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Shevlin v. Phoenix Life Insurance Co.

United States District Court, Third Circuit

May 8, 2013

BRIAN SHEVLIN, et al., Plaintiffs,
v.
THE PHOENIX LIFE INSURANCE COMPANY, et al., Defendants.

MEMORANDUM OPINION

TONIANNE J. BONGIOVANNI, Magistrate Judge.

Currently pending before the Court is Defendants The Phoenix Life Insurance Company and Phoenix Companies, Inc.s' ("Defendants") Motion for Sanctions against Plaintiffs Brian Shevlin et al.'s ("Plaintiffs") counsel alleging a breach of the Discovery Confidentiality Order ("DCO") in this matter [Docket Entry No. 88]. Plaintiffs oppose Defendants' motion [Docket Entry No. 99]. The Court has fully reviewed the papers submitted in support of and in opposition to Defendants' motion, and considers same without oral argument pursuant to FED.R.CIV.P. 78. For the reasons set forth below, Defendants' motion for sanctions is GRANTED.

I. Factual Background

The parties and the Court are all familiar with the facts underlying this litigation. As such, they are not restated at length herein. As noted in the Court's letter order dated October 16, 2012, the following facts regarding Defendants' motion are undisputed:

This Court issued a Discovery Confidentiality Order on November 22, 2010. [Docket Entry No. 30]. On July 25, 2012, Plaintiffs' counsel, Moshe Maimon, deposed Philip Polkinghorn. Defendants' Brief in Support, [Docket Entry No. 88-2, *6]. Present with Plaintiffs' counsel at this deposition was one Khai LeQuang, Esq., a partner with the law firm of Orrick, Herrington & Sutcliff, LLP. Id. During the deposition, Defendants' counsel asked Mr. LeQuang to leave, and he did so with Plaintiffs' counsel's consent. Id. at *7. Eight days after the deposition of Mr. Polkinghorn, Mr. LeQuang filed a complaint against the Defendants in this case, as well as Mr. Polkinghorn, in the United States District Court for the District of Connecticut. Plaintiff's Brief in Opposition, [Docket Entry No. 99, *25].

October 16, 2012 Letter Order, Docket Entry No.104, *1-2 (footnote omitted). After reviewing the arguments made in the parties' moving papers, the Court found that a hearing on the matter was warranted on the issue of whether there a breach of the confidentiality order by Plaintiffs' counsel. The hearing took place on January 16, 2013 and this Court reserved decision on the matter.[1]

A. The Discovery Confidentiality Order

In anticipating that confidential information might be disclosed during the course of this litigation, the parties in this matter negotiated a Discovery Confidentiality Order ("DCO") which was subsequently approved and entered by this Court on November 22, 2010. The DCO gave any party or third party the right to designate certain materials as "Confidential." Paragraph 2 of the DCO provides in pertinent part:

All Confidential information shall be used solely for purposes of the prosecution or defense of this action, shall not be used for any other purpose whatsoever, and shall not be disclosed to anyone except in accordance with the terms of this [DCO], unless and until the restrictions herein are removed by written agreement of counsel for the Named Parties or by Order of the Court.

DCO, Docket Entry No. 30, *2.

In accordance with the above, Paragraph 6 of the DCO mandated that:

If any Confidential information is to be disclosed to a third party, such person must first be provided a copy of this [DCO] and must agree in writing to be bound by its terms prior to gaining access to any Confidential information by executing a non-disclosure agreement in the form attached hereto as Exhibit A.

Id. at *4.

B. The ...


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