungoverned distribution to an overly broad class of
persons into the indefinite future. Plaintiffs’ Proposed Protective Order is overly broad and
Plaintiffs have not presented sufficient justification for allowing a sharing provision.
39. For these reasons, the expansive sharing language in paragraphs I and 3 of
Plaintiffs’ Proposed Protective Order should be rejected by the Court.
III.
CONCLUSION
40. in light of the foregoing, Plaintiffs’ Motion for Entry of Protective Order should
be denied and State Farm’s Proposed Protective Order, attached as Exhibit A, should be entered
as a full confidentiality order in this case. Adoption of State Farm’s Proposed Protective Order
will allow State Farm to continue producing responsive material to Plaintiffs while mitigating
any risk that State Farm’s Confidential Information will be disclosed without sufficient
protection or otherwise lose its trade secret status.
WHEREFORE, PREMISES CONSIDERED, Defendants pray this Honorable Court deny
Plaintiffs’ Motion for Protective Order, enter State Farm’s Proposed Protective Order attached
hereto, and for any other and further relief, at law or in equity, to which they show themselves
justly entitled.
17
___
______________________ __
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
VAN HE!AN
State Bar No. 1032350
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendants State Farm Lloyds
And Felipe Farias
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was thisday of February 2015, served on
the following via e-service:
VIA E-SERVICE
Mr. J. Steve Mostyn
The Mostyn Law Firm
3810 West Alabama Street
Houston, Texas 77027
TTWANY DEBOLT
the___
By
18
Filed
2/2312015 11:18:35AM
Esther Degollado
District Clerk
Webb District
2014CVF001162 Dl
NO. 2O14CVFOOI 162-DI
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
litigation against State Farm Lloyds (including its employees) and Felipe Farias
(“Defendants”) or any third party adjusting firm (including its employees) that
adjusted this claim and for no other purpose. Confidential Information, or
extracts, summaries, or information derived from Confidential Information, shall
not be disclosed to any person except in accordance with the terms of this Order.
Confidential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation.
2. “Confidential Information,” as used herein, means any information of any type
that is designated as ‘Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
I EBIT
information (“ES!”), or other material; information contained in a document, ES!,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation
arising out of a weather event on or about June 14, 2013, in Webb County, Texas;
their respective counsel; counsel’s staff; expert witnesses; outside service-
providers and consultants providing services related to document and ES!
processing, hosting, review, and production; the Court; other court officials
(including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
2
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
3
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ES! designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf. Agree/Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the file’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFI DENTIAL-SU BJ TO PROTECTI yE ORDER IN CAU SE [insert
When any file so designated is converted to a hard-copy document or
static image for any purpose, the document or image shall bear on each
page a protective legend as described in 6.a. and 6.b. above. If a native
file containing Confidential Information is used during a deposition, meet
and confer, trial, or is otherwise disclosed post-production, the party
introducing, referencing, or submitting the native file must append to the
file’s name (immediately following its Bates identifier) the protective
legend:
“CONFIDENTIAL-SUBJ TO IROTECTI VE ORDER IN CAUSE insert n]” if
such legend does not already appear in the file name. Any party using a
native file containing Confidential Information in a deposition, hearing, or
4
at trial must indicate the designation on the record so that it is reflected in
the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identii’ing characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to EST, take such reasonable
steps as will reliably identifij the item(s) as having been designated as
Confidential Information.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retroactively
5
designated by the producing party in the manner describe in paragraph 7.a.
above. If a retroactive designation is provided to the receiving party in
accordance with Texas Rule of Civil Procedure 193.3(d) the receiving
party must (i) make no further disclosure of such designated information
except as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No party shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return and/or destruction of the inadvertently disclosed
Confidential Information, aLl copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individuaJ to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individuaL that
6
inadvertently received the Confidential Information.
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as ‘confidential” such information shall be treated
as Confidential Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identifS’ the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notif any
persons who were provided copies of such designated information of the
7
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
Il. In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
8
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a., b., and/or c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have thirty (30) days
9
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
ESI, information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers tiled with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
10
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties. their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within forty-five (45) business days after the final resolution of this litigation, the
11
______
plaintiff(s) shall return or destroy Confidential Information they received during
this litigation. As to those materials that contain or reflect Confidential
Infonnation, but that constitute or reflect the plaintiff(s) counsel’s own work
product, counsel for the plaintiff(s) are entitled to retain such work product in
their files in accordance with the provisions of this Protective Order, so long as
the work product is clearly marked to reflect that it contains information subject
to this Protective Order. Plaintiff’s counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
transcripts, and the trial record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiff’s counsel shall
certify in writing compliance with the provision of this paragraph after forty-five
(45) business days after the final resolution of this litigation.
This Order shall remain in etTect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of , 2014.
JUDGE PRESIDING
certif
20j
____________________________________
NO. 2OI4CVFOOI 162-DI
RALJL RODR[GUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to infonriation
designated as Confidential Information under the Protective Order entered in Cause No.
2O14CVFOOI 162-DI represents and agrees as follows:
I. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
EXHIBIT A
Filed
2/23/2015 11:18:35AM
Esther Degollado
Raul Rodriguez, eta!. v. State Farm Lloyds et aL (2014-CVF-001162-D1) District Clerk
Comparison of Protective Orders 2Q14CVFOO1 162 Di
Text without highlights is identical
Yellow highlighted text indicates differences
Or highlighted text denotes substantially similar text
Iiain(if(s’ l’ro(ectie Order Sitc hirni ‘s Proteclive Order
1. All Confidential Information produced or 1. All Confidential Information produced or
exchanged in the course of this litigation exchanged in the course of this litigation
shall be used solely for the purpose of the shall be used solely for the purpose of the
preparation and trial of this litigation and preparation and trial of this litigation against
other related litigation against State Farm State Farm Lloyds (including its employees)
Lloyds (including its employees) or any third and/or any third party adjusting firm
party adjusting firm (including its (including its employees) (“Defendants”)
employees) that adjusted claims arising out that adjusted this claim and for no other
[sic] hailstorms and/or windstorms in Texas purpose. Confidential Information, or
with a date of loss in 2012, and for no other extracts, summaries, or information derived
purpose. “Related Litigation” means a first- from Confidential Information, shall not be
party lawsuit in Texas by an insured against disclosed to any person except in accordance
State Farm Lloyds and its adjusters or with the terms of this Order. Confidential
adjusting companies that produced the Information may only be copied or
Confidential Information for damages to reproduced as reasonably necessary for use
insured property arising out of hailstorms solely in this litigation.
and/or windstorms in Texas with a date of
loss in 2012. Confidential Information shall
not be disclosed to any person except in
accordance with the terms of this Order.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal is not narrowly tailored to limit the use of Confidential Information to the
present litigation with State Farm and does not limit the reproduction of such information. ESI can
be duplicated and circulated with ease, and unnecessary duplication increases the risk that
confidential, proprietary, or trade secret information will be disclosed in violation of a protective
order. The sharing of discovery in “related litigation” is not necessary in order to achieve fairness in
the adjudication of this Litigation, nor would it serve any public policy purpose. Moreover,
Plaintiffs’ definition of related litigation is not reasonably limited to a time and place.
Finally, Plaintiffs’ proposal is inadequate because it fails to limit
information extracted from the hard-copy documents or electro
sge I of 18
By
M
Raul Rodriguez, et aL v. State Farm Lloyds eta!. (2014-CVF-001162-D1)
Comparison of Protective Orders
State Farm’s Proposal is
Defendants have tailored the introductory paragraph to reflect that Confidential Information is being
disclosed for use in the case at bar, and for no other purpose. In addition, Defendants have added
language to reasonably protect any producing party from the unnecessary duplication of
Confidential Information.
“Confidential Information,” as used herein, Ll Information,” as used herein,
means any information of any type which is means any information of any type that is
designated as “Confidential” by any of the designated as “Confidential” and/or “Trade
supplying areceMng parties, including Secret” by any of the producing ci receiving
information received from non-parties, parties, whether it is: a document,
whether it is a document, information electronically stored information (“ESI”), or
contained in a document, information other material; information contained in a
revealed during a deposition, information document, ESI, or other material;
revealed in an interrogatory answer or information revealed during a deposition;
otherwise. At the sole discretion of the information revealed in an interrogatory
producing party, the producing party may answer or written responses to discovery;
place on any docunients that are subject to information revealed during a meet and
this Protective Order, bates numbers and/or a confer, or otherwise in connection with
legend to indicate the document is formal or informal discovery.
“Confidential,” subject to a Protective Order
and is produced under the specific cause
number; however, the producing party shall
not label designated documents with a
watermark.
Page 2 of 18
Raul Rodriguez, el aL v. Slate Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
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‘
Proposal is Not Acceptable:
Plaintiffs’ proposal does not specifically address the disclosure of trade secret information,
electronically stored information, or the disclosure of information in the context of a meet and
confer, all of which are relevant to this case. The second sentence of Plaintiffs’ paragraph two deals
with marking Confidential Information, which is the subject of paragraph 6, and should be addressed
in that paragraph.
Why State Farm’s Proposal is Better:
Under Texas law, all confidential, proprietary, and trade secret information is entitled to protection
from the court when such information is relevant to the litigation and must be disclosed in the course
of discovery. Specific protections for ESI and trade secret information are imperative to the
protection of State Farm’s property interests in its Confidential Information. State Farm’s paragraph
2 expands the definition of Confidential Information to include all types of information (i.e., ESI),
and all means through which such information is obtained.
Plaintiffs’ Protective Order Stale Fariii ‘s Protective Order
3. The disclosure of Confidential Information is 3. The disclosure of Confidential Information is
restricted to Qualified Persons. “Qualified restricted to Qualified Persons. “Qualified
Persons,” as used herein, means: the parties Persons,” as used herein, means: the parties
to pending litigation arising out of hailstorms to this pending litigation arising out of a
and/or windstorms in Texas [sic] a date of weather event on or about [date], in [County]
loss in 2012; their respective counsel; County, Texas; their respective counsel;
counsel’s staff; expert witnesses; outside counsel’s staff; expert witnesses; outside
service providers and consultants providing service-providers and consultants providing
services related to document and ES! services related to document and ESI
processing, hosting, review, and production; processing, hosting, review, and production;
the Court; other court officials (including the Court; other court officials (including
court reporters); the trier of fact pursuant to a court reporters); the trier of fact pursuant to a
sealing order; and any person so designated sealing order; and any person so designated
pursuant to paragraph 4 herein. If this Court pursuant to paragraph 4 herein. If this Court
so elects, any other person may be designated so elects, any other person may be
as a Qualified Person by order of this Court, designated as a Qualified Person by order of
Page 3 of 18
Raul Rodriguez, et al v. State Farm Lloyds et aL (201 4-CVF-001 162-Di)
Comparison of Protective Orders
after notice to all parties and a hearing. u Court, after notice to all parties and a
hearing.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal provides the overbroad definition of the litigation as “hailstorms and/or
windstorms in Texas [with] a date of loss in 2013.” The Motion to Compel discovery filed with the
Motion for Protective Order, however, identifies a “hail storm and/or windstorms damage that
occurred on or about June 13, 2012.” More importantly, Plaintiffs proposed paragraph three puts
Defendants’ Confidential Information at risk because it allows information produced to be shared
with parties in unrelated litigation. In addition, the handling of a weather related claim in Dallas
County is not necessarily related to the handling of an unrelated claim in another county.
Why State Farm’s Proposal is Better:
State Farm’s proposed paragraph 3 simply identifies the weather event that precipitated Plaintiffs to
make an insurance claim regarding wind and hail damage.
4. The parties generally agree regarding the language of paragraph 4 of Plaintiffs’ Proposed
Protective Order, which corresponds with paragraph 4 of State Farm’s Proposed Protective
Order. Plaintiffs’ proposed language, however, contains a typographical error. The word
“or” in the first sentence should be changed to “on” so that the sentence reads:
Any party may serve a written request for authority to disclose
Confidential Information to a person who is not a Qualified Person
counsel for the designating party, and consent shall not be unreasonably
withheld.
Le I court for each party sh a 5. C I fbr each party shall provide a copy
copy of this Order to any person tO whom of this Order to any person—other than the
Confidential Information is to 1,# disclosed, Court, court officials, or the trier of fact—
including each party such counsel represents, who will receive Confidential Information in
and shall advise such person of the scope and connection with this litigation, and shall
effect of the confidentiality piovisions of this -- advise such person of the scope and effect of
Page4ofl8
Raul Rodriguez, et aL v. State Farm Lloyds et aL (201 4-CVF-001 1 62-Di)
Comparison of Protective Orders
l1aint ills’ Prnleclie Order State Farm’s I’rolective Order
--
----‘- -
- —- ---
- --,-- -- ---,-
-,, --- --- -
Order and the possibility of punishment by the pr*et of this Order and the
contempt for violation thereof. Further, possibility of punishment by contempt for
before disclosing Confidential Information to violation thereof. Further, before disclosing
any person, lead counsel for the party Confidential Information to any person other
disclosing the information shall obtain the than the Court, court officials, or the trier of
written acknowledgment of that person fact, counsel for the party disclosing the
binding him or her to the terms of this Order. information shall obtain the written
The written acknowledgment shall be in the acknowledgment of that person binding him
form of lExhibit Al attached hereto. Lead or her to the terms of this Order. The written
counsel for the disclosing party shall retain acknowledgment shall be in the form of
the original written acknowledgment, and Exhibit A attached hereto. Counsel for the
furnish a copy of the signed written disclosing party shall retain the original
acknowledgment to counsel fa the party written acknowledgment, and furnish a copy
designating the information as confidential of the signed written acknowledgment to the
within ten (10) business days. designating party’s counsel within ten (10)
business days.
Why Plaintiffs’ Proposal is Not Acceptable:
State Farm will be prejudiced, and its property interests in its Confidential Information are likely to
be compromised, if Plaintiffs’ counsel is allowed to share State Farm’s Confidential Information
with “each party such counsel represents” or others outside of this litigation. Moreover, Plaintiffs’
proposal does not exempt the Court, court officials, and the trier of fact from the requirement of the
paragraph.
Why State Farm’s Proposal is Better:
State Farm’s paragraph 5 exempts the Court, court officials, and the trier of fact from the
requirement that Qualified Persons execute an acknowledgement of the protective order (Exhibit A).
This is merely a practical addition to the paragraph. If similar language is not included, under the
terms of the protective order, the Court would be unnecessarily required to execute an
acknowledgement of its own order.
Page 5 of 18
Raul Rodriguez, et at v. State Farm Lloyds eta!. (2014-CVF-001162-D1)
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be designated as
Confidential Information within the meaning Confidential Information within the meaning
of this Protective Order by following the of this Protective Order by following the
protocol below that corresponds to the format protocol below that corresponds to the
produced: format produced:
a. For hard-copy documents, by marking a. For hard-copy documents, by marking
the first Bates-stamped page of the the first Bates-stamped page of the
document and each subsequent Bates- document and each subsequent Bates-
stamped page thereof containing stamped page thereof containing
Confidential Information with the Confidential Information with the
following legend: “Confidential & following legend: “Confidential &
Proprietary/Produced Pursuant to a Proprietary/Produced Pursuant to a
Conf. Agree./Prot. Order” or Conf. Agree ./Prot. Order” or
“Confidential Proprietary & Trade “Confidential Proprietary & Trade
Secret/Produced Pursuant to a ConE Secret/Produced Pursuant to a ConE
Agree./Prot. Order,” but not so as to Agree./Prot. Order,” but not so as to
obscure the content of the document. obscure the content of the document.
b. For static image productions by marking b. For static image productions, by
the first Bates-stamped page of the marking the first Bates-stamped page of
document and each subsequent Bates- the image and each subsequent Bates-
stamped page thereof containing stamped page thereof containing
Confidential Information with the Confidential Information with the
following legend: “Confidential& following legend: “Confidential &
Proprietary/Produced Pursuant to a Proprietary/Produced Pursuant to a
Conf. Agree.fProt. Order” or Conf. Agree.fProt. Order” or
“Confidential Proprietary & Trade “Confidential Proprietary & Trade
Secret/Produced Pursuant to a ConE Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to Agree./Prot. Order,” but not so as to
obscure the content of the image. obscure the content of the image.
c. For native format productions, by c. For native file format productions, by
prominently labeling the delivery media prominently labeling the delivery media
for ESI designated as Confidential for ESI designated as Confidential
Information as follows: “Confidential & Information as follows: “Confidential &
Proprietary/Produced Pursuant to a Proprietary/Produced_Pursuant to a
Page 6 of 18
Raul Rodriguez, el aL v. Slate Farm Lloyds el al. (2014-CVF-001162-D1)
Comparison of Protective Orders
Conf. Agree./ ..Order” or Conf Agree.fProt. Or&or
“Confidential Proprietary & Trade “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Secret/Produced Pursuant to a Coni
AgreeiProt. Order.” In addition, at the Agree.fProt. Order.” In addition, at the
election of the producing party, the election of the producing party, the
electronic file may have appended to the electronic file may have appended to the
file’s name (immediately following its file’s name (immediately following its
Bates identifier) the following protective Bates identifier) the following protective
legend: legend:
“CONFIDENTIAL-SUBJ “CONFIDENTIAL
TO_PROTECTIVEjRDER_IN_ SUBJ_TO_PROTECTIVE_ORDER_IN
Cause No. 2014-C VF-001162-D1; _CAUSE_[insert #].“ When any file so
Noemi Rodriguez and Paul Rodriguez designated is converted to a hard-copy
vs. State Farm Lloyds and Felipe Farias document or static image for any
In the District Court of Webb County, purpose, the document or image shall
Texas, 49
th
Judicial District” [sic] When bear on each page a protective legend as
any file so designated is converted to a described in 6.a. and 6.b. above. If a
hard copy or static image for any native file containing Confidential
purpose, the document or image shall Information is used during a deposition,
bear on each page a protective legend as meet and confer, trial, or is otherwise
described in 6.a. and 6.b. above. If a disclosed post-production, the party
native file containing Confidential introducing, referencing, or submitting
Information is used during a deposition, the native file must append to the file’s
meet and confer, trial, or is otherwise name (immediately following its Bates
disclosed post-production, the party identifier) the protective legend:
introducing, referencing, or submitting
“CONFIDENTIAL
the native file must append the the [sic]
SUBJ_TO_PROTECTIVE.pRDERJN
file’s name (immediately following its
_CAUSE_[insert #]“ if such legend does
Bates identifier) the following protective
not already appear in the file name.
legend:
Any party using a native file containing
“CONFIDENTIAL-SUBJ
Confidential Information in a
TO_PROTECTIVE_ORDER_IN_
deposition, hearing, or at trial must
Cause No. 2014-C VF-001162-D1;
indicate the designation on the record so
Noemi Rodriguez and Paul Rodriguez
that it is reflected in the transcript of the
vs. State Farm Lloyds and Felipe Farias
Pagelofl8
Raul Rodriguez, et aL v. Stale Farm Lloyds et aL (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
In the I rict Court of Webb County, proceedings.
Texas, 49th
Judicial District” if such
d. At the sole discretion of the producing
legend does not already appear in the
party, the producing party may place on
file name. Any party using a native file
containing Confidential Information in a any hard-copy documents that are
subject to this Protective Order
deposition, hearing, or at trial must
watermarks or seals to indicate the
indicate the designation on the record so
that it is reflected in the transcript of the document is subject to a Protective
proceedings. Order and is produced under the specific
cause number.
d. At the sole discretion of the producing
party, the producing party may place on
any hard-copy documents that are
subject to this Protective Order
watermarks or seals to indicate the
document is subject to a Protective
Order and is produced under the specific
cause number.
Why Plaintiffs’ Proposal is Not Acceptable:
When Plaintiffs’ proposed legend in subparagraph 6.c is combined with standard path, file name,
and Bates identifier information, it is veiy likely the combined information will exceed 255
characters. Since the Windows operating system has a 255 character limit for the combined file
name and file path information it will not be possible to use this file naming convention.
Why Defendants’ Proposal is Better:
State Farm’s proposed protective legend will allow the parties to accurately identi1’ electronic files
and the matter in which the file was produced, and is not likely to exceed the Windows 255
character limit when combined with standard path, file name, and Bates identifier information.
PageS of 18
Raul Rodriguez, et at v. Stale Farm Lloyds el a!. (2014-CVF-OO1 162-Di)
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Iiai,it iff.s’ I’iotectiv Order State Farm’s I’ru(ec(ivc Order
L. — — — ..,. ‘....-
7. Any party who inadvertently wscioses 8. If Confidential Information is inadvertently
Confidential Information during the disclosed to a person who is not a Qualified
discovery process shall, immediately upon Person, the disclosing party shall
discovery of the inadvertent disclosure, ghe immediately upon discovery of the
ceinwritingtoith pMyorpliegJfl inadvertent disclosure, send a written
possession of such Information that the demand to the non-Qualified Person
uiforinanon is designated as Confidential” denisndhig the unmediate return and/or
and shall request its I mediateieturn. After destruction of the inadvertently disclosed
receipt of such notice, the parties shall treat Confidential Information, all copies made,
the information so designated as Confidential and all notes that reproduce, copy, or
Information under the terms of this Order, otherwise contain information derived from
unless released of this duty by further order Confidential Information. Further the
of this Court. Additicsially,any party who disclosing party shall send written notice to
bvntlyciConfdentiai the designating part3’s counsel providing:
Information during the coveryjrocess
rnesin addresses of the entity or
shall, immediately upon d1scovey ofthe .
Inadvertent disclosure, gIve notice in writing indl’6dualto wm the Confidential
Information was inadvertently disclosed.
to the party which produced arid proi4ded
this information, the names and addresses of b. The date ofthe disclosure,
the persons to whom It wasdIsclosed and the
date ofthe disclosure totherwith a copy of c. A copy ofthe notice and demand sent to
the notice by which the inadvertently the entity or Individual that
disclosing party iequestectthelinmediate inadvertently received the Confidential
return ofthedoc’its. Information.
Why Plaintiffs’ Proposal is Not Acceptable:
The parties generally agree that this protective order should provide procedures to be followed in the
event that Confidential Information is disclosed to a non-Qualified Person. Plaintiffs’ procedure
does not contain the detail necessary to ensure that any inadvertent disclosure of Confidential
Information is fully remedied. First, the paragraph limits the duties to remedy to “any party.”
Confidential Information may be inadvertently disclosed by any Qualified Person, not just a party to
the litigation, and not just during discovery. Second, Plaintiffs’ proposal merely provides
procedures for disclosure of hard-copy documents or other physically tangible items that can be
returned, and does not provide procedures to cover the destruction of ESI. If a non-Qualified Person
receives Confidential Information through electronic transmission or copied or reproduced ESI that
Page 9 of 18
Raul Rodriguez, et a!. v. State Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
is Confidential Information, then the copies could not be returned, but would need to be destroyed.
In addition, the second sentence of Plaintiffs’ proposed paragraph 7 appears to address a separate
procedure for the parties to follow if Confidential Information is disclosed to a Qualified Person, but
that information is not properly designated as confidential. That issue is separate from the issue of
inadvertent disclosure of Confidential Information to a non-Qualified Person, and should be
addressed in a separate paragraph.
Why State Farm’s Proposal is Better:
State Farm’s proposed paragraph 8 ensures that in the event that Confidential Information is
inadvertently disclosed to a non-Qualified Person, there are proper procedures for the destruction of
ESI. Defendants also address the issue of disclosure of Confidential Information without a proper
designation in a separate paragraph (see State Farm’s ¶ 7).
8. The parties generally agree regarding the language of paragraph 8 of Plaintiffs’ Proposed
Protective Order, which corresponds with paragraph 7 of State Farm’s Proposed Protective
Order. The internal reference to subparagraph “7.a.” in Plaintiffs’ proposed subparagraph
8.b., however, should be changed to “8.a.” if Plaintiffs’ paragraph 8 is adopted.
To the extent I t the parties produce
information received from non-parties that
the non-parties have designated as
“confidential” such information shall be
treated as Confidential Information in
accordance with the terms of this Protective
Order.
a. With respect to any document, ESI, or
other material that is produced or
disclosed by a non-party, any party may
designate such information as
Confidential Information within thirty
(30) days of actual knowledge of the
Page lOofI8
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
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production or osure, or such other
time as may be agreed upon by the
parties.
b. Within thirty (30) days of receipt of
such notice, or such other time as may
be agreed upon by the parties, any
parties receiving such notice shall return
to the designating party all undesignated
copies of such information in their
custody or possession, in exchange for
the production of properly designated
information, or alternately (upon the
agreement of the parties) shall (i) affix
the legend to all copies of such
designated information in the party’s
possession, custody, or control
consistent with the terms of this
Protective Order, andJor (ii) with respect
to ESI, take such reasonable steps as
will reliably identify the item(s) as
having been designated as Confidential
Information.
c. Upon notice of designation pursuant to
this Paragraph, the parties also shall: (i)
make no further disclosure of such
designated information except as
allowed under this Order; (ii) take
reasonable steps to notify any persons
who were provided copies of such
designated information of the terms of
this Order; and (iii) take reasonable
steps to reclaim any such designated
information in the possession of any
person not permitted access to such
information under the terms of this
Order. No person shall be deemed to
Page 11 of 18
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (201 4-CVF-001 162-Di)
Comparison of Protective Orders
disclosures made prior to notification of
any subsequent designation.
d. The parties shall serve a copy of this
Order simultaneously with any
discovery request made to a non-party.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposed protective order fails to address the issue of information produced or disclosed
by non-parties.
Why State Farm’s Proposal is Better:
To the extent any party will need to produce Confidential Information provided to it by non-parties
or use Confidential Information produced by non-parties in discovery, its duties to that third party
should be recognized by the protective order. State Farm’s proposal includes these terms to provide
that information from third-parties that may be produced will be protected by the order.
9. Any party may request the party designating 13. If a receiving party makes a good-faith
infomiation as “Confidential” to consent to determination that any materials designated
re-deSignate confidental Information as not Confidential Information are not in fact
confidential, which request shall not be “confidential” or “trade secret,” the receiving
rejected absent a good-faith determination by party may request that a designating party
the designating party that the Cccfldential rescind the designation. Such requests shall
Information is entitled to protection. not be rejected absent a good-tuiith
detenninatlon by the designating party that
the Confidential Information is entitled to
protection.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal imposes a good-faith standard on the designating party but not on the receiving
party.
Page 12 of 18
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Why State Farm’s Proposal is Better:
State Farm’s proposal includes the requirement that the receiving party can only request that the
designating party rescind a Confidential Information designation if that request is made in good-
faith.
10. Deposition testimony is Confidential 10. Deposition testimony is Confidential
Information under the terms of this Order Information under the terms of this Order
only if counsel for a party advises the court only if counsel for a party advises the court
reporter and opposing counsel of that reporter and opposing counsel of that
designation at the deposition, or by written designation at the deposition, or by written
designation to all parties and the court designation to all parties and the court
reporter within thirty (30) business days after reporter within thirty (30) business days after
receiving the deposition transcript. All receiving the deposition transcript. All
deposition transcripts shall be considered deposition transcripts shall be considered
confidential until thirty (30) days following Confidential Information until thirty (30)
the receipt of the deposition transcript. The days following the receipt of the deposition
court reporter shall note on the record the transcript. In the event testimony is
designation of said information as designated as Confidential Information, the
Confidential and shall separately transcribe court reporter shall note the designation on
those portions of the testimony and mark the the record, shall separately transcribe those
face of such portion of the transcript as portions of the testimony, and shall mark the
“Confidential.” The parties may use face of such portion of the transcript as
Confidential Information during any “ConfidentiaL Information.” The parties may
deposition, provided the witness is apprised use Confidential Information during any
of the terms of this Order and executes the deposition, provided:
acknowledgment attached hereto as Exhibit
a. The witness is apprised of the terms of
“A.” The parties may use Confidential
this Order and executes the
Information during a deposition only if the
acknowledgment attached hereto as
room is first cleared of all persons except the
Exhibit A.
court reporter, the witness being deposed,
counsel for the parties and any expert entitled
Page 13 of 18
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
to attend, and only if said witness executes b. Ihe room is cleared of
the acknowledgement attached as Exhibit who are not Qualified Persons.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposed paragraph 10 does not allow all Qualified Persons in attendance at a deposition
to remain in the room while a deponent testifies regarding Confidential Information. Rather, the
attendees are limited to “the court reporter, the witness being deposed, counsel for the parties and
any expert entitled to attend.” It is common practice to have a party representative present at
depositions and party representatives are Qualified Persons under the terms of Plaintiffs’ Proposed
Protective Order. There is no reason to exclude Qualified Persons from a deposition if they are
otherwise entitled to attend the deposition.
Why State Farm’s Proposal is Better:
State Farm’s proposal provides all Qualified Persons may stay in the room if Confidential
Information is discussed during a deposition if they are otherwise entitled to attend the deposition.
The simplified procedure provided in State Farm’s proposal clarifies the standard procedures and
rights related to depositions.
11. The parties agree regarding the language of paragraph 11 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 11 of State Farm’s Proposed Protective Order.
12. The parties agree regarding the language of paragraph 12 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 12 of State Farm’s Proposed Protective Order.
13. At any time after the dei onfidential r making a good-faith t to resolve
Documents, and after making a good-faith any disputes regarding whether any
effort to resolve any disputes regarding designated materials constitute Confidential
whether any designated materials constitute Information, counsel of the party or parties
Confidential Information, counsel of the receiving the Confidential Information may
party or parties receiving the Confidential challenge such designation of all or any
Page 14 of 18
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
Documents may challenge the Confidential portion thereof by providing written notice
designation of all or any portion thereof by the challenge to the designating party’s
providing written notice of the challenge to counsel. The designating party shall have
counsel for the party disclosing or producing thirty (30) days from the date of receipt of a
the Confidential Documents. The party or written challenge to file a motion for specific
parties disclosing or producing the protection with regard to any Confidential
Confidential Documents shall have twenty Information in dispute. If the party or parties
(20) days from the date of receipt of a written producing the Confidential Information does
challenge to file a motion for specific not timely file a motion for specific
protection with regard to any Confidential protection, then the Confidential Information
Documents in dispute. If the party or parties in dispute shall no longer be subject to
producing the Confidential Documents does confidential treatment as provided in this
not timely file a motion for specific Order.
protection, then the Confidential Documents
in dispute shall no longer be subject to
confidential treatment as provided in this
Order.
Why Plaintiffs’ Proposal is Not Acceptable:
In State Farm’s experience, twenty days is too short a time to complete and file a motion for
protective order. Additionally the term “Confidential Documents” is not defined in Plaintiffs’
proposal.
Why State Farm’s Proposal is Better:
State Farm’s proposal provides a designating party thirty days to respond to a written challenge in
order to create consistency and provide a reasonable amount of time for a designating party respond
to a challenge. In addition it uses the term “Confidential Information,” which is consistent with the
other paragraphs in State Farm’s proposed protective order.
14. If a timely motion for speci..c protection is 15. If a timely motion for specific protection is
filed, any disputed document will remain filed, any disputed Confidential Information
Page 15 ofl8
Raul Rodriguez, et a!. v. State Farm Lloyds et a!. (2014-CVF-OO1 162-fl)
Comparison of Protective Orders
confidental untila contrary determinatioil will remain subject to this Order until a
made by the Court and all such documents, contrary determination is made by the Court.
information or testimony shall continue to be At any hearing the designating party shall
treated as Confidential Information until this have the burden to establish that party’s right
Court makes a contrary decision regarding to protection as if this Order did not exist. A
the status of the documents, information or party’s failure to challenge the Confidential
testimony. At any hearing to resolve a Information designation of any documents,
challenge of a Confidential designation, the ESI, information, or testimony does not
party designating the information as constitute an admission that the document,
“Confidential” shall have the burden to ESI, information or testimony is, in fact,
establish that party’s right to protection as if sensitive, confidential, or proprietary. No
this Order did not exist. A party’s failure to party waives its right to contend at trial or
challenge the designation of documents, hearing that such document, ESI,
information, or testimony as “Confidential” information or testimony is not sensitive,
information does not constitute an admission confidential, privileged or proprietary,
that the document, information or testimony provided the party provides notice of
is, in fact, sensitive, confidential, or intention to do so at least twenty (20) days
proprietary. No party waives its right to before such trial or hearing.
contend at trial or hearing that such
document, information or testimony is not
sensitive, confidential, privileged or
proprietary, provided the party provides
notice of intention to do so at least twenty
(20) days before such trial or hearing.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal does not address electronically stored information.
Why State Farm’s Proposal is Better:
Defendants add electronically stored information to the list of relevant information. The parties are
in general agreement regarding this paragraph.
Page 16 of 18
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (2014-CVF-001162-D1)
Comparison of Protective Orders
15. The parties agree regarding the language of paragraph 15 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 16 of State Farm’s Proposed Protective Order.
16. The parties agree regarding the language of paragraph 16 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 17 of State Farm’s Proposed Protective Order.
17. The parties agree regarding the language of paragraph 17 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 18 of State Farm’s Proposed Protective Order.
18. The parties agree regarding the language of paragraph 18 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 19 of State Farm’s Proposed Protective Order.
20. Wii_tbrt3 -
) business days after the
final resolution of this litigation, the
plaintiffs) shall return or destroy
Confidential Information they received
during this litigation. As to those materials
that contain or reflect Confidential
Information, but that constitute or reflect the
plaintiffs) counsel’s own work product,
counsel for the plaintiff(s) are entitled to
retain such work product in their files in
accordance with the provisions of this
Protective Order, so long as the work product
is clearly marked to reflect that it contains
information subject to this Protective Order.
Plaintiffs counsel is entitled to retain
pleadings, affidavits, motions, briefs, other
papers filed with the Court, deposition
transcripts, and the trial record even if such
materials contain Confidential Information,
so long as such materials are clearly marked
to reflect that they contain information
subject to this Protective Order and are
maintained in accordance with the provisions
Page I7of 18
Raul Rodriguez, et a!. i’. State Farm Lloyds et a!. (2014-CVF-0O1 162-D1)
Comparison of Protective Orders
of this Protective Order. ..rr’s counsel
shall certifr in writing compliance with the
provision of this paragraph after forty-five
(45) business days after the final resolution
of this litigation.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ Proposed Protective Order omits clear procedures for the destruction or return of State
Farm’s Confidential Information after the resolution of the matter. This unreasonably enlarges the
likelihood that Confidential Information could be improperly or in&lvertently disclosed to a non-
Qualified Person. Plaintiffs’ proposed order effectively grants an unlimited use license to each
plaintiff or their counsel to retain and use all State Farm’s Confidential Information received for an
unlimited period of time. That unlimited use is clearly beyond the scope of use necessary for the fair
adjudication of this claim.
Why State Farm’s Proposal is Better:
State Farm’s proposal reasonably limits the use of Confidential Information by requiring that State
Farm’s Confidential Information will be destroyed following the resolution of the matter.
Page 18ofl8
___________
Filed
2/23/2015 1118:35AM
Esther Degollado
District Clerk
Webb District
2014CVF001162 Dl
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
Plaintiff, §
§
v. § CIVIL CASE NO. Fl-_____
§
§
§
Defendant. §
PROTECTIVE ORDER
1. Proceedlnas and InformatIon Governed. This Order (“Protective Order”) is made
under Rule 26(c) of the Federal Rules of Civil Procedure (“FED. R. CIV. P.”).
This Protective Order applies to any document, information, or other tangible or
intangible thing (collectively, “documents”) furnished by a party to any other party, as well
as documents furnished by non-parties who receive subpoenas in connection with this action,
if and when the documents are designated by a party or non-party as “Confidential
Information” or “Highly Confidential Information” in accordance with the terms of this
Protective Order. This Protective Order also applies to copies, excerpts, abstracts, analyses,
summaries, descriptions, or other forms of recorded information or data containing,
reflecting, or disclosing all or parts of designated documents.
2. DesIgnation and Maintenance of Documents and Information.
A. “Con fidential Information” designation means that the document contains trade
secrets or commercial information not publicly known, which trade secrets or commercial
information is of technical or commercial advantage to its possessor, in accordance with FED.
R. CIV. P. 26(c)(7), or other information required by law or agreement to be kept confidential.
B. The “Highly Confidential Information” designation means that the document
contains information that the producing party deems especially sensitive, which may include,
but is not limited to, confidential research and development, financial, technical, marketing,
Patenr Protective Order 12/1/09
any other sensitive trade secret information, or information capable of being utilized for the
preparation or prosecution of a patent application dealing with such subject matter.
C. “Confidential Information” and “Highly Confidential Information” does not
include, and this Protective Order does not apply to, documents already in the knowledge or
possession of the party to whom disclosure is made unless that party is already bound by an
agreement not to disclose such information, or information that has been disclosed to the
public or third persons in a manner making such information no longer confidential.
3. Documents Produced In Discovery and Depositions.
A. Documents and things produced during the course of this litigation within
the scope of paragraph 2(A) or 2(8) above, may be designated by the producing party as
containing “Confidential Information” by placing on each page and each thing a legend
substantially as follows:
CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
Documents and things produced during the course of this litigation within the scope of
paragraph 2(A) above may be designated by the producing party as containing “Highly
Confidential Information” by placing on each page and each thing a legend substantially as
follows:
HIGHLY CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
8. Depositions
(i) For deposition testimony or exhibits to be entitled to protection under
this Order, a party must designate the testimony and exhibits disclosed at a deposition as
“Confidential Information” or “Highly Confidential Information” by requesting the reporter
to so designate the transcript or any portion of the transcript at the time of the deposition.
(ii) If no such designation is made at the time of the deposition, any party
has fourteen (14) days after delivery by the court reporter of the transcript of the deposition
session to designate, in writing to the other parties and to the court reporter, what portions
of the transcript and which exhibits the party designates as “Confidential Information” and
“Highly Confidential Information.”
Patent Protective Oider 12/1109 2
(iii) During the transcription and following fourteen (14) day period after a
deposition session, the transcript and exhibits must be treated as Highly Confidential
Lnformation, unless the disclosing party consents to less confidential treatment of the
information.
(iv) Each party and the court reporter must attach a copy of any final and
timeLy written designation notice to the transcript and each copy of the transcript in its
possession, custody or control, and the portions designated in such notice must thereafter be
treated in accordance with this Protective Order. it is the responsibility of counsel for each
party to maintain materials containing Confidential Information or Highly Confidential
Information in a secure manner and appropriately identified so as to allow access to such
information only to such persons and under such terms as is permitted under this Protective
Order.
(v) If no such designation is made at the deposition or within the fourteen
(14) day period following delivery of the transcript, then the entire deposition will be
considered devoid of Confidential Information or Highly Confidential Information.
4. Inadvertent Failure to Designate.
A. The inadvertent failure to designate a documents as “Confidential
Information” or “Highly Confidential Information” will not be a waiver of a claim that the
document Contains confidential information, and will not prevent the producing party from
designating such information as confidential at a later date in writing, so long as the
designation is done with particularity.
B. In the event a producing party late designates a document as “Confidential
Information” or “Highly Confidential Information,” the document must be treated by the
receiving party as confidential from the time of receipt of the notice of the “Confidential
information” or “Highly Confidential Information” designation.
5. Challenges to Designations.
A party’s designation of documents “Confidential Information” or “Highly
Confidential Information” is not binding if the procedures below are followed:
A. A receiving party may challenge a producing party’s designation at any time.
Any receiving party may request in writing that the producing party change the designation.
The producing party within fourteen (14) days after receipt of a written challenge, must
advise the receiving party whether or not it will change the designation.
Patent Protcctive Order 12I/O9 3
B. Jfthe parties are unable to reach agreement after the expiration of this fourteen
(14) day period, they shall confer. If they cannot resolve the issue, the receiving party may
seek an order to alter the confidential status of the designated information.
C. UntiL the presiding judge has ruled on a dispute under this paragraph, the
“Confidential Information” or “Highly Confidential Information” designation will remain
in full force and effect, and the document continues to be protected by this Protective Order.
6. Disclosure and Use of Confidential Information.
A. Information designated as “Confidential Information” or “Highly Confidential
Information” may only be used for purposes of preparation, trial, and appeal of this action.
“Confidential Information” or “Highly Confidential Information” may not be used under any
circumstances for prosecuting any patent application, for patent licensing, or for any other
purpose.
B. Subject to paragraph 9 below, “Confidential Information” may be disclosed by
the receiving party only to the following individuals, provided that such individuals are
informed of the terms of this Protective Order: (a) two employees of the receiving party
who are required in good faith to provide assistance in the conduct of this Litigation,
including any settlement discussions, and who are identified as such in writing to counsel for
the designating party in advance of the disclosure; (b) two in-house counsel who are
identified by the receiving party; (c) outside counsel of record for the receiving party; (d)
supporting personnel employed by(b) and (c), such as paralegals, legal secretaries, data entry
clerks, legal clerks, and private photocopying services; (e) experts or consultants; and (fl
any persons requested by counsel to furnish services such as document coding, image
scanning, mock trial, jury profiling, translation services, court reporting services,
demonstrative exhibit preparation, or the creation of any computer database from documents.
C. Subject to paragraph 9 below, “Highly Confidential Information” may be
disclosed by the receiving party only to the following individuals, provided that such
individuals are informed of the terms of this Protective Order: (a) outside counsel of record
for the receiving party; (b) supporting personnel employed by outside counsel, such as
paralegals, legal secretaries, data entry clerks, legal clerks, private photocopying services;
(c) experts or consultants; and (d)those individuals designated in paragraph 6(F)(c) below.
D. Further, prior to disclosing “Confidential Information” or “Highly Confidential
Information” to a receiving party’s proposed expert, consultant, or employees, the receiving
party must provide to the producing party a signed Confidentiality Agreement in the form
attached as Exhibit A, the resume or curriculum vitae of the proposed expert or consultant,
Pareit Proiccive Order I 2/I /09 4
the expert or consultant’s business affiliation, and any current and past consulting
relationships in the industry. The producing party will thereafter have fourteen (14) days
from receipt of the Confidentiality Agreement to object to any proposed individual. The
objection must be made for good cause and in writing, stating with particularity the reasons
for the objection. Failure to object within fourteen (14) days constitutes approval. If the
parties are unable to resolve any objection, the receiving party may apply to the presiding
judge to resolve the matter. There will be no disclosure to any proposed individual during
the fourteen (14) day objection period, unless that period is waived by the producing party,
or if any objection is made, until the parties have resolved the objection, or the presiding
judge has ruled upon any resultant motion.
E. Counsel is responsible for the adherence by third-party vendors to the terms
and conditions of this Protective Order. Counsel may fulfill this obligation by obtaining a
signed Confidentiality Agreement in the form attached as Exhibit B.
F. “Confidential Information” or “Highly Confidential Information” may be
disclosed to a person who is not already allowed access to such information under this
Protective Order (a) the information was previously received or authored by the person
or was authored or received by a director, officer, employee or agent of the company for
which the person is testifying as a designee under FED. R. Civ. P. 30(b)(6); (b) the
designating party is the person or is a party for whom the person is a director, officer,
employee, consultant or agent; or (c) counseL for the party designating the material agrees
that the material may be disclosed to the person.
In the event of disclosure under this section 6(F), only the reporter, the person, his or
her counsel, the presiding judge, and persons to whom disclosure may be made and who are
bound by this Protective Order, may be present during the disclosure or discussion of
Confidential Information.
Disclosure of material pursuant to this section 6(F) does not constitute a waiver of the
confidential stams of the material so disclosed.
7. Non-Party Information.
The existence of this Protective Order must be disclosed to any person producing
documents, tangible things, or testimony in this action who may reasonably be expected to
desire confidential treatment for such documents, tangible things or testimony. Any such
person may designate documents, tangible things, or testimony confidential pursuant to this
Protective Order.
Pateni Pro1elive Order 12/1/09 5
8. Filing Documents With the Court.
Any party may submit Confidential Information to the court under seal by designating
the document “sealed” in the CM/lCF system of the court or may deliver the document for
filing by the Clerk’s Office. If a party delivers a copy to the court, the document must be in
a sealed envelope bearing the caption of this action and a label containing the following:
CONFIDENTiAL IN FORMATION
[case captioni
This envelope, which is being filed under seal,
contains documents that are subject to a Protective Order
governing the use of confidential discovery material.
9. No Prejudice.
Producing or receiving “Confidential Information” or “Highly Confidential
Information,” or otherwise complying with the terms of this Protective Order, will not: (a)
operate as an admission by any party that any particular “Confidential Information” or
“Highly Confidential Information” contains or reflects trade secrets or any other type of
confidentiaL or proprietary information; (b) prejudice the rights of a party to object to the
production of information or material that the party does not consider to be within the scope
of discovery; (c) prejudice the rights of a party to seek a determination by the presiding
judge that particular materials be produced; (d) prejudice the rights of a party to apply to the
presiding judge for further protective orders; or (e) prevent the parties from agreeing in
writing to alter or waive the provisions or protections provided for in this Protective Order
with respect to any particular information or material.
10. Conclusion of Litigation.
Within sixty (60) days after final judgment in this action, including the exhaustion of
all appeals, or within sixty (60) days after dismissal pursuant to a settlement agreement, each
party or other person subject to the terms of this Protective Order is under an obligation to
destroy or return to the producing party all materials and documents containing “Confidential
that
Information” or “Highly Confidential Information,” and to certify to the producing party
this destruction or return has been done. 1-Jowever, outside counsel for any party is entitled
to retain all court papers, trial transcripts, exhibits, and attorney work provided that any such
materials are maintained and protected in accordance with the terms of this Protective Order.
Patent Plotective Order 12/1/09 6
_____day
II. Other Proceedings.
By entering this Protective Order and limiting the disclosure of information in this
case, the presiding judge does not intend to preclude another court from finding that
information may be relevant and subject to disclosure in another case. Any person or party
subject to this Protective Order who may be subject to a motion to disclose another party’s
information designated “Confidential” or “Highly Confidential” pursuant to this Protective
Order must pro mptly notify that party of the motion so that the party may have an opportunity
to appear and be heard on whether that information should be disclosed.
12. Remedies.
It is ORDERED that this Protective Order will be enforced by the sanctions set forth
in FED. R. Civ. P. 37(a) and any other sanctions as may be available to the presiding judge,
including the power to hold parties or other violators of this Protective Order in contempt.
All other remedies available to any person injured by a violation of this Protective Order are
fully reserved.
13. Relief from Protective Order.
Any party may petition the presiding judge for good cause shown if the party desires
relief from a term or condition of this Protective Order.
Signed at Houston, Texas, this of , 20_.
[Judge’s Namej
United States District Judge
Patenc Protective Order I2/iO9
_____________________________,un
___________
___________
______
__ _______
__________
_______,da
Exhibit A
[CAPTION]
CONFIDENTIALITY AGREEMENT FOR EXPERT,
CONSULTANT OR EMPLOYEES OF ANY PARTY
I, penalty of perjury, 28 U.S.C. § 1746, that:
1. Information, including documents and things, designated as “Confidential
Information” or “HighLy Confidential Information,” as defined in the Protective Order entered in the
above-captioned action (“Protective Order”), is being provided to me pursuant to the terms and
restrictions of the Protective Order.
2. 1 have been given a copy of and have read the Protective Order.
3. I am familiar with the terms of the Protective Order and I agree to comply with and
to be bound by its terms.
4. I submit to the jurisdiction of the United States District Court for the Southern
District of Texas for enforcement of the Protective Order.
5. 1 agree not to use any “Confidential Information” or “Highly Confidential
Information” disclosed to me pursuant to the Protective Order except for purposes of the above-
captioned litigation and not to disclose any of this information to persons other than those
specifically authorized by the Protective Order, wIthout the express written consent of the party who
designated the information as confidential or by order of the presiding judge.
6. 1 also agree to notify any stenographic, clerical or technical personnel who are
required to assist me of the terms of this Protective Order and of its binding effect on them and me.
7. 1 understand that [am to retain all documents or materials designated as or containing
“Confidentia Information” or “Highly Confidential Information” in a secure manner, and that all
l
such documents and materials are to remain in my personal custody until the completion of my
assigned duties in this matter, whereupon all such documents and materials, including all copies
thereot and any writings prepared by me containing any “Confidential Information” or “Highly
Confidential Information” are to be returned to counsel who provided me with such documents and
materials.
Signed at this ,20.
Signature
LA.1’rj c,y of F?P*, cert—
theIW’day o’-tt4Aj 2Of
Patent Protective Ordcr
7 STH
By *puty
____________________________
_______________,
_________,
______,
Exhibit B
[CAPTION]
CONFIDENTIALITY AGREEMENT FOR THIRD-PARTY VENDOR S
1, penalty of perjury, 28 U.S.C. § 1746, that:
1. tnformation, including documents and things, designated as “Confidential
Information” or “Highly Confidential Information” as defined in the Protective Order entered in the
above-captioned action (“Protective Order”), is being provided to me pursuant to the terms and
restrictions of the Protective Order.
2. 1 have been given a copy of and have read the Protective Order.
3. 1 am familiar with the terms of the Protective Order and I agree to comply with and
to be bound by its terms.
4. I submit to the jurisdiction of the United States District Court for the Southern
District of Texas for enforcement of the Protective Order.
5. I agree not to use any ContidentiaL Information or Highly Confidential Infonnation
disclosed to me pursuant to the Protective Order except for purposes of the above-captioned
litigation and not to disclose any of this information to persons other than those specifically
authorized by the Protective Order, without the express written consent of the party who designated
the information as confidential or by order of the presiding judge.
Signed
at
this day of —, 20_.
Signature
Patet Protcctivc 9
Filed
2/23/2015 11:1835 AM
Esther Degollado
District Clerk
Webb District
2014CVF001152 Dl
iN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
§
§
Plaintiff §
v. § CIVIL ACTION NO.
§
§
Defendant §
CONF[DENTIALITY AND PROTECTIVE ORDER
Before the court is the joint motion of the parties for the entry of a confidentiality and
protective order (“Protective Order”). After careful consideration, it is hereby ORDERED as
follows:
1. Classified information
“Classified Information” means any information of any type, kind, or character that is
designated as “Confidential”, “For Counsel Only”, or “Attorneys Eyes Only” by any of the
supplying or receiving persons, whether it be a document, information contained in a document,
information revealed during a deposition, information revealed in an interrogatory answer, or
otherwise.
2. Qualified Persons
“Qualified Persons” means:
a. For Counsel or Attorneys Only information:
1. retained counsel fur the parties in this litigation and their respective staff;
ii. actual or potential independent experts or consultants (and their
administrative or clerical staff) engaged in connection with this litigation
(which shall not include the current employees, officers, members, or
agents of parties or affiliates of parties) who, prior to any disclosure of
Classified Information to such person, have signed a document agreeing to
be bound by the tenns of this Protective Order (such signed document to
be maintained by the attorney retaining such person and have been
designated in writing by notice to all counsel;
iii. this court and its staff and any other tribunal or dispute resolution officer
duly appointed or assigned in connection with this litigation.
b. For Confidential information:
i. the persons identified in subparagraph 2(a);
ii. the party, if a natural person;
iii. if the party is an entity, such oflicers or employees of the party who are
actively involved in the prosecution or dcfense of this case who, prior to
any disclosure of Confidential information to such person, have been
designated in writing by notice to all counsel and have signed a document
agreeing to be bound by the terms of this Protective Order (such signed
document to be maintained by the attorney designating such person);
iv. litigation vendors, court reporters, and other litigation support personnel;
v. any person who was an author, addressee, or intended or authorized
recipient of the Confidential information and who agrees to keep the
information confidential, provided that such persons may see and use the
Confidential information but not retain a copy.
c. Such other person as this court may designate after notice and an opportunity to
be heard.
3. Designation Criteria
a. Nonclassifled Information. Classified Information shall not include information
that either:
i. is in the public domain at the time of disclosure, as evidenced by a written
document;
ii. becomes part of the public domain through no fault of the recipient, as
evidenced by a written document;
iii. the receiving party can show by written document was in its rightful and
lawful possession at the time of disclosure; or
iv. lawfully comes into the recipient’s possession subsequent to the time of
disclosure from another source without restriction as to disclosure,
provided such third party has the right to make the disclosure to the
receiving party.
b. ClassUied Information. A party shall designate as Classified Information only
[21
such information that the party in good faith believes in fact is confidential. Information that is
generally available to the public, such as public filings, catalogues, advertising materials, and the
like, shall not he designated as Classified.
Inlbrmation and documents that may be designated as Classified Information include, but
are not limited to, trade secrets, confidential or proprietary financial information, operational
data, business plans, and competitive analyses, personnel files, personal information that is
protected by law, and other sensitive information that, if not restricted as set forth in this order,
may subject the producing or disclosing person to competitive or financial injury or potential
legal liability to third parties.
Correspondence and other communications between the parties or with nonparties may
be designated as Classified lnfbrmation if the communication was made with the understanding
or reasonable expectation that the information would not become generally available to the
public.
c. For Counsel or Attorneys Only. Ihe designation “For Counsel Only” or
“Attorneys Eyes Only” shall be reserved for information that is believed to be unknown to the
opposing party or parties, or any of the employees of a corporate party. For purposes of this
order, so-designated information includes, but is not limited to, product formula information,
design information, non-public financial information, pricing information, customer identification
data, and certain study methodologies.
d. Ultrasensitive Informalion At this point, the parties do not anticipate the need for
higher levels of confidentiality as to ultrasensitive documents or information. However, in the
event that a court orders that ultrasensitive documents or information be produced, the parties
will negotiate and ask the court to enter an ultrasensitive information protocol in advance of
production to further protect such information.
4. Use of Classified Information
All Classified Information provided by any party or nonparty in the course of this
[3]
litigation shall be used solely for the purpose of preparation, trial, and appeal of this litigation
and for no other purpose, and shall not be disclosed except in accordance with the terms hereof
5. Marking of Documents
Documents provided in this litigation may he designated by the producing person or by
any party as Classified Information by marking each page of the documents so designated with a
stamp indicating that the information is “ConfidentiaL”, “For Counsel Only”, or “Attorneys Eyes
Only”. In lieu of marking the original of a document, lithe original is not providcd, the
designating party may mark the copies that are provided. Originals shall be preserved for
inspection.
6. Disclosure at Dcpositions
Information disclosed at (a) the deposition of a party or one of its present or former
officers, directors, employees, agents, consultants, representatives, or independent experts
retained by counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be
designated by any party as Classified Information by indicating on the record at the deposition
that the testimony is “Confidential” or “For Counsel Only” and is subject to the provisions of this
Order.
Any party also may designate information disclosed at a deposition as Classified
Information by notifying all parties in writing not later than 30 days of receipt of the transcript of
the specific pages and lines of the transcript that should be treated as Classified Information
thereafter. Each party shall attach a copy of each such written notice to the face of the transcript
and each copy thereof in that party’s possession, custody, or control. All deposition transcripts
shall be treated as For Counsel Only for a period of 30 days after initial receipt of the transcript.
To the extent possible, the court reporter shall segregate into separate transcripts
information designated as Classified Information with blank, consecutively numbered pages
bcing provided in a riondesignated main transcript. The separate transcript containing Classified
Information shall have page numbers that correspond to the blank pages in the main transcript.
Counsel for a party or a nonparty witness shall have the right to exclude from depositions
[4j
any person who is not authorized to receive Classified Information pursuant to this Protective
Order, hut such right of exclusion shall be applicable only during periods of examination or
testimony during which Classified Information is being used or discussed.
7. Disclosure to Qualified Persons
a. To Whom. Classified Information shall not be disclosed or made available by the
receiving party to persons other than Qualified Persons except as necessary to comply with
applicable law or the valid order of a court of competent jurisdiction; provided, however, that in
the event of a disclosure compelled by law or court order, the receiving party will so notify the
producing party as promptly as practicable (if at all possible, prior to making such disclosure)
and shall seek a protective order or confidential treatment of such intbrmation. Information
designated as For Counsel Only shall be restricted in circulation to Qualified Persons described
in subparagraph 2(a).
b. Retenilon of Copies During this Liigation. Copies of For Counsel Only
inftrmation shall be maintained only in the offices of outside counsel for the receiving party and,
to the extent supplied to experts described in subparagraph 2(a)(ii), in the offices of those
experts. Any documents produced in this litigalion, regardless of classification, thai. are provided
to Qualified Persons shall be maintained only at the office of such Qualified Person and only
necessary working copies of any such documents shall be made. Copies of documents and
exhibits containing Classified Information may be prepared by independent copy services,
printers, or illustrators for the purpose of this litigation.
c. Each party’s outside counsel shall maintain a log of all copies of For Counsel Only
documents that are delivered to Qualified Persons.
8. Unintentional Disclosures
Documents unintentionally produced without designation as Classified Information later
may be designated and shall be treated as Classified Information from the date written notice of
the designation is provided to the receiving party.
If a receiving party learns of any unauthorized disclosure of Confidential inlbrniation or
[5]
For Counsel Only information, the party shall immediately upon learning of such disclosure
inform the producing party of all pertinent facts relating to such disclosure and shall make all
reasonable efforts to prevent disclosure by each unauthorized person who received such
information.
9. Documents Produced for Inspection Prior to Designation
In the event documents are produced for inspection prior to designation, the documents
shall be treated as For Counsel Only during inspection. At the time of copying for the receiving
parties, Classified Information shall be marked prominently “Confidential”, “For Counsel Only”,
or “Attorneys Eyes Only” by the producing party.
10. Consent to Disclosure and Use in Examination
Nothing in this order shall prevent disclosure beyond the terms of this order if each party
designating the information as Classified Information consents to such disclosure or if the court,
afler notice to all affected parties and nonparties, orders such disclosure. Nor shall anything in
this order prevent any counsel of record from utilizing Classified Infonnation in the examination
or cross-examination of any person who is indicated on the document as being an author, source,
or recipient of the Classified Information, irrespective of which party produced such information.
11. Challenging the Designation
a. C1assfled Information. A party shall not he obligated to challenge the propriety
of a designation of Classified Information at the time such designation is made, and a failure to
do so shall not preclude a subsequent challenge to the designation. In the event that any party to
this litigation disagrees at any stage of these proceedings with the designation of any information
as Classified Information, the parties shall first try to resolve the dispute in good faith on an
informal basis, such as by production of redacted copies. If the dispute cannot be resolved, the
objecting party may invoke this Protective Order by objecting in writing to the party who
designated the document or information as Classified Information. The designating party shall
then have 14 days to move the court for an order preserving the designated status of the disputed
information. The disputed information shall remain Classified Information unless and until the
[6j
court orders otherwise. Failure to move for an order shall constitute a termination of the status of’
such item as Classified Information.
b. Qualified Persons. In the event that any party in good faith disagrees with the
designation of a person as a Qualified Person or the disclosure of particular Classified
Information to such person, the parties shall first try to resolve the dispute in good faith on an
informal basis. If the dispute cannot be resolved, the objecting party shall have 14 days from the
date of the designation or, in the event particular Classified Information is requested subsequent
to the designation of the Qualified Person, 14 days from service of the request to move the court
for an order denying the disposed person (a) status as a Qualified Person, or (b) access to
particular Classified Information. The objecting person shall have the burden of demonstrating
that disclosure to the disputed person would expose the objecting party to the risk of serious
harm. Upon the timely tiling of such a motion, no disclosure of Classified Information shall be
made to the disputed person unless and until the court enters an order preserving the designation.
12. Manner of Use in Proceedings
In the event a party wishes to use any Classified Information in affidavits, declarations,
briefs, memoranda of law, or other papers filed in this litigation, the party shall do one of the
following: (I) with the consent of the producing party, file only a redacted copy of the
information; (2) where appropriate (e.g., in connection with discovery and evidentiary motions)
with
provide the information solely for in camera review; or (3) file such information under seal
the court consistent with the sealing requirements of the court.
13. Filing Under Seal
The clerk of this court is directed to maintain under seal all documents, transcripts of
seal in
deposition testimony, answers to interrogatories, admissions, and other papers filed under
this litigation that have been designated, in whole or in part, as Classified lntbrmation by any
party to this litigation consistent with the sealing requirements of the court.
14. Return of Documents
Not later than 120 days after conclusion of this litigation and any appeal related to it, any
[7]
Classified Information, all reproductions of such information, and any notes, summaries, or
descriptions of such information in the possession of any of the persons specified in paragraph 2
(except subparagraph 2(a)(iii)) shall be returned to the producing party or destroyed, except as
this court may otherwise order or to the extent such information has been used as evidence at any
trial or hearing. Notwithstanding this obligation to return or destroy information, counsel may
retain attorney work product, including document indices, so long as that work product does not
duplicate verbatim substantial portions of the text of any Classified Information.
15. thigoing Obligations
Insofar as the provisions of this Protective Order, or any other protective orders entered
in this litigation, restrict the communication and use of the information protected by it, such
provisions shall continue to be binding after the conclusion of this litigation, except that (a) there
shall be no restriction on documents that are used as exhibits in open court unless such exhibits
were filed under seal, and (b) a party may seek the written permission of the producing party or
order of the court with respect to dissolution or modification of this, or any other, protective
order.
16. Advice to Clients
This order shall not bar any attorney in the course of rendering advice to such attorney’s
client with respect to this litigation from conveying to any party client the attorney’s evaluation
in a general way of Classified Information produced or exchanged under the terms of this order;
provided, however, that in rendering such advice and otherwise communicating with the client,
the attorney shall not disclose the specific contents of any Classified Information produced by
another party if such disclosure would be contrary to the terms of this Protective Order.
17. Duty to Ensure Compliance
Any party designating any person as a Qualified Person shall have the duty to reasonably
ensure that such person observes the terms of this Protective Order and shall be responsible upon
breach of such duty for the failure of such person to observe the terms of this Protective Order.
[81
__
________
18. Waiver
Pursuant to Federal Rule of Evidence 502, neither the attorney-client privilege nor work
product protection is waived by disclosure connected with this litigation.
19. Modification and Exceptions
The parties may, by stipulation, provide for exceptions to this order and any party may
seek an order of this court modifying this Protective Order.
It is SO ORDERED this day of , 20
UNITED STATES DISTRICT JUDGE
the
By
[9]
Filed
2/23/2015 11:18 35AM
Esther Dlado
1/22/2015 3:4qlerk
Esther gbliaUstrict
2014 CC*t)Q Dl
Webb District
201 4-CVF-0D1 1 62-Di
CAUSE NO. 2014-CVF-001162-D1
RAUL RODRIGUEZ AND NOEW § IN THE DISTRICT COURT OF
RODRIGUEZ, §
§
Plaintiffs, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
FELIPE FARJAS, §
§
TH
49
Defendants. § JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced by the parties and non-parties in this litigation, and that the following
provisions, limitations, and prohibitions are appropriate pursuant to and in conformity with the
Texas Rules of Civil Procedure. Therefore, it is hereby ORDERED that:
I. All Confidential Information produced or exchanged in the course of this litigation shall
be used solely for the purpose of the preparation and trial of this litigation and other related
litigation against State Farm Lloyds (including its employees) or any third party adjusting
firm (including its employees) that adjusted claims arising out hailstorms and/or
windstorms in Texas with a date of loss in 2012, and for no other purpose. “Related
Litigation” means a first-party lawsuit in Texas by an insured against State Farm Lloyds
and its adjusters or adjusting companies that produced the Confidential Information for
damages to insured property arising out of hailstorms and/or windstorrns in Texas with a
date of loss in 2012. Confidential Information shall not be disclosed to any person except
in accordance with the terms of this Order.
EXHIBIT
2. “Confidential Information,” as used herein, means any information of any type which is
designated as “Confidential” by any of the supplying or receiving parties, including
information received from non-parties, whether it is a document, information contained in a
document, inforniation revealed during a deposition, information revealed in an
interrogatory answer or otherwise. At the sole discretion of the producing party, the
producing party may place on any documents that are subject to this Protective Order, bates
numbers and/or a legend to indicate the document is “Confidential,” subject to a Protective
Order and is produced under the specific cause number; however, the producing party shall
not label designated documents with a watermark.
3. The disclosure of Confidential Inforniation is restricted to Qualified Persons. “Qualified
Persons,” as used herein, means: the parties to pending litigation arising out of hailstorms
and/or windstorrns in Texas a date of loss in 2012; their respective counsel; counsel’s staff;
expert witnesses; outside service providers and consultants providing services related to
document and ESI processing, hosting, review, and production; the Court; other court
officials (including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any other
person may be designated as a Qualified Person by order of this Court, after notice to all
parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential Information to
a person who is not a Qualified Person or counsel for the party designating party, and
consent shall not he unreasonably withheld. However, until said requesting party receives
written consent to further disclose the Confidential Information, the further disclosure is
hereby prohibited and shall not be made absent further order of this Court. If the
Page 2
designating party grants its consent, then the person granted consent shall become a
Qualified Person under this Order.
5. Lead counsel for each party shall provide a copy of this Order to any person to whom
Confidential Information is to be disclosed, including each party such counsel represents,
and shall advise such person of the scope and effect of the confidentiality provisions of this
Order and the possibility of punishment by contempt for violation thereof. Further, before
disclosing Confidential Information to any person, lead counsel for the party disclosing the
information shall obtain the written acknowledgment of that person binding him or her to
the terms of this Order. The written acknowledgment shall be in the form of “Exhibit A”
attached hereto. Lead counsel for the disclosing party shall retain the original written
acknowledgment, and furnish a copy of the signed written acknowledgment to counsel for
the party designating the information as confidential within ten (10) business days.
6. Information shall be designated as Confidential information within the meaning of this
Protective Order by following the protocol below that corresponds to the format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Pursuant to a Conf. Agree./Prot. Order” or “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Cont Agree./Prot. Order,” but not so as to obscure
the content of the document.
b. For static image productions by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Page 3
Pursuant to a Conf. Agree./Prot. Order” or “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Agree./Prot. Order,” but not so as to obscure
the content of the image.
c. For native format productions, by prominently labeling the delivery media for ESI
designated as Confidential Information as follows: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or “Confidential
Proprietary & Trade Secret/Produced Pursuant to a Conf. Agree./Prot. Order.” In
addition, at the election of the producing party, the electronic file may have
appended to the file’s name (immediately following its Bates identifier) the
following protective legend: “CONFiDENTIAL
SUBJ TO PROTECTI yE ORDER IN CA USE NO. 20/4-C VF-001 162-Di;
Noerni Rodriguez and Raul Rodriguez vs. State Farm Lloyds and Felipe Farius In
th
49
the District Court of Webb County, Texas, Judicial District” When any file so
designated is converted to a hard copy or static image for any purpose, the
document or image shall bear on each page a protective legend as described in
6.a. and 6.b. above. If a native file containing Confidential Information is used
during a deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file must
append the the file’s name (immediately following its Bates identifier) the
following protective legend: “CONFIDENTIAL
SU BJ_TO_PROTECTI V EORDER_IN_ CA USE NO. 2014-C VF-001 I 62-Di;
Noenii Rodriguez and Razil Rodriguez vs. State Farm Lloyds and Felipe Farias In
the District Court of Webb County, Texas, ‘49” Judicial District” if such legend
Page 4
does not already appear in the file name. Any party using a native tile containing
Confidential Information in a deposition, hearing, or at trial must indicate the
designation on the record so that it is reflected in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may place on any
hard-copy documents that are subject to this Protective Order waterniarks or seals
to indicate the document is subject to a Protective Order and is produced under the
specific cause number.
7. Any party who inadvertently discloses Confidential Information during the discovery
process shall, immediately upon discovery of the inadvertent disclosure, give notice in
writing to the party or parties in possession of such information that the information is
designated as “Confidential” and shall request its immediate return. After receipt of such
notice, the parties shall treat the infonnation so designated as Confidential Information
under the terms of this Order, unless released of this duty by further order of this Court.
Additionally, any party who inadvertently discloses Confidential Information during the
discovery process shall, immediately upon discovery of the inadvertent disclosure, give
notice in writing to the party which produced and provided this information, the names and
addresses of the persons to whom it was disclosed and the date of the disclosure together
with a copy of the notice by which the inadvertently disclosing party requested the
immediate return of the documents.
8. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days of entry
of this Order by providing written notice to the receiving parties of the Bates identifier or
other identifying characteristics for the Confidential Information.
Page 5
a. Within thirty (30) days of receipt of such notice, or such other time as may be
agreed upon by the parties, any parties receiving such notice shall return to the
designating party all undesignated copies of such information in their custody and
possession, in exchange for the production of properly designated information, or
alternatively (upon the agreement of the parties) shall (i) affix the legend to all
copies of such designated information in the party’s possession, custody, or control
consistent with the terms of this Protecti’e Order, and/or (ii) with respect to ESI,
take such reasonable steps as will relialy identifS’ the item(s) as having been
designated as Confidential Information.
b. Information that is unintentionally or inadvertently produced without being
designated as Confidential Information may be retroactively designated by the
producing party in the manner described in paragraph 7.a. above. If a retroactive
designation is provided to the receiving party in accordance with texas Rule of
Civil Procedure 193.3(d) the receiving pan:y must (i) make no further disclosure of
such designated information except as allowed under this Order; (ii) take reasonable
steps to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to reclaim any
such designated information in the possess on of any person not permitted access to
such information under the terms of this Crder. No party shall be deemed to have
e prior to notification of any subsequent
violated this Order for any disclosures mac
1
designation.
9. Any party may request the party designating inforriation as “Confidential” to consent to re
designate confidential information as not confidential, which request shall not be rejected
Page 6
absent a good-faith determination by the designating party that the Confidential
Information is entitled to protection.
10. Deposition testimony is Confidential Information under the terms of this Order only if
counsel for a party advises the court reporter and opposing counsel of that designation at
the deposition, or by written designation to all parties and the court reporter within thirty
(30) business days after receiving the deposition transcript. All deposition transcripts shall
be considered confidential until thirty (30) days following the receipt of the deposition
transcript. The court reporter shall note on the record the designation of said information as
Confidential and shall separately transcribe those portions of the testimony and mark the
face of such portion of the transcript as “Confidential.” The parties may use Confidential
Information during any deposition, provided the witness is apprised of the terms of this
Order and executes the acknowledgment attached hereto as Exhibit “A.” The parties may
use Confidential In formation during a deposition only if the room is first cleared of all
persons except the court reporter, the witness being deposed, counsel for the parties and
any expert entitled to attend, and only if said witness executes the acknowledgement
attached as Exhibit “A.”
II. In the case of interrogatory answers, responses to request for production, and responses to
requests for admissions, the designation of Confidential Information will be made by
means of a statement in the answers or responses specifying that the answers or responses
or specific parts thereof are designated as Confidential Information. A producing party
shall place the following legend on each page of the interrogatory answers or responses to
requests for admission: “Contains Confidential Information.”
12. Confidential Information disclosed during a mee. and confer or otherwise exchanged in
Page 7
informal discovery, shall be protected pursuant to this Order if counsel for the disclosing
party advises the receiving party the information is Confidential Information. If the
Confidential Information disclosed during a meet and confer or otherwise exchanged in
informal discovery is in the fonii of hard-copy documents, static images, or native files,
that information shall be designated as Confidential Information pursuant to paragraphs 6
a., b., and/or c. depending on the format of the materials introduced.
13. At any time after the delivery of Confidential Documents, and after making a good-faith
effort to resolve any disputes regarding whether any designated materials constitute
Confidential Information, counsel of the party or parties receiving the Confidential
Documents may challenge the Confidential designation of all or any portion thereof by
providing written notice of the challenge to counsel for the party disclosing or producing
the Confidential Documents. The party or parties disclosing or producing the Confidential
Documents shall have twenty (20) days from the date of receipt of a written challenge to
file a motion for specific protection with regard to any Confidential Documents in dispute.
If the party or parties producing the Confidential Documents does not timely file a motion
for specific protection, then the Confidential Documents in dispute shall no longer be
subject to confidential treatment as provided in this Order.
14. If a timely motion for specific protection is filed, any disputed document will remain
confidential until a contrary determination is made by the Court and all such documents,
information or testimony shall continue to be treated as Confidential Information until this
Court makes a contrary decision regarding the status of the documents, information or
testimony. At any hearing to resolve a challenge of a Confidential designation, the party
designating the information as “Confidential” shall have the burden to establish that party’s
Page 8
right to protection as if this Order did not exist. A party’s failure to challenge the
designation of documents, information, or testimony as “Confidential” information does
not constitute an admission that the document, information or testimony is, in fact,
sensitive, confidential, or proprietary. No party waives its right to contend at trial or hearing
that such document, information or testimony is not sensitive, confidential, privileged or
proprietary, provided the party provides notice of intention to do so at least twenty (20)
days before such trial or hearing.
IS. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain information derived therefrom, shall be considered Confidential
Information and shall be governed by the terms of this Order. These papers shall be filed
under seal and shall remain sealed with the District Clerk’s Office so long as the materials
retain their stratus as Confidential Information.
16. Pursuant to the agreement of the parties, no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client privilege
or of any applicable work product protection in this or any other federal or state
proceeding. This Protective Order applies to any information disclosed, exchanged,
produced, or discussed — whether intentionally or inadvertently — among the parties, their
counsel and/or any agents (such as vendors and experts) in the course of this litigation.
Upon learning of a production of privileged or work product protected information, the
producing party shall within ten (10) days give all counsel of record notice of the
production pursuant to Texas Rule of Civil Procedure 193.3(d). The receiving party must
promptly return, sequester or destroy the produced information and all copies and destroy
any notes that reproduce, copy, or otherwise disclose the substance of the privileged or
Page 9
_____
work product protected information.
17. Further, production pursuant to this Protective Order shall not be deemed a waiver of:
a. Any party’s right to object to any discovery request on any ground.
b. Any party’s right to seek an order compelling discovery with respect to any
discovery request.
c. Any party’s use and review of its own Confidential Information in its sole and
complete discretion.
d. The status of any material as a trade secret.
18. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
This Order shall remain in effect unless or until amended, altered, modified, or
vacated by the Court or by the written agreement of all parties to this action filed with
the Court, pursuant to Rule 11 of the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of , 2015.
JUDGE PRESIDING
Page 10
___________________________, ___________________________,
EXHIBIT “A”
CAUSE NO. 2014-CVF-001969-D4
LUIS MACHADO AND ROSA A. § IN THE DISTRICT COURT OF
MACHADO, §
§
Plaintiffs, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
GILBERT SANTOS, §
§
Defendants. § 406TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, of in order to be provided access to
information designated as “Confidential” under the Protective Order entered in the 49th Judicial
District Court of Webb County, Texas (the “Court”) in C4USE NO. 2014-C VF-001162-D1;
Noe,ni Rodriguez and Raul Rodriguez vs. State Farm Lloydc and Felioe Faria.c In the District
Court of Webb County, Texas, Judicial District (the “Lawsuit”), represent and agree as
follows:
I. I have been provided with a copy of the Protective Order entered by the Court in the
Lawsuit, I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all “Confidential” information to which I am given access in
connection with the Lawsuit, I agree to be bound by the provisions of the Protective
Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. 1 agree that copies of this undertaking will be sent to counsel of record for all parties in
the Lawsuit.
DATED: SIGNATURE:
TAB 9
OF THE RECORD
Filed
3/3/2015 1 09 14 PM
Esther Degollado
District Clerk
Webb District
201 4-CVF-001 048-D1
CAUSE NO. 2014-CVF-001048-D1
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE AND OBJECTIONS TO
PLAINTIFF’S MOTION FOR ENTRY OF PROTECTIVE ORDER
AND
PLAINTIFF ’S RESPONSE TO DEFENDAN TS’ MOTION FOR ENTRY OF STATE
FARM’S PROPOSED PROTECTIV E ORDER
TO THE HONORABLE JUDGE OF THIS COURT:
COMES NOW, Alma Pena (“Plaintiff’), and files this Plaintiff’s Reply to Defendants’
Response and Objections to Plaintiffs Alotion for Entiy of Protective Order and Plaintiffs’
Response to Defendants’ Motion/br Entiy ofState Farm ‘s Proposed Protective Order. Plaintiff
respectfully asks the Court: (1) to deny the Defendants’ Motion for Entiy of State Farm’s
Proposed Protective Order filed by State Farm Lloyds (“State Farm” or “Defendant”); (2) to
grant Piaintiffs Motion for Entry ofProtective Order, and order Defendants to fully respond to
Plaintiffs discovery requests and enter Plaintiff’s proposed Protective Order, attached hereto as
Exhibit A. In support thereof and pursuant to the Texas Rules of Civil Procedure. Plaintiff
would respectfully show this Honorable Court the following:
I.
SUMMARY OF ARGUMENT
1. State Farm has filed a Response to Plaintiff’s IIotion for Protective Order and its own
Motion for Protective Order, wrongly contending that the Court should enter State Farnis
Protective Order to effectively protect it from Plaintiff’s discovery that seeks the production of
confidential and privileged information, including the production of trade secrets. All of
Defendant’s arguments and justifications for its proposed Protective Order are without merit
because they have already been adequately addressed by Plaintiff’s Proposed Protective Order.
State Farm has previously agreed to and litigated cases under the limitations, disclosures,
and protections contained in Plaintiffs Proposed Protective Order in substantially similar
litigation across this state; therefore, there is no valid reason for Defendants’ opposition to
Plaintiff’s proposed protective order, or for the Court to invest time, resources, and efforts
its own
hi die litigation of the previously agreed-on issues raised now by Defendant in
Order.
Motion and disputed hi State Fann’s Response to Plaintiff’s Proposed Protective
be
Accordingly, State Farm’s Motion should be denied and Plaintiff’s Protective Order should
entered in this case.
II.
INTRODUC TION & BACKGROUND
2. The causes of action made the basis of this lawsuit arise out of an insurance claim made
by Plaintiff for hail storm and/or windstorm damages to her real property located in Webb
County, Texas (“the Property”) sustained on or about June 7, 2013. Defendant failed to conduct
a reasonable investigation and failed to pay the frill proceeds of the Policy. As a result, Plaintiff
brought suit against all Defendants for damages resulting from the mishandling of Plaintiffs
claims for coverage and asserted causes of action against Defendant State Farm for breach of
Page 2
contract, breach of the common law duty of good faith and fair dealing, violations of the Texas
Insurance Code, common law fraud and conspiracy to commit fraud.
3. Plaintiff filed a Motion to Strike Dejbndants’ Objections to Plaintiff’s Written Discovery
Requests and Motion to Compel Discovery, (“Motion to Compel”), on January 22, 2015,
requesting an Order from the Court compelling State Farm to fully respond to Plaintiff’s
discovery requests.
4. Plaintiff contemporaneously filed Plaintifls tiotion for Entry qf Protective Order,
(“Motion for Protective Order”) requesting that the Court enter Plaintiff’s Proposed Protective
Order, which is consistent with protective orders previously entered and used for substantially
similar litigation involving Plaintiffs counsel and State Farm. Plaintiff has attached hereto as
Exhibit A the Proposed Protective Order, originally filed with Plaintiffs Motion for Protective
Order.
5. Plaintiff hereby incorporates by reference, as if fully asserted herein, the arguments and
authorities, including all attached exhibits, asserted in Plaintiffs Motion to Compel and
Plaintiffs Motion for Protective Order.
6. Plaintiff would show that Defendant’s Motion for Protection Order should be denied, as
Plaintiffs proposed protective order provides all parties, including State Fann Lloyds, adequate
protection from disclosure of trade secret and proprietary infonnation. Further, Plaintiffs
Motion to Compel should be granted accordingly and Defendants ordered to fully respond to
Plaintiffs discovery requests and to prodnce all responsive documents and information in their
possession, custody, or control, including responsive materials previously withheld subject to
such claims of privilege.
Page 3
III.
ARGUMENT AND AUTHORITIES
A. Plaintiffs Proposed Protective Order Wifi Adequately Protect Defendants.
7. Plaintiff asserts that her Proposed Protective Order will adequately address Defendant’s
concerns as to trade secrets and adequately protect Defendant.’ Plaintiffs Proposed Protective
Order is consistent with protective orders previously entered and used for substantially similar
litigation involving Plaintiffs counsel and State Farm. and will protect State Farm. with respect
to disclosure—in the course of discovery in this case—of documents and information that
Defendant claims constitute trade secrets or proprietary material.
S. State Farm argues that it needs the Court to enter its Protective Order to provide a shield
from parties seeking the discovery of confidential infornrntion and docnments. However,
Plaintiffs Proposed Protective Order contains numerous protections for the same type of
information Defendant refuses to produce because of its confidentiality. For example, Plaintiff’s
proposed Protective Order provides the following, among other protections:
All Confidential Information produced or exchanged in the course of this
litigation shall he used solely for the purpose of the preparation and trial of this
litigation and other related litigation against State Farm Lloyds (including its
employees) or any third party’ adjusting finn (including its employees) that
adjusted claims arising out hailstorms and/or windstorms in Texas with a date of
loss in 2013, and for no other purpose. “Related Litigation” means a first-party
lawsuit in Texas by an insured against State Farm Lloyds and its adjusters or
adjusting companies that produced the Confidential Information for damages to
insured property arising out of hailstorms and/or windstonns in Texas with a date
of loss in 2013. Confidential Information shall not he disclosed to any person
except in accordance with the terms of this Order.
2
The disclosure of Confidential Information is restricted to Qualified Persons.
3
See Plaintiffs’ “Exhibit A”
2
See Exhibit A. ¶1.
See Exhibit A, ¶3.
Page 4
Lead counsel for each patty shall provide a copy of this Order to any person to
whom Confidential Information is to be disclosed, including each party such
counsel represents. and shall advise such person of the scope and effect of the
confidentiality provisions of this Order and the possibility of punishment by
contempt for violation thereof Further, before disclosing Confidential Information
to any person, lead counsel for the party disclosing the information shall obtain the
written acknowledgment of that person binding him or her to the tenns of this
4
Order.
Any party who inadvertently discloses Confidential Information during the
discovery process shall, immediately upon discovery of the inadvertent
disclosure, give notice in writing to the party or parties in possession of such
information that the information is designated as “Confidential” and shall request
its immediate return. Afier receipt of such notice, the parties shall treat the
information so designated as Confidential Infonnation tinder the tenus of this
Order, unless released of this duty by further order of this Court.
Any papers filed with the Court in this action that make reference to Confidential
Information, or contain infonnation derived therefrom, shall he considered
Confidential Information and shall be governed by the terms of this Order. These
papers shall be filed under seal and shall remain sealed with the District Clerk’s
Office so long as the materials retain their status as Confidential Information.
6
9. Plaintiff’s protective order, as written, provides adequate protection of Defendants’ trade
secret and/or confidential information.As shown above, many of the issues raised in
Defendant’s motion are covered by provisions included in Plaintiff’s proposed protective order.
As such, Defendant’s Motion for Protective Order provides basically nothing new and should he
denied.
See Exhibit A, ¶5.
See Exhibit A, ¶7.
o Exhibit A. 95.
Page 5
B. Texas Law Authorizes Shared Discovery
10. Defendant complains that Plaintiffs Proposed Protective Order does not adequately
address handling of confidential information because it omits clear procedures for the destruction
or return of State Farm’s confidential information after the resolution of the matter. This
argument fails because Plaintiffs Proposed Protective Order not only effectively addresses the
handling of confidential information, as shown above, but also is adequate in light of Plaintiffs
need for shared discovery, which Defendants oppose. Plaintiff’s Proposed Protective Order
defines “Confidential Information” as any information of any type which is designated as
7 This would include all Confidential
“Confidential” by any of the supplying or receiving parties.
Infommtion.
11. Defendant also complains that Plaintiff’s Proposed Protective Order does not limit the
use of State Fan’s trade secret material to this litigation. However. Texas law is clear that
public policy favors shared discovery, which permits litigants to share othenvise confidential
documents produced in discovery by a common adversary. Shared discovery is not only allowed
and appropriate where there are several suits concerning the same subject matter, hut also should
he used in those situations because it is an effective means to insure full and fair disclosure and
make the discovery process more efficient.
8
12. In considering shared discovery, the trial court should balance the competing interests of
the parties and approve an order that protects trne trade secrets and confidential information from
State Farm’s competitors yet allows for proper use by other litigants involved in actions against
this repeat defendant. Under the doctrine of shared discovery, the products of discovery may be
See Exhibit A. ¶2
8
See Garcia i Feeples. 734 S.W.2d 343. 348-49 (Tex. 1987).
Page 6
disseminated to other litigants and persons who are potential litigants.
9 Here, Plaintiffs
attorneys are involved in litigation against insurance companies in several counties throughout
Texas. Sharing discovery is appropriate in this circumstance to ensure efficiency in the
discovery process, and it will benefit all parties.
13. Despite the cases’ clear endorsement of streamlined discovery, insurance companies,
including State Farm, nevertheless often vehemently protest and attempt to deny the applicability
of this doctrine. Acceptance of Defendants’ position would significantly limit the ability of
policyholders to efficiently and effectively prepare claims based on widespread misconduct such
as Defendants’. The danger posed by such widespread and largely uniform misconduct defeats
State Farm’s contention that the Court should ignore Garcia because it was a product liability
case.
14. The premise of shared discovery is fundamental to the efficient and honest functioning of
the judicial process. A presumption of openness applies to all court proceedings in this county,
criminal and civil, because “secrecy insulates the participants. masking impropriety, obscuring
incompetence, and concealing corruption.”° In addition to making discovery more efficient, the
shared discovery provision should make discovery more truthful and lead to full disclosure.
“Shared discovery is an effective means to insure full and fair disclosure.” It has been the
experience of Plaintiffs counsel, in other litigation against insurance companies, that the product
of discovery varies greatly in both completeness and scope. Shared discovery is designed to
remedy that variance and ensure that all litigants have access to the discoverable infornmtion.
Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993) (“[U]nder the doctrine of shared discovery, the
fruits
of discovery are available not only to the parties in a particular case but may be disseminated in turn to other
litigants and potential litigants.”).
See Brown i. lt7lliamson Tobacco Coip. i FTC, 710 F.2d 1165. 1179 (6th Ca. 1983).
°
Garcia, 734 SW, 2d at 347.
Page 7
1 5. In cc State Farm Lloyds illustrates that the above-described shared discovery propositions
are permissible. There. Defendant State Farm Lloyds sought a writ of mandamus commanding
the trial court to vacate a protective order that allowed documents obtained in the case to be used
12
in “related litigation against Defendants in which Plaintiffs’ counsel is an attorney of record.”
State Farm wanted a different protective order issued, just like here, which restricted the use and
disclosure of certain privileged documents to the specific case before that specific trial court.
The Court of Appeals concluded that thc trial court’s order adequately protected the Defendants
from the involuntary disclosure of its trade secrets, and therefore. the Court denied the petition
13
for writ of mandamus.
16. Defendants deride the Beaumont Court’s analysis in State Famni Lloyds as “conclusory”
and imply that the opinion carries no precedential weight because the Texas Supreme Court did
not review it, hut that attack is simply a smoke screen designed to conceal the fact that
Defendants have no contrary cases to cite.
17. Plaintiff’s proposed protective order here is substantially similar to the protective order
blessed by higher Texas courts. Further, the language of Plaintiffs Proposed Protective Order is
nearly identical to a protective order recently entered in a similar first patty case involving State
4 and State Farm was actively involved in crafting the language
Farm and Plaintiff’s counsel,’
contained in that protective order. In moving for entry of its own protective order before this
Court, State Farm protests that it lodged objections before other courts to the language about
which it now complains, but those objections have consistently been overruled because they are
12
In tv State Fami Lloyds. 2003 Tex. App. LEXIS 8115 (Tex. App—Beaumont Sept. 18, 2003).
Id
14
See .4lejos Ranñrez and Ofelia Rarni,ez v. State Farm Lloyds and Sylvia Garza, Cause No. C-3828-13-D: In the
206th District Court of Hidalgo County, Texas.
Page 8
unfounded. For these reasons and more, the Court should grant Plaintiffs 1otion for Entry of
Protective Order.
18. Plaintiffs Proposed Protective Order allows the use of shared discovery, with proper
limits and protections that should appease Defendants’ concern about the disclosure of
confidential information outside the 2013 hailstorm litigation.
1 The Court should enter
Plaintiff’s Proposed Protective Order, attached as Exhibit A. and. subject thereto, order
Defendants to produce all documents and information responsive to Plaintiffs discovery
requests that Defendants previously withheld from discovery based on the aforementioned
claims of confidentiality.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays this Honorable Court deny
Defendant’s Motion for Entiy of State Latin ‘s Proposed Protective Order and grant Plaintiff’s
Motion fOr Entiy of Protective Order. Plaintiff further requests that the Court grant and enter
Plaintiffs Proposed Protective Order, attached as Exhibit A, and grant Plaintiff any other and
further relief, either at law or in equity, to which Plaintiff may show herselfjustly entitled.
See Exhibit A, ¶1.
Page 9
Respectfully submitted.
MOSTYN LAw
!y7J Steve Aiostyn
J. Steve Mostyn
State Bar No. 00798389
j srndocketefile(imostvnlaw. corn
3810 West Alabarna Street
Houston, Texas 77027
(713) 714-0000 (Office)
(713) 714—111 1(Facsirnile)
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on this 3rd day of March. 2015 in accordance with the Rules of Civil
Procedure.
/ç/ J. Steve Afosorn
J. Steve Mostyn
Page 10
CAtTSE NO. 2014-CVF-001048-Dl
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced by the parties and non-parties in this litigation, and that the following
provisions, limitations, and prohibitions are appropriate pursuant to and in confonnity with the
Texas Rules of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this litigation shall
be used solely for the purpose of the preparation and trial of this litigation and other related
litigation against State Fann Lloyds (including its employees) or any third party adjusting
firm (including its employees) that adjusted claims arising out hailstorms and/or
windstonns in Texas with a date of loss in 2013, and for no other purpose. “Related
Litigation” means a first-party lawsuit in Texas by an insured against State Farm Lloyds
and its adjusters or adjusting companies that produced the Confidential Infonnation for
daniages to insured property arising out of hailstorms and/or windstonns in Texas with a
date of loss in 2013. Confidential Information shall not be disclosed to any person except
in accordance with the tenns of this Order.
“Confidential Information.” as any information of any type which is
rçrpag4epy of
the (NI1C) day
By
designated as “Confidential” by any of the supplying or receiving parties, including
infonnation received from non-parties, whether it is a document, infonnation contained in a
document, information revealed during a deposition. infonriation revealed in an
interrogatory answer or otherwise At the sole discretion of the producing party, the
producing party may place on anx’ documents that are subject to this Protective Order, bates
numbers and/or a legend to indicate the document is “Confidential,” subject to a Protective
Order and is produced under the specific cause number; however, the producing party shall
not label designated documents with a watemmrk.
3. The disclosure of Confidential Information is restricted to Qualified Persons. “Qualified
Persons.” as used herein, means: the parties to pending litigation arising out of hailstorms
and/or windstorms in Texas a date of loss in 2013; their respective counsel; counsel’s staff;
expert witnesses; outside service providers and consultants providing services related to
document and ESI processing. hosting. review, and production; the Court; other court
officials (including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any other
person ma;’ be designated as a Qualified Person by order of this Court. afler notice to all
parties and a hearing.
to
4. Aiiy party may sen’e a written request for authority to disclose Confidential Infonnation
a person who is not a Qualified Person or counsel for the party designating party. and
consent shall not be unreasonably withheld. However, until said requesting party
receives
is
written consent to further disclose the Confidential Infonnation, the further disclosure
hereby prohibited and shall not he made absent further order of this Court. If the
designating party grants its consent, then the person granted consent shall become a
Page 2
Qualified Person under this Order.
5. Lead counsel for each party shall provide a copy of this Order to any person to whom
Confidential Infonuation is to be disclosed, including each party such counsel represents,
and shall advise such person of the scope and effect of the confidentiality provisions of this
Order and the possibility of punishment by contempt for violation thereof Further, before
disclosing Confidential Information to any person, lead counsel for the party disclosing the
information shall obtain the written acknowledgment of that person binding him or her to
the terms of this Order. The written acknowledgment shall he in the form of “Exhibit A”
attached hereto. Lead counsel for the disclosing party shall retain the original witten
acknowledgment, and furnish a copy of the signed written acknowledgment to counsel for
the party designating the information as confidential within ten (10) business days.
6. Infonnation shall be designated as Confidential Infonnation within the meaning of this
Protective Order by following the protocol below that corresponds to the format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Infonnation with the following legend: “Confidential & Proprietary/Produced
Pursuant to a Conf. Agree. /Prot. Order” or “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Agree./Prot. Order,” but not so as to obscure
the content of the document.
b. For static image productions by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Pursuant to a ConE Agree./Prot. Order” or “Confidential Proprietary & Trade
Page 3
Secret/Produced Pursuant to a Conf. Agree./Prot. Order,” but not so as to obscure
the content of the image.
c. For native format productions, by prominently labeling the delivery media for ESI
designated as Confidential Infonuation as follows: “Confidential &
Proprietary/Produced Pursuant to a Couf. Agree./Prot. Order” or “Confidential
Proprietary & Trade Secret/Produced Pursuant to a Conf Agree./Prot. Order.” In
addition, at the election of the producing party, the electronic file may have
appended to the file’s name (immediately following its Bates identifier) the
following protective legend: “CONFIDENTIAL
5U TO PROTECTIVE ORDER IN Cause No. 2014-C JF-00]048-D1: Alma
Pena v. State Farm Lloyds and Becky Lan/er; in the 49th District Court, Webb
County, Texas.” When any tile so designated is converted to a hard copy or static
image for any purpose, the document or image shall bear on each page a
protective legend as described in 6.a. and 6.b. above. If a native file containing
Confidential Information is used during a deposition, meet and confer, trial, or is
otherwise disclosed post-production, the party introducing, referencing, or
submitting the native file must append the the tile’s name (immediately following
its Bates identifier) the following protective legend: “CONFIDENTIAL
SUBJ TO PROTECTIVE ORDER IN Cause No. 2014-CT F-00] 048-D]; A li;ia
Pena v. State Farm Lloyds and Becky Lan/er; in the 49th District Court. Webb
County, Texas,” if such legend does not already appear in the file name. Any
party using a native file containing Confidential Infbrmation in a deposition,
hearing, or at trial must indicate the designation on the record so that it is reflected
Page 4
in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may place on any
hard-copy documents that are subject to this Protective Order watennarks or seals
to indicate the document is subject to a Protective Order and is produced under the
specific cause number.
7. Any party who inadvertently discloses Confidential Infönnation during the discovery
process shall, inunediately upon discovery of the inadvertent disclosure, give notice in
writing to the party or parties in possession of such infomuttion that the information is
designated as “Confidential” and shall request its inimediate return. After receipt of such
notice, the parties shall treat the infonnation so designated as Confidential Information
under the terms of this Order, unless released of this duty by further order of this Court.
Additionally, any party who inadvertently discloses Confidential Information during the
discovery process shall, immediately upon discovery of the inadvertent disclosure, give
and
notice in writing to the party which produced and provided this infonnation, the names
addresses of the persons to whom it was disclosed and the date of the disclosure together
with a copy’ of the notice by which the inadvertently disclosing party requested the
immediate return of the documents.
as
8. Information previously produced during this litigation and not already marked
Confidential Information shall be retroactively designated within thirty (30) days of entry
of this Order by providing written notice to the receiving parties of the Bates identifier or
other identifying characteristics for the Confidential Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may he
agreed upon by the parties. any parties receiving such notice shall return to the
Page 5
designating party all undesignated copies of such information in their custody and
possession, in exchange for the production of properly designated infonnation, or
alternatively’ (upon the agreement of the parties) shall (i) affix the legend to all
copies of such designated infonnation in the party’s possession, custody, or control
consistent with the terms of this Protective Order, and/or (ii) with respect to ESI,
take such reasonable steps as will reliably identii the item(s) as having been
designated as Confidential Information.
b. Information that is unintentionally or inadvertently produced without being
designated as Confidential Information may be retroactively designated by the
producing party in the manner described in paragraph 7.a. above. If a retroactive
designation is provided to the receiving party in accordance with Texas Rule of
of
Civil Procedure 193.3(d) the receiving party must (i) make no further disclosure
such designated infbrmation except as allowed under this Order; (ii) take reasonable
steps to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to reclaim any
to
such designated information in the possession of any person not permitted access
have
such information under the terms of this Order. No party shall be deemed to
violated this Order for any disclosures made prior to notification of any subsequent
designation.
to re
9. Any party may request the party designating information as “Confidential” to consent
rejected
designate confidential information as not confidential, which request shall not be
absent a good-faith determination by the designating party that the Confidential
Information is entitled to protection.
Page 6
10. Deposition testimony is Confidential Infonnation under the terms of this Order only if
counsel for a party advises the court reporter and opposing counsel of that designation at
the deposition, or by written designation to all parties and the court reporter within thirty
(30) htrsiness days after receiving the deposition transcript All deposition transcripts shall
be considered confidential until thirty (30) days following the receipt of the deposition
transcript. The court reporter shall note on the record the designation of said infonnation as
Confidential and shall separately transcribe those portions of the testimony and mark the
face of such portion of the transcript as “Confidential.” The parties may use Confidential
Information during any deposition, provided the witness is apprised of the tenns of this
Order and executes the acknowledgment attached hereto as Exhibit “A.” The parties may
use Confidential Information during a deposition only if the room is first cleared of all
persons except the court reporter, the witness being deposed. counsel for the parties and
any expert entitled to attend, and only if said witness executes the acknowledgement
attached as Exhibit “A.”
to
11. In the case of interrogatory answers, responses to request for production. and responses
requests for admissions, the designation of Confidential Information will be made by
means of a statement in the answers or responses speciing that the answers or responses
or specific parts thereof are designated as Confidential Information. A producing party
to
shall place the following legend on each page of the interrogatory answers or responses
requests for admission: “Contains Confidential Infonnation.”
in
12. Confidential Information disclosed during a meet and confer or othenvise exchanged
informal discovery, shall be protected pursuant to this Order if counsel for the disclosing
party advises the receiving party the information is Confidential Infonnation. If the
Page 7
Confidential Information disclosed during a meet and confer or otherwise exchanged in
infonnal discovery is in the form of hard-copy documents, static images, or native files,
that information shall be designated as Confidential Infonnation pursuant to paragraphs 6
a., b., and/or c. depending on the format of the materials introduced.
13. At any time after the delivery of Confidential Documents. and after making a good-faith
effort to resolve any disputes regarding whether any designated materials constitute
Confidential Information, counsel of the party or parties receiving the Confidential
Documents may challenge the Confidential designation of all or any portion thereof by
providing written notice of the challenge to counsel for the party disclosing or producing
the Confidential Documents. The party or parties disclosing or producing the Confidential
Documents shall have twenty (20) days from the date of receipt of a written challenge to
file a motion for specific protection with regard to any Confidential Documents in dispute.
If the party or parties producing the Confidential Documents does not timely file a motion
for specific protection, then the Confidential Documents in dispute shall no longer he
subject to confidential treatment as provided in this Order.
14. If a timely motion for specific protection is filed, any disputed document will remain
confidential until a contrary determination is made by the Court and all such documents,
information or testimony shall continue to be treated as Confidential Information until this
Court makes a contrary decision regarding the status of the documents, infonnation or
testimony. At any hearing to resolve a challenge of a Confidential designation, the party
designating the infonnation as “Confidential” shall have the burden to establish that party’s
right to protection as if this Order did not exist. A party’s thilure to challenge the
designation of documents, information, or testimony as “Confidential” information does
Page 8
not constitute an admission that the document, information or testimony is, in fact,
sensitive, confidential, or proprietary. No party waives its right to contend at trial or hearing
that such document. infonnation or testimony is not sensitive, confidential, privileged or
proprietary, provided the party provides notice of intention to do so at least twenty (20)
day’s before such trial or hearing.
15. Any papers filed with the Court in this action that make reference to Confidential
Infonnation, or contain information derived therefrom, shall be considered Confidential
Information and shall be governed by the terms of this Order. These papers shall be filed
tinder seal and shall remain sealed with the District Clerk’s Office so long as the materials
retain their status as Confidential Information.
16. Pursuant to the agreement of the parties, no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client privilege
or of any applicable work product protection in this or any other federal or state
proceeding. This Protective Order applies to any information disclosed, exchanged,
produced, or discussed — whether intentionally or inadvertently — among the parties, their
counsel and/or any agents (such as vendors and experts) in the course of this litigation.
Upon learning of a production of privileged or work product protected information, the
producing party shall within ten (10) days give all counsel of record notice of the
production pursuant to Texas Rule of Civil Procedure 193.3(d). The receiving party must
promptly return, sequester or destroy the produced infonnation and all copies and destroy
any notes that reproduce, copy, or otherwise disclose the substance of the privileged or
work product protected infonnation.
17. Further, production pursuant to this Protective Order shall not be deemed a waiver of
Page 9
a. Any party’s right to object to any discovery request on any ground.
h. Any party’s right to seek an order compelling discovery with respect to any
discovery request.
c. Any party’s use and review of its own Confidential Infonnation in its sole and
complete discretion.
d. The status of any material as a trade secret.
18. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
This Order shall remain in effect unless or until amended, altered, modified, or
vacated by the Court or by the written agreement of all parties to this action filed with
the Court, pursuant to Rule 11 of the Texas Rules of Civil Procedure.
IT IS SO ORDERED on this day of , 2015.
JUDGE PRESIDING
C of 9
th(a
y N
lq,Icertajy-’
the t
1 1ayof “ 2O(\
By
Page 10
___________
__________
___________________________.
EXHIBIT “A”
CAUSE NO. 2014-CVF-001048-D1
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
V. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, of,
in order to be provided access to
information designated as “Confidential” under the Protective Order entered in the 49th Judicial
District Court of Webb County, Texas (the “Court”) in Cause No. 2014-CVF-001048-Dl, 1 41ma
Penn v. State Farm Lloyds andBeckyLanier(the “Lawsuit”), represent and agree as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in the
Lawsuit, I have reviewed said copy and I am familiar with its tenns.
2. With regard to any and all “Confidential” information to which I am given access in
connection with the Lawsuit, I agree to he bound by the provisions of the Protective
Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all parties in
the Lawsuit.
DATED: SIGNATURE:
CAUSE NO. 201-I-CVF-001048-D1
AL1IA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
V. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49THJUDICIAL DISTRICT
ORDER DENYING DEFENDANTS’ MOTION FOR ENTRY OF PROTECTIVE ORDER
Having considered Defendants Motion Jbr Entry of State Farm ‘s Proposed Protective
Order the response(s) thereto, and the arguments of counsel as allowed, the Court is of the opinion
that said Motion should be DENIED; it is therefore,
ORDE RED that De/ndants Motion for Entiy ofState Farm ‘s Proposed Protective Order
is hereby DENIED.
SIGNED this day of 2015.
JUDGE PRESIDING
the ‘ 4’ay
17Y
t Of t{c
)) ceZ
2
/1Y I1 xas
By 7M,f$’
TAB 10
OF THE RECORD
C
NO. 2014CVF001048-Dl
ALMA PENA, § IN THE DISTRICT COURT
Plaintiff §
§
vs. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LANIER, §
Defendants § 49TH JUDICIAL DISTRICT
%“JPROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
i- ekf& lq1,o,i
/
l&o4fc cth’oi litigation against State Farm Lloyds (including its employees) a—BvuIcy1ãItiei..-
‘Ii MtAr
(“Defendants”) or any third party adjusting firm (including its employees) that
ait’.y 1
cI%)5’.I+- 4
adjusted this claim and for no other purpose. Confidential Information, or
c-st tvt
extracts, summaries, or information derived from Confidential Information, shall
bj c 5tceJ
of s1kL not be disclosed to any person except in accordance with the terms of this Order.
-t kstrk Confidential Information may only be copied or reproduced as reasonably
bAt
necessary for use solely in this litigation.
“ •-ça5 2. “Confidential Information,” as used herein, means any information of any type
that is designated as “Confidential” andJor “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
information (“ESI”), or other material; information contained in a document, ESI,
I
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation
4#’ci “(1c-fr li t7°-” V (
0
‘‘jce / a— ‘Fi7i,,
.r6inuut-of a tiiei—uveut on or abouT June 2OliirWu1b-Gounty, Te*asi— ,
4
pt
their respective counsel; counsel’s staff; expert witnesses; outside service-
providers and consultants providing services related to document and ESI
processing, hosting, review, and production; the Court; other court officials
(including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
2
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
3
Proprietary/Produced Pursuant to a Conf Agree.fProt. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf
Agree.IProt. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the file’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTJAL-SUBJ_TO_PROTECTIVE_ORDER_1N_CAUSE_[insert #1.”
When any file so designated is converted to a hard-copy document or
static image for any purpose, the document or image shall bear on each
page a protective legend as described in 6.a. and 6.b. above. If a native
file containing Confidential Information is used during a deposition, meet
and confer, trial, or is otherwise disclosed post-production, the party
introducing, referencing, or submitting the native file must append to the
file’s name (immediately following its Bates identifier) the protective
legend:
“CONFIDENTL&L-SUBJ TO_PROTECTIVEORDER_IN_CAUSE_[insert #J” if
such legend does not already appear in the file name. Any party using a
native file containing Confidential Information in a deposition, hearing, or
at trial must indicate the designation on the record so that it is reflected in
4
the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retroactively
designated by the producing party in the manner describe in paragraph 7.a.
5
above. If a retroactive designation is provided to the receiving party in
accordance with Texas Rule of Civil Procedure 193.3(d) the receiving
party must (i) make no further disclosure of such designated information
except as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No party shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return and/or destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
6
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as Confidential Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such infonnation as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, andJor (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
7
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
11. In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
8
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a., b., and/or c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have thirty (30) days
from the date of receipt of a written challenge to file a motion for specific
9
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Infonnation in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Infonnation designation of any documents,
ESI, information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client
10
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c, Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
c) yeAI iif
20. Within frtyfl )-ine-dys after the final resolution of this litigation, the
p1aintiffIs) shall return or destroy Confidential Information they received during
11
_____
this litigation. As to those materials that contain or reflect Confidential
Information, but that constitute or reflect the plaintifls) counsel’s own work
product, counsel for the plaintiff(s) are entitled to retain such work product in
their files in accordance with the provisions of this Protective Order, so long as
the work product is clearly marked to reflect that it contains information subject
to this Protective Order. Plaintiff’s counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
transcripts, and the trial, record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiffs counsel shall
certify in writing compliance with the provision of this paragraph after forty-five
(45) business days after the fmal resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of , 2015.
JUDGE PRESIDING
NO. 2014CVF001048-Dl
ALMA PENA, § IN THE DISTRICT COURT
Plaintiff §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LAMER, §
Defendants § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
l
4 frJ T,’ (0 . in order to be provided access to information
designated as Confidential Infonnation under the Protective Order entered in Cause No.
2014CVF001048-Dl represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertalcing will be sent to counsel of record for all
parties in the above litigation.
DAIED: / C’192. I ‘E’r
—
(i
EXHIBIT A
By________
TAB 11
OF THE RECORD
Filed
3/25/2015 517.12 PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
CAUSE NO. 2014-CVF-001048-D1
ALMA PENA, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
§
§
§ WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS §
AND BECKY LANIER, §
§
Defendants. § 49TH JUDICIAL DISTRICT
§
DEFENDANT STATE FARM’S MOTION TO STRIKE OR RECONSIDER
PLAINTIFF’S AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL
INFORMATION AND MOTION FOR ENTRY OF PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF THIS COURT:
The “Amended Protective Order” filed by Plaintiff on March 24, 2015 complies with
neither the agreement the parties made before the Court at the hearing on March 5, 0I5
regarding sharing, nor the Court’s order regarding the same. Plaintiffs “amendments” do not
limit the sharing of institutional State Farm discovery to “Related Litigation” as the Court
instructed, nor limit the sharing to claims arising from hail storms in June 2013 in Webb County,
Texas, handled by the Mostyn Firm. Defendant State Farm Lloyds (“State Farm”) respectfully
requests that the Court strike or reconsider’ the “Amended Protective Order” Plaintiff filed, and
enter State Farm’s Protective Order attached hereto as Exhibit A.
State Farm does not know at the time of preparing this motion whether at the time of filing the appropriate
procedural vehicle should be a motion to strike or a motion for reconsideration as the Court’s response to Plaintiff’s
actions are unknown at this time. State Farm therefore prepared the motion in the alternative to address the different
actions available to the Court.
STATE FARM’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
OBJECTIONS AND MOTION TO CoMPEL PAGE 1 —
(
I.
INTRODUCTION
1. At the hearing held before the Court on March 5, 2015, Plaintiff’s counsel,
Andrew Taylor, represented that he was interested in sharing discovery in cases handled by the
Mostyn Firm. (Ex. B, March 5, 2015 Hearing Transcript, at 54:22 — 55:13.) In the discussion
regarding sharing, Gilberto Hinojosa, who also attended the hearing as counsel for Plaintiff,
specifically requested sharing within the Mostyn Firm for the cases in Laredo. (Ex. B, at 42:23-
44:11.) The Court reminded counsel that discovery in one case would not be official discovery
in another case, (Ex. B, at 62:2-6), and ruled that sharing would be limited to the Mostyn Firm
“not being able to share with even co-counsel in other cases.” (Ex. B, at 65:10-15.)
Nonetheless, Plaintiff’s “Amended Protective Order” does not reflect these limitations. Instead,
Plaintiff broadly defines “Related Litigation” as: “a first party lawsuit in TX, against State Farm,
by an insured of State Farm, for damages to insured property arising out of windlhail storms in
Texas.” (Ex. C, Plaintiff’s Amended Protective Order.)
2. Plaintiff’s “Amended Protective Order” does not limit the sharing of institutional
State Farm discovery to “Related Litigation” as the Court instructed or provide reasonable limits
to time and geography. The materials produced in this case will not be relevant to all windlhail
claims in Texas for all time. In order to protect State Farm’s Confidential Information, it is
necessary to limit sharing to wind/hail claims that arose in Webb County in June 2013. In
addition, note that it appears that Plaintiff’s counsel inadvertently failed to change the time limit
in the last sentence in paragraph 20 of the Amended Protective Order from 45 business days to
one year.
STATE FARM’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
OBJEcTIoNS AND MOTION TO COMPEL PAGE 2 —
a
II,
ARGUMENT & AUTHORITIES
3. Plaintiff’s “Amended Protective Order” allows for the improper and widespread
distribution of every confidential and proprietary document in this case to all lawyers who file a
lawsuit against State Farm on a wind/hail claim in Texas with any date of loss, without regard to
the causes of action and factual allegations contained therein and the relationship to the present
litigation. Critically, paragraph 1 of State Farm’s Protective Order attached hereto (See Exhibit
A) limits the sharing to Institutional Materials that may have some relevance from case to case,
and appropriately carves out the case-specific materials that have no relevance across claims.
See In re National Lloyds Ins. Co., 2014 Tex, LEXIS 1108, 58 Tex. Sup. J. 64 (Oct. 31, 2014,
orig. proceeding) (holding discovery of claims information of unrelated third parties that is not
probative to other matters).
4. The Court’s March 5th Ruling reflected that Plaintiff has no right or need to use
State Farm’s proprietary and trade secret information for any purpose other than the fair
adjudication of this case. (See Ex. B., 62:2-6 and 65:10-15.) A protective order is easily vitiated
without specific procedures to enforce the handling of protected information. See In re Bass,
113 S.W.3d 735, 737 (Tex. 2003) (orig. proceeding) (factors relevant to determining whether a
trade secret exists include, among other things, the extent of the measures taken by the party to
guard the secrecy of the information). For these reasons, in accordance with the discussion of
counsel and ruling of the Court, the sharing of Confidential Information from this case in
“Related Litigation” should be limited to institutional materials relevant to wind/hail claims in
STATE FARM’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
OBJECTIONS AND MOTIoN TO COMPEL PAGE 3 —
Webb County, Texas in June 2013, and conditioned upon the return or destruction of confidential
materials at the end of this litigation.
III.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray this Honorable Court
strike or reconsider the entry of Plaintiff’s Amended Protective Order and grant Defendants’
Motion for Entry of Protective Order regarding Confidential Information, enter the Order
attached hereto, and for any other and further relief, at law or in equity, to which they show
themselves justly entitled.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
VAN SEM
State Bar No. 1032350
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant State Farm Lloyds
& Becky Lanier
of r)gI) I cer4
the 4 day o 20
ESTHER DE LLAJO
.CI rko e itt tirts and
By
4)1tJ LTex:s
STATE FARM’S RESPONSE TO
OBJECTIONS AND MOTION TO Cot
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was this 25th day of March 2015, served on the
following:
VIA E-SERVICE
Mr. J. Steve Mostyn
The Mostyn Law Firm
3810 West Alabama Street
Houston, Texas 77027
STATE FARM’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
OBJECTIONS AND MOTION TO COMPEL PAGE 5
—
Filed
3/25/2015 5:17 12PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
CAUSE NO. 2014-CVF-001048-l)I
ALMA PENÃ § IN THE DISTRICT COURT
Plaintiff §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER § TH
49
Defendants § .JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Becky Lanier (“Defendants”) or any third party adjusting firm
(including its employees) that adjusted this claim, and for no other purpose.
Subject to paragraphs I .a. and I .b. below, “Related Litigation,” as used herein
means a first-party lawsuit tiled in Texas by The Mostyn Law Firm arising out of
a claim for damages to residential, commercial, or personal property as a result of
a hailstorm that occurred in Webb County, Texas in June 2013. Confidential
Information, or extracts, summaries, or information derived from Confidential
Information, shall not be disclosed to any person except in accordance with the
terms of this Order. Confidential Informati or reproduced
as reasonably necessary for use solely it Litigation,
‘3py oft ri I i certify—
the CNli ?[dayo 2OL)
ESTHER DEGO LA 0
Clerk he Di ict o and
By______
subject to the limitations contained herein.
a. State Farm’s institutional materials that are not claim-speci1c or adjuster-
specific will be Bates-labeled MLFINSTO6I3WEBB0000000IPROD -
M LFINSTO6 I 3WEBB00000756PROD. Documents Bates-labeled
MLFINSTO6 I 3WEBB0000000I PROD - MLFINSTO6 I 3WFBB00000756PROD may
be shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Firm is representing the Plaintiff(s) in the Related Litigation.
If The Mostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates another lawyer or law firm in the Related
Litigation, State Farm’s consent to the use of the documents Bates-labeled
MLFINSTO6 I 3WEBB0000000 I PROD - MLFINSTO6 I3WEBB00000756PROD in that
Related Litigation is automatically revoked. Documents Bates-labeled
MLFINSTO6I 3WEBB0000000I PROD - MLFINSTO6I3WEBB00000756PROD shall
not be considered to have been produced in and for Related Litigation as
“official discoveiy” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overruled State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
MLFINSTO6 3WFBR0000000 PROD - MLFINSTO6J 3WEBB00000756PROD that
are not official discovery in a Related Litigation may not he used at
depositions, hearings or at trial in that Related Litigation unless ordered by
the Court or agreed to by State Farm.
h. Claim-specific, adjuster-specific, or other materials produced in this
litigation that are not Bates-labeled MLFINSTO6 I 3WEBB0000000I PROD -
MLFINSTO6I3WEBB00000756PROD may not be shared in Related Litigation,
but may only he shared among Qualified Persons in the lawsuit in which
the materials were produced. If a receiving party intends to use any
document Bates-labeled MLFINSTO6 I 3WEBI30000000 I PROD -
MLF1NSTO6IJWEBB000007S6PROD in Related Litigation, that party must
first obtain written consent of the producing party or leave of court.
2. ‘Confidential Information,” as used herein, means any information of any type
that is designated as ‘Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
information (“ESI”). or other material; information contained in a document, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation
arising out of a weather event in June 2013 in Webb County. Texas; their
respective counsel; counsel’s staff; expert witnesses; outside service-providers
and consultants providing services related to document and ESI processing,
hosting, review, and production; the Court; other court officials (including court
reporters); the trier of fact pursuant to a sealing order; and any person so
designated pursuant to paragraph 4 herein, If this Court so elects, any other
3
person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person tinder
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
4
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” hut not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” hut not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf. Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the tile’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTlAL-SUBJ_TQPROTECTlVEORDER_IN_CAUSE_2O 14-CVF-
001048-DI”. When any file so designated is converted to a hard-copy
5
document or static image for any purpose, the document or image shall
bear on each page a protective legend as described in 6.a. and 6.h. above.
If a native file containing Confidential Information is used during a
deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CONFIDENTIAL-SUBJ TO PROTECTIVE ORDER IN CAUSE 20 14-CVF-
001048-Dl”, if such legend does not already appear in the file name. Any
party using a native file containing Confidential Information in a
deposition, hearing, or at trial must indicate the designation on the record
so that it is reflected in the transcript of the proceedings.
d. Al the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Conlidential Information shall he retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
6
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Enformation.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may he retroactively
designated by the producing party in the manner describe in paragraph 7.a.
above. If a retroactive designation is provided to the receiving party in
accordance with Texas Rule of Civil Procedure 193.3(d) the receiving
party must (i) make no further disclosure of such designated information
except as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No party shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
7
demanding the immediate return and/or destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy. or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as ConfldentiaJ Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) clays of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
8
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the tenis of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated inft)rmation of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
9
designation on the record, shall separately transcribe those portions of the
testimony. and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
h. The room is first cleared of all persons who are not Qualified Persons.
11 In the case of interrogatory answers, responses to request for production. and
responses to requests for admissions, the designation of Confidential Information
will he made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests lbr admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential In formation. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that information shall he
designated as Confidential Information pursuant to paragraphs 6 a., b., and/or c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
10
designated Confidential Information are not in fact “confidential” or trade
secret,’ the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Intbrmation may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have thirty (30) days
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer he
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. Al any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
ESI, information, or testimony does not constitute an admission that the
document, ESI. information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
Ii
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Contidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties. their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
12
a. Any party’s right to object to any discovery requests on any ground.
h. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the lurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the final resolution of this litigation, the plaintiff(s) shall
return or destroy Confidential Information they received during this litigation. As
to those materials that contain or reflect Confidential Information, but that
constitute or reflect the plaintiff(s) counsel’s own work product, counsel for the
plaintiff(s) are entitled to retain such work product in their files in accordance
with the provisions of this Protective Order, so long as the work product is clearly
marked to reflect that it contains information subject to this Protective Order.
Plaintiff’s counsel is entitled to retain pleadings, affidavits, motions, briefs, other
papers filed with the Court, deposition transcripts, and the trial record even if such
materials contain Confidential Information, so long as such materials are clearly
marked to reflect that they contain information subject to this Protective Order
and are maintained in accordance with the provisions of this Protective Order.
Plaintiffs counsel shall certify in writing compliance with the provision of this
paragraph after one (1) year after the final resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
13
_____
____ ____
by the Court or by the written agreement of all parties to this action filed with the Court.
pursuant to the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of
JUDGE PRESIDING
14
_____________________________________
CAUSE NO. 2014-CVF-001048-DI
ALMA PENA § IN THE DISTRICT COURT
Plaintiff §
§
V. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYI)S ANI) §
BECKY LANIER
4
T Il
Defendants JUDICIAL I)ISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to infbrmation
designated as Confidential Information under the Protective Order entered in Cause No. 20 14-
CVF-001048-Dl represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. 1 agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
hh
EXHIBIT A
Filed
3/25/2015 5:17 12PM
Esther Degollado
Dtrict Clerk
We& District
2014CVF00 048 Dl
1 REPORTER’S RECORD
VOLUME 1 OF 1 VOLUME
2 CAUSE NO, 2014-CVF-O01O48-D1
3 ALMA PENA, ) IN THE DISTRICT COURT
Plaintiff,
4
v. ) WEBB COUNTY, TEXAS
5
STATE FARM LLOYDS AND BECKY
6 LANIER,
Defendants. ) 49TH JUDICIAL DISTRICT
7
8
CAUSE NO. 2014-CVF-001162-D1
9
RAUL RODRIGUEZ AND NOEMI ) IN THE DISTRICT COURT
10 RODRIGUEZ,
Plaintiffs,
11 WEBB COUNTY, TEXAS
V.
12
STATE FARM LLOYDS AND FELIPE
13 FARIAS, ) 49TH JUDICIAL DISTRICT
Defendants.
14
15
16
17
18
PROCEEDINGS
19
20
21 On the 5th day of March, 2015, the following proceedings
red cause
22 came on to be heard in the above-entitled and numbe
held in
23 before the Honorable Jose A. Lopez, Judge presiding,
24 Laredo, Webb County, Texas;
25 Proceedings reported by machine shor
the
By
I
2
1 APPEARANCES
2 FOR PLAINTIFFS:
SBOT NO. 09701100
3 JUDGE GILBERTO HINOJOSA
LAW OFFICE OF GILBERTO HINOJOSA & ASSOCIATES, P.C.
4 622 E. Saint Charles St.
Brownsville, Texas 78520-5218
5 Phone: (956) 544-4218
6 SBOT NO. 24070723
MR. ANDREW TAYLOR
7 THE MOSTYN LAW FIRM
3810 West Alabama Street
8 Houston, Texas 77027
Phone: (713) 714-0000
9 Fax: (713) 714-1111
10 FOR DEFENDANT, STATE FARM:
SBOT NO. 10323500
11 MR. F. VAN HUSEMAN
SBOT NO. 24074118
12 MS. TIFFANY DEBOLT
HUSEMAN & STEWART, PLLC
13 615 N. Upper Broadway, Suite 2000
Corpus Christi Texas 78401
,
14 Phone: (361) 883-3563
Fax: (361) 883-0210
15
FOR DEFENDANT, STATE FARM:
16 SBOT NO. 21190600
MR. BRUCE J. WERSTAK, III
17 SAMES & WERSTAK, L.L.P.
TCB Financial Center
18 6721 McPherson Road, Suite 360
Laredo, Texas 78041
19 Phone: (956) 728-0011
Fax: (956) 727-3085
20
FOR DEFENDANT, STATE FARM:
21 SBOT NO. 24038746
MR. FELIX ARAMBULA, III
22 JONES, ANDREWS & ORTIZ, P.C.
10100 Reunion Place, Ste. 600
23 San Antonio, Texas 78216
Phone: (210) 344-3900
24 Fax: (210) 366-4301
25
CYNTHIA PEREZ LEt, CS
a—
3
1 A P P E A R A NCE S (continued)
2 FOR STATE FARM: (Pro Hac Vice)
MR. JONATHAN M. REDGRAVE
3 REDGRAVE, LLP
14555 Avion Parkway, Suite 275
4 Chantilly, Virginia 20151
Phone: (703) 592-1155
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CYNTHIA PEREZ LENZ, CSR
4
1 CHRONOLOGICAL INDEX
VOLUME 1 OF 1
2 PROCEEDINGS
3 MARCH 5, 2015
Pag Vol
4 Case called 5
5 Proceedings concluded 78
6 Court Reporter’s Certificate 79
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CYNTHIA PEREZ LENZ, CSR
5
1 PROCEEDINGS
2 THE COURT: Alma Pena versus State Farm
3 Lloyds.
4 MR. HINOJOSA: Gilberto Hinojosa and Andrew
5 Taylor for the plaintiffs, Your Honor.
6 THE COURT: Good morning. And you have
7 several motions. It seems that -- let’s see. I might miss
8 something. But let’s see if I did. A motion to compel by
9 defendants; defendant’s plea in abatement; plaintiff’s motion
10 for entry of protective order; plaintiff’s motion to compel
11 and plaintiff’s motion to strike. Anything else?
12 MR. HUSEMAN: Your Honor, if I might, I am Van
13 Huseman. Van’s my first name, sort of like the shirt, except
14 Vans --
15 THE COURT: Vans --
16 MR. HUSEMAN: -- is my first name.
17 THE COURT: All right.
18 MR. HUSEMAN: And I am here with all sorts of
19 able help here on behalf of State Farm, Your Honor.
20 THE COURT: Okay.
MR. HUSEFIAN: And what we’ve got basically,
21
--
22 we’re not going to pursue the abatement. Enough time has
23 passed where that’s sort of a dead issue.
24 THE COURT: Okay.
25 FIR. HUSEMAN: To getting the case resolved.
CYNTE-IIA PEREZ LENZ, CSR
6
1 THE COURT: All right, very well.
2 MR. HUSEMAN: So I think what the Court has is
3 basically countervailing opposing sort of symmetrical motions
4 on discovery and motions for protection.
5 THE COURT: Okay. Have you all conferred on
6 your discovery problems?
7 MR. HUSEMAN: We have, Your Honor.
8 THE COURT: All right.
9 MR. HUSEMAN: And not only that, but we can
10 give you a two-for-one package. You notice on your docket you
11 have another case involving basically the same cast of
12 characters.
13 THE COURT: State Farm Lloyds, Raul
14 Rodriguez --
15 MR. HUSEMAN: That’s right.
16 MR. TAYLOR: Same motions, same issues.
17 MR. HUSEMAN: And these are parallel --
18 THE COURT: You were here on that last time, I
19 think, on one of these.
20 MR. TAYLOR: It was on Pena, yes, Your Honor,
21 a couple of weeks ago.
22 MR. HUSEMAN: And the motion is going back and
23 forth. They’re essentially the same between the cases.
24 MR. WERSTAK: I was here as well , Judge.
THE COURT: Yeah, you were here on that. I
25
CYNTHIA PEREZ LENZ, CS?.
7
1 think it was you all -
2 MR. WERSTAK: We asked for a little more time
to set all the hearings on the same date so we could have
--
3
4 ThE COURT: Are these similar -- do you have
5 -- are there more of these -- this isn’t one of cases that was
6 on the MDL - -
7 MR. WERSTAK: You asked us that last time.
8 And - -
THE COURT: litigation. And you all had no
9 --
10 idea about that.
11 MR. TAYLOR: I think those are Farmers,
12 THE COURT: Those are Farmers.
13 MR. TAYLOR: Yes, Your Honor.
14 THE COURT: Okay. So then aside from the --
motion for protective
15 the competing motions to compel, on your
discovery issue as
16 order, I suspect that that deals with the
17 well?
18 MR. HUSEMAN: It does.
19 THE COURT: Okay.
MR. HINOJOSA: It’s just -- it’s a simple
20
order.
21 issue as to language in the protective
22 THE COURT: Okay.
23 MR. HINOJOSA: An issue of shared discovery.
long.
24 I don’t think the hearing should take that
25 MR. HUSEMAN: Not an hour.
CYNTHIA PEREZ LENZ, CSR
8
1 THE COURT: You want to be before that hour
2 people - that hour folks. The motion to strike, it deals with
3 the motion to abate, or what does that --
4 MR. TAYLOR: Compel.
5 THE COURT: Oh, the motion to compel
6 MR. HUSEMAN: These are mainly
7 discovery-based.
8 THE COURT: All right.
9 MR. HUSEFIAN: The issues are about what has to
10 be disclosed back and forth and the form in which it’s done.
11 THE COURT: So do you -- well, give me an
12 estimate. 20 minutes, 25 minutes?
13 MR. HINOJOSA: That will work.
MR. TAYLOR: I think that will handle -- I
14
15 mean, once we --
16 THE COURT: 20 to 30 then. I’ll put you down
17 20 to 30.
18 MR. HUSEMAN: With the representation, Judge,
19 you know lawyers lie about that.
THE COURT: No, I and the worst -- see,
20 --
21 that’s why I bought this now. And actually I didn’t buy it.
I didn’t buy it. Somebody
am going to tell you the truth.
--
22
23 an anonymous person left it here. And I never told this story,
it on the
24 but, about a year, year and a half ago somebody left
a
25 bench. And I suspect that it was either a staff member or
CYNTHIA PEREZ LENZ, CSR
9
1 lawyer that got tired of me saying, okay, I am going to give
2 you 20 minutes, and an hour later we’re still at the hearing.
3 So, I -- I’d rather not know who left it here, but I use it a
4 little bit more now to remind myself.
5 MR. HUSEMAN: At least they didn’t give you an
6 hourglass with sand in it.
7 THE COURT: Thank you all. I’ll get back to
8 you.
9 MR. ARAMBULA: Thank you, Your Honor.
10 THE COURT: So I’m going to -- that’s going to
11 be those two cases, right?
12 MR. TAYLOR: Yes, Your Honor.
13 MR. HINOJOSA: We can do them at the same
14 time.
15 THE COURT: At the same time.
16 MR. HUSEMAN: They’re the same issues, same
17 parties, basically.
18 THE COURT: Thank you. All right.
19 (Case recessed while other unrelated matters
20 were called.)
21 THE COURT: Okay. 20, 30 minutes.
22 Alma Pena, State Farm Lloyds. Raul Rodriguez,
23 State Farm Lloyds. 2014-CVF-1048; 2014-CVF-1162.
24 MR. HINOJOSA: Gilberto Hinojosa and Andrew
25 Taylor, on behalf of the plaintiffs.
CYNTHIA PEREZ LENZ, CSR
10
1 THE COURT: Oh, wait a minute. I think I
2 borrowed your book.
3 MR. ARAMBULA: Yes, Your Honor. May I
4 approach, Your Honor?
5 THE COURT: Yes, of course.
6 MR. HINOJOSA: Your Honor, on this one, I
7 think probably it would be more efficient for us if the Court
8 would please -- if the Court could handle their motion to
9 compel first, and then the protective order, because I think
10 the motion to compel is relatively simple, I think. And then
11 the -- the issue of the protective order is a little bit more
12 complicated.
13 MR. HUSEMAN: For again - - perhaps, for us to
14 introduce ourselves. Cyndy, my name is Van Huseman
15 representing State Farm.
16 THE COURT: Let me do -- yeah, let’s do that.
ody on
17 Let’s get everybody on the defense side, and then everyb
18 the plaintiff’s side.
MR. REDGRAVE: Jonathan Redgrave. I am
19
20 appearing Pro Hac Vice for State Farm.
21 THE COURT: Okay.
22 MR. WERSTAK: Bruce Werstak for State Farm as
23 well, Judge.
24 MR. ARAMBULA: Felix Arambula, III also for
25 State Farm, Your Honor.
CYNTHIA PEREZ LENZ, CSR
11
1 THE COURT: Thank you.
2 MS. DEBOLT: Tiffany DeBolt for State Farm.
3 THE COURT: Thank you.
4 MR. HUSEIIAN: 1ay I explain. He knows all
5 about computers and that type of stuff more than we do. She’s
6 the one that filed the answer.
7 THE COURT: Did you say DeBolt?
8 MS. DEBOLT: D-E-BO-L-T.
9 THE COURT: Okay.
10 MR. HUSErIAN: She’s done the redactions, done
11 the physical discovery. And these guys over here are the ones
12 who are supposed to advise me not to say anything stupid.
13 But, well, I think, Your Honor, that --
14 that --
15 THE COURT: And let me get those - - you
16 already made your appearance earlier, but just --
17 MR. HINOJOSA: Gilberto Hinojosa and Andrew
18 Taylor, Your Honor.
19 MR. HUSEMAN: Judge 1-linojosa may be right on
20 this. I think going straight into discovery, the extent of the
21 discovery, the scope of it is probably a good place to start on
22 it.
23 THE COURT: All right.
24 MR. HUSEMAN: And basically there is a case
25 which Felix -- he still has my copies on this.
CYNTHIA PEREZ LENZ, CSR
12
1 MR. ARAMBULA: May I approach, Your Honor?
2 THE COURT: Please. And approach liberally,
3 please.
4 MR. ARAMBULA: Yes, sir.
5 MR. HUSEMAN: Which Felix was leading to,
6 which gives you a good overall view of what you need to do on
7 this case. And what this case, which is from the end of
n
8 October of last year, Texas Supreme Court’s per curiam opinio
9 on the case very similar to this one. And the bottom line --
10 THE COURT: Before we start, tell me what --
11 what this case is.
12 MR. HtJSEMAN: Okay.
THE COURT: And then you can that way I
13
--
14 can --
15 MR. HUSEMAN: Sure.
16 THE COURT: -- determine whether it’s similar
17 or not.
18 MR. HUSEMAN: Both of these cases are what
, one of
19 would be considered fairly small wind hail type claims
e; did not think
20 which State Farm figured did not have to examin
21 it went over the deductible. And the other one, under 20,
well, it’s plaintiff’s oriented so they’re both
under the
--
22 --
23 very small wind --
THE COURT: So one of them they are both
24
- -
25 wind hail cases, or claims. One of them State Farm claims was
CYNTHIA PERHZ LENZ, CSR
13
1 under deductible. And the other one was what?
2 MR. HUSEMAN: Well, we met several thousand
3 dollars owed possibly in damages. And they had estimated their
4 estimate was about 20000.
5 THE COURT: So then there is a provision in
6 your -- in your -- in the insurance provision that - - that
7 whenever there is a distinction between what you all believe
8 value is, that you’re able to then file this lawsuit with
9 regard to it, or is it just what --
10 MR. HUSEMAN: Well, you’re getting into where
11 the nut of this issue is. The issue, to put it simply, is they
12 claim we didn’t pay enough for the claim.
13 THE COURT: Oh, so you ended up paying for it?
14 MR. HUSEMAN: No. No, these are still in
15 dispute.
16 THE COURT: All right.
17 MR. HUSEMAN: They’re in dispute.
18 THE COURT: Didn’t pay anything.
19 MR. HINOJOSA: If I may, Your Honor.
THE COURT: Hold on. I’ll get I’ll get --
20 --
21 I think. Let me -- I’ll get to you in a minute. Let me just
22 hear Mr. Vance [sic] -- Vance is not -- yeah, Vance is your
23 first name.
MR. HUSEMAN: Van is my first name. Yeah.
24
25 THE COURT; Tell me your last name again.
CYNTHIA PEREZ LENZ, CSR
14
1 MR. HUSEMAN: Huseman. Huseman.
2 THE COURT: Huseman. AH right.
3 MR. HUSEMAN: Yeah. And what these are
4 about - -
5 THE COURT: I think there’s a Huseman --
6 represented Huseman out of Houston. You’re not -- but that’s
7
8 MR. HUSEMAN: That was a criminal.
9 THE COURT: I think that’s Housernan, not
10 Huseman. Go ahead.
11 MR. HUSEMAN: No, Judge. This is basically a
12 question about how much is owed, if anything, on it.
13 THE COURT: That’s it.
14 MR. HUSEIIAN: And that’s it. It’s a contract
15 claim --
16 THE COURT: So maybe it wasn’t paid, but you
17 all offered to pay a certain amount of money. They didn’t take
18 it because it wasn’t enough.
19 MR. HUSEMAN: Some --
20 THE COURT: Their inspectors said it was going
21 to take a lot more money.
22 MR. HUSEMAN: Should --
23 MR. HINOJOSA: It’s a breach of contract and
24 insurance, closed quote, claim, Your Honor.
25 MR. HUSEMAN: Yes, that’s right.
CYNTHIA PEREZ LENZ, CSR
15
1 MR. HINOJOSA: Under the policy. Were
2 homeowners. And our homeowner’s policy gives us the right to
3 collect certain amounts of money based upon what the damage
4 was. And --
5 THE COURT: Okay.
6 MR. HINOJOSA: -- they paid a certain amount,
7 but it wasn’t sufficient. So we filed a lawsuit under the
8 insurance code and --
9 THE COURT: Did you say they paid, again, you
10 said?
11 MR. HINOJOSA: On some of them. On one of
12 them they denied the claim, you know.
13 THE COURT: All right. Thank you.
14 MR. HUSEMAN: Here -- to answer it in a
15 graphic sense. These are the competing estimates on the two
16 cases. As I was talking about, the deductible exceeds what the
17 -- was owed under the policy on these. These are the
18 plaintiff’s gross claims. These are what their hired expert
19 says might be owed. And the point on this is that these are
20 not huge lawsuits, under anybody’s estimation. And that is
21 germane to what we’re talking about here, because the purpose,
22 at least in my perception, what the Court needs to do is to
23 dispose of what the argument is, and the discovery - -
24 THE COURT: That’s a huge disparity between
25 the values.
CYNTHIA PEREZ LENZ, CSR
16
1 MR. HUSEMAN: There is. But in terms of
2 absolute dollars, what they are asking for us to do, is
3 basically to spend more and respond in discovery that is
4 totally in issue. That’s -- that’s in a nutshell. And as I
5 started to tell you a minute ago, there is a Texas Supreme
6 Court case that addresses this.
7 THE COURT: All right, thank you.
8 MR. HUSEMAN: On this - -
9 THE COURT: This is the one that you handed to
10 me. National Lloyds.
11 MR. HUSEMAN: That’s right. October 31 of
12 last year, which basically -- and this is a per curiam opinion
13 involving all -- claims very similar to these, in which they
mus to
14 basically direct the trial court, in this case, by manda
are
15 focus it on the claims that are involved, the issues that
16 involved.
17 THE COURT: All right.
18 MR. HUSEMAN: There is another case which is
19 contained in our response. And I believe this is in Alma
of federal
20 Pena’s case, which is an even more recent case out
other
21 court in McAllen involving the lawyers who are on the
side of this involving our client and this case. And it
22
23 involves another wind hail case. It’s about as close as you’re
24 going to get, in terms of it. And in that, Judge Alvarez does
sought.
25 a 27, 28-page analysis of discovery that was being
CYNTHIA PEREZ LENZ, CSR
17
1 THE COURT: The Fourth Court?
2 MR HUSEMAN: Pardon?
3 THE COURT: Did you say Judge Alvarez?
4 MR. HUSEMAN: En federal - -
5 MR. HINOJOSA: Federal judge in McAllen.
6 THE COURT: I’m sorry.
7 MR. HUSEMAN: In McAllen. And she goes
8 through these claims back and forth.
9 THE COURT: A district court judge, right?
MR. HUSEMAN: That’s right, Your Honor, And
10
11 she goes through and does an exhaustive analysis of what’s
12 discoverable and what isn’t. And it involves --
THE COURT: Why why do you do the -- why do
13 --
to
14 you give us the federal judge’s opinion, and why not stick
15 what the state court said?
16 MR. HUSEMAN: All right. First of all, Your
rds for
17 Honor, the Texas Supreme Court said that the standa
essentially
18 discovery between the federal and state rules are
19 the same. They are -- it is a case that says exactly that.
20 Secondly, Judge Alvarez went through the
in
claims that are being made here, and were being made
--
21
22 THE COURT: But it’s not a Fifth Circuit case?
23 MR. HUSEMAN: It’s not.
24 THE COURT: It’s just a district court judge’s
25 opinion.
CYNTHIA PEREZ LENZ, CSR
18
1 MR. HUSEMAN: It’s not. And bear with me just
2 for a second. Let me sort of round out my thought on this.
3 She goes through the exact issues that you’re confronted with
4 on these competing motions; discusses each one of them; talks
5 about what the law is; what the relevancy is; the importance of
6 it. So I’m not suggesting to you that you need to defer to a
7 federal judge, or that they have any sort of a whip hand over
8 you or anything like that. What I am suggesting is that the
9 reasoning that she used, the analysis which is exhaustive on
10 this, and be instructed in regard to the parties’ positions
11 here.
12 MR. HINOJOSA: If I may, Your Honor, the
13 more relevant - -
14 THE COURT: Give --
15 MR. HINOJOSA: Okay, I’m sorry.
16 THE COURT: I’d rather not go back and forth
17 yet until I kind of finish my thought as to what their position
18 is, And I’ll --
19 MR. HINOJOSA: Sure.
20 THE COURT: I’ll get back to you. Just, I
21 know that it’s kind of -- I know, sitting there before -- or
22 standing there before as you all used to, I did used to get a
23 little bit frustrated with that type of process. But now that
24 I am sitting on this side, it kind of helps me finish my
25 thought. And then I -- I definitely don’t --
CYNTHIA PEREZ LENZ, CSR
19
1 MR. HINOJOSA: I thought he was turning it
2 over to me. That’s why I --
3 THE COURT: All right, thank you.
4 MR. HUSEMAN: I will tell you.
5 THE COURT: But please don’t forget your
6 thought, you know.
7 MR. HUSEMAN: Hold that thought.
8 ThE COURT: All right.
9 MR. HUSEMAN: Okay. And perhaps we can show
10 what we have produced.
11 THE COURT: So, okay. So far -- so far we
12 have the Supreme Court case that basically says that in -- in
13 these uninsured -- I’m sorry, on these underpaid insurance
14 claims --
15 MR. HUSEMAN: Right.
16 THE COURT: -- or non-payment of insurance
17 claims - -
18 MR. HUSEMAN: You need to stick to the facts
19 in this case.
20 THE COURT: The holding -- well, there’s three
21 things that it says. And I am not sure they’re -- they are
22 conjunctive or disjunctive, because it doesn’t really give you
23 that here in the initial holding. And I haven’t read the rest
24 of the body of the case. But basically it says in the case
25 involving underpayment of insurance claims, the appellate court
CYNTHIA PEREZ LENZ, CSR
20
1 concludes that the trial court abused discretion in ordering
2 defendants to produce evidence related to insurance claims
3 other than plaintiff.
4 MR. HUSEMAN: Right.
5 THE COURT: And I dont even know what you all
6 are complaining about. You’re just giving me the rules first.
7 MR. HUSEMAN: Right.
8 THE COURT: You havent given me the issue.
9 MR. HUSEMAN: I gave you the -- we will
10 discuss the details.
11 THE COURT: So now I am going to assume that
12 the issue deals with the fact that plaintiffs have requested
13 information on other claims. And I am going to assume that
14 that in fact is the case because you’re giving me this case.
15 But in any event, so that’s one thing. And then it says -- and
16 it has a semicolon and says, Two, defendant’s overpayment,
17 underpayment, or proper payment of claims and unrelated third
18 parties was not probative. And then a semicolon. Three,
19 because the information plaintiff sought was not reasonably
20 calculated to lead to discovery of admissible evidence.
21 So, to me, I need to read this as what is it
22 -- is it conjunctive or disjunctive? Is it if any one of these
23 fit, you’re out, or do all three of them have to fit to be out?
24 So, what I’m -- I read it, and I think as well, I think all
25 three of them have to be -- have to fit in order to be out.
CYNTHIA PEREZ LENZ, CSR
21
1 MR. HUSEMAN: M’hum.
2 THE COURT: That’s the way I sort of see it
3 from here. I haven’t read the rest of the case. You tell me
4 what it means.
5 MR. HUSEMAN: Yeah. And the lesson that we
6 learned from it is that you are directed, or the trial court is
7 directed generally, to focus the discovery on the dispute that
8 they have before them.
9 THE COURT: Right. That’s one of them. But
10 it also has three other, or two other --
11 MR. HUSEMAN: And none of those are
12 inconsistent with that principle that I am aware of.
13 THE COURT: Well, number three says the
14 information plaintiff sought was not reasonably calculated to
15 lead to discovery of admissible evidence.
16 MR. HUSEMAN: That’s right. That’s right.
17 THE COURT: So was that the holding, or that’s
18 not really a rule that they are coming up with?
19 MR. HUSEMAN: It’s certainly a ruling in that
20 case, that, regard to the claim going out of the pasture beyond
21 where the fight was to something that discovery should not --
22 THE COURT: And tell me where -- tell me in
23 the body of the case where it actually discusses -- cause you
24 said something about that they had actually addressed the issue
25 that when there is a case of -- the value of the case actually
CYNTHIA PEREZ LENZ, CSR
22
1 has a lot to do with this holding, and it does not.
2 MR. HUSEMAN: It does. It does. And in the
3 context of the supreme court case, whether or not State Farm
4 underpaid; overpaid; didn’t pay somebody else is
5 THE COURT: Do you know what type of case this
6 was? Was it just a simple breach of contract case?
7 MR. HUSEMAN: No. I think it also had the
8 extra contractual issues in it as well, the National Lloyds
9 case with holding --
10 THE COURT: So the same issues they have here.
11 MR. HUSEMAN: Exactly. This is -- this is
12 very close to Whitehorse (phonetic) case, the other one I
13 referred to, being the same plaintiff’s lawyers, the same exact
14 defendant, is probably even more of a Whitehorse --
15 THE COURT: The one with the district court
16 from McAllen?
17 MR. HUSEMAN: That’s right. This is even
18 closer to the facts to this one.
19 And if I might, Your Honor, something that
20 might be useful to the Court, to see what, for example, what we
21 have produced, to the other side. This was not a situation
22 where we’re saying, You don’t get anything. The other side,
23 except for the matters that are redacted, the other lawyers
24 have gotten the same things that I’ve gotten on this. We have
25 our -- have our production here. This might be something the
CYNTHIA PEREZ LENZ, CSR
23
1 Court wants to see.
2 Your Honor, if I might --
3 THE COURT: Yes, sir.
4 MR. HUSEMAN: For your reference, in case you
5 have some questions on this, this is what we have produced in
6 each of these cases.
7 THE COURT: Oh.
8 MR. HUSEFIAN: See what we’ve done.
9 And Jonathan, do you have your computer?
10 We can show you also --
11 THE COURT: Tell me what is it that -- first
12 -- let’s start with what --
13 MR. HINOJOSA: You need to hear --
14 THE COURT: What are they seeking?
15 MR. HUSEMAN: They want us to - -
16 THE COURT: Hold on a second. Let me do this.
17 Let me do this. Since you all are giving me what you think the
18 rules apply, I am going to tell them -- I am going to give them
19 a shot at that. And then I am going to come back to you all so
20 you can tell me specifically -- well, actually, I am going to
are
21 go to them now, so that they can tell me what exactly they
why you
22 seeking and why, and then you will be able to tell me
23 believe that you shouldn’t have to produce it. Go ahead.
MR. HINOJOSA: Thank you, Your Honor. And
24
25 I’ll have Mr. Taylor jump in to clarify more.
CYNTHIA PEREZ LENZ, CSR
24
1 The case - - the Supreme Court case that was
2 handed to you by counsel for State Farm deals with this: In
3 that case, someone had a claim. And they asked, through
4 discovery, for claims by a whole bunch of other people that
5 hadn’t filed involving the same storm, right. And -- and the
6 Supreme Court said, without more, you can’t do that. There is
7 no reason for you to get all these other claims that were
8 filed, What does it have to do with your particular claim.
9 That’s all that case is about. So, and the Supreme Court made
10 a decision that you have to have something else in order to
11 show your entitlement to claim files of other individuals.
12 We’re not anywhere near that on this case, in
13 terms of what we’re requesting. What we’re requesting are --
14 are policies and procedures of State Farm that will help us
to
15 analyze how they took a look at this claim; what they did
tly
16 properly adjust the claim; whether or not there’s inheren
alue
17 within their process a system that allows them to underv
18 claims, and -- and allows us to show that this is not only a
and
19 breach of a contract, but a violation of the insurance code
20 its intentional willful conduct as well. So we’re not asking
21 for other people’s claims.
22 THE COURT: But you had -- that last part, you
23 have that in your pleadings as a cause of action?
24 MR. HINOJOSA: That’s part of our claim, Your
25 Honor. That’s part of our claim.
CYNTHIA PEREZ LENZ, CSR
25
1 Now, so this case is absolutely totally
2 irrelevant to the particular issue in this particular -- in
3 this case.
4 Secondly, Your Honor - -
5 THE COURT: But wait, before you move on, why
6 is it completely irrelevant?
7 MR. HINOJOSA: Because we’re not asking for --
8 the settlement - -
9 THE COURT: This guy -- these people here on
10 the Lloyds case, the supreme court case, ask for - -
11 MR. HINOJOSA: Other claim files.
12 THE COURT: -- other claims filed by third
13 parties against them, and then also asks for -- I want to find
14 out what this particular adjustor -- these particular
15 adjustors, what they have been doing on these type of cases
16 over the last six years.
17 MR. HINOJOSA: Oh, no. We’re not asking for
18 that. We’re asking for training materials, you know, policies
19 and procedures and how they handle these claims and so forth.
20 And let me -- I mean, I didn’t interrupt you.
21 MR. HUSEMAN: I haven’t said a word.
22 MR. HINOJOSA: He’s got that thing --
23 THE COURT: Can you put it down, please?
24 MR. HUSEMAN: Okay.
25 MR. HINOJOSA: Your Honor, and he cites to you
CYNTHIA PEREZ LENZ, CSR
26
1 a case from federal district court Judge Alvarez that says that
2 the stuff that we’re asking for in this particular case is not
3 stuff that we should get. The other side of that coin, Your
4 Honor, is there is an MDL court in McAllen -- in Edinburg right
5 now that’s handling thousands and thousands of hailstorm cases.
6 THE COURT: The same thing that’s going on
7 here. That’s why I said, “Is this the MDL case”?
8 MR. HINOJOSA: And that MDL judge said that
9 the materials that we’re requesting are relevant. And in fact,
10 the court put together - -
11 THE COURT: Is a three-judge panel there or
12 four-judge panel?
13 MR. HINOJOSA: No, it’s -- the supreme -- the
14 MDL panel appointed Judge Rose Reyna to be the MDL judge for
15 all the hailstorm cases in the Rio Grande valley. And what --
state
16 what happened in that particular case is that judge, that
17 district judge, determined that discovery of these issues was
18 absolutely relevant to these hailstorm cases. Even though
19 they’re -- you have -- you’re entitled to do discovery on
20 individual claims, you can also do discovery on policies and
21 procedures that will illuminate how they are handling these
22 particular claims.
23 In fact, Your Honor, the court developed
that
24 master discovery that included all the identical questions
on
25 are part of the issue in this motion to compel and the issue
CYNTHIA PEREZ LENZ, CSR
27
1 the protective order, and allowed the parties, both the
2 plaintiffs and the defendants to propose -- propound discovery
3 among -- along the lines of that master discovery. So, even
4 though there is a state federal district judge that says you
5 can’t do it, there is a state district judge that says you can,
6 and that state district judge’s decision on whether or not you
7 can proceed forward on this kind of discovery has not been
8 appealed. That issue is not on appeal. There is issues on
9 appeal with respect to whether or not the terms of the
10 protective order are legal ; but whether or not we can propound
11 this discovery, that’s not -- that’s not -- not been questioned
12 by anyone.
13 You know, we sat down -- I mean, I am involved
14 in the Multi District Litigation since day one. In fact, I
15 wrote the brief to the MDL panel on whether or not there should
16 be an MDL created. And, in fact, we recommended that if there
17 was going to be an MDL, that to avoid forum shopping, they
18 should appoint a district judge from Hidalgo County, and in
19 fact they did.
20 But -- but what -- what has happened here,
21 Your Honor, is that that share -- that discovery that we have
22 propounded in that particular case, has allowed us to resolve
23 probably two-thirds of all the cases that are pending all -- in
24 the multi-district litigation.
25 THE COURT: All right. Let’s move on then.
CYNTHIA PEREZ LENZ, CSR
28
1 So then you were saying -- so far you tell me that the things
2 that you’re requesting are -- are training materials, policy
3 and procedures, things of that nature.
4 MR. TAYLOR: Let me chime in. There’s
5 actually a couple more. And I’ve actually -- I’ve had
6 conversations with Ms. DeBolt. I’ve sent letters to
7 Mr. Huseman’s firm looking for training materials pertain to
8 wind and hail claims in Texas for five years; looking for the
9 personnel files for the adjustors who were involved in handling
10 the claim, and I can explain why we think that’s relevant.
11 THE COURT: The what files?
12 MR. TAYLOR: The personnel files for the
13 adjustors.
14 THE COURT: Okay.
15 MR. TAYLOR: The underwriting files where the
16 claims at issue. An example is one of the claims -- I think
17 it’s Pena -- there is a prior claim that was a lot of property
18 -- I don’t even have that prior claim file, even though I’ve
19 asked for it, So the underwriting file for these two policies.
20 And then any documents that are related to my client’s --
21 non-privileged documents related to my clients, the property,
22 the address, the policy, or the claim number. So I’ve narrowed
23 it down to basically those five categories.
24 THE COURT: From all -- from all that I am
25 hearing you say on these five categories, I don’t see anything
CYNTHIA PEREZ LENZ, CSR
29
1 in here that talks about third parties.
2 MR. HUSEMAN: Okay. May -- you want to hear
3 from me on that, Your Honor?
4 THE COURT: Yes.
5 MR. HUSEMAN: Okay.
6 THE COURT: And I am not even sure why we
7 wasted our time on that issue if in fact they are not
8 requesting that from you.
9 MR. HUSEMAN: Well --
10 THE COURT: Cause you said that they were - -
11 you seem to be alluding to the fact that they were requesting
12 similar information that was requested on that particular case.
13 MR. HUSEMAN: I did, Your Honor. And if I may
14 begin within this, and rather than characterize what they told
15 you versus what I am telling you, let’s just go to what --
16 THE COURT: You know what I usually start
17 with? I usually just start with your discovery requests. And
18 then, you know, we will just -- instead of doing what I -- and
19 when I make the mistake of starting with what you all’s rules
20 or believe what the rule is on particular issues, it normally
21 takes a lot longer. But in any event, I’ll let you respond to
22 that. And then I am going to get to the questions.
23 MR. HUSEMAN: All right. If you look, for
24 example, having been told that they have nothing about other
25 people besides themselves involving this, Interrogatory Number
CYNTHIA PEREZ LENZ, CSR
30
1 Seven to my client says --
2 THE COURT: Wait a minute. Are you objecting
3 to everything?
4 MR. HUSEMAN: No, sir.
5 THE COURT: Okay.
6 MR. HUSEMAN: No, sir. We’ve produced in
7 our -- now we’ve also produced - -
8 THE COURT: No, but with regard to the - - the
9 motion to compel now.
10 MR. HUSEMAN: No, not everything, obviously.
11 We’re willing to, for example --
12 THE COURT: The motion to compel , I want to
13 get to something that’s a little bit more concise. Your motion
14 to compel, what numbers are you compelling?
15 MS. DEBOLT: Your Honor, if I may, here’s a
16 copy of their motion to compel and our response.
17 THE COURT: Okay, good. Thank you.
18 MR. TAYLOR: Motion to compel, Request For
19 Production Number Two, produce the underwriting files and
20 documents relating to the underwriting of all insurance
21 policies --
22 THE COURT: Let me follow along here.
23 Request for production, is that what it was?
24 MR. TAYLOR: Yes, Judge, to State Farm.
25 THE COURT: Number Two, right?
CYNTHIA PEREZ LENZ, CSR
31
1 MR. TAYLOR: Right.
2 THE COURT: All license and certifications
3 identified in response to Interrogatory Number 3, is that what
4 it is? No.
5 MR. TAYLOR: No. That’s the one of
6 defendants. Keep -- it’s probably -- here’s State Farm.
7 THE COURT: Produce underwriter files?
8 MR. TAYLOR: Yeah, Number Two.
9 THE COURT: Number Two.
10 MR. TAYLOR: And I don’t see --
11 THE COURT: So that one was one that they --
12 MR. HUSEMAN: We’ve done.
13 MR. TAYLOR: They objected to that as being
14 overly broad, burdensome, vague --
15 THE COURT: Oh, but you may have produced it,
16 but they set your objection on motion to compel . Are you
17 sticking to your objection on that?
18 MR. HUSEMAN: As so far as what we have not
19 produced, yes, sir.
20 THE COURT: So then we have to address it,
21 MR. HUSErIAN: We’ve produced --
22 THE COURT: You make it sound like if we don’t
23 have to address it when you say we’ve produced it. No, we have
24 to address the objection unless you’re withdrawing it.
25 MR. HUSEMAN: Maybe I didn’t make myself
CYNTHIA PEREZ LENZ, CSR
32
1 clear, Your Honor. We have responded with the bulk of what
2 they wanted.
3 THE COURT: Okay. So you’re not withdrawing
4 your objection?
5 MR. HUSEMAN: No.
6 THE COURT: Okay. So we have to address
7 Number Two.
8 MR. HUSEMAN: And --
9 THE COURT: Go ahead.
10 Wait, wait. I’m sorry.
11 MR. HUSEMAN: You had asked me a minute ago
12 about what discovery they had to fit within the supreme court
13 case. And I was getting ready to read some of their discovery
14 to us about that, Your Honor.
15 THE COURT: Well, we’re going to go down the
16 numbers. We’ll just go down the numbers.
17 MR. TAYLOR: We’re not compelling that --
18 THE COURT: Let’s go down the number. I think
19 we’re not making much progress. And we’re 17 minutes into
20 our conversation - -
21 MS. DEBOLT: Your Honor, I think it’s worth
22 mentioning which case we’re arguing, because the motions to
23 compel are different for both cases. So I think we need to
24 make clear. Are we talking about the Raul Rodriguez case?
25 MR. TAYLOR: Right. That’s the one the judge
CYNTHIA PEREZ LENZ, CSR
33
1 has in front of him.
2 MS. DEBOLT: Okay.
3 THE COURT: 2O14-CVF-1162, sorry, for the
4 record.
5 MR. HUSEMAN: M’hum,
6 THE COURT: That’s Request For Production
7 Number Two. Okay, so Request For Production Number Two. And
8 their response is here. Is that correct, Ms. Dupont? Du- --
9 MR. HUSEMAN: DeBolt.
10 MS. DEBOLT: DeBolt.
11 THE COURT: DeBolt. Well, how hard is that?
12 That’s not hard at all. Okay. So, your response is here,
13 right?
14 MS. DEBOLT: Yes.
15 MR. TAYLOR: Your objections.
16 MS. DEBOLT: They were in an exhibit to his
17 motion, yes, Your Honor.
18 THE COURT: Here it is. Response. And then,
19 let me see if there is an objection. There is an objection.
20 Okay. So, let me read -- go ahead, Mr. Taylor.
21 MR. TAYLOR: So, you know, I need the
22 underwriting file because I’d like to -- at least before I put
23 my clients up for deposition know about the condition of the
24 property, at least what’s the information State Farm has on the
25 condition of the property. They have produced some documents,
CYNTHIA PEREZ LENZ, CSR
34
1 which apparently they say could be the underwriting file. But
2 as long as they’re standing behind these objections, I don’t
3 feel comfortable with that.
4 THE COURT: Okay. Let’s talk about your
5 objections. You’re saying it’s not relevant?
6 MS. DEBOLT: It’s not relevant. They haven’t
7 explained why they need it; what the relevance is of --
8 THE COURT: Isn’t it the other way around?
9 You have to explain why it’s not relevant.
10 MS. DEBOLT: It’s irrelevant to their case;
11 it’s not relevant to the correct claim.
12 THE COURT: The underwriting file?
13 MR. HUSEMAN: Right. Whether or not we paid
14 too much or too little or whatever --
15 THE COURT: On their claim?
16 FIR. HUSEMAN: Right. It has nothing to do
17 with that.
18 MR. HINOJOSA: No.
19 MR. HUSEMAN: As to how the policy was
20 originally sold. Their claims of that we didn’t pay enough.
21 That’s all --
22 THE COURT: But, no, they also say that --
23 that there is a cause of action for -- tell me again what that
24 is.
25 MR. TAYLOR: Bad faith, insurance code
CYNTHIA PEREZ LENZ, CSR
35
I violations.
2 MS. DEBOLT: All related to the claim.
3 THE COURT: Right. But they don’t have to
4 start with what you all agree to do?
5 MR. HUSETIAN: All of their extra contractual
6 claims are things that arise after the loss, not before. And
7 what -- how we underwrote their claim, if there is anything
8 that we didn’t give them, I am not sure. There’s a lot in
9 there that we didn’t give them that has nothing to do with how
10 we handled the claim.
11 THE COURT: How do -- do they just take your
12 word for it?
13 MR. HUSEMAN: No. The underwriting file is
14 State Farm deciding whether or not to write the policy in the
15 first place. There is no issue on it that I can see on this
16 that gets submitted to the jury. Not even close. It’s simply
17 a fishing expedition trying to find something perhaps for
18 another case. And while I am on that subject --
19 THE COURT: But why would they - - why would
20 anybody be in -- why would anything be in there for another
21 case?
22 FIR. HUSEMAN: Well, why would there be
23 anything for this case either?
24 THE COURT: Well, because it dealt with the
25 underwriting of this particular property.
CYNTHIA PEREZ LENZ, CSR
36
1 MR. HUSEMAN: Which bears not at all on any
2 issues that they are making claims on.
3 MR. HINOJOSA: That’s not true, Your Honor.
4 MR. HUSEMAN: At all.
5 FIR. HINOJOSA: They haven’t -- they do
6 inspections of the house. The way they make a determination of
7 how -- what to value, how much to charge, they do a complete
8 inspection of the house. They send an inspector to the house,
9 Your Honor. And so the condition of the house is at the
10 time --
11 THE COURT: And that’s in the underwriting
12 file?
13 MR. HINOJOSA: That’s in the underwriting
14 file, Your Honor.
15 MR. TAYLOR: Judge, you know --
16 THE COURT: All right.
17 MR. TAYLOR: I’ve tried one of these cases,
18 and I’ve been a part of trials for these State Farm cases.
19 Inevitably you’ve already seen it. This is a small case.
20 They’re going to say that my clients didn’t take cake of their
21 house; this is a crappy house in Laredo. And it’s going to be
22 based on the condition of -- that are listed in the
23 underwriting files. I want to know now what is going to be
24 there before - -
25 THE COURT: Oh, in other words -- in other
CYNTHIA PEREZ LENZ, CSR
37
1 words, if they -- part of the reason of why they may be paying
2 so little because there was possibly replacement cost value is
3 because it was worth little?
4 MR. TAYLOR: Yes.
5 MR. HINOJOSA: Yes.
6 THE COURT: So, there may be some information
7 in the file when it was originally written that indicates what
8 they thought that the house condition was.
9 MR. TAYLOR: Right. The condition of the
10 file. I want --
11 THE COURT: All right. Anything else?
12 MR. HUSEMAN: And we have no problem with
13 that.
14 THE COURT: Your objection then is -- with
15 regard to relevance is -- is overruled. I am not sure how much
16 the problem would be, because you don’t maintain a physical
17 file. Whatever it is. Electronic file or physical file, as
18 long as you call it an underwriting file. That’s the problem
19 is you don’t know what’s an underwriting file.
20 MR. HUSEMAN: No.
21 THE COURT: You don’t know what that is?
22 MR. HUSEMAN: We do have -- we do have some
23 things which could be considered underwriting files that we
24 have given to them in paper and electronically.
25 THE COURT: Is that -- is that possible that
CYNTHIA PEREZ LENZ, CSR
38
1 the insurance company doesn’t know what an underwriting file
2 is, what you mean by that?
3 MR. HINOJOSA: I would have a really hard time
4 accepting that, Your Honor. I mean -
5 THE COURT: I think you know what an
6 underwriting file is, whatever you all -- however you define it
7 -- not you, but your client.
8 MR. HUSEMAN: Yeah.
9 THE COURT: If it’s a -- if it’s a file
10 that’s -- if it’s -- what -- however we -- however people
11 define underwriting file. You didn’t define it under your
12 discovery rules.
13 MR. HUSEMAN: And I think that’s what we gave
14 them --
15 MR. TAYLOR: In terms of -- I mean, it’s an
16 insurance term.
17 THE COURT: I think it is. And so the way you
18 all -- your client defines underwriting file, whether it’s a
19 physical file or an electronic file, I think that will apply.
20 MR. HUSEMAN: If you will look at what we
21 produced, Your Honor, that we gave you.
22 THE COURT: I’m not going to look at what
23 you - -
24 MR. HUSEMAN: There are tabs under that
25 which -- has the underwriting documents --
CYNTHIA PEREZ LENZ, CSR
39
1 THE COURT: I am not going to address what you
2 produced. I’ll let them address that. I am addressing only
3 the objections. Because that’s what I am addressing today. If
4 you’re telling me, Judge, we’ve produced everything, then
5 great. Then that means, we -- you’re withdrawing -- the only
6 thing I want to know is I have to address your objections,
7 unless you withdraw them. That’s it. Whether you produced it
8 or not, I am not going to go through that right now and find
9 our whether that - - because they are not saying you haven’t
10 produced it. They are saying, I want to address your
11 objections. So that’s that’s what I need to do. And we’re
12 on the first one.
13 So, what I am going to do is -- I am not sure
14 if there is a problem with the definition. I am just basically
15 going to say whatever the definition is underwriting file for
16 your client, that’s what it’s basically going to be. So --
17 MR. TAYLOR: I’ll cut this down.
18 THE COURT: Let’s see. It’s relevance, and
19 what else was there? I think that was it. Yeah. Okay.
20 MR. TAYLOR: Let me go to Request For
21 Production Number Six, Judge. All documents used to instruct,
22 advise, guide, inform, educate, or assist, provided to any
23 person handling the claim made the basis of this lawsuit
24 related to the adjustment of this type of claim, i.e. hail
25 damage. What I’ve done is I’ve limited that through several
CYNTHIA PEREZ LENZ, CSR
40
1 letters to counsel. I want instructional guidelines,
2 documents, materials related to wind and hail claims in the
3 State of Texas for five years.
4 THE COURT: And your theory behind that is
5 that’s going to be instructive to the adjustors who handled
6 this claim to find out exactly how they did it.
7 MR. HINOJOSA: That’s right.
8 MR. TAYLOR: That’s going to go to both causes
9 of action to each contract and as to productions.
10 MR. HUSEMAN: What counsel didn’t tell you is
11 we are agreeable. AdditionaHy, I think five years is the year
12 that -- as long as we have a protective order in place that
13 keeps our proprietary information out of the public domain and
14 being used other places. And we have a proposed order before
15 the court, which if we can get an agreement on that, we can
16 produce that to them.
17 THE COURT: Did you all object to that?
18 MR. TAYLOR: Judge, this is the first time
19 I’ve heard of that.
20 THE COURT: Did you object to Number Six on
21 that?
22 MS. DEBOLT: Yes, Your Honor. We objected
23 because it --
24 THE COURT: No, no. But specifically, for
25 that privilege.
CYNTHIA PEREZ LENZ, CSR
41
1 MS. DEBOLT: Yes. We stated the privilege.
2 And then we also in the objection state that we would produce
3 the documents.
4 THE COURT: There it is. I see it.
5 MR. HUSEMAN: Yeah.
6 MS. DEBOLT: And then, Your Honor, I think
7 that we may streamline a lot of this because Exhibit B to our
8 response is all of the documents that we’ve offered to produce
9 once there is a protective order that’s entered. And there are
10 a lot of documents that we will produce once we get that
11 protective order.
12 MR. TAYLOR: I’ve seen their list. And that’s
13 -- what I am requesting are all the documents related to wind
14 and hail claims for the last five years. I don’t --
15 THE COURT: Not the wind and hail claims.
16 You’re requesting
17 MR. TAYLOR: How to handle wind and hail
18 claims.
19 THE COURT: Right.
20 MR. TAYLOR: I don’t necessarily want the
21 documents -- I’ll take them -- that they have hand picked as
actually
22 being relevant, because I want what these people are
So
what’s available to them, and what they’re taught on.
--
23 --
24 THE COURT: Right.
MR. TAYLOR: I’ll take what they have. But
25
CYNTHIA PEREZ LENZ, CSR
42
1 what I want them to do is do a search for those documents for
2 five years. And I want that to be produced. And I think it’s
3 relevant.
4 MR. HUSEMAN: This takes us -- circles back to
5 the rule about them asking for things beyond this lawsuit.
6 THE COURT: No. Well, this is specifically in
7 this lawsuit, because the instructions that you give your
8 adjust- -- not you, your client gives your adjustors, and the
9 guidance that your company, that your client give the adjustors
10 on how to handle this claim, ultimately will deal with how they
11 handle this particular claim.
12 MR. HUSEMAN: Don’t have a problem with that.
13 THE COURT: Okay. Then let’s go.
14 MR. HUSEMAN: The problem we’ve got is when
15 they ask us to identify by name, address, phone number,
16 anybody --
17 THE COURT: We are talking about Number Six,
18 right?
19 MR. HUSEMAN: No, this is Seven.
20 THE COURT: Cause we’re on Six.
21 MR. HUSEMAN: This is --
22 MR. TAYLOR: Your Honor, I am not compelling
23 Number Seven.
24 MR. HUSEMAN: What I’m saying, Your Honor --
25 THE COURT: They’re not compelling Seven.
CYNTHIA PEREZ LENZ, CSR
43
1 Let’s not go to Seven. Let’s stick to Six, because Six is what
2 they’re compelling.
3 MR. HUSEMAN: Well, this ties in to our
4 complaint about them wanting things beyond the scope of this
5 claim.
6 THE COURT: But Seven they are not requesting
7 -is what they’re -- is what he’s asking me. So, I’d rather not
8 chew on something that we don’t need to right now. We’ve got
9 plenty.
10 MS. DEBOLT: Your Honor, in our -- we
11 responded to them and offered with the entry of a protective
12 order to produce relevant education and training or training
13 tracker records, if any, of the assigned adjustor to directly
14 handle plaintiff’s hail claim.
15 MR. HUSEMAN: Right.
16 MR. HINOJOSA: Well, Your Honor, but they are
17 determining what relevant is in that respect. We just want
18 them to produce what we’ve asked for. And, unless they have a
19 specific objection --
20 THE COURT: Okay. You don’t have any
21 objection to entering into the confidentiality agreement or a
22 protective order?
23 MR. HINOJOSA: The only thing on that, Your
24 Honor -- and I guess we can take it up real quick on that.
25 We’ve asked -- there’s I think a total of ten hailstorm claims
CYNTHIA PEREZ LENZ, CSR
44
1 here in Laredo as a result of a series of hailstorms that
2 occurred over a period of time. And we’re asking so that we
3 don’t have to be coming back every time on this particular
4 issue, that we allow -- be allowed shared discovery; that if we
5 get this discovery in this particular case, that we can -- we
6 can use -- this law firm, the Mostyn Law Firm can use the same
7 discovery responses or documents that were produced in any of
8 the other ten cases. And subject to that, we would -- we don’t
9 have a problem with the protective order. And I think
10 that’s -- there’s a big argument against that that they are
11 making now.
12 The -- the 13th Court of Appeals has already
13 ruled on that issue. But we’re not in the 13th Court, I
14 understand that. And it has allowed that. That’s probably the
15 main issue of dispute with respect to the training documents
16 and the information -- the information that the adjustors are
17 to review to guide them in --
18 THE COURT: Okay. What I see on the
19 objections so far is you’re objecting to vague and ambiguous.
20 Apparently Mr. Taylor says he’s clarified that with some
21 follow-up narrowing of the request, or clarification of the
22 request. Overly broad is another objection. Relevant is
23 another objection. Based on what Mr. -- what they say that
24 they have -- in the manner in which they have, I guess,
25 narrowed the issue on Number Six, and as modified, I will
CYNTHIA PEREZ LENZ, CSR
45
1 overrule the objection with regard to vague and ambiguous;
2 overrule it with regard to overbroad; and overrule it with
3 regard to relevant; however, subject to the -- the protective
4 order.
5 Now, let’s talk about this other issue.
6 MS. DEBOLT: Just for your reference, these
7 are the documents that we’re going to be potentially arguing
8 about, and that we’ve offered to produce with the protective
9 order.
10 THE COURT: I’m not -- I’m not -- I’m not
11 discussing this, I’m discussing what’s in the response and on
12 your objections.
13 MS. DEBOLT: Yes, Your Honor. And that’s what
14 we’ve offered to produce.
15 MR. HINOJOSA: But they’ve offered to produce
16 because they have the objection. You’ve already removed the
17 objection.
18 THE COURT: The ruling that I am giving --
19 MS. DEBOLT: Okay.
20 THE COURT: -- is basically the Request For
21 Production Number Six, whether you should have to respond to it
22 in the modified version that Mr. Taylor -- it is Taylor, isn’t
23 it?
24 MR. TAYLOR: Yes, sir, Your Honor.
25 THE COURT: -- has in fact indicated to the
CYNTHIA PEREZ LENZ, CSR
:atYo;:H:y:or;ndic::d:o::46
::1tC:trt::thesmT:::fC::;ROT
5 way of e-mail or letter or whatever it was, that he clarified
6 as. And based on that, I am making the ruling on your
7 objection.
8 MR. ARAMBIJLA: Your Honor, if I may, the
9 clarification from plaintiff’s counsel was what again?
10 THE COURT: Modification,
11 MR. ARAMBULA: Or modification that you
12 wanted, what was --
13 MR. TAYLOR: Instructional guidelines and
handling wind and hail claims
14 materials related to wind and --
15 in Texas for the last five years.
MR. ARAMBULA: For the adjustors in these - -
16
MR. HUSEMAN: This case?
17
MR. ARAMBULA: In this case?
18
MR. TAYLOR: No, for State Farm.
19
MR. HINOJOSA: Their policies.
20
MR. TAYLOR: The policies and procedures.
21
MR. HINOJOSA: That’s pretty clear in the
22
23 request for production.
MR. HUSEMAN: It’s pretty broad.
24
Well, do you all train do you
THE COURT:
--
25
CYNTHIA PEREZ LENZ, CSR
47
1 all train your adjustors -- not you all, but does your client
2 train your adjustors differently in different parts of the
3 state?
4 MR. HIJSEMAN: Probably.
5 THE COURT: Why?
6 MR. HUSEMAN: Well because they have
7 different conditions at different times.
8 THE COURT: So the homes in south Texas get
9 adjusted one way, and the homes in north -- north Dallas get
10 adjusted a different way?
11 MR. HUSETIAN: I would think that they have a
12 lot more interest in tornadoes in Dallas than they do down
13 here.
14 MR. HINOJOSA: Your Honor, there is no --
15 there is no evidence of that. I’ve been through all these
cases, Your Honor. They have never raised that issue. This is
16
17 the first time I’ve ever heard that.
18 MS. DEBOLT: And Your Honor, his modification
19 is broader than --
20 THE COURT: You still haven’t convinced me of
21 why you would train your adjustors differently.
22 MR. HUSEMAN: Different places, different
23 needs, at different times.
24 THE COURT: On underwriting a particular
25 house?
CYNTHIA PEREZ LENZ, CSR
48
1 MR. HUSEMAN: Well underwriting is not
2 something an adjustor does. That’s --
3 THE COURT: Okay. Well then or on -- on
4 appraising a particular house with regard to the destruction.
5 MR. HUSEMAN: Well, for example, if -- and I
6 don’t even know this is a fact. If -- if --
7 THE COURT: So then an expert from - - an
8 expert that’s brought in here to testify in south Texas about a
9 particular damage --
10 MR. HUSEMAN: fihum.
11 THE COURT: Would have to be somebody who is
12 trained in south Texas wind damage, as opposed to north Texas
13 wind damage?
14 MR. HUSEMAN: Well, I could perceive, for
15 example, Your Honor, there being differences in prices between
16 Dallas and south Texas.
17 THE COURT: But don’t they all use the same
18 computer model that they use?
19 MR. HINOJOSA: Yes.
20 MR. HUSEMAN: They have some similarities, but
21 there are reasonable differences.
22 THE COURT: I’ve had -- and I know I don’t
23 have testimony with regard to that here. But I’ve had plenty
24 of trials in which I’ve had issues of value come up. And I’ve
25 heard people object to experts that are brought in from perhaps
CYNTHIA PEREZ LENZ, CSR
49
1 Michigan or other parts of the country. But I have never heard
2 of them object to experts that are in fact doing work in and
3 around the State of Texas, whether it be Dallas or Houston
4 or --
5 MR. HUSEMAN: Maybe I haven’t made the point
6 clearly. The objection here is what they are wanting to do is
7 know about training of adjustors other than those that are
8 involved in this lawsuit.
9 MS. DEBOLT: And, Your Honor, actually, that’s
10 all they ask for in the request. His modification is broader
11 than their request, because they only asked for training
12 documents to any person handling the claim. So, his
13 modification wanting all adjustors around the --
14 THE COURT: All right. Let’s look at that.
15 MS. DEBOLT: Okay.
16 THE COURT: Okay. Mr. Taylor. It seems that
17 that’s in fact what you requested.
18 MR. TAYLOR: One second. I think there is
19 another request.
20 THE COURT: Good point. Okay. With regard to
21 Number Six then, we’ll deal with it in that manner. If you
22 have another one, then we’ll deal with it at that point.
23 MR. HINOJOSA: That’s fine, Your Honor.
24 THE COURT: Okay. Now, it is eleven o’clock.
25 I need to have a discussion with counsel that are waiting for a
CYNTHIA PEREZ LENZ, CSR
50
1 hearing, and then I’ll bring you guys back.
2 MR. HINOJOSA: Okay, Your Honor.
3 MR. ARAMSULA: Yes, Your Honor,
4 THE COURT: And while I do that, I suggest
5 that you try and confer.
6 (Case recessed while other unrelated matters
7 were called.)
8 THE COURT: All right. Let’s continue.
9 And you all can stick around, please. I am
10 trying to get to you before lunch --
11 MR. GEORGE: Thank you.
12 THE COURT: -- or before I break for lunch.
13 MR. TAYLOR: One last request. And it’s the
14 training material -- all training and educational materials
15 which instruct claim adjustors or claim handlers in handling
16 hail claims for property damage cover under homeowners policy
17
18 THE COURT: What number is that?
19 MR. TAYLOR: This is on Pena.
20 MR. HINOJOSA: Pena. The other one was more
21 narrow. That’s why we were --
22 MR. TAYLOR: Pena Number Five.
23 THE COURT: Okay. So Pena Number Five is not
24 the same one as Rodriguez Number - -
25 MR. HINOJOSA: Rodriguez narrower - -
CYNTHIA PEREZ LENZ, TSR
51
1 THE COURT: Number Six, I believe it was.
2 MR. TAYLOR: And I think we’ve agreed to that,
3 pending the protective order. We conferred a little bit.
4 THE COURT: Well, there was a little bit of a
5 - there was a little bit of a -- from what I remember, there
6 was a little bit of disagreement. I don’t want to say they
7 agreed to it. There was a little bit of disagreement with
8 regard to -- remember that I said that we’d like to limit it to
9 adjustors who handled that -- that particular adjustment, or
10 that particular claim. And there was a -- there was a -- there
11 was a discussion about that. And then at the very end, she
12 said that by my ruling I was making it broader than what you
13 were requesting. So here we are on Number Five. Then now I
14 can actually do what my original ruling was. So, anything else
15 to add?
16 MS. DEBOLT: We have the same objections as we
17 discussed earlier.
18 THE COURT: Sure. Sure. And I will allow for
19 the record to show that the objections are - - that were made on
20 Number Six for Rodriguez case are now made on Number Five for
21 the Pena case. And I’ll bring those over and make them part of
22 the record. And in fact, you’ve -- you’ve -- you brought that
23 in. My rulings are exactly the same as the Pena rulings Number
24 Six -- no, as the Rodriguez ruling, Number Six, into the Pena
25 Request Number Five. And my original ruling on that case will
CYNTHIA PEREZ LENZ, CSR
52
1 stand on the Number Five -- on the Pena Number Five, which will
2 be -- unless you can show me that in fact there is a
3 distinction in which you all do that, train your adjustors, I
4 don’t see how that in fact can be the case.
5 I would think that -- especially on these hail
6 damage cases, they -- you know, there is no evidence of this
7 for purposes of this hearing, but I -- some of the things that
8 I’ve seen in the past, and I hear in the courtroom and
9 otherwise is that sometimes there are teams of people that are
10 brought down to particular areas when these type of claims
11 occur, and they don’t necessarily live here in Laredo or
12 whatnot, when a claim is in Webb County. So --
13 MR. HINOJOSA: So the only issue is --
14 THE COURT: Yes, sir. He wanted to say
15 something. Mr. Huseman?
16 MR. 1-IUSEMAN: If I might. I want to make sure
17 the Court’s clear about a position. We’re not fussing at all,
where
18 subject to the protective order, about producing things
19 adjustors were involved in this claim at all.
20 MR. HINOJOSA: But I think you already ruled,
21 Your Honor, and --
THE COURT: No, I give me a second. Don’t
22 --
23 -- the frustrated guy should be me, not you. Give me a second.
24 MR. HINOJOSA: I’m sorry.
25 MR. HUSEMAN: Truly so.
CYNTHIA PEREZ LENZ, CSR
53
1 THE COURT: Thank you. So I understand
2 completely, And I am just saying I just don’t think it’s going
3 to be -- there’s -- there is nothing on the record that shows
4 that these people, these folks are trained any differently. So
5 your search of one should be, you know, the trainings that
6 people go to, or that you may require them to go to, or the
7 material that you send out to them, if any. There may not be
8 any. In fact, are the same for one or the other, And I don’t
9 suspect that anybody should - - should - - because, you know, the
10 other argument that can be made is, somebody may have missed a
11 session, but doesn’t mean that they’re not still stuck to what
12 -- in other words, that they’re not in fact required to know
13 exactly what it is that -- that the company requires. So
14 that’s -- that’s --
15 MR. 1-IUSEIIAN: We’re going to give them the
16 materials. That’s not the problem.
17 THE COURT: Thank you.
18 MR. HUSEMAN: But by the same order of
19 thinking, if they’re all the same, then giving them ones in
20 this case will get the job done.
21 THE COURT: I understand your objection. I
22 made my ruling. Next one.
23 MR. HINOJOSA: The issue of the protective
24 order, Your Honor.
25 THE COURT: Protective order. You all don’t
CYNTHIA PEREZ ENZ, CSR
54
1 agree on that?
2 MR. ARAMBULA: No, Your Honor.
3 MR. HINOJOSA: The only issue is the shared
4 discovery issue. And that’s --
5 THE COURT: Now, you remember what the courts
6 have said with regard to shared discovery. There’s -- there is
7 a public -- what is the word that the case law says? And I
8 deal with these issues, not necessarily on these hail and wind
9 damage, but on products liability cases. A lot. We’ve had a
10 lot of products liabilities trials.
11 MR. HUSEMAN: Tire roll outs or whatever.
12 THE COURT: Products liability. I tell you
13 what, I’ve had, you know, all sorts of products liability cases
14 between Webb and Zapata Counties. You’d be surprised. So we
15 have that. But that, I believe, may be a standard that is
16 different to -- that is - - that is more concentrated or more
to
17 that the rules apply to products liability cases, as opposed
18 anything else.
19 MR. HUSEMAN: That’s exactly.
20 THE COURT: Can you - - do you disagree with
21 that?
MR. TAYLOR: I do, Judge. And I can let
22
--
23 me - - If -- I think what the supreme court -- and you know, at
24 least in the People’s case was favoring shared discovery was
25 for efficiency. And I can give an example here. We have
CYNTHIA PEREZ LENZ, CSR
55
1 probably a hundred cases that I am handling around the State of
2 Texas where I am going to be compelling training materials for
3 wind and hail claims against State Farm. I recognize that
4 they - - they have a proprietary right. And I want to protect
5 that as well. I don’t want that stuff getting out.
6 But for purposes of efficiency and not having
7 to waste the Court’s time and going to compel at different
8 places, let’s produce it once. They can stamp it however it
needs to be stamped to protect it, and to recognize it. I am
9
10 not going to send it anywhere outside of my firm.
11 THE COURT: In other words, you’re not going
12 to share it with other plaintiff’s counsel --
13 MR. TAYLOR: Just me, my firm.
14 THE COURT: - - with your associations, and
15 things of that nature. Is that --
16 MR. TAYLOR: It’s just more to save my clients
17 money from traveling, to save my money and time.
18 THE COURT: But from traveling here?
19 MR. TAYLOR: Yeah, from having to come down --
20 THE COURT: You’re talking about Webb cases
21 only?
22 MR. TAYLOR: No, no, all around.
THE COURT: You’re not just I thought you
23
--
Webb, and
24 said that there was about ten cases filed here in
here.
25 that you wanted to basically be able to do them
CYNTHIA PEREZ LENZ, CSR
56
1 MR. TAYLOR: Well, I proposed one that would
2 allow me to share my cases only for first party cases against
3 State Farm in the State of Texas. And, you know, there’s
4 probably ten different counties that I have cases in.
5 THE COURT: Oh, is that what you said - ten
6 different counties? I thought you said ten different cases.
7 MR. HINOJOSA: I said ten cases, Your Honor.
8 MR. TAYLOR: I do have ten cases currently in
9 litigation in Webb County. I have some more that I haven’t
10 filed yet, but I’m in probably about ten different counties.
11 And so that’s what I started at, and --
THE COURT: Okay. Tell me what what the
12
--
13 rules say about that. How is it that you’re protected for this
14 material? Why is this material so -- so protectable?
15 MR. REDGRAVE: The material itself, I don’t
, as far as
16 think there is actually a dispute between the sides
ing materials
17 the protection for the material itself, the train
I’m sorry,
18 that provide State Farm with a confidential or --
state.
19 competitive advantage, vis-à-vis other insurers in the
20 That’s part of their trade.
21 THE COURT: Well, they’re not asking for like
22 your actuaries or anything like that. They’re asking for how
23 do you train your people.
24 MR. REDGRAVE: That -- that material itself,
And in
25 Your Honor, State Farm has asserted in multiple cases.
CYNTHIA PEREZ LENZ, CSR
57
1 fact, plaintiffs have agreed that they recognize the trade
2 secret value of those materials. The way in which State Farm
3 trains --
4 THE COURT: Trade - - supreme court has come
5 down with what is actually a trade secret here recently,
6 remember that. Do you meet that criteria with how you train
7 your people?
8 MR. HUSEMAN: fl’hum.
9 THE COURT: This isn’t -- this isn’t -- this
10 isn’t, you know -- what’s the latest thing that was said with a
11 trade secret? This isn’t the -- the geology for, you know,
12 what’s 13,000 feet below the surface, and, or what may be
and
13 13,000 feet below the surface, and where a lot of value
of
14 cost and whatnot has gone into all that type of development
15 the particular areas. I mean, this is, you know, how do you
a look
16 train somebody to go look at a roof, and what to take
17 at. I mean, it’s not - how long would you actually take to do
18 that? How much investment do you take to actually put that
19 together?
20 MR. REDGRAVE: Your Honor, actually there’s a
21 lot of investment State Farm does, first of all.
22 THE COURT: To protect --
23 MR. REDGRAVE: Secondly, I recognize it’s not
24 a formula case. I’ve been involved in formula cases for, you
25 know, a particular product. We know that’s not what this case
CYNTHIA PEREZ LENZ, CSR
58
1 is, in terms of confidentiality. But keeping the material
2 confidential and out of the public view is a competitive issue
3 for State Farm, because other insurers would love to get their
4 hands on how State Farm trains adjustors. There’s a lot of
5 effort that goes into making the materials so that adjustors
6 understand the process, understand the workloads within State
7 Farm, and in fact the way the adjustors then interact with the
how
8 enterprise claim system; how they put the information in;
s
9 it goes into the system so State Farm can adjust and proces
10 the claims with a competitive advantage vis-à-vis the other
11 insurance carriers.
So from State Farm’s perspective and I
12
--
13 believe we put in evidence on this as well, that is a
14 competitive trade secret.
15 THE COURT: Okay. Let’s just suppose for a
16 moment - - because there is no objection on that side with
17 regard to --
18 FIR. REDGRAVE: Correct.
19 THE COURT: - - putting it in the hands of your
20 competitors obviously. They are more -- that’s not what
they’re concerned about. And I haven’t that was my first --
21 --
22 the first way to be able to -- to deal with the situation is --
23 well, does it even meet the criteria. And if it doesn’t, let’s
24 just move on. Okay. Let’s just suppose it meets the criteria.
with these
25 That’s not the criteria that you have to worry about
CYNTHIA PEREZ LENZ, CSR
59
1 folks, do you? I mean, because they are willing to say, I’ll
2 sign off on that. What they’re wanting to do is, I am involved
3 in other cases, I am already going to see your material in this
4 case, I would like to be able to use it in a different case.
5 Now I have a different question to you with
6 regard to that, but that’s more procedural in nature than
7 anything else.
8 You’re basically saying -- you’re saying, I
9 don’t want -- I don’t want you to share it with yourself in
10 other cases.
11 MR. REDGRAVE: Your Honor, two things first.
12 Your break actually helped us go out and confer a little bit on
13 this very point.
14 THE COURT: Okay, good.
15 MR. REDGROVE: It was very helpful, because
16 Mr. Taylor kind of zeroed in on this provision as being the one
17 and only one in dispute. So really, we have a lot of others we
18 we have in our papers. But I think they are willing to say
19 they want to have this resolved, whether they can share within
20 the Mostyn firm. And that was a helpful clarification to us.
21 THE COURT: Okay, good.
22 MR. REDGRAVE: Because the language they had
23 in the original protective order they proposed didn’t have that
24 restriction just to the Mostyn firm. I think with respect to
25 our position, as a matter of principle, we think discovery in
CYNTHIA PEREZ LENZ, CSR
60
1 these cases should be limited to these cases. However, I
2 recognize that Your Honor might just overrule that very
3 quickly.
4 MR. HINOJOSA: That will resolve the issue.
5 THE COURT: Sometimes I surprise you.
6 MR. REDGRAVE: You did have a question for
7 Mr. Taylor. And you wanted to ask a question.
8 THE COURT: Well, my question to him was, I
9 mean, you’re -- you’re saying so that I wouldn’t have to come
10 back to court and have these documents produced. I mean, it
11 could be a very -- it could be another firm in another case.
12 And here you are with the documents. And you want to say,
other case in
13 well, Judge, they agreed to produce these in the
14 Webb County, and --
15 FIR. HUSEMAN: That’s --
16 THE COURT: I mean, it’s not really going to
ents that they
17 be continued under the discovery rules as docum
18 produced in that case. Its just something that you can use.
19 MR. HINOJOSA: Right.
20 THE COURT: Right. But not that’s going to be
well, it’s
21 -- not that’s going to be available for you to say,
under the rules
22 admissible because they produced it, you know,
23 that when you when you produce the document, that now you
--
ing bringing
don’t have to do all the rigamarole of bring
--
24
whatnot. But
25 somebody down to testify on its authenticity and
CYNTHIA PEREZ LENZ, CSR
61
1 so, this isn’t something that you are going to be able to use
2 in that matter.
3 MR. TAYLOR: It gives me a baseline, for
4 example.
5 THE COURT: For asking some questions.
6 MR. TAYLOR: For -- oh, no, no. For actually
Hey,
7 going to opposing counsel in another case and saying,
ed it in
8 here’s what I know exists; has been produced; we produc
9 this case.
10 THE COURT: Sure. I understand that.
11 MR. TAYLOR: Yeah. And that’s really what
12 I --
THE COURT: I’ll get to you, Felix. Give me a
13
14 second.
15 MR. ARAMBULA: Yes, Your Honor.
16 MR. TAYLOR: And that’s really my goal, is
because I like to have some consistency. And --
17
THE COURT: I understand that. But I just
18
that I wasn’t that you
wanted to make sure that we
--
19 - -
20 weren’t expecting -- even if I go that route, an order that
discovery that will
21 basically says these documents will be now
firm is involved
22 be officially usable in all cases that Mostyn
23 in. That’s not the order you’re going to get.
24 MR. TAYLOR: Not admissible, but I can use
25 them in depo for example --
CYNTHIA PEREZ LENZ, CSR
62
1 MR. ARAMBULA: Here we go.
2 THE COURT: Well, I am not talking about
3 admissibility. Maybe I should have said it differently. That
4 they would be considered official discovery of another case.
5 It’s really not going to be official discovery. It’s just
6 going to be something that you can use - -
7 MR. TAYLOR: Yeah.
8 THE COURT: And then -- in other words, if
9 they -- if they say -- if in other cases in the firm that
10 they’re not -- that they may not be involved in, and I am
say
talking about the defense firm before the court now, and
--
11
12 and you asked for these documents. And they say, Well, we have
be
13 none. You can say, What do you mean you have none; don’t
going
14 silly. These were produced to me in Webb County, so I am
15 to use these documents. You can use it like that.
16 MR. TAYLOR: Right.
17 MR. HINOJOSA: Yes.
MR. TAYLOR: And that’s what I -- I want to be
18
say, here
19 -- maybe skip the whole motion to compel thing and
20 are the documents - -
21 THE COURT: Mr. -- Felix, go ahead.
22 MR. ARAMBULA: Your Honor - -
23 THE COURT: I am sorry to call him Felix, but
24 I’ve known him for --
MR. ARAMBULA: That’s okay, Your Honor. Thank
25
CYNTHIA PEREZ LENZ, CSR
63
1 you.
2 I know opposing counsel speaks to wanting to
3 get these documents to make it easy on the court, things of
4 that sort. But if we were to follow what plaintiff’s counsel
5 wants, we would produce these documents, but then the other
6 firm would say -- my firm, which -- I am not with --
7 THE COURT: Right, with the Huseman.
8 MR. ARAMBULA: My firm, we would be in court
would get
9 again fighting over the same documents, because we
that he may
10 the written discovery for those exact documents
So, there is no this
have gotten from this other firm.
--
11
12 argument about making it easier for the court.
13 THE COURT: Because now you’re requesting
And you’re
14 documents that are relevant to the proceedings.
going to know now that they have that. Is that what you’re
15
16 saying?
MR. ARAFIBULA: No, no, no. What I am saying
17
18 is they’re -- more than likely they are going to ask for the
use that
19 exact same stuff because they know they can’t
20 document.
21 THE COURT: Right. But the distinction is --
22 and I understand that.
23 MR. ARAMBIILA: Correct.
24 THE COURT: They are going to have to ask for
25 it.
CYNTHIA PEREZ LENZ, CSR
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1 MR. ARAMBULA: Yes, sir,
2 THE COURT: But the distinction is now that
3 you’re not going to object to it, because -- because --
4 MR. HINOJOSA: We know it’s there.
5 THE COURT: They know it’s there, one. You
6 may object to it; may have different judge, you know --
7 MR. ARAMBULA: That’s exactly right, Your
8 Honor.
9 THE COURT: You may object to it, and you nay
10 get a different ruling. I mean, everybody’s been using other
11 judge’s rulings to tefl me that I should rule one way or
12 another. But, you know, that happens, and you’re not the first
13 folks that do that.
14 MR. ARAMBULA: I guess my point --
15 THE COURT: Federal district court judge or
16 state district court judge. I happen to know Judge Reyna more
17 than I know Judge Alvarez, but -- you know, when you’re a state
18 court judge, you usually know more state court judges.
19 MR. HUSEMAN: I think I chose the wrong --
20 MR. HINOJOSA: If I may, Your Honor.
21 THE COURT: Let me just have Felix finish his
22 thought.
23 MR. ARAMBULA: Yes, Your Honor. I was just
24 responding to the argument that it would be easier for
25 everybody. It’s not going to be easier.
CYNTHIA PEREZ LENZ, CSR
65
1 THE COURT: It may not be easier. Go ahead.
2 MR. HINOJOSA: I understand that - - that the
3 issue with whether or not it was going to stay within the firm
4 -- and I think we all agree that its going to stay within the
5 Mostyn firm, and there is not going to be any sharing with any
6 other lawyers outside of those particular - -
7 THE COURT: And that’s -- and that’s going to
8 be my ruling.
9 MR. HINOJOSA: Thank you.
10 THE COURT: So that’s my ruling as to your
it will stay in the firm. It
11 objections, is it will stay --
el in other
12 will stay not being able to share with even co-couns
13 cases -- I mean, in -- co-counsel that you may have been
14 involved in. It stays in the firm. And that’s the bottom line
15 on it.
16 MS. DEBOLT: And just for clarification, the
State Farm
17 rest of the protective order is going to be the
18 submitted protective order?
19 FIR. TAYLOR: Well, apart from the part that we
is done. I don’t
20 have to return the stuff after the litigation
21 want to have to do that.
22 MR. ARAMBULA: Well, that’s another point at
23 issue, Your Honor. They still want to keep the documents after
24 this lawsuit has resolved itself. We would want to in a
done.
25 typical protective order get it back after it’s
CYNTHIA PEREZ LENZ, CSR
66
1 MR. HUSEMAN: Standard.
2 MR. ARAMBULA: Standard. Standard protective
3 order.
4 THE COURT: Well, it’s not that much. But I
5 mean, I’ve gone both ways on that issue. In fact, Ms. De Llano
6 was here earlier. She’d tell you what I fumbled with on that
7 issue.
8 MR. TAYLOR: I’ve had -- in the hurricane/ice
9 litigation, had millions of documents that were produced. Some
10 of them were produced in a federal court case. And I had to
11 basically swear that -- that I destroyed everything and sent
12 everything back. And it’s just -- it’s -- the way that it
13 is -- it’s very complicated, and it’s -- it makes me nervous.
14 And if I’m protecting it anyways, and they are not going
15 anywhere, I don’t see the need for that.
16 THE COURT: Well --
17 MR. HINOJOSA: The problem is it’s a -- it’s
18 a --
19 THE COURT: I mean, you all have a cause of
20 action regardless, don’t you?
21 MR. HINOJOSA: Yeah.
THE COURT: I mean, the whole idea was -- and
22
23 I read an article recently -- the whole idea is going to be
24 now -- okay, you’re not guaranteed that in fact your cause of
25 action will be heard here. But that’s a different story.
CYNTHIA PEREZ LENZ, CSR
67
1 MR. HINOJOSA: It’s a logistical nightmare,
2 Your Honor.
3 THE COURT: It is,
4 MR. HINOJOSA: Because we’re in the middle of
5 litigation --
6 THE COURT: But I understand their -- once it
7 goes to a file, do you really think it’s going to go out
8 anywhere else?
9 MR. ARAMBULA: If I may, Your Honor, it’s no
10 different, once the case settles, we ask for the settlement and
11 release documents, give us everything back, with that -- with
12 the same documents once we settle the case. Whatever we
13 exchange in discovery, give it back with the -- with the
14 settlement release.
15 MR. HINOJOSA: But if you have shared
16 discovery, Your Honor, I mean, the whole purpose of the shared
17 discovery, which is limited in the -- in to this particular law
18 firm --
19 THE COURT: Okay, guys.
20 I -- I understand. Okay. We started talking
21 about things very broadly. We narrowed it down to, okay, I
some
22 really just want them so that I can use them to facilitate
23 of the cases that I am already working on, and for the
24 convenience of not only perhaps maybe this court in other
25 cases, but other judges in, I guess, the state. We talked to
CYNTHIA PEREZ LENZ, CSR
68
1 that.
2 So, how long can that go for? You know, it’s
3 like you’re going to have how many cases going on; you may have
4 other State Farm cases in the future. I mean, its going to be
5 perpetual, it seems like it could be.
6 MR. HINOJOSA: But if it stays with the firm,
7 and it can’t be used, I mean, maybe you can put a time limit on
8 it, Your Honor.
9 THE COURT: That’s even worse. Because then
10 you lose track of what -- what - - when these cases end and
11 whatnot. So, what I’ll do is I’ll put a time limit, but it
12 will be this way. It will be one year -- has to be either
13 destroyed or returned one year after this case is resolved.
14 MR. HINOJOSA: That’s fine.
15 MR. ARAMBULA: That will work for us, Your
16 Honor.
17 THE COURT: Thank you.
18 MR. REDGRAVE: If we can address the two
aphs 20
19 things you just ruled upon are paragraphs one and paragr
20 of the proposed order, we can submit - -
21 THE COURT: You can either interlineate or
22 submit it to me for --
23 MR. REDGRAVE: We’ll submit it.
24 MR. TAYLOR: Last thing, Judge.
25 THE COURT: I thought that was the last thing.
CYNTHIA PEREZ LENZ, CSR
69
1 MS. DEBOLT: There is one mother motion.
2 MR. TAYLOR: Under 196.4, I requested that any
3 of the electronically stored information to these training
4 materials be produced in native format.
5 THE COURT: What’s the problem with that?
6 MR. REDGRAVE: Your Honor - -
7 MR. ARAMBULA: I am going to step out on this
8 one, Your Honor.
9 THE COURT: I just went through an e-discovery
10 training not too --
11 MR. ARAMBULA: Judge’s conference, Your Honor?
12 THE COURT: No, I had to actually go out of
13 state for that.
14 MR. REDGRAVE: Well, Your Honor, this gets to
15 be my issue. And the issue really is about this word “native
16 file”, and whether you can -- should have everything produced
17 in native files. We -- we made our objections. So, I want to
18 cut it down to really what -- what the objections are really
19 about. Under 196.4, as well the other rules of civil
20 procedure, we are allowed to object. And we did make those
21 objections. And the objections are based upon the facts we put
as well
22 in the record, the affidavit paragraphs 25 through 32,
y in the
23 as the affidavit talks about how information is actuall
to this
24 company moved from things like e-mail and other places
25 thing called the enterprise screen system. There it’s locked
CYNTHIA PEREZ LENZ, CSR
70
1 down into a read-only format.
2 And when litigation like this ensues, the
3 information is then pulled out to a particular form, or
4 processed. And then we produce it. In this case, we got
5 searchable PDFs. So you can search within, and things like
6 that - -
7 THE COURT: So you gave them -- what type of
8 file did you give them?
9 MR. REDGRAVE: PDF. It’s searchable. There’s
10 some pages that are -- like a picture, you can’t search a
11 picture, right.
12 THE COURT: Why do you want the native format?
13 What information do you want that --
14 MR. TAYLOR: Well, for example, on the
15 training materials, the PowerPoints, I want any of those
16 documents in native format. The color -
17 THE COURT: You want one in native format
18 precisely for what reason?
19 MR. TAYLOR: Oh, so for example, there are a
will
20 lot of versions of a particular training material that
21 come up, and comments or red lines. A lot of times in other
be
22 litigation, State Farm has produced a memo, and there will
23 a -- at the top of the memo it will say, the things in red we
can’t
24 need to discuss or change, but it’s black and white so I
25 see it.
CYNTHtA PEREZ LENZ, CSR
71
1 THE COURT: I tell you what I’m going to do.
2 I will allow for you to bring this up again after you receive
3 it. And if you have reasons to suspect that there is something
4 like that that may be occurring, then bring it up to my
5 attention, and I’ll allow that to -- to potentially be given to
6 you in native format.
7 MR. TAYLOR: Thank you, Judge.
8 MR. REDGRAVE: Your Honor, that’s exactly what
9 the courts have done. Thank you.
10 MS. DEBOLT: And then the last thing is our
11 defendant’s motion to compel discovery responses. And I can --
12 THE COURT: And you agreed to it already?
13 MS. DEBOLT: No.
14 MR. HUSEMAN: We agreed to --
15 THE COURT: No, I’m sorry. So there’s
16 objections on your part?
17 MR. ARAMBULA: That’s correct.
18 MR. TAYLOR: And we supplemented, and amended,
19 and we produced everything that we --
20 THE COURT: Do you want to withdraw some of
21 your objections?
22 MR. TAYLOR: Yeah, we did actually.
23 THE COURT: Okay.
24 MS. DEBOLT: Did you provide that to the
25 Court?
CYNTHIA PEREZ LENZ, CSR
72
1 Because I don’t have the most recent copy. We
2 got it yesterday. We were already on our way to Laredo when we
3 got all --
4 THE COURT: Okay.
5 MR. HINOJOSA: We’ll give you something
6 without the objections.
7 MS. DEBOLT: Oh, there’s still objections to
8 every request and interrogatory.
9 MR. TAYLOR: Okay.
10 THE COURT: Well , but I don’t want to hear --
11 I only want to hear the ones that you -- that you put today for
12 the compel -- for a hearing on the motion to compel
13 MS. DEBOLT: Oh.
14 FIR. HUSEMAN: Its their objections, right, to
15 our --
16 MS. DEBOLT: Their objections.
17 THE COURT: No, I know that. But you set it
18 for a hearing.
19 MS. DEBOLT: Right. This is our motion --
20 MR. HUSEFIAN: If they withdraw the objections,
21 that makes everybody’s life easier.
22 MR. HINOJOSA: With respect to that issue that
23 you were talking about.
24 THE COURT: Okay. Let’s go through them.
25 Let’s see what --
CYNTHIA PEREZ LENZ, CSR
73
1 MS. DEBOLT: Here are your courts copies.
2 MR. ARAMBULA: Which case are we going to hear
3 first on our motion to compel?
4 THE COURT: Rodriguez and Pena, right?
5 MS. DEBOLT: It is -- we can do Rodriguez
6 first.
7 THE COURT: I think they snuck in. They
8 bamboozled you all. They said 20, 30 minutes.
9 MS. DEBOLT: This really should --
10 THE COURT: I’ll be right with you all.
11 MR. HINOJOSA: What did you -- may I talk to
12 counsel? What did you want --
13 MS. DEBOLT: Every single one of our requests
14 was objected to.
15 THE COURT: I tell you what I’m going to do.
16 I’m going to take a real quick one -- I’m going to take this
and
17 divorce here that’s going to be given to me real quick,
18 then go -- maybe you can talk about it.
19 MS. DEBOLT: We can confer.
20 THE COURT: Please.
21 MR. ARAMBULA: Thank you, Your Honor.
22 THE COURT: And then maybe I can sneak you in.
23 You all talk about it for a little bit please,
24 but outside of -- not here.
25 (Case recessed while other unrelated matters
CYNTHIA PEREZ LENZ, CSR
74
1 were called.)
2 THE COURT: You all want to come back over
3 here? I am about to start this other hearing.
4 MR. HINOJOSA: Your Honor, with respect to the
5 motions to compel -- I think we need -- there really hasn’t
6 been the right kind of conferring in this case with respect to
7 her motion to compel, or their motion to compel. I believe
8 that if we do have that opportunity, we can resolve almost all
9 of them.
10 THE COURT: Y’all want to stick around
11 lunchtime, get you back this afternoon, and we can --
12 MR. HINOJOSA: Well, I mean, I don’t -- I
13 don’t know that that’s --
14 MS. DEBOLT: We’re here. Might as well just
15 hash it out. Let’s get it going.
16 MR. HINOJOSA: Well, I mean, a lot of the
17 stuff is stuff that -- for example, documents. They are asking
18 for certain documents to support your claim on this. A lot of
19 those documents are documents that we haven’t gotten yet.
20 We’re going to answer “will supplement”.
21 MS. DEBOLT: They didn’t respond that, Your
22 Honor. And if they’re going to answer “will supplement”, let’s
23 get them to answer “we’ll supplement”. They didn’t respond to
24 anything.
25 FIR. HINOJOSA: Then if we’re going to do this
CYNTHIA PEREZ LENZ, CSR
75
1 -- if they are going to insist on doing this, Your Honor,
2 you’re not talking about half-an-hour hearing. You’re talking
3 about a two-hour hearing. That’s what they are asking you to
4 do. But I am --
5 THE COURT: I am not going to give you a
6 two-hour hearing. I am going to send you back there. You can
7 stick around here this afternoon. And you’re going to have to
8 hash it out. Because I am not going to sit here for a two-hour
9 hearing on little issues, especially when you tell me that you
10 haven’t quite done the right type of conferring.
11 MR. HINOJOSA: There is no question that they
12 have not.
MS. DEBOLT: We’re here, Your Honor. We can
13
if
14 go hash it out back, and then get what we need on the record
15 you’d like that.
16 THE COURT: I -- I’d like for you all to be
17 able -- I really believe that in most of these cases there is a
lot of room for you all to try and get this done you know, a
18 --
19 lot of room for you all to work on, And I -- you know what, if
your own
20 the choice that I have is you spending two hours on
which
21 out there conferring, or me spending it with you, guess
22 one I am going to actually fall on. So, I really do think that
23 if --
MS. DEBOLT: And we have conferred. And I
24
25 have listed -- I sent them a letter telling them what issues we
CYNTHIA PEREZ LENZ, CSR
76
1 had, and with which -- with which discovery requests. And so
2 there has been - -
3 THE COURT: All right, guys.
4 MR. HINOJOSA: Conferring is not sending an
5 e-mail.
6 THE COURT: Okay. Let’s not -- give me a
7 second.
8 MR. ARAMBULA: Yes, sir.
9 THE COURT: I’m -- I’ve got some time
10 constraints of my own here. So, you all -- I wish I could tell
11 you there is a sandwich shop across the street, but there
12 isn’t. So, you decide what you all want to do. I am going to
13 be here all afternoon. You can go -- I have more room in the
14 - - in the jury room. You can use that. You can break for a
15 little bit for lunch or go get something to eat, and then see
16 yourselves back over here here. But I think that you may be
17 able to perhaps maybe sit right now. And then if you really
18 reach it, and you think you need more time, then maybe take it
19 from there. But --
20 MR. TAYLOR: Thank you.
21 MS. DEBOLT: Thank you.
22 THE COURT: So I’ll see you -- I want a report
23 back from you all with regard to what you’re doing. I am going
24 to -- after this hearing, I am going to go to lunch, and then
25 Ill be back here at 1: 30. So i f you want to be back here at
CYNTHIA PEREZ LENZ, CSR
77
1 1:30, and tell me what you’re doing, great.
2 MS. DEBOLT: Thank you, Your Honor.
3 MR. ARAF’lBULA: Yes, Your Honor.
4 May I be excused?
5 THE COURT: Yes, sir.
6 MR. ARAMBULA: See you back at 1:30.
7 (Case recessed while other unrelated matters
8 were called.)
9 THE BAILIFF: All rise, please. Court is back
10 in session.
11 (No attorneys present.)
12 THE COURT: Thank you. Have a seat, please.
13 I understand that the folks from this morning that were left
14 conferring reached an agreement on the issue of the motion to
15 compel. So I understand that they -- did they file a -- an
16 agreement? Do you know? Just - - they were working on
17 something in written form. They didn’t file it with you?
18 THE CLERK: No.
19 THE COURT: Okay. Maybe Chayo knows.
20 Chayo, do you know if they filed the Rule 11
21 agreement on the motion to compel?
22 THE COORDINATOR: I did not see it. On this
23 case?
24 THE COURT: Not this case. On -- I wish it
25 was something on this case. But not this case, On the Pena --
CYNTHIA PEREZ LENZ, CSR
78
1 Pena, Rodriguez.
2 THE COORDINATOR: They were here, They were
3 going to announce something to you, but they didn’t submit
4 anything to me.
5 THE COURT: All right.
6 THE COORDINATOR: I never saw the attorneys.
7 But maybe - -
8 THE COURT: All right. I am going to assume
9 that they in fact have an agreement; that they’re comfortable
10 with what they’ve reached; and what they had to be able to
11 enforce that, and move on.
12 (Proceedings concluded.)
13
14
15
16
17
18
19
20
21
22
23
24
25
CYNTHIA PEREZ LENZ, CSR
79
1 REPORTER’S CERTIFICATE
2 THE STATE OF TEXAS
3 COUNTY OF WEBB
4 I, Cynthia Perez Lenz, Official Court Reporter in and for
5 the 49th District Court of Webb and Zapata Counties, State of
6 Texas, do hereby certify that the above and foregoing contains
7 a true and correct transcription of proceedings requested in
8 writing by counsel for the parties to be included in this
9 volume of the Reporter’s Record, in the above-styled and
10 numbered cause, all of which occurred in open court or in
11 chanibers and were reported by me.
12 I further certify that this Reporter’s Record of the
13 proceedings truly and correctly reflects the exhibits, if any,
14 admitted by the respective parties.
15 I further certify that the total cost for the preparation
16 of this Reporter’s Record is $711.00 and will be paid by
17 Mr. Van Huseman______
18 WITNESS MY OFFICIAL HAND this the 9th day of March, 2015.
19
20 Is! Cynthia Perez Lenz
Cynthia Perez Lenz, Texas CSR 6746
21 Expiration Date: 12/31/2015
Official Court Reporter
22 49th District Court
1110 Victoria St., Suite 304
23 Laredo, Texas 78040
Phone: (956) 523-4240
24 Fax: (956) 523-5051
25
CYNTHIA PEREZ LENZ, CSR
Filed
3/25/2015 5:17:12 PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
NO. 2014CVF001048-DI
ALMA PENA, § iN THE DISTRICT COURT
Plaintiff §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LANIER, §
Defendants § 49TH JUDICIAL DISTRICT
,
’
4 JPROTECT1VE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
Texas Rules
limitations, and prohibitions are appropriate pursuant to and in conformity with the
of Civil Procedure. Therefore, it is hereby ORDER.ED that:
of this
I. All Confidential Information produced or exchanged in the course
of this
litigation shall be used solely for the purpose of the preparation and trial
p,’Z..t 4
‘-el%
/
&1c+c\ 4,,c(ji litigation against State Farm Lloyds (including its employees)
yees) that
kLl Pie4r (“Defendants”) or any third party adjusting firm (including its emplo
1 (.j— iii
(?fl
adjusted this claim and for no other purpose. Confidential Information, or
i, ist tti
extracts, summaries, or information derived from Confidential Inform
ation, shall
1
b
of this Order.
of sf;4(. r,f•( not be disclosed to any person except in accordance with the terms
(ftJ
15 as reasonably
-I.e Confidential Information may only be copied or reproduced
1fo?e4l1 necessary for use solely in this litigation.
.4(k.l ç#1bL4S
1
;
3
.
of any type
.
-‘
2. “Confidential Information,” as used herein, means any information
“Confidential” andJor “Trade Secret” by any of the
that is designated as
nically stored
producing or receiving parties, whether it is: a document, electro
a document, ESI,
information (“ESI”), or other material; information contained in
lBlT
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation
k
4 J
“(Z q; dt.f,( /.., irp —
(‘W•%ç
‘arr5lflWuU4 of a-wvathei cvcut on or about June 2OIiwWt1b-Gounty, fes— r4
their respective counsel; counsel’s staff; expert witnesses; outside service-
providers and consultants providing services related to document and ESI
ls
processing, hosting, review, and production; the Court; other court officia
(including court reporters); the trier of fact pursuant to a scaling order; and any
any
person so designated pursuant to paragraph 4 herein. If this Court so elects,
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
ential
4. Any party may serve a written request for authority to disclose Confid
for the
Information to a person who is not a Qualified Person on counsel
er,
designating party, and consent shall not be unreasonably withheld. Howev
e the
until said requesting party receives written consent to further disclos
shall not
Confidential Information, the further disclosure is hereby prohibited and
grants its
be made absent further order of this Court. If the designating party
under
consent, then the person granted consent shall become a Qualified Person
this Order.
—other
5. Counsel for each party shall provide a copy of this Order to any person
2
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall ailvise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shalt retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
g
6. Information shall be designated as Confidential Information within the meanin
the
of this Protective Order by following the protocol below that corresponds to
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
ing
document and each subsequent Bates-stamped page thereof contain
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf Agree.fProt. Order” or
“Confidential Proprietary & Trale Secret/Produced Pursuant to a Conf
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
ing
the image and each subsequent Bates-stamped page thereof contain
Confidential Information with the following legend: “Confidential &
3
Proprietary/Produced Pursuant to a ConE Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a ConE
Agree.IProt. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential information as follows:
“Confidential & Proprietary/Produced Pursuant to a ConE Agree.fProt.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a ConE AgreeiProt. Order.” In addition, at the election of the producing
party, the electronic fi’e may have appended to the file’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTIAL-SUBJJO_PROTECTIVEJ)RDERJN_CAUSE_[insert #1.”
When any file so designated is converted to a hard-copy document or
static image for any purpose, the document or image shall bear on each
page a protective legend as described in 6.a. and 6.b. above. If a native
file containing Confidential information is used during a deposition, meet
and confer, trial, or is otherwise disclosed post-production, the party
introducing, referencing, or submitting the native file must append to the
ive
file’s name (immediately following its Bates identifier) the protect
legend:
“CONFEDENTIAL-SUBJTO_PROTECTIVE_ORDER_IN_CAUSEjinsert
#j” if
such legend does not already appear in the file name. Any party using a
native file containing Confidential Information in a deposition, hearing, or
in
at trial must indicate the designation on the record so that it is reflected
4
the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
)
designated information, or alternately (upon the agreement of the parties
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, andlor (ii) with respect to ESI, take such reasonable
steps as will reliably identifS’ the item(s) as having been designated as
Confidential Information.
t
b. Information that is unintentionally or inadvertently produced withou
being designated as Confidential Information may be retroactively
7.a.
designated by the producing party in the manner describe in paragraph
5
above. If a retroactive designation is provided to the receiving party in
accordance with Texas Rule of Civil Procedure 193.3(d) the receiving
party must (i) make no further disclosure of such designated information
except as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No party shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
8, If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return and/or destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of thc disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
6
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as Confidential information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ES1, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
7
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shalT
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
II In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
8
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential Information, lithe Confidential Information disclosed during a meet
and confer or otherwise exchanged in infonnal discovery is in the form of hard
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a,, b., and/or c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have thirty (30) days
from the date of receipt of a written challenge to file a motion for specific
9
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order,
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
ES!, information, or testimony does not constitute an admission that the
document, ES!. information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
t
information in this case shall constitute a waiver of any applicable attorney-clien
10
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
‘J Yb” es-4ays if]
after the final resolution of this litigation, the
20. Within %rty fly 43
plaintiffIs) shall return or destroy Confidential Information they received during
11
_____
__________
this litigation. As to those materials that contain or reflect Confidential
Information, but that constitute or reflect the plaintiff(s) counsel’s own work
product, counsel for the plaintiffs) are entitled to retain such work product in
their files in accordance with the provisions of this Protective Order, so long as
the work product is clearly marked to reflect that it contains information subject
to this Protective Order. Plaintiff’s counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
transcripts, and the trial record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiff’s counsel shall
certify in writing compliance with the provision of this paragraph after forty-five
(45) business days after the final resolution of this litigation.
or vacated
This Order shall remain in effect unless or until amended, altered, modified,
filed with the Court,
by the Court or by the written agreement of all parties to this action
pursuant to the Texas Rules of Civil Procedure.
ITISSOORDEREDthis dayof
JUDGE PRESIDiNG
NO. 2014CVF001048-Dl
ALMA PENA, § IN THE DISTRICT COURT
Plaintiff §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LANIER, §
Defendants § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
4
u i ‘(J T, 10 . in order to be provided access to information
designated as Confidential Information under the Protective Order entered in Cause No.
2014CVF001048-Dl represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of junsdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
;] //5
DA ED:
cog,qcel f,r 2
7
k
1
e(c:,
EXHIBIT A
Susan McRoberts
From: No-Reply@eFileTexas.gov
Sent: Tuesday, March 24, 2015 9:46 AM
To: Susan McRoberts
Subject: eFleTexas.gov Notification of Service
— - 4613315
Notification of Service
Envelope Number: 4613315
This is a notification of service for the filing listed. Please click the link below to retrieve the submitted
document.
Filing Details
Case Number 2014-CVF-001048-D-1
Case Style
Date/Time Submitted 3/24/2015 9:45:16 AM
Filing Type Proposed Order
Filed By Gina Ramirez
Other Service Contacts not associated with a party on the case:
Van Huseman (vhusemanhusemanstewart.com)
Service Contacts
Tiffany DeBolt (tdebolt(ãThusemanstewart,com)
Susan McRoberts (smcrobertshusemanstewart.com)
Document Details
https://efile.txcourts.qovNiewServiceDocuments.aspx?ADMlN0&SlD=9a9a74ad-
F’I 0 ampe d 7be2-4070-a9fd-f3bl b04ecc75&RlD=0ba8ecca.c35741 1 3-b5bb-b55eaefl al cc
OPY This link is active for 7 days.
Please do not reply to this email, It was generated automatically by eFileTexas.gov
TAB 12
OF THE RECORD
2015-05-27 05:15 49TH DISTRICT COURT 9565234234 >> ÷9566825275 P 2/2
CAUSE NO. 2014CVF0$ Dl
ALMA PENA, IN TIlE DISTRICT COURT
PlaintLff *
§
vs. 49th
JUDICIAL DISTRICT
§
STATE FARM LLOYDS ANT)
BECKY LAMER, §
Detndants § WEBB COUNTY, TEXAS
UNOPPOSED ORDER GRANTiNG MOTION OF ATTORNEYS
HUSEMAN & STEWART P.LL.C. TO WITHDRAW AND
FOR SUBSTITUTION OF COUNSEL FOR DEFENDANTS -
Came on to be heard the Unopposed Motion of Attorneys Husernan & Stewart P.LLC.,
including Van Huseman and Tiffany DeBolt to Withdraw as Attorneys of Record and for
Substitution of counsel for Defendants. The Court, having considered the Motion, finds that it is
well taken.
IT [5, THEREFORE, ORDERED that the law finn of L-IIISEMAN & STEWART,
P.LJ..C. including attorneys Van Huseman and Tiffany Dc Bolt, are withdrawn us attorneys for
Defendants and are substituted by the law firm of ATLAS, HALL & RODRIGUEZ, LLP and
Sofia A. Rarnon and Dan K. Worthington as attorneys for Defendants.
SIGNED the day of A-k4 2015.
JUDGE PRESIDING
xc: J. Sitv- MltLyn, ‘flIE MOS-rYN LAW FIRM, 38)0 Wcg Ala,xm Sire, riotojon, T u 7027: (7)3) 861-6616:
.
Attorney Cur PluintiCIi
Vto Husemno and Tiffany DcBnh, HUSEMAN & SThWAR’L’, 6)5 N. Upper Broadway, Suite 2
Fax; 361-883-0210, id u.’c,I,atotes,II.rn,n. Aooi’ney4 for Defendanb.
Corpuschrist),
TX 78401-0781;
Sofut P Rauxus. Dan K. Worthington, Elizabeth S. Ctntu, ATLAS, ETALL & RODKIOUEZ, LU . 818 West Pecan Boulevard,
5
McA)k’n. Tuxto 78501; Iax: (956) 6116-6109; srstnnn88aiIshu1l’oi;L dlcw@atlss)uhl,Lorn. C thiis)slat1l,p; Attorneys mr
Dcfcndsnis,
Received May—27—2015 10:OOag From—4ITH DISTRICT COURT To—ATLAS & HALL L.L.P. Page 002
TAB 13
OF THE RECORD
2015-05-27 05:10 49TH DISTRICT COURT 9565234234 >> ÷9566825275 P 2/2
CAUSE NO. 2014CVFOOI (62 Dl
RALJL RODRIGUEZ AND NOEMI * IN THE DISTRICT COURT
RODRIGUEZ, *
Phiintiffs §
1h
49
§ JUDICIAL DISTRICT
vs. *
STATE FARM LLOYDS AND §
FELIPE FARIAS, *
Defendants WEBB COUNTY, TEXAS
ORDER GRANTING UNOPPOSED MOTION OF ATTORNEYS
RUSEMAN & STEWART P.LLC. TO WITHDRAW AND
FOR SUBSTITUTION OF COUNSEL FOR DEFENDANTS
Caine on to be heard the Unopposed Motion of Attorneys Husernan & Stewart P.LLC.,
including Van Huseman and Tiffany DeBolt to Withdraw as Attorneys of Record and for
Substitution of counsel for Defendants. The Court, having considered the Motion, finds that it is
well taken.
IT IS, THEREPORE, ORDERED that the law firm of HUSEMAN & STEWART,
P.L.LC. including attorneys Van Huseinan and Tiffany De Bolt, are withdrawn as attorneys for
Defendants and are substituted by the law firm of ATLAS, HALL & RODRIGUEZ. LLP and
Sofia A. Ranion and Dan K. Worthington as attorneys for Defendants.
SIGNED (he 2. day of __ C-f 2015.
JUDGE PRESIDING
C: i. Steve Mottyn, ThB MOSTYN LAW FIRM. 3510 Weal Alabama Stnttt, Iloueton. 02 Faa: (713) 861-6616;
p.nlock.IJ,nyajawi!an; Altornoy for PIliiiiffs.
Van Hu,cmjuz und ‘Tiffany DeBolt, HUSEMAN & SThWAR’I’, 615 N, Upper Broadway, Suite Curpuu Cbsiuti. TX 15401-0781
Faa: 361.883-0210, IdbulE@h majj8!pwur.eom, Attorneys fo Palendunis.
Sofia A. Ramon, Dan K. Worthington, Elizabeth S. CaMu, ATLAS. HALL & RUDRLt3UEZ, LU’, 818 West Pecan Soulevani,
McAIlen, Tetius 18501; Fax: i056) 6$6-6I08 501 nn@r1asflajjctini. g’dkih&Leom. ecsnl dIaahatI,’-, Aw.ancys for
DcfcndarlLc.
R6ceived May—27—2015 09:S5arn Fro,n—4OTH DISTRICT COURT To—ATLAS & HALL L.L.P. Pags 002
TAB 14
OF THE RECORD
Filed
6/16/2015 2:29:23 PM
Esther Degollado
District Clerk
Webb District
Michelle Garza
CAUSE NO. 2014-CVF-001048-D1 2014-CVF-001048-D1
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
PLAINTIFF’S FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Alma Pena (“Plaintiff”), and files this Plaintiff’s First Amended Petition,
complaining of State Farm Lloyds (“State Farm”), Becky Lanier (“Lanier”), and Ray Padilla
(“Padilla”) (collectively referred to as “Defendants”), and for cause of action, Plaintiff would
respectfully show this Honorable Court the following:
DISCOVERY CONTROL PLAN
1. Plaintiff intends for discovery to be conducted under Level 3 of Rule 190 of the Texas
Rules of Civil Procedure. This case involves complex issues and will require extensive
discovery. Therefore, Plaintiff will ask the Court to order that discovery be conducted in
accordance with a discovery control plan tailored to the particular circumstances of this
suit.
PARTIES
2. Plaintiff Alma Pena is an individual residing in Webb County, Texas.
3. Defendant State Farm is an insurance company engaging in the business of insurance in
the State of Texas. This defendant has appeared and answered herein. No citation is
requested at this time.
4. Defendant Becky Lanier is an individual residing in and domiciled in the State of Texas.
This defendant has appeared and answered herein. No citation is requested at this time.
5. Defendant Ray Padilla is an individual residing in and domiciled in the State of Texas.
This defendant may be served with personal process by a process server at his place of
residence at 3718 Prince George Drive, San Antonio, Texas 78230.
JURISDICTION
6. The Court has jurisdiction over this cause of action because the amount in controversy is
within the jurisdictional limits of the Court. Plaintiff is seeking monetary relief over
$200,000 but not more than $1,000,000. Plaintiff reserves the right to amend her petition
during and/or after the discovery process.
7. The Court has jurisdiction over Defendant State Farm because this defendant is a foreign
insurance company that engages in the business of insurance in the State of Texas, and
Plaintiff’s causes of action arise out of this defendant’s business activities in the State of
Texas.
8. The Court has jurisdiction over Defendant Lanier because this defendant engages in the
business of adjusting insurance claims in the State of Texas, and Plaintiff’s causes of
action arise out of this defendant’s business activities in the State of Texas.
9. The Court has jurisdiction over Defendant Padilla because this defendant engages in the
business of adjusting insurance claims in the State of Texas, and Plaintiff’s causes of
action arise out of this defendant’s business activities in the State of Texas.
Page 2
VENUE
10. Venue is proper in Webb County, Texas, because the insured property is situated in
Webb County, Texas. TEX. CIV. PRAC. & REM. CODE §15.032.
FACTS
11. Plaintiff is the owners of a Texas Homeowners’ Insurance Policy (hereinafter referred to
as “the Policy”), which was issued by State Farm.
12. Plaintiff owns the insured property, which is specifically located at 1014 Reagan Dr.,
Laredo, Texas 78046, in Webb County (hereinafter referred to as “the Property”).
13. State Farm sold the Policy insuring the Property to Plaintiff.
14. On or about June 7, 2013, a hail storm and/or windstorm struck Webb County, Texas,
causing severe damage to homes and businesses throughout the area, including Plaintiff’s
residence (“the Storm”). Specifically, Plaintiff’s roof sustained extensive damage during
the Storm. Water intrusion through the roof caused significant damage throughout the
entire home including, but not limited to, the home’s ceilings, walls, insulation, and
flooring. Plaintiff’s home also sustained substantial structural and exterior damage
during the Storm, as well as damage to the play set. After the Storm, Plaintiff filed a
claim with her insurance company, State Farm, for the damages to her home caused by
the Storm.
15. Plaintiff submitted a claim to State Farm against the Policy for Other Structure Damage,
Roof Damage, Structural Damage, Water Damage, and Wind Damage the Property
sustained as a result of the Storm.
Page 3
16. Plaintiff asked that State Farm cover the cost of repairs to the Property pursuant to the
Policy, including but not limited to, repair and/or replacement of the roof and play set and
repair of the and interior water damages, pursuant to the Policy.
17. Defendant State Farm assigned Defendant Lanier as the adjuster on the claim. The
adjuster assigned to Plaintiff’s claim was improperly trained and failed to perform a
thorough investigation of Plaintiff’s claim. On or about December 3, 2013, Lanier
conducted a substandard inspection of Plaintiff’s Property. For example, Lanier spent a
mere fifteen (15) minutes inspecting Plaintiff’s entire Property for Storm damages.
Furthermore, Lanier was uncooperative and quick to discount any damages that Plaintiff
pointed out. The inadequacy of Lanier’s inspection is further evidenced by her report,
which failed to include all of Plaintiff’s Storm damages noted upon inspection. For
example, Lanier failed to include many of the damages to the home’s roof and interior, as
well as the damages to Plaintiff’s play set. Moreover, the damages that Lanier actually
included in her report were grossly undervalued, in part because she both underestimated
and undervalued the cost of materials required for necessary repairs, incorrectly applied
material sales tax, and failed to include contractor’s overhead and profit. Ultimately,
Lanier’s estimate did not allow adequate funds to cover the cost of repairs to all the
damages sustained.
18. Padilla also actively participated in the handling of Plaintiff’s claim but failed to conduct
a reasonable investigation. Specifically, he reviewed reports, documents and/or
information regarding the claim. Defendant Padilla also failed to thoroughly review and
properly oversee Lanier’s work, ultimately approving and/or submitting an improper
adjustment and an inadequate resolution to Plaintiff’s claim. Had Defendant Padilla
Page 4
performed even a cursory review of Lanier’s work on Plaintiff’s claim, it would have
been clear that Plaintiff’s claim was completely mishandled. Unfortunately for Plaintiff,
this did not happen. Lanier’s and Padilla’s inadequate investigation was relied upon by
Defendant State Farm in this action and resulted in Plaintiff’s claim being undervalued
and underpaid.
19. Padilla failed to adequately supervise Lanier resulting in the unreasonable investigation
and improper handling of Plaintiff’s claim. Moreover, State Farm and Padilla, along with
other State Farm personnel, failed to thoroughly review and properly oversee the work of
the assigned claims representative and adjusters, including Defendant Lanier, ultimately
approving an improper adjustment and an inadequate, unfair settlement of Plaintiff’s
claim. As a result of this unreasonable investigation, Plaintiff was considerably
underpaid on her claim and has suffered damages.
20. Together, Defendants State Farm, Lanier, and Padilla set out to deny and/or underpay on
properly covered damages. As a result of this unreasonable investigation, including the
under-scoping of Plaintiff’s Storm damages during the investigation and failure to
provide full coverage for the damages sustained, Plaintiff’s claim was improperly
adjusted, and she was denied adequate and sufficient payment to repair her home. The
mishandling of Plaintiff’s claim has also caused a delay in her ability to fully repair her
home, which has resulted in additional damages. To date, Plaintiff has yet to receive the
full payment to which she is entitled under the Policy.
21. As detailed in the paragraphs below, State Farm wrongfully denied Plaintiff’s claim for
repairs of the Property, even though the Policy provided coverage for losses such as those
suffered by Plaintiff. Furthermore, State Farm underpaid some of Plaintiff’s claims by
Page 5
not providing full coverage for the damages sustained by Plaintiff, as well as under-
scoping the damages during its investigation.
22. To date, State Farm continues to delay in the payment for the damages to the property.
As such, Plaintiff has not been paid in full for the damages to her home.
23. Defendant State Farm failed to perform its contractual duties to adequately compensate
Plaintiff under the terms of the Policy. Specifically, it refused to pay the full proceeds of
the Policy, although due demand was made for proceeds to be paid in an amount
sufficient to cover the damaged property, and all conditions precedent to recovery upon
the Policy had been carried out and accomplished by Plaintiff. State Farm’s conduct
constitutes a breach of the insurance contract between State Farm and Plaintiff.
24. Defendants State Farm, Lanier, and Padilla misrepresented to Plaintiff that the damage to
the Property was not covered under the Policy, even though the damage was caused by a
covered occurrence. Defendants State Farm’s, Lanier’s and Padilla’s conduct constitutes
a violation of the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§541.060(a)(1).
25. Defendants State Farm, Lanier, and Padilla failed to make an attempt to settle Plaintiff’s
claim in a fair manner, although they were aware of their liability to Plaintiff under the
Policy. Defendants State Farm’s, Lanier’s, and Padilla’s conduct constitutes a violation
of the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§541.060(a)(2)(A).
26. Defendants State Farm, Lanier, and Padilla failed to explain to Plaintiff the reasons for
their offer of an inadequate settlement. Specifically, Defendants State Farm, Lanier, and
Padilla failed to offer Plaintiff adequate compensation, without any explanation why full
Page 6
payment was not being made. Furthermore, Defendants State Farm, Lanier, and Padilla
did not communicate that any future settlements or payments would be forthcoming to
pay for the entire losses covered under the Policy, nor did they provide any explanation
for the failure to adequately settle Plaintiff’s claim. Defendants State Farm’s, Lanier’s,
and Padilla’s conduct is a violation of the Texas Insurance Code, Unfair Settlement
Practices. TEX. INS. CODE §541.060(a)(3).
27. Defendants State Farm, Lanier, and Padilla failed to affirm or deny coverage of
Plaintiff’s claim within a reasonable time. Specifically, Plaintiff did not receive timely
indication of acceptance or rejection, regarding the full and entire claim, in writing from
Defendants State Farm, Lanier, and Padilla. Defendants State Farm’s, Lanier’s, and
Padilla’s conduct constitutes a violation of the Texas Insurance Code, Unfair Settlement
Practices. TEX. INS. CODE §541.060(a)(4).
28. Defendants State Farm, Lanier, and Padilla refused to fully compensate Plaintiff under
the terms of the Policy, even though Defendants State Farm, Lanier, and Padilla failed to
conduct a reasonable investigation. Specifically, Defendants State Farm, Lanier, and
Padilla performed an outcome-oriented investigation of Plaintiff’s claim, which resulted
in a biased, unfair, and inequitable evaluation of Plaintiff’s losses on the Property.
Defendants State Farm’s, Lanier’s, and Padilla’s conduct constitutes a violation of the
Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a)(7).
29. Defendant State Farm failed to meet its obligations under the Texas Insurance Code
regarding timely acknowledging Plaintiff’s claim, beginning an investigation of
Plaintiff’s claim, and requesting all information reasonably necessary to investigate
Plaintiff’s claim, within the statutorily mandated time of receiving notice of Plaintiff’s
Page 7
claim. State Farm’s conduct constitutes a violation of the Texas Insurance Code, Prompt
Payment of Claims. TEX. INS. CODE §542.055.
30. Defendant State Farm failed to accept or deny Plaintiff’s full and entire claim within the
statutorily mandated time of receiving all necessary information. State Farm’s conduct
constitutes a violation of the Texas Insurance Code, Prompt Payment of Claims. TEX.
INS. CODE §542.056.
31. Defendant State Farm failed to meet its obligations under the Texas Insurance Code
regarding payment of claim without delay. Specifically, it has delayed full payment of
Plaintiff’s claim longer than allowed, and, to date, Plaintiff has not received full payment
for her claim. State Farm’s conduct constitutes a violation of the Texas Insurance Code,
Prompt Payment of Claims. TEX. INS. CODE §542.058.
32. From and after the time Plaintiff’s claim was presented to Defendant State Farm, the
liability of State Farm to pay the full claim in accordance with the terms of the Policy
was reasonably clear. However, State Farm has refused to pay Plaintiff in full, despite
there being no basis whatsoever on which a reasonable insurance company would have
relied to deny the full payment. State Farm’s conduct constitutes a breach of the common
law duty of good faith and fair dealing.
33. Defendants State Farm, Lanier, and Padilla knowingly or recklessly made false
representations, as described above, as to material facts and/or knowingly concealed all
or part of material information from Plaintiff.
34. As a result of Defendants State Farm’s, Lanier’s, Padilla’s wrongful acts and omissions,
Plaintiff was forced to retain the professional services of the attorney and law firm who
are representing her with respect to these causes of action.
Page 8
35. Plaintiff’s experience is not an isolated case. The acts and omissions State Farm
committed in this case, or similar acts and omissions, occur with such frequency that they
constitute a general business practice of State Farm with regard to handling these types of
claims. State Farm's entire process is unfairly designed to reach favorable outcomes for
the company at the expense of the policyholders.
CAUSES OF ACTION:
CAUSES OF ACTION AGAINST LANIER AND PADILLA
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
36. Defendant State Farm assigned Defendant Lanier and Padilla to adjust the claim.
Defendants Lanier and Padilla were improperly trained to handle claims of this nature
and performed an unreasonable investigation of Plaintiff’s damages. During the
investigation, the adjusters failed to properly assess Plaintiff’s hail storm and/or
windstorm damages. The adjusters also omitted covered damages from their reports,
including many of Plaintiff’s interior damages. In addition, the damages that the
adjusters did include in the estimate were severely underestimated.
37. Defendants Lanier’s and Padilla’s conduct constitutes multiple violations of the Texas
Insurance Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a). All
violations under this article are made actionable by TEX. INS. CODE §541.151.
38. Defendants Lanier and Padilla are each individually liable for their unfair and deceptive
acts, irrespective of the fact each was acting on behalf of State Farm, because each is a
“person” as defined by TEX. INS. CODE §541.002(2). The term “person” is defined as
“any individual, corporation, association, partnership, reciprocal or interinsurance
exchange, Lloyds plan, fraternal benefit society, or other legal entity engaged in the
Page 9
business of insurance, including an agent, broker, adjuster or life and health insurance
counselor.” TEX. INS. CODE §541.002(2) (emphasis added). (See also Liberty Mutual
Insurance Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998) (holding
an insurance company employee to be a “person” for the purpose of bringing a cause of
action against him or her under the Texas Insurance Code and subjecting him or her to
individual liability)).
39. Falsehoods and misrepresentations may be communicated by actions as well as by the
spoken word; therefore, deceptive conduct is equivalent to a verbal representation.
Defendants Lanier’s and Padilla’s misrepresentations by means of deceptive conduct
include, but are not limited to: (1) failing to conduct a reasonable inspection and
investigation of Plaintiff’s damages; (2) stating that Plaintiff’s damages were less severe
than they in fact were; (3) using their own statements about the non-severity of the
damage as a basis for denying properly covered damages and/or underpaying damages;
and (4) failing to provide an adequate explanation for the inadequate compensation
Plaintiff received. Defendants Lanier’s and Padilla’s unfair settlement practice, as
described above and the example given herein, of misrepresenting to Plaintiff material
facts relating to the coverage at issue, constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(1).
40. Defendants Lanier’s and Padilla’s unfair settlement practice, as described above, of
failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of the
claim, even though liability under the Policy is reasonably clear, constitutes an unfair
Page 10
method of competition and an unfair and deceptive act or practice in the business of
insurance. TEX. INS. CODE §541.060(a)(2)(A).
41. Defendants Lanier and Padilla failed to explain to Plaintiff the reasons for their offer of
an inadequate settlement. Specifically, Defendants Lanier and Padilla failed to offer
Plaintiff adequate compensation without any explanation as to why full payment was not
being made. Furthermore, Defendants did not communicate that any future settlements
or payments would be forthcoming to pay for the entire losses covered under the Policy,
nor did they provide any explanation for the failure to adequately settle Plaintiff’s claim.
The unfair settlement practice of Defendants Lanier and Padilla as described above, of
failing to promptly provide Plaintiff with a reasonable explanation of the basis in the
Policy, in relation to the facts or applicable law, for the offer of a compromise settlement
of Plaintiff’s claim, constitutes an unfair method of competition and an unfair and
deceptive act or practice in the business of insurance. TEX. INS. CODE §541.060(a)(3).
42. Defendants Lanier’s and Padilla’s unfair settlement practice, as described above, of
failing within a reasonable time to affirm or deny coverage of the claim to Plaintiff, or to
submit a reservation of rights to Plaintiff, constitutes an unfair method of competition and
an unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(4).
43. Defendants Lanier and Padilla did not properly inspect the Property and failed to account
for and/or undervalued many of Plaintiff’s exterior and interior damages, although
reported by Plaintiff to State Farm. Defendants Lanier’s and Padilla’s unfair settlement
practice, as described above, of refusing to pay Plaintiff’s claim without conducting a
Page 11
reasonable investigation, constitutes an unfair method of competition and an unfair and
deceptive act or practice in the business of insurance. TEX. INS. CODE §541.060(a)(7).
CAUSES OF ACTION AGAINST ALL DEFENDANTS
44. Plaintiff is not making any claims for relief under federal law.
FRAUD
45. Defendants State Farm, Lanier, and Padilla are liable to Plaintiff for common law fraud.
46. Each and every one of the representations, as described above, concerned material facts
for the reason that absent such representations, Plaintiff would not have acted as she did,
and which Defendants State Farm, Lanier, and Padilla knew were false or made
recklessly without any knowledge of their truth as a positive assertion.
47. The statements were made with the intention that they should be acted upon by Plaintiff,
who in turn acted in reliance upon the statements, thereby causing Plaintiff to suffer
injury and constituting common law fraud.
CONSPIRACY TO COMMIT FRAUD
48. Defendants State Farm, Lanier, and Padilla are liable to Plaintiff for conspiracy to
commit fraud. Defendants State Farm, Lanier, and Padilla were members of a
combination of two or more persons whose object was to accomplish an unlawful
purpose or a lawful purpose by unlawful means. In reaching a meeting of the minds
regarding the course of action to be taken against Plaintiff, Defendants State Farm,
Lanier, and Padilla committed an unlawful, overt act to further the object or course of
action. Plaintiff suffered injury as a proximate result.
Page 12
CAUSES OF ACTION AGAINST STATE FARM ONLY
49. Defendant State Farm is liable to Plaintiff for intentional breach of contract, as well as
intentional violations of the Texas Insurance Code, and intentional breach of the common
law duty of good faith and fair dealing.
BREACH OF CONTRACT
50. Defendant State Farm’s conduct constitutes a breach of the insurance contract made
between State Farm and Plaintiff.
51. Defendant State Farm’s failure and/or refusal, as described above, to pay adequate
compensation as it is obligated to do under the terms of the Policy in question, and under
the laws of the State of Texas, constitutes a breach of State Farm’s insurance contract
with Plaintiff.
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
52. Defendant State Farm’s conduct constitutes multiple violations of the Texas Insurance
Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a). All violations under
this article are made actionable by TEX. INS. CODE §541.151.
53. Defendant State Farm’s unfair settlement practice, as described above, of misrepresenting
to Plaintiff material facts relating to the coverage at issue, constitutes an unfair method of
competition and an unfair and deceptive act or practice in the business of insurance. TEX.
INS. CODE §541.060(a)(1).
54. Defendant State Farm’s unfair settlement practice, as described above, of failing to
attempt in good faith to effectuate a prompt, fair, and equitable settlement of the claim,
even though State Farm’s liability under the Policy was reasonably clear, constitutes an
Page 13
unfair method of competition and an unfair and deceptive act or practice in the business
of insurance. TEX. INS. CODE §541.060(a)(2)(A).
55. Defendant State Farm’s unfair settlement practice, as described above, of failing to
promptly provide Plaintiff with a reasonable explanation of the basis in the Policy, in
relation to the facts or applicable law, for its offer of a compromise settlement of the
claim, constitutes an unfair method of competition and an unfair and deceptive act or
practice in the business of insurance. TEX. INS. CODE §541.060(a)(3).
56. Defendant State Farm’s unfair settlement practice, as described above, of failing within a
reasonable time to affirm or deny coverage of the claim to Plaintiff, or to submit a
reservation of rights to Plaintiff, constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(4).
57. Defendant State Farm’s unfair settlement practice, as described above, of refusing to pay
Plaintiff’s claim without conducting a reasonable investigation, constitutes an unfair
method of competition and an unfair and deceptive act or practice in the business of
insurance. TEX. INS. CODE §541.060(a)(7).
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
THE PROMPT PAYMENT OF CLAIMS
58. Defendant State Farm’s conduct constitutes multiple violations of the Texas Insurance
Code, Prompt Payment of Claims. All violations made under this article are made
actionable by TEX. INS. CODE §542.060.
59. Defendant State Farm’s failure to acknowledge receipt of Plaintiff’s claim, commence
investigation of the claim, and request from Plaintiff all items, statements, and forms that
it reasonably believed would be required within the applicable time constraints, as
Page 14
described above, constitutes a non-prompt payment of claims and a violation of TEX. INS.
CODE §542.055.
60. Defendant State Farm’s failure to notify Plaintiff in writing of its acceptance or rejection
of the claim within the applicable time constraints constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.056.
61. Defendant State Farm’s delay of the payment of Plaintiff’s claim following its receipt of
all items, statements, and forms reasonably requested and required, longer than the
amount of time provided for, as described above, constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.058.
ACTS CONSTITUTING ACTING AS AGENT
62. As referenced and described above, and further conduct throughout this litigation and
lawsuit, Lanier and Padilla are agents of State Farm based on their acts during the
handling of this claim, including inspections, adjustments, and aiding in adjusting a loss
for or on behalf of the insurer. TEX. INS. CODE §4001.051.
63. Separately, and/or in the alternative, as referenced and described above, State Farm
ratified the actions and conduct of Lanier and Padilla, including the completion of their
duties under the common law and statutory law.
BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
64. Defendant State Farm’s conduct constitutes a breach of the common law duty of good
faith and fair dealing owed to insureds in insurance contracts.
65. Defendant State Farm’s failure, as described above, to adequately and reasonably
investigate and evaluate Plaintiff’s claim, although, at that time, State Farm knew or
Page 15
should have known by the exercise of reasonable diligence that its liability was
reasonably clear, constitutes a breach of the duty of good faith and fair dealing.
KNOWLEDGE
66. Each of the acts described above, together and singularly, was done “knowingly,” as that
term is used in the Texas Insurance Code, and was a producing cause of Plaintiff’s
damages described herein.
DAMAGES
67. Plaintiff would show that all of the aforementioned acts, taken together or singularly,
constitute the producing causes of the damages sustained by Plaintiff.
68. As previously mentioned, the damages caused by the June 7, 2013 hail storm and/or
windstorm have not been properly addressed or repaired in the months since the Storm,
causing further damages to the Property, and causing undue hardship and burden to
Plaintiff. These damages are a direct result of Defendants State Farm’s, Lanier’s, and
Padilla’s mishandling of Plaintiff’s claim in violation of the laws set forth above.
69. For breach of contract, Plaintiff is entitled to regain the benefit of her bargain, which is
the amount of her claim, together with attorney’s fees.
70. For noncompliance with the Texas Insurance Code, Unfair Settlement Practices, Plaintiff
is entitled to actual damages, which include the loss of the benefits that should have been
paid pursuant to the policy, mental anguish, court costs, and attorney's fees. For knowing
conduct of the acts described above, Plaintiff asks for three times her actual damages.
TEX. INS. CODE §541.152.
71. For noncompliance with Texas Insurance Code, Prompt Payment of Claims, Plaintiff is
entitled to the amount of her claim, as well as eighteen (18) percent interest per annum on
Page 16
the amount of such claim as damages, together with attorney's fees. TEX. INS. CODE
§542.060.
72. For breach of the common law duty of good faith and fair dealing, Plaintiff is entitled to
compensatory damages, including all forms of loss resulting from the insurer's breach of
duty, such as additional costs, economic hardship, losses due to nonpayment of the
amount the insurer owed, exemplary damages, and damages for emotional distress.
73. For fraud, Plaintiff is entitled to recover actual damages and exemplary damages for
knowingly fraudulent and malicious representations, along with attorney’s fees, interest,
and court costs.
74. For the prosecution and collection of this claim, Plaintiff has been compelled to engage
the services of the attorney whose name is subscribed to this pleading. Therefore,
Plaintiff is entitled to recover a sum for the reasonable and necessary services of
Plaintiff’s attorney in the preparation and trial of this action, including any appeals to the
Court of Appeals and/or the Supreme Court of Texas.
JURY DEMAND
75. Plaintiff previously requested that all causes of action alleged herein be tried before a jury
consisting of citizens residing in Webb County, Texas. Plaintiff has tendered the
appropriate jury fee.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that upon trial hereof, said
Plaintiff have and recover such sums as would reasonably and justly compensate her in
accordance with the rules of law and procedure, as to actual damages, treble damages under the
Texas Insurance Code, and all punitive and exemplary damages as may be found. In addition,
Page 17
Plaintiff requests the award of attorney’s fees for the trial and any appeal of this case, for all
costs of Court on her behalf expended, for prejudgment and postjudgment interest as allowed by
law, and for any other and further relief, either at law or in equity, to which she may show herself
justly entitled.
Respectfully submitted,
MOSTYN LAW
/s/ J. Steve Mostyn
J. Steve Mostyn
State Bar No. 00798389
rmsdocketefile@mostynlaw.com
3810 W. Alabama Street
Houston, Texas 77027
(713) 714-0000 (Office)
(713) 714-1111 (Facsimile)
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on this 16th day of June, 2015 in accordance with the Rules of Civil Procedure.
/s/ J. Steve Mostyn
J. Steve Mostyn
Page 18
TAB 15
OF THE RECORD
Filed
6/16/2015 2:24:29 PM
Esther Degollado
District Clerk
Webb District
Michelle Garza
CAUSE NO. 2014-CVF-001162-D1 2014-CVF-001162-D1
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT OF
RODRIGUEZ, §
Plaintiffs, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
FELIPE FARIAS, §
Defendants. § 49TH JUDICIAL DISTRICT
PLAINTIFFS’ FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Raul Rodriguez and Noemi Rodriguez (“Plaintiffs”), and file this
Plaintiffs’ First Amended Petition, complaining of State Farm Lloyds (“State Farm”), Felipe
Farias (“Farias”), and Raymond Padilla (“Padilla”) (collectively referred to as “Defendants”),
and for cause of action, Plaintiffs would respectfully show this Honorable Court the following:
DISCOVERY CONTROL PLAN
1. Plaintiffs intend for discovery to be conducted under Level 3 of Rule 190 of the Texas
Rules of Civil Procedure. This case involves complex issues and will require extensive
discovery. Therefore, Plaintiffs will ask the Court to order that discovery be conducted in
accordance with a discovery control plan tailored to the particular circumstances of this
suit.
PARTIES
2. Plaintiffs Raul Rodriguez and Noemi Rodriguez are individuals residing in Webb
County, Texas.
3. Defendant State Farm is an insurance company engaging in the business of insurance in
the State of Texas. This defendant has appeared and answered. No citation is requested
at this time.
4. Defendant Felipe Farias is an individual residing in and domiciled in the State of Texas.
This defendant has appeared and answered. No citation is requested at this time.
5. Defendant Ray Padilla is an individual residing in and domiciled in the State of Texas.
This defendant may be served with personal process by a process server at his place of
residence at 3718 Prince George Drive, San Antonio, Texas 78230.
JURISDICTION
6. The Court has jurisdiction over this cause of action because the amount in controversy is
within the jurisdictional limits of the Court. Plaintiffs are seeking monetary relief over
$200,000 but not more than $1,000,000. Plaintiffs reserve the right to amend their
petition during and/or after the discovery process.
7. The Court has jurisdiction over Defendant State Farm because this defendant is a foreign
insurance company that engages in the business of insurance in the State of Texas, and
Plaintiffs’ causes of action arise out of this defendant’s business activities in the State of
Texas.
8. The Court has jurisdiction over Defendant Farias because this defendant engages in the
business of adjusting insurance claims in the State of Texas, and Plaintiffs’ causes of
action arise out of this defendant’s business activities in the State of Texas.
9. The Court has jurisdiction over Defendant Padilla because this defendant engages in the
business of adjusting insurance claims in the State of Texas, and Plaintiffs’ causes of
action arise out of this defendant’s business activities in the State of Texas.
Page 2
VENUE
10. Venue is proper in Webb County, Texas, because the insured property is situated in
Webb County, Texas. TEX. CIV. PRAC. & REM. CODE §15.032.
FACTS
11. Plaintiffs are the owners of a Texas Homeowners’ Insurance Policy (hereinafter referred
to as “the Policy”), which was issued by State Farm.
12. Plaintiffs own the insured property, which is specifically located at 3120 Zacatecas St.,
Laredo, Texas 78043, in Webb County (hereinafter referred to as “the Property”).
13. State Farm sold the Policy insuring the Property to Plaintiffs.
14. On or about June 7, 2013 and/or June 14, 2013, a hail storm and/or windstorm struck
Webb County, Texas, causing severe damage to homes and businesses throughout the
area, including Plaintiffs’ residence (collectively “the Storm”). Specifically, Plaintiffs’
roof sustained extensive damage during the Storm. Water intrusion through the roof
caused significant damage throughout the entire home including, but not limited to, the
home’s ceilings, walls, insulation, and flooring. Plaintiffs’ home also sustained
substantial structural and exterior damage during the Storm including, but not limited to,
the stucco siding. Shortly after the Storm, Plaintiffs filed a claim with their insurance
company, State Farm, for the damages to their home caused by the Storm.
15. Plaintiffs submitted a claim to State Farm against the Policy for Roof Damage, Structural
Damage, Water Damage, and Wind Damage the Property sustained as a result of the
Storm.
Page 3
16. Plaintiffs asked that State Farm cover the cost of repairs to the Property, including but not
limited to, repair and/or replacement of the roof and repair of the siding and interior water
damages, pursuant to the Policy.
17. Defendant State Farm assigned Defendants Farias and Padilla as the individual adjusters
on the claim. The adjusters assigned to Plaintiffs’ claim were improperly trained and
failed to perform a thorough investigation of Plaintiffs’ claim. On or about June 26,
2013, Farias conducted a substandard inspection of Plaintiffs’ Property. For example,
Farias spent a mere hour inspecting Plaintiffs’ entire Property for Storm damages. The
inadequacy of Farias’ inspection is further evidenced by his report, which failed to
include all of Plaintiffs’ Storm damages noted upon inspection. For example, Farias
failed to include the damages to the home’s roof and siding in his report. Moreover, the
damages that Farias actually included in his report were grossly undervalued, in part
because he both underestimated and undervalued the cost of materials required for
necessary repairs and incorrectly applied material sales tax. Ultimately, Farias’ estimate
did not allow adequate funds to cover the cost of repairs to all the damages sustained.
Farias’ inadequate investigation was relied upon by State Farm and Padilla in this action
and resulted in Plaintiffs’ claim being undervalued and underpaid.
18. Defendant Padilla also actively participated in the adjustment of Plaintiffs’ claim but
failed to conduct a reasonable investigation. Specifically, Padilla was the State Farm
manager assigned to Plaintiffs’ claim and reviewed reports, documents, and information
regarding the claim. Padilla approved Farias’ estimate, even though it failed to include
many of Plaintiffs’ damages, undervalued the damages it did include, and incorrectly
Page 4
applied material sales tax. Ultimately, Padilla failed to thoroughly review Farias’
assessment of the claim and approved an inadequate adjustment of Plaintiffs’ claim.
19. Together, Defendants State Farm, Farias, and Padilla set about to deny and/or underpay
on properly covered damages. As a result of these Defendants’ unreasonable
investigation of the claim, including not providing full coverage for the damages
sustained by Plaintiffs, as well as under-scoping the damages during their investigation
and thus denying adequate and sufficient payment to Plaintiffs to repair their home,
Plaintiffs’ claim was improperly adjusted. The mishandling of Plaintiffs’ claim has also
caused a delay in their ability to fully repair their home, which has resulted in additional
damages. To this date, Plaintiffs have yet to receive the full payment to which they are
entitled under the Policy.
20. As detailed in the paragraphs below, State Farm wrongfully denied Plaintiffs’ claim for
repairs of the Property, even though the Policy provided coverage for losses such as those
suffered by Plaintiffs. Furthermore, State Farm underpaid some of Plaintiffs’ claims by
not providing full coverage for the damages sustained by Plaintiffs, as well as under-
scoping the damages during its investigation.
21. To date, State Farm continues to delay in the payment for the damages to the Property.
As such, Plaintiffs have not been paid in full for the damages to their home.
22. Defendant State Farm failed to perform its contractual duties to adequately compensate
Plaintiffs under the terms of the Policy. Specifically, it refused to pay the full proceeds of
the Policy, although due demand was made for proceeds to be paid in an amount
sufficient to cover the damaged property, and all conditions precedent to recovery upon
Page 5
the Policy had been carried out and accomplished by Plaintiffs. State Farm’s conduct
constitutes a breach of the insurance contract between State Farm and Plaintiffs.
23. Defendants State Farm, Farias, and Padilla misrepresented to Plaintiffs that the damage to
the Property was not covered under the Policy, even though the damage was caused by a
covered occurrence. Defendants State Farm’s, Farias’, and Padilla’s conduct constitutes
a violation of the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§541.060(a)(1).
24. Defendants State Farm, Farias, and Padilla failed to make an attempt to settle Plaintiffs’
claim in a fair manner, although they were aware of their liability to Plaintiffs under the
Policy. Defendants State Farm’s, Farias’, and Padilla’s conduct constitutes a violation of
the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§541.060(a)(2)(A).
25. Defendants State Farm, Farias, and Padilla failed to explain to Plaintiffs the reasons for
their offer of an inadequate settlement. Specifically, Defendants State Farm, Farias, and
Padilla failed to offer Plaintiffs adequate compensation, without any explanation why full
payment was not being made. Furthermore, Defendants State Farm, Farias, and Padilla
did not communicate that any future settlements or payments would be forthcoming to
pay for the entire losses covered under the Policy, nor did they provide any explanation
for the failure to adequately settle Plaintiffs’ claim. Defendants State Farm’s, Farias’,
and Padilla’s conduct is a violation of the Texas Insurance Code, Unfair Settlement
Practices. TEX. INS. CODE §541.060(a)(3).
26. Defendants State Farm, Farias, and Padilla failed to affirm or deny coverage of Plaintiffs’
claim within a reasonable time. Specifically, Plaintiffs did not receive timely indication
Page 6
of acceptance or rejection, regarding the full and entire claim, in writing from Defendants
State Farm, Farias, and Padilla. Defendants State Farm’s, Farias’, and Padilla’s conduct
constitutes a violation of the Texas Insurance Code, Unfair Settlement Practices. TEX.
INS. CODE §541.060(a)(4).
27. Defendants State Farm, Farias, and Padilla refused to fully compensate Plaintiffs under
the terms of the Policy, even though Defendants State Farm, Farias, and Padilla failed to
conduct a reasonable investigation. Specifically, Defendants State Farm, Farias, and
Padilla performed an outcome-oriented investigation of Plaintiffs’ claim, which resulted
in a biased, unfair, and inequitable evaluation of Plaintiffs’ losses on the Property.
Defendants State Farm’s, Farias’, and Padilla’s conduct constitutes a violation of the
Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a)(7).
28. Defendant State Farm failed to meet its obligations under the Texas Insurance Code
regarding timely acknowledging Plaintiffs’ claim, beginning an investigation of
Plaintiffs’ claim, and requesting all information reasonably necessary to investigate
Plaintiffs’ claim, within the statutorily mandated time of receiving notice of Plaintiffs’
claim. State Farm’s conduct constitutes a violation of the Texas Insurance Code, Prompt
Payment of Claims. TEX. INS. CODE §542.055.
29. Defendant State Farm failed to accept or deny Plaintiffs’ full and entire claim within the
statutorily mandated time of receiving all necessary information. State Farm’s conduct
constitutes a violation of the Texas Insurance Code, Prompt Payment of Claims. TEX.
INS. CODE §542.056.
30. Defendant State Farm failed to meet its obligations under the Texas Insurance Code
regarding payment of claim without delay. Specifically, it has delayed full payment of
Page 7
Plaintiffs’ claim longer than allowed and, to date, Plaintiffs have not received full
payment for their claim. State Farm’s conduct constitutes a violation of the Texas
Insurance Code, Prompt Payment of Claims. TEX. INS. CODE §542.058.
31. From and after the time Plaintiffs’ claim was presented to Defendant State Farm, the
liability of State Farm to pay the full claim in accordance with the terms of the Policy
was reasonably clear. However, State Farm has refused to pay Plaintiffs in full, despite
there being no basis whatsoever on which a reasonable insurance company would have
relied to deny the full payment. State Farm’s conduct constitutes a breach of the common
law duty of good faith and fair dealing.
32. Defendants State Farm, Farias, and Padilla knowingly or recklessly made false
representations, as described above, as to material facts and/or knowingly concealed all
or part of material information from Plaintiffs.
33. As a result of Defendants State Farm’s, Farias’, and Padilla’s wrongful acts and
omissions, Plaintiffs were forced to retain the professional services of the attorney and
law firm who are representing them with respect to these causes of action.
34. Plaintiffs’ experience is not an isolated case. The acts and omissions State Farm
committed in this case, or similar acts and omissions, occur with such frequency that they
constitute a general business practice of State Farm with regard to handling these types of
claims. State Farm's entire process is unfairly designed to reach favorable outcomes for
the company at the expense of the policyholders.
Page 8
CAUSES OF ACTION:
CAUSES OF ACTION AGAINST DEFENDANT FARIAS AND PADILLA
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
35. Defendant State Farm assigned Defendants Farias and Padilla to adjust the claim.
Defendants Farias and Padilla were improperly trained to handle claims of this nature and
performed an unreasonable investigation of Plaintiffs’ damages. During his
investigation, the adjusters failed to properly assess Plaintiffs’ Storm damages. The
adjusters also omitted covered damages from their report(s), including the damages to the
home’s roof and siding. In addition, the damages that the adjusters did include in the
estimate were severely underestimated.
36. Defendants Farias’ and Padilla’s conduct constitutes multiple violations of the Texas
Insurance Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a). All
violations under this article are made actionable by TEX. INS. CODE §541.151.
37. Defendants Farias and Padilla are each individually liable for their unfair and deceptive
acts, irrespective of the fact they were acting on behalf of State Farm, because they are
each a “person” as defined by TEX. INS. CODE §541.002(2). The term “person” is defined
as “any individual, corporation, association, partnership, reciprocal or interinsurance
exchange, Lloyds plan, fraternal benefit society, or other legal entity engaged in the
business of insurance, including an agent, broker, adjuster or life and health insurance
counselor.” TEX. INS. CODE §541.002(2) (emphasis added); see also Liberty Mutual
Insurance Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998) (holding
an insurance company employee to be a “person” for the purpose of bringing a cause of
Page 9
action against him or her under the Texas Insurance Code and subjecting him or her to
individual liability).
38. Falsehoods and misrepresentations may be communicated by actions as well as by the
spoken word; therefore, deceptive conduct is equivalent to a verbal representation.
Defendants Farias’ and Padilla’s misrepresentations by means of deceptive conduct
include, but are not limited to: (1) failing to conduct a reasonable inspection and
investigation of Plaintiffs’ damages; (2) stating that Plaintiffs’ damages were less severe
than they in fact were; (3) using their own statements about the non-severity of the
damage as a basis for denying properly covered damages and/or underpaying damages;
and (4) failing to provide an adequate explanation for the inadequate compensation
Plaintiffs received. Defendants Farias’ and Padilla’s unfair settlement practice, as
described above and the example given herein, of misrepresenting to Plaintiffs material
facts relating to the coverage at issue, constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(1).
39. Defendants Farias’ and Padilla’s unfair settlement practice, as described above, of failing
to attempt in good faith to effectuate a prompt, fair, and equitable settlement of the claim,
even though liability under the Policy is reasonably clear, constitutes an unfair method of
competition and an unfair and deceptive act or practice in the business of insurance. TEX.
INS. CODE §541.060(a)(2)(A).
40. Defendants Farias and Padilla failed to explain to Plaintiffs the reasons for their offer of
an inadequate settlement. Specifically, Defendants Farias and Padilla failed to offer
Plaintiffs adequate compensation without any explanation as to why full payment was not
Page 10
being made. Furthermore, Defendants Farias and Padilla did not communicate that any
future settlements or payments would be forthcoming to pay for the entire losses covered
under the Policy, nor did they provide any explanation for the failure to adequately settle
Plaintiffs’ claim. The unfair settlement practice of Defendants Farias and Padilla as
described above, of failing to promptly provide Plaintiffs with a reasonable explanation
of the basis in the Policy, in relation to the facts or applicable law, for the offer of a
compromise settlement of Plaintiffs’ claim, constitutes an unfair method of competition
and an unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(3).
41. Defendants Farias’ and Padilla’s unfair settlement practice, as described above, of failing
within a reasonable time to affirm or deny coverage of the claim to Plaintiffs, or to
submit a reservation of rights to Plaintiffs, constitutes an unfair method of competition
and an unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(4).
42. Defendants Farias and Padilla did not properly inspect the Property and failed to account
for and/or undervalued many of Plaintiffs’ exterior and interior damages, although
reported by Plaintiffs to State Farm. Defendants Farias’ and Padilla’s unfair settlement
practice, as described above, of refusing to pay Plaintiffs’ claim without conducting a
reasonable investigation, constitutes an unfair method of competition and an unfair and
deceptive act or practice in the business of insurance. TEX. INS. CODE §541.060(a)(7).
CAUSES OF ACTION AGAINST ALL DEFENDANTS
43. Plaintiffs are not making any claims for relief under federal law.
Page 11
FRAUD
44. Defendants State Farm, Farias, and Padilla are liable to Plaintiffs for common law fraud.
45. Each and every one of the representations, as described above, concerned material facts
for the reason that absent such representations, Plaintiffs would not have acted as they
did, and which Defendants State Farm, Farias, and Padilla knew were false or made
recklessly without any knowledge of their truth as a positive assertion.
46. The statements were made with the intention that they should be acted upon by Plaintiffs,
who in turn acted in reliance upon the statements, thereby causing Plaintiffs to suffer
injury and constituting common law fraud.
CONSPIRACY TO COMMIT FRAUD
47. Defendants State Farm, Farias, and Padilla are liable to Plaintiffs for conspiracy to
commit fraud. Defendants State Farm, Farias, and Padilla were members of a
combination of two or more persons whose object was to accomplish an unlawful
purpose or a lawful purpose by unlawful means. In reaching a meeting of the minds
regarding the course of action to be taken against Plaintiffs, Defendants State Farm,
Farias, and Padilla committed an unlawful, overt act to further the object or course of
action. Plaintiffs suffered injury as a proximate result.
CAUSES OF ACTION AGAINST STATE FARM ONLY
48. Defendant State Farm is liable to Plaintiffs for intentional breach of contract, as well as
intentional violations of the Texas Insurance Code, and intentional breach of the common
law duty of good faith and fair dealing.
Page 12
BREACH OF CONTRACT
49. Defendant State Farm’s conduct constitutes a breach of the insurance contract made
between State Farm and Plaintiffs.
50. Defendant State Farm’s failure and/or refusal, as described above, to pay adequate
compensation as it is obligated to do under the terms of the Policy in question, and under
the laws of the State of Texas, constitutes a breach of State Farm’s insurance contract
with Plaintiffs.
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
51. Defendant State Farm’s conduct constitutes multiple violations of the Texas Insurance
Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a). All violations under
this article are made actionable by TEX. INS. CODE §541.151.
52. Defendant State Farm’s unfair settlement practice, as described above, of misrepresenting
to Plaintiffs material facts relating to the coverage at issue, constitutes an unfair method
of competition and an unfair and deceptive act or practice in the business of insurance.
TEX. INS. CODE §541.060(a)(1).
53. Defendant State Farm’s unfair settlement practice, as described above, of failing to
attempt in good faith to effectuate a prompt, fair, and equitable settlement of the claim,
even though State Farm’s liability under the Policy was reasonably clear, constitutes an
unfair method of competition and an unfair and deceptive act or practice in the business
of insurance. TEX. INS. CODE §541.060(a)(2)(A).
54. Defendant State Farm’s unfair settlement practice, as described above, of failing to
promptly provide Plaintiffs with a reasonable explanation of the basis in the Policy, in
relation to the facts or applicable law, for its offer of a compromise settlement of the
Page 13
claim, constitutes an unfair method of competition and an unfair and deceptive act or
practice in the business of insurance. TEX. INS. CODE §541.060(a)(3).
55. Defendant State Farm’s unfair settlement practice, as described above, of failing within a
reasonable time to affirm or deny coverage of the claim to Plaintiffs, or to submit a
reservation of rights to Plaintiffs, constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(4).
56. Defendant State Farm’s unfair settlement practice, as described above, of refusing to pay
Plaintiffs’ claim without conducting a reasonable investigation, constitutes an unfair
method of competition and an unfair and deceptive act or practice in the business of
insurance. TEX. INS. CODE §541.060(a)(7).
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
THE PROMPT PAYMENT OF CLAIMS
57. Defendant State Farm’s conduct constitutes multiple violations of the Texas Insurance
Code, Prompt Payment of Claims. All violations made under this article are made
actionable by TEX. INS. CODE §542.060.
58. Defendant State Farm’s failure to acknowledge receipt of Plaintiffs’ claim, commence
investigation of the claim, and request from Plaintiffs all items, statements, and forms
that it reasonably believed would be required within the applicable time constraints, as
described above, constitutes a non-prompt payment of claims and a violation of TEX. INS.
CODE §542.055.
59. Defendant State Farm’s failure to notify Plaintiffs in writing of its acceptance or rejection
of the claim within the applicable time constraints constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.056.
Page 14
60. Defendant State Farm’s delay of the payment of Plaintiffs’ claim following its receipt of
all items, statements, and forms reasonably requested and required, longer than the
amount of time provided for, as described above, constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.058.
ACTS CONSTITUTING ACTING AS AGENT
61. As referenced and described above, and further conduct throughout this litigation and
lawsuit, Farias and Padilla are agents of State Farm based on their acts during the
handling of this claim, including inspections, adjustments, and aiding in adjusting a loss
for or on behalf of the insurer. TEX. INS. CODE §4001.051.
62. Separately, and/or in the alternative, as referenced and described above, State Farm
ratified the actions and conduct of Farias and Padilla, including the completion of their
duties under the common law and statutory law.
BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
63. Defendant State Farm’s conduct constitutes a breach of the common law duty of good
faith and fair dealing owed to insureds in insurance contracts.
64. Defendant State Farm’s failure, as described above, to adequately and reasonably
investigate and evaluate Plaintiffs’ claim, although, at that time, State Farm knew or
should have known by the exercise of reasonable diligence that its liability was
reasonably clear, constitutes a breach of the duty of good faith and fair dealing.
KNOWLEDGE
65. Each of the acts described above, together and singularly, was done “knowingly,” as that
term is used in the Texas Insurance Code, and was a producing cause of Plaintiffs’
damages described herein.
Page 15
DAMAGES
66. Plaintiffs would show that all of the aforementioned acts, taken together or singularly,
constitute the producing causes of the damages sustained by Plaintiffs.
67. As previously mentioned, the damages caused by the Storm have not been properly
addressed or repaired in the months since the Storm, causing further damages to the
Property, and causing undue hardship and burden to Plaintiffs. These damages are a
direct result of Defendant State Farm’s, Farias’, and Padilla’s mishandling of Plaintiffs’
claim in violation of the laws set forth above.
68. For breach of contract, Plaintiffs are entitled to regain the benefit of their bargain, which
is the amount of their claim, together with attorney’s fees.
69. For noncompliance with the Texas Insurance Code, Unfair Settlement Practices,
Plaintiffs are entitled to actual damages, which include the loss of the benefits that should
have been paid pursuant to the policy, mental anguish, court costs, and attorney's fees.
For knowing conduct of the acts described above, Plaintiffs ask for three times their
actual damages. TEX. INS. CODE §541.152.
70. For noncompliance with Texas Insurance Code, Prompt Payment of Claims, Plaintiffs are
entitled to the amount of their claim, as well as eighteen (18) percent interest per annum
on the amount of such claim as damages, together with attorney's fees. TEX. INS. CODE
§542.060.
71. For breach of the common law duty of good faith and fair dealing, Plaintiffs are entitled
to compensatory damages, including all forms of loss resulting from the insurer's breach
of duty, such as additional costs, economic hardship, losses due to nonpayment of the
amount the insurer owed, exemplary damages, and damages for emotional distress.
Page 16
72. For fraud, Plaintiffs are entitled to recover actual damages and exemplary damages for
knowingly fraudulent and malicious representations, along with attorney’s fees, interest,
and court costs.
73. For the prosecution and collection of this claim, Plaintiffs have been compelled to engage
the services of the attorney whose name is subscribed to this pleading. Therefore,
Plaintiffs are entitled to recover a sum for the reasonable and necessary services of
Plaintiffs’ attorney in the preparation and trial of this action, including any appeals to the
Court of Appeals and/or the Supreme Court of Texas.
JURY DEMAND
74. Plaintiffs have requested that all causes of action alleged herein be tried before a jury
consisting of citizens residing in Webb County, Texas. Plaintiffs previously tendered the
appropriate jury fee.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that upon trial hereof, said
Plaintiffs have and recover such sums as would reasonably and justly compensate them in
accordance with the rules of law and procedure, as to actual damages, treble damages under the
Texas Insurance Code, and all punitive and exemplary damages as may be found. In addition,
Plaintiffs request the award of attorney’s fees for the trial and any appeal of this case, for all
costs of Court on their behalf expended, for prejudgment and postjudgment interest as allowed
by law, and for any other and further relief, either at law or in equity, to which they may show
themselves justly entitled.
Page 17
Respectfully submitted,
MOSTYN LAW
/s/ J. Steve Mostyn
J. Steve Mostyn
State Bar No. 00798389
jsmdocketefile@mostynlaw.com
3810 West Alabama Street
Houston, Texas 77027
(713) 714-0000 (Office)
(713) 714-1111 (Facsimile)
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on this 16th day of June, 2015 in accordance with the Rules of Civil Procedure.
/s/ J. Steve Mostyn
J. Steve Mostyn
Page 18
TAB 16
OF THE RECORD
Filed
7/2/2015 4:41:49 PM
Esther Degollado
District Clerk
Webb District
Jeanie Aguilar
2014CVF001048D1
CAUSE NO. 2014-C VF-001048-D1
ALMA PENA § IN THE DISTRICT COURT
Plaintiff §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER § T11
49
Defendants § JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Infonnation,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Becky Lanier (“Defendants”) or any third party adjusting firm
(including its employees) that adjusted this claim, and for no other purpose.
Subject to paragraphs l.a. and 1 .b. below, “Related Litigation,” as used herein
means a first-party lawsuit filed in Texas by The Mostyn Law Firm arising out of
a claim for damages to residential, commercial, or personal property as a result of
a hailstorm that occurred in Texas. Confidential Information, or extracts,
summaries, or information derived from Confidential Information, shall not be
disclosed to any person except in accordance with the terms of this Order.
Confidential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation or Related Litigation, subject to the
1
limitations contained herein.
a. State Farm’s institutional materials that are not claim-specific or adjuster-
specific will be Bates-labeled PENARODMLFTX00000001PROD -
PENARODMLFTX00000756PROD. Documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000756PROD may be
shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Firm is representing the Plaintiff(s) in the Related Litigation.
If The Mostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates another lawyer or law firm in the Related
Litigation, State Farm’s consent to the use of the documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000756PROD in that
Related Litigation is automatically revoked. Documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000756PROD shall not
be considered to have been produced in and for Related Litigation as
“official discovery” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overruled State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
PENARODMLFTX0000000IPROD - PENARODMLFTX00000756PROD that are
not official discovery in a Related Litigation may not be used at
depositions, hearings or at trial in that Related Litigation unless the
plaintiffs in the Related Litigation have made a valid request for
production of such documents, the date for the response to such request(s)
2
has passed, and The Mostyn Law Firm has given notice of intent to use the
document at a deposition or other proceeding fourteen (14) days prior to
the proceeding.
b. Claim-specific, adjuster-specific, or other materials produced in this
litigation that are not Bates-labeled PENARODMLFTX00000001PROD -
PENARODMLFTX00000756PROD may not be shared in Related Litigation,
but may only be shared among Qualified Persons in the lawsuit in which
the materials were produced. If a receiving party intends to use any
document Bates-labeled PENARODMLFTXO 0000001 PROD -
PENARODMLFTX00000756PROD in Related Litigation, that party must first
obtain written consent of the producing party or leave of court.
2. “Confidential Information,” as used herein, means any information of any type
that is designated as “Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
information (“ESI”), or other material; information contained in a document, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation;
their respective counsel; counsel’s staff; expert witnesses; outside service
providers and consultants providing services related to document and ESI
3
processing, hosting, review, and production; the Court; other court officials
(including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
4
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf. Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the file’s name
5
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTIAL-SUBJ TO PROTECTIVE ORDER IN CAUSE 20 14-CVF-
001048-Di”. When any file so designated is converted to a hard-copy
document or static image for any purpose, the document or image shall
bear on each page a protective legend as described in 6.a. and 6.b. above.
If a native file containing Confidential Information is used during a
deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CONFIDENTIAL-SUBJ_TQPROTECTIVE_ORDER IN CAUSE 20 14-CVF-
001048-Di”, if such legend does not already appear in the file name. Any
party using a native file containing Confidential Information in a
deposition, hearing, or at trial must indicate the designation on the record
so that it is reflected in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
6
Infonnation.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retroactively
designated by the producing party in the manner described in paragraph
7.a. above. If a retroactive designation is provided to the receiving party
in accordance with Texas Rule of Civil Procedure 193.3(d) the
receiving party must (i) make no further disclosure of such designated
information except as allowed under this Order; (ii) take reasonable steps
to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to
reclaim any such designated information in the possession of any person
not permitted access to such information under the terms of this Order.
No party shall be deemed to have violated this Order for any disclosures
7
made prior to notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return and/or destmction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as Confidential Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
8
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, andlor (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
9
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
11. In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
10
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a., b., andlor c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have twenty (20) days
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
establish that patty’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
11
ESI, information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
12
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the fmal resolution of this litigation, the plaintiff(s) and
The Mostyn Law Firm shall return or destroy Confidential Information they
received during this litigation. As to those materials that contain or reflect
Confidential Information, but that constitute or reflect the plaintiff(s) counsel’s
own work product, counsel for the plaintiff(s) are entitled to retain such work
product in their files in accordance with the provisions of this Protective Order, so
long as the work product is clearly marked to reflect that it contains information
subject to this Protective Order. Plaintiffs counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
transcripts, and the trial record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
13
_____
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiff’s counsel shall
certify in writing compliance with the provision of this paragraph after one (1)
year after the final resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of • 2015.
JUDGE PRESIDING
APPROVED AS TO FORM ONLY:
J. Steve Mostyn Sofid* Ramon
State Bar No. 00798389 State ar No. 00784811
Andrew P. Taylor Dan I. Worthington
State Bar No. 24070723 State Bar No. 00785282
THE MOSTYN LAW FIRM Elizabeth S. Cantu
3810 W. Alabama Street State Bar No. 24013455
Houston, Texas 77027 Charles W. Downing
(713) 861-6616 Phone
— State Bar No. 24069631
(713) 861-8084 Fax
— ATLAS, HALL & RODRIGUEZ, LLP
ATTORNEYS FOR PLAINTIFF 818 Pecan Blvd.
McAllen, Texas 78501
(956) 682-5501 Phone
—
(956) 686-6109 Fax
—
ATTORNEYS FOR DEFENDANTS
14
__________________________________
Filed
7/2/2015 4:41:49 PM
Esther Degollado
District Clerk
Webb District
Jeanie Aguilar
2014CVF001048D1
CAUSE NO. 2014-CVF-001048-D1
ALMA PENÃ § IN THE DISTRICT COURT
Plaintiff §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER § TH
49
Defendants § JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to infonnation
designated as Confidential Information under the Protective Order entered in Cause No. 20 14-
CVF-00 1 048-D 1 represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
EXHIBIT A
TAB 17
OF THE RECORD
CAUSE NO. 2014-CVF-001162-D1
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT OF
RODRIGUEZ, §
§
Plaintiff, §
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
§
TH
49
Defendants. JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Felipe Farias (“Defendants”) or any third party adjusting firm
(including its employees) that adjusted this claim, and for no other purpose.
Subject to paragraphs l.a. and I .b. below, “Related Litigation,” as used herein
means a first-party lawsuit filed in Texas by The Mostyn Law Firm arising out of
a claim for damages to residential, commercial, or personal property as a result of
a hailstorm that occurred in Texas. Confidential Information, or extracts,
summaries, or information derived from Confidential Information, shall not be
disclosed to any person except in accordance with the terms of this Order.
1
Confidential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation or Related Litigation, subject to the
limitations contained herein.
a. State Farm’s institutional materials that are not claim-specific or adjuster-
specific will be Bates-labeled PENARODMLFTX0000000IPROD -
PEN ARODMLFTX00000756PROD. Documents Bates-labeled
PEN ARODM LFTX0000000 I PROD - PENARODM LFTX00000756PROD may be
shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Firm is representing the Plaintiff(s) in the Related Litigation.
If The Mostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates another lawyer or law firm in the Related
Litigation, State Farm’s consent to the use of the documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000756PROD in that
Related Litigation is automatically revoked. Documents Bates-labeled
PENARODM LFTX0000000 1 PROD - PENARODMLFTX00000756PROD shall not
be considered to have been produced in and for Related Litigation as
“official discovery” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overruled State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
PENARODMLFTX0000000 1 PROD - PENARODMLFTX00000756PROD that are
not official discovery in a Related Litigation may not be used at
depositions, hearings or at trial in that Related Litigation unless the
2
plaintiffs in the Related Litigation have made a valid request for
production of such documents, the date for the response to such request(s)
has passed, and The Mostyn Law Firm has given notice of intent to use the
document at a deposition or other proceeding fourteen (14) days prior to
the proceeding.
b. Claim-specific, adjuster-specific, or other materials produced in this
litigation that are not Bates-labeled PENARODMLFTX0000000IPROD -
PENARODMLFTX00000756PROD may not be shared in Related Litigation,
but may only be shared among Qualified Persons in the lawsuit in which
the materials were produced. If a receiving party intends to use any
document Bates-labeled PENARODMLFTX0000000 I PROD -
PENARODMLFTX00000756PROD in Related Litigation, that party must first
obtain written consent of the producing party or leave of court.
2. “Confidential Information,” as used herein, means any information of any type
that is designated as “Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
information (“ES!”), or other material; information contained in a document, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation;
3
their respective counsel; counsel’s staff; expert witnesses; outside service-
providers and consultants providing services related to document and ESI
processing, hosting, review, and production; the Court; other court officials
(including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
4
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret!Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following Legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade SecretlProduced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf. Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
5
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the file’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTIAL-SUBJ_TO PROTECTI yE ORDER IN CAUSE 20 14-CVF-
001 162-Di”. When any file so designated is converted to a hard-copy
document or static image for any purpose, the document or image shall
bear on each page a protective legend as described in 6.a. and 6.b. above.
If a native file containing Confidential Information is used during a
deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CON FIDENTIAL-SUBJ TO_PROTECTIVE ORDER IN CAUSE 20 14-CVF-
001162-Di”, if such Legend does not already appear in the file name. Any
party using a native file containing Confidential Information in a
deposition, hearing, or at trial must indicate the designation on the record
so that it is reflected in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
6
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, andJor (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retroactively
designated by the producing party in the manner described in paragraph
7.a. above. If a retroactive designation is provided to the receiving party
in accordance with Texas Rule of Civil Procedure 193.3(d) the
receiving party must (i) make no further disclosure of such designated
information except as allowed under this Order; (ii) take reasonable steps
to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to
reclaim any such designated information in the possession of any person
7
not permitted access to such information under the terms of this Order.
No party shall be deemed to have violated this Order for any disclosures
made prior to notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return andlor destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as Confidential Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
8
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identifi the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not pennitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
9
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the tenns of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
11. In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
10
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a., b., andlor c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have twenty (20) days
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion tbr specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
11
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
ESI, information, or testimony does not constitute an admission that the
document, ES!, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Infonnation, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties, their counsel andlor any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
12
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the final resolution of this litigation, the plaintiff(s) and
The Mostyn Law Firm shall return or destroy Confidential Information they
received during this litigation. As to those materials that contain or reflect
Confidential Information, but that constitute or reflect the plaintiff(s) counsel’s
own work product, counsel for the plaintiff(s) are entitled to retain such work
product in their files in accordance with the provisions of this Protective Order, so
long as the work product is clearly marked to reflect that it contains information
subject to this Protective Order. Plaintiffs counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
13
_____
transcripts, and the trial record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiffs counsel shall
certify in writing compliance with the provision of this paragraph after one (I)
year after the final resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
ITISSOORDEREDthis dayof ,2015.
JUDGE PRESIDING
APPROVED AS TO FORM ONLY:
J. Steve Mostyn Sofia A. Aamon
State Bar No. 00798389 State Batklo. 00784811
Andrew P. Taylor Dan K. Worthington
State Bar No. 24070723 State Bar No. 00785282
THE MOSTYN LAW FIRM Elizabeth S. Cantu
3810 W. Alabama Street State Bar No. 24013455
Houston, Texas 77027 Charles W. Downing
(713) 861-6616—Phone State Bar No. 24069631
(713) 861-8084 Fax
—
ATLAS, HALL & RODRIGUEZ, LLP
ATTORNEYS FOR PLAINTIFF 818 Pecan Blvd.
McAllen, Texas 78501
(956) 682-5501 Phone
—
(956) 686-6109 Fax
—
ATTORNEYS FOR DEFENDANTS
_____________
______________________
Filed
7/2/2015 439:03 PM
Esther Degollado
District Clerk
Webb District
Jeanie Aguilar
2O14CVFOO1 162D1
CAUSE NO. 2014-CVF-001162-D1
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT OF
RODRIGUEZ, §
§
Plaintiff, §
V. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
§
§ TH
49
Defendants. § JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to information
designated as Confidential Information under the Protective Order entered in Cause No. 2014-
CVF-001l62-Dl represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of junsdiction over me by the Court with respect to the
Protective Order.
4. 1 agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
A
:rt,wI
1/
Filed
7/212015 4;39;03 PM
Esther Degollado
District Clerk
Webb District
Jeanie Aguilar
ATLAS, HALL & RODRIGUEZ, LLP 2O14CVFOO1 162D1
ATTORNEYS AT LAW
P.O. BOX 3725 (78502-3725)
818W. PECAN BLVD. (78501-2418)
SOFIA RAMON McALLEN. TEXAS
srarnon@(aI(asIIaII.corn TEL. (956) 682-5501 FAx (956) 686-6109
ATLAsHAU..COM
July 2, 2015
WA ELECTRONIC FILING
Esther Degollado
Webb County District Clerk
1110 Victoria Street, Suite 203
Laredo, Texas 78040
Re: Cause No. 2014CVF001162 Dl; RauI Rodriguez and Noemi Rodriguez
v. State Farm Lloyds and Felipe Farias; In the 49th District Court of
Webb County, Texas
Dear Ms. Degollado:
Attached please find the proposed Protective Order which has been signed by
both parties. I would appreciate it very much if you would forward the document to the
court for consideration and entry.
Thank you very much for your attention to this matter. Should you have any
questions, please do not hesitate to call our office.
Very truly yours,
ATLAS, HALL & RODRIGUEZ, LLP
By:
Sofi
SARJbc
Enclosure
cc: J. Steve Mostyn and Andrew Taylor (via Fax 713/8618084)
Dan. K. Worthington (Firm)
BROWNSVILLE OUNCE UVALDE OFFICE
AUSTIN OUNCE
P.O. BOX 6369 (76523-6369) (24 N. EASTSFREET
7200 N MOI’AC EXFY, STE 430
SOW. MORRISON RD ,STE A UVALDE. TEXAS 78501-5312
AUSTIN, TEXAS 7873-2696
BROWNSVILLE, TEXAS 7S520-7262 TOE (830)278-3100
TEL (512)583-0579
TEl. (956) 574-9333 FAX (044) 272-4209
FAX (956) 574-9337
TAB 18
OF THE RECORD
CAUSE NO. 2014-CVF-001048-Dl
ALMA PENA § IN THE DISTRICT COURT
Plaintiff §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LAMER § Tfl
49
Defendants § JVDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is wairanted to protect Confidential hifonnation,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that;
1. All Confidential Information produced or exchanged in the course of this
litigation shall he used solely for the purpose of the preparation and trial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Becky Lanier (“Defendants”) or any third party adjusting firm
(including its employees) that adjusted this claim, and ft>r no other purpose.
Subject to paragraphs Ia and Lb. below, “Related Litigation,” as used herein
means a first-parry lawsuit flied in Texas by The Mostyn Law Finn arising out of
a claim for damages to residential, commercial, or personal property as a result of
a hailstorm that occurred in Texas. Confidential Inforznatou, or extracts,
summaries, or information derived from Confidential Information, shall not be
disclosed to any person except in accordance with the tenDs of this Order.
Qrnfldential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation or Related litigation, subject to the
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limitations contained herein.
a. State Farm’s institutional materials that are not clan-specific or adjuster-
specific will be Bates-labeled PENARODMIFTXOOOOVO0IPROD -
PENARODMLFTX00000756PROD. Documents Bates-labeled
PENARODMLFTX0000000IPROP - PENAKODMLFTX000007$6PROD may be
shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Finn is representing the Plaintiff(s) in the Related Litigation.
If The Mostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates another lawyer or law firm in the Related
Litigation, State Farm’s consent to the use of the documents Bates-labeled
PENARODMLFTX0000000IPROD - PENARODMLFTX000007S6PKOD in that
Related Litigation is automatically revoked. Documents Bates-labeled
PENARODMLPTX0000000IPROD PENARODMLFTX000007S6PROD shall not
be considered to have been produced in and for Related Litigation as
“official discovery” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overnilcd State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
PENARODMLFTX0000000IPRCD - PENARQPMLflX00000756PR.OO that are
not official discovery in a Related Litigation may not be used at
depositions, hearings or at trial in that Related Litigation unless the
plaintiffs in the Related Litigation have made a valid request for
production of such documents, the date for the response to such request(s)
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has passed, and The Mostyn Law Firm has given notice of intent to use the
document at a deposition or other proceeding fourteen (14) days prior to
the proceeding,
b. Claim-specific, adjuster-specific, or other materials produced in this
litigation that are not Bates-labeled PENARODMLETX0000000WROJ) -
PENARODMLFTX00000756PRCD may not be shared in Related Litigation,
but may only be shared among Qualified Persons in the lawsuit in which
the materials were pmduced. If a receiving party intends to use any
document Bates-labeled PENARODMLFTX0000000 1 PaOD
?ENAROOMLFTX000007S6PROD in Related Litigation, that party must first
obtain written consent of the producing party or leave of court.
2. “Confidential Information,” as used herein, means any information of any type
that is designated as “Confidential” and/or “Tzade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
infonnation (“ESI”), or other material; information contained in a docuinen.t, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation;
their respective counsel; counsel’s sraff expert witnesses; outside service-
providers and consultants providing services related to document and ESI
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processing, hosting, review, and production the Court; other court officials
(including court reporters); the trier ot’ fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
desiiating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the fluter disclosure is hereby pwhibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
5 Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fuct—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by coutenipt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel fbr the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing pasty shall retain the original written acknowledgment,
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and furnish a copy of the signed written aclaowledgment to the designating
party’s counsel within ten (10) business days.
6. Infonnation shall be designated as ConfIdential Information within the meaning
of this Protective Order by following the protocol below that cotresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the foUDwing legend: “Confidential &
Proprietary/Produced Pursuant to a ConL Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
AgreejProt. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a ConE AgreefProt Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a ConE
Agree./Prot. Order,” but not so as to obscure the content of the image.
c. For native file fbi-mat productions, by promineuLly labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & ProprietaryiProduced Pursuant to a ConE AgreefProt.
Order” or “Confidential Proprietary & Tnde Secret/Produced Pursuant to
a ConE AgreelProt. Order.” In addition, at the election of the producing
party, the eleconic file may have appended to the file’s name
S
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(immediately fouowing its Bates identifier) the following protective
legend:
“CONFIDENTIAL$1.J5J_TQ_PROTECTIVE_QRDER_ltq_CAU$E_2014-CVF-
001048-131”. When any file so designated is converted to a hard-copy
document or static image for any puose, the document or image shall
bear on each page a protective leg&nd as described in 6.a. and 6.b. above.
If a native file containing Confidential Information is used during a
deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CONFIPENTIAL-SUBJ_TQPROTECrIVE_ORDER_INJDAUSE_2014-CVF-
001048-01”, if such legend does not already appear in the file name. Any
party using a native file containing Confidential Information in a
deposition, bearing, or at trial must indicate the designation on the record
so that it is reflected in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any bard-copy documents that are subject to this Protective Order
waterinarks or seals to indicate the document is subject to a Protective
Order mid is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bares identifier or other identifying characteristics for the Confidential
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Information.
a Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such inThrmation
in their custody orpossession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (I) affix the legend to aM copies of such designated information in the
party’s possession, custody, or control consistent with the tents of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identit’ the item(s) as having been designated as
Confidential !nforznation.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Tnlbrmanion may be retroactively
designated by the producing party in the manner described in paragraph
7.a. above. If a retroactive designation is provided to the receiving party
in accordance with Texas Rule of Civil Procedure 193.3(d) the
receiving party must (I) make no fi.uther disclosure of such designated
information except as allowed under this OMer (ii) take reasonable steps
to notify any persons who were provided copies of such designated
intbnnation of the terms of this Order; and (iii) take reasonable steps to
reclaim any such designated information in the possession of any person
not permitted access to such information under the terms of this Order.
No party shall be deemed to have violated this Order for any disclosures
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made prior to notification of any subsequent designadoa
8. If Confidential hiforination is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return andior destruction of the inadvertently disclosed
Confidential lufonuation, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and denand sent to the entity or individual that
inadvertently received the Confidential Inlbrmation.
9. To the extent that the parties produce information received fivm non-parties that
the non-parties have designated as “confidential” such inxmation shall be wetted
as Confidential Information in accordance with the tenus of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a on.pany, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
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be agreed upon by the parties, any parties receiving such notice shall
return to tbe designating party all undesignated copies of such infonnation
in their custody or possession, in exchange for the production of properly
designated idormation, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/cr (ii) with respect to ESI, mice such reasonable
steps as wiU reflably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the patties also
shall: (i) make no further disclosure of such designated inrmation except
as allowed under this Order (ii) take reasonable steps to notify any
persons who were provided copies of such designated infoniiation of the
terms of this Order; and (iii) cake reasonable steps to reclaim any such
designated infbrniation in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Jnfonnation under the terms of this Order
only if counsel for a pasty advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
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reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Infonnation until thirty
(30) days following the receipt of the deposition uanscript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the recoix. shall separately transcribe those portions of the
testimony, and shaU mark the face of such portion of the transcript as
“Confidential thförmation,” The parties may use Confidential Jnfonnation during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
aclwowlcdgmern attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
11. In the case of interrogatory answers, responses to request for production, and
responses to requests for adtnissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
ii Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving pasty the information is
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard-
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copy documents, static images, or native files, that information shall be
designated as Confldenciai Information pursuant to paragraphs 6 a., b., and/or c.
above, depending on the fonnat of the materials introduced.
13. If a receiving party makes a good-ith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by che designating party that the Confidential lnfbrmation is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Cozifidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have twenty (20) days
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. Lithe party or
parties producing the Confidential Information does not timely me a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this OMer.
15. If a timely motion for specific protection is flied, any disputed Confidential
Jafonnation will remain subject to this Order until a contrary determination is
made by the Court At any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
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ESI, information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such thai or hearing.
16. Any papexs filed with the Court in this action that make reference to Coafidential
Information, or contain extracts, summaries, or infonnation derived therefrom,
shall be considered Confidential 1nfomation and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the Disthct Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the panics no disclosure, production, or exchange of
information in this case shalt constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving pasty must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
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reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains infomiation pursuant to this Order eosenzs to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the final resolution of this litigation, the plaintiff(s) and
The Mostyn Law Firm shall return or destroy Confidential Information they
received during this litigation. As to those materials that contain or reflect
Confidential Information, but that constitute or reflect the plaintiftZs) counsel’s
own work product, counsel for the plaintis) are entitled to retain such work
product in their files in accordance with the provisions of this Protective Order, so
long as the work product is clearly marked to reflect that it contains information
subject to this Protective Order. Plaintiff’s counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers med with the Court, deposition
transcripts, and the thai record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
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contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiff’s counsel shall
certify in writing compliance with the provision of this paraaph after one (1)
year after the final resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Cowl,
pursuant to the Texas Rules of Civil Procedure.
‘-it
3 dayof
IT[SSOORDEREDth1s/ !
9
Vu 2015.
JUDGE
nil /
APPROVED AS TO tORM ONLY:
y/Mn
I. Steve Mostyn Sofld-4f Ranion
State BarNo. 00798389 State arNo. 00784811
Andrew P. Taylor Dan IC. Worthington
State Bar No. 24070723 State Bar Nc. 00785282
THE MOSTYN LAW FIRM Elizabeth S. Cantu
3810W. Alabama Street State Bar No. 24013455
Houston, Texas 77027 Charles W. Downing
(713)861-6616—Phone State Bar No, 24069631
(713) 861-8084—Fax ATLAS, HALL & RODRIGUEZ, LLP
AflORNEYS FOR PLAINTIFF gjg Pan Blvd.
MeAllen, Texas 78501
(956) 682-5501 —Phone
(956) 686-6109 Fax
—
ATTORNEYS FOR DEFENDANTS
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Fil d
712/20154:41:49 M
Esther Degolla o
District CI rk
Webb Dist ct
Jeenle Agul er
2014CVr001o48 i
CAUSE NO. 2014•CVF4O1O4S-DI
ALMA PENÃ § IN THE DISThICT COURT
Plaintiff §
§
§ WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LAMER § 49111
Defendants § JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
hi order to be provided access to information
designated as Confidential Information under the Protective Order entered in Cause No. 2014-
CVF-001048-D 1 represents and aees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
‘he above matter. I have reviewed said copy and I am fniiiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Pwtecrive Order.
3. I consent to the eezeise ot’jurisdicticn over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of recoM for all
parties in the above Litigation.
DATED: SIGNATURE
EXHIBIT A
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TAB 19
OF THE RECORD
CAUSE NO. 2014-CVF-00fl62-D1
RAUL RODRIGUEZ AN]) NOEMI § IN TUE DISTRICT COURT OF
RODRIGUEZ §
§
Plalutiff, §
§ WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
EARThS, §
§
Defendants. 49 JUDICIAL DISTRICT
PROTECTWE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged In this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rifles
of Civil Procedure. Therefore, it is hereby ORDERED that:
I. All Confidential Information produced or exchanged in the ccuzse of tIds
litigation shall be used solely for the pwpose of the preparation and nial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Felipe Parias (“De&ndarns”) or any thin! party adjusting Urm
(including its employees) that adjusted this claim, and for no other puipose.
Subject to paragraphs l.a. and Lb. below, “Related Litigation,” as used herein
means a first-party lawsuit filed in Texas by The Mostyn Law Firm arising out of
a claim for damages to residential, coinniercial, or personal pmperty as a result of
a hailstorm that occurred in Texas. Confidential Information, or extracts,
summaries, or information derived from Confidential Information, shall not be
disclosed to any person except in aecordance with the terms of this Order.
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Confidential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation or Related Litigation, subject to the
limitations contained herein.
a. Slate Farm’s institutional materials that are not claim-specific or adjuster-
specific will be Bates-labeled PENAROPMLFPX0000000IPROD -
PENARODMLFTX000007S6PROD. Dociwzents Bates-labeled
PENARC)oMLrrX0000000 1 fliOf) - PENARODMLFTX000007Z6PROD may be
shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Firm is representing the Plaintiff(s) in the Related Litigation.
If The ?vtostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates anotha- lawyer or law firm in the Related
Litigation, State Farm’s consent to the ase of the documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000Y56PROD in that
Related Litigation is automatically revoked. Documents Bates-labeled
PENARODMLk’TX0000000IPROI) - PENARODMLFTX000007S6PRQP shall not
be considered to have been produced in and for Related Litigation as
“official discovexy” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overruled State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
PENARODMLFIX0000000IPROI) - PENARODMLFTX000007S6PROD that are
not official discovery in a Related Litigation may not be used at
depositions, hearings or at trial in that Related Litigation unless the
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plaintiffs in the Related Litigation have made a valid request for
production of such documents, the date for the response to such request(s)
has passed, and The Mostyn Law Finn has given notice of intent to use the
document at a deposition or other proceeding fourteen (14) days prior to
the proceeding.
b. Clairn-specitic, adjuster-specific, or other matthals produced in this
litigation that are not Bates-labeled PENARODMLFTX0000000IPROD -
PENARODMLFTX000007S&PROO may not be shared in Related Litigation,
but may only be shared among Qualified Persons in the lawsuit in which
the materials were produced. If a receiving party intends to use any
document Bates-labeled PENARODMLFTX0000000INLOI) -
PENARODMLFTX000007S6PROD in Related Litigation, that party must first
obtain written consent of the producing party or leave of court
2. “Confidential Infonnation,” as used herein, means any information of any type
that is desiiated as “Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is; a document, electronically stored
information (“ESI”), or other material; information contained in a document, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restñcted to Qualified Persons.
“Qualified Persons,” as used herein, means; the parties to this pending litigation,
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their respective counsel; counsel’s staft expert wimesses; outside service-
providers and consultants providing services related to document and ES!
processing, hosting, review, and production; the Court other court officials
(including court reporters); the trier of fact pursuant to a sealing order and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesthag party receives written consent to ñinher disclose the
Confidential Infonnation, the thrther disclosure is hereby pmhibited and shall not
be made absent further order of this Court. If the designating party grants its
consent. then the person granted consent shall become a Qualified Person under
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Couit, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this OrderS The
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tnitteu acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowlednent,
wit! fhrnish a copy of the signed written acknowledgment to the designating
pasty’s counsel Mthin ten (10) business days.
6. biformation shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
ibnnat produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf Agree/Fret. Order” or
“Confidential Proprietary & Trade Secrct’Produced Pursuant to a Conf
Agrea/Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a ConE Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Couf.
AgreeiProt. Order,” but not so as to obscure the content of the image.
c. For native file fonnat productions, by prominently labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a ConE Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
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a Cord. AgreciProt. Order.” In addition, at the election of the producing
party, the clcconio file may have appended to the me’s name
(immediately following its Bates identifier) the following protective
legend;
toNnDENTLc-suBJjo_rRoTEcrlvE_oRnEaJN_cMJsE_2ol4.cvF-
001162-Di”. When any file so designated is converted to a hard-copy
document or static image for any purpose, the document or image shall
bear on each page a protective legend as described in 6.a. and 6.b. above
If a native file containing Confidential Information is used during a
deposition, meet and confer, thai, or is otherwise disclosed post
pwduction, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CONFIDENTIAL-SUBLTO_PROTECFIVE_ORDERJNCAUSE_2014-CW-
001162-Dr. if such legend does not already appear in the file name. Any
party using a native file containing Confidential Infonnation in a
deposition, hearing, or at trial must indicate the designation on the record
so that it is reflected in the tanscript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
wateiuiarlcs or seals to indicate the docunern is subject to a Protective
Order and is produced under the specific cause number.
7. lifonnation previously produced during this litigation and nor already marked as
Confidential Information shall be retroactively desiated within thirty (30) days
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of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identi5’ing characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other lime as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the aeement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or contol consistent with the Wins of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) s having been designated as
Confidential Infoimation.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retoactively
designated by the producing party in the manner described in paraph
7.a. above. If a retroactive designation is provided to the receiving party
in accordance with Texas Rule of Civil Procedure 193.3(d) the
receiving party must (i) make no fkuther disclosure of such designated
information except as allowed under this OMer (ii) take reasonable steps
to notify any persons who were provided copies of such desiated
inforniation of the terms of this Order; and (iii) take reasonable steps to
reclaim any such designated information in the possession of any person
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not permitted access to such information wider the terms of this Order.
No pasty shall be deemed to hive violated this Order for any disclosures
made prior to notification of any subsequent designatica
8. 11 Confideaial Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return andfor destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or.
otherwise contain information dezived from Confidential Information. Fuither the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed,
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Infonnation.
9. To the extent that the parties produce information received from non-panics that
the non-parties have designated as “confidential” such iafbrmatiou shall be treated
as Confidential Infosmariou in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
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the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice, shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (I) affix the legend to all copies of such designated infounation in the
party’s possession, custody, or eontol consistent with the terms of this
Protective Order, and/or (ii) with respect to ES!, take such reasonable
steps as will reliably identi& the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation ptrsuant to this Paragraph, the parties also
shall: (1) make no further disclosure otsuth designated infonnation except
as allowed under this Order; (ii) take reasonable steps to notifSr any
persons who were provided copies of such designated infOrmation of the
tenns of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
ci. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
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only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Con5dential Infomialion, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the tanscript as
“Confidential Infinmzation.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
aclaiowledgment attached hereto as Exhibit A.
b. The room is tint cleared of all persons who are not Qualified Persons
11. Tn the case of interrogatory answers, responses to request for produotion, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing pazty shall place the following legend on each page of
interrogatory answers or responses to requests for admissiozt “Contains
Confidential Infbrmatioa”
12. Confidential Information disclosed during a meet and cothr or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
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Confidential Information. If the confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that infirmation shall be
designated as Confidential Information pursuant to paraaphs 6 a., b., and/or a.
above, depending on the format of the materials introduce&
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “nade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating parry shall have twenty (20) days
tm the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Informat.ion in dispute. Lithe patty or
parties producing the Confidential Intbrmation does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a eontraiy determination is
made by the Court At any hearing the designating party shall have the burden to
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establish that party’s right to protection as if this Order did not exist. A pasty’s
failure to challenge the Confidential Inloimadon designation of any documents,
ES!. information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No pany waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Infonnation and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Jnformatiott
17. Pursuant to the agreement of the parties no disclosure, production, or exchange ot’
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceediu8. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
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Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected nfbmwion.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order coiupellrng discovery with respect to
any discovery request.
c Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the final resolution of this litigation, the plaintifIs) and
The Mostyn Law Finn shall return or destroy Confidential Infbrmation they
received during this litigation. As to those materials that contain or reflect
Confidential Information, but that constitute or reflect the pIaintis) counsel’s
own work product, counsel for the plaintiff(s) are entitled to retain such work
product in their files in accordance with the provisions of this Protective Order, so
long as the work product is clearly marked to reflect that it contaIns information
subject to this Protective Order. Plaintiffs counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
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transcripts, and the trial record even if such materials contain Confidential
Infonnation, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiffs counsel shall
certify in writing compliance with the provision of this paragraph after one (1)
year after the final resolution of this litigation.
This Order shall remain iii effect unless or until amended, altered, modifled, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
ff13 SOORDERBD this / ayof__________,2015.
614
APPROVED AS TO FORM ONLY;
3. Steve Mostyn
State Bar No. 00798389
Aaxnon
Sofia A.
Stare BaffrJo. 00784811
Andrew P. Taylor Dan K. Worthington
State Bar No. 24070723 State Bar No. 00785282
THE MOSTYN LAW FIRM Elizabeth S. Cantu
3810 W. Alabama Street State Bar No. 24013455
Houston, Texas 77027 Charles W. Downing
(713) 861-6616—Phone State Bar No. 24069631
(713) 861-8084—Fax ATLAS, HALL & RODRIGUEZ, LLP
ATTORNEYS FOR PLAINTIFF 818 Pecan Blvd.
McAllen, Texas 78501
(956) 682-5501 Phone
—
(956) 686-6109 Fax
—
ATTORNEYS FOR PEEENDANTS
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Fied
7I2.2O15 4:39:03 M
Esther DegoIIwJo
Dist,ict C’erk
Webb Disbict
.Jeanie Aguar
2O14CVFOO1 162D1
CAUSE NO. 2014-CVE-001162-DI
RAUL RODRIGUEZ AND NOEMI § IN TILE DISTRICT COURT OF
RODRIGUEZ, §
§
Plaintiff, §
§ WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND YELIPE §
FARIAS, §
§
Defendnts. § 49 JUDICIAL DZSTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to informadon
designated as Confidential Infonuation under the Protective Order entered in Cause No. 2014-
CVF-0Ol 162-DI represents and agrees as follows;
1. I have been provided with a copy of the Protective Order entered by the Couit in
the above matter. I have reviewed said copy and I am ftmiliar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise ofjurisdiction over inc by the Court with respect to the
Protective Order.
4. 1 agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
EXHIBIT A
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