Case 2:10-cv-09198-JVS -RNB Document 329 Filed 09/11/12 Page 1of9 Page ID
#:14612

JONATHAN A. SHAPIRO (257199)
JOEL FLEMING (281264)

WILMER CUTLER PICKERING HALE
AND DORR LLP

950 Page Mill Road

Palo Alto, CA 94304

Tel (220) 858-6101

Fax: (650) 858-6100
jonathan.shapiro @ wilmerhale.com

ANDREA J. ROBINSON (PRO HAC VICE)

TIMOTHY J. PERLA (PRO HAC VICE)

WILMER CUTLER PICKERING HALE

AND DORR LLP

60 State Street

Boston, MA 02109

Tel: e173 526-6000

Fax: (617) 526-5000

10 | andrea.robinson @wilmerhale.com
timothy.perla@ wilmerhale.com

11 | Attorneys for Defendant Life Insurance

Company of the Southwest

Oo wonnrnANn nan ua ff WO NO

12
13
14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16 SOUTHERN DIVISION

JOYCE WALKER, KIM BRUCE CLASS ACTION
17 |HOWLETT, and MURIEL SPOONER, on) —. —<CS™S

behalf of themselves and all others CASE NO.: CV 10-9198 JVS (RNBx)
18 | similarly situated,

Formerly Case No.: 3:10-cv -04852 JS
19 Plaintiffs, from Northern District of California
20 VS.
APPLICATION TO SEAL

21 | LIFE INSURANCE COMPANY OF THE | PLAINTIFFS’ MOTION FOR CLAS
SOUTHWEST, a Texas corporation, and CERTIFICATION AND CERTAIN

22 | DOES 1-50 DOCUMENTS AND EXHIBITS

SUBMITTED IN SUPPORT THEREOF

23 Defendant.

Judge: Hon. James V. Selna
24 Courtroom: 10C

Date: September 18, 2012
25 Time: 1:30 p.m.
26
27

28

8118087v1
9/11/2012 6:39 PM

ActiveUS 100916059v.1

0 ONY A HN BR WOW NY KO

NO NO NBO WN NO NHN HN NHN KN HH HF KF PF Fr RP OF OU Sh oe
on DWN nN BW NY KF DO UO WAI Da fF WW NYO KF CO

8118087v1
9/11/2012 6:39 PM

se 2:10-cv-09198-JVS -RNB Document 329 Filed 09/11/12 Page2of9 Page ID
PLEASE TAKE NOTICE THAT pursuant to the Court’s emailed request of
September 11, 2012, Civil Local Rule 79-5.1 and the Court’s Second Amended
Protective Order in this action, Dkt. 103 at { 10 (Sept. 27, 2011), Defendant Life
Insurance Company of the Southwest (“LSW?”’) submits this application to the
Court for an Order sealing (1) Plaintiffs’ Motion for Class Certification; (2)
exhibits C, E, F, I, S, and U to the Declaration of Brian P. Brosnahan; (3) the
Declaration of Dr. Patrick L. Brockett and exhibits G, H, L, N, Q, and S thereto;
and (4) the Declaration of Lesa Dinglasan and exhibits C, D, E, F, and H thereto.
Under Civil Local Rule 79-5.1, a party can request that documents be filed
under seal by submitting a written application along with the documents sought to
be filed under seal. The Court’s Second Amended Protective Order (the
“Protective Order’’) requires that an application to seal be filed whenever any
papers are filed containing information and/or documents designated as
“CONFIDENTIAL” or “CONFIDENTIAL INFORMATION — PROTECTIVE
ORDER.” Dkt. 103 at {10.
I. LSW’s Application
LSW applies to seal the above-listed materials on the grounds that they
contain confidential information protected by the Protective Order. The Court
previously granted LSW’s application to seal certain of these materials when
submitted with the parties’ Joint Stipulation on Plaintiffs’ Motion to Compel and
Plaintiffs’ motion for review of Magistrate Judge Block’s order pertaining thereto
and supporting papers. See Civil Minutes, Dkt. 136; Dkt. 197; Dkt. 209. The
specific grounds that apply to each document are set forth below:
Plaintiffs’ Motion for Class Certification
(i) Plaintiffs’ Motion for Class Certification refers to and/or directly quotes
confidential information from the sealed exhibits listed below. To the extent it
does so, those references should be sealed as well.

Certain Exhibits to the Declaration of Brian P. Brosnahan

ActiveUS 100916059v.1

0 oN A HN BR WOW NH KO

NO wNO NO WN NO NHN HN NHN KN HH HF HF PF FF Pr OF OU Sh eR
on DWN nN BPW NY KF OD UO WAI HD na fF WwW NY KF CO

8118087v1
9/11/2012 6:39 PM

se 2:10-cv-09198-JVS -RNB Document 329 Filed 09/11/12 Page 3of9 PageID
(i) Brosnahan Dec., Ex. C isa eae fot LSW to Plaintiffs, which contains
information about LSW’s internal processes with respect to life insurance policies,
which are proprietary. This letter was drafted by LSW for Plaintiffs pursuant to a
negotiated agreement which contemplated confidential treatment of the
information provided. If released, this information would likely be sufficient to
allow a competitor understand how LSW designs, constructs, and implements its
life policies. Thus, this document further reflects confidential financial
information about the value of Plaintiffs’ LSW policies. The information contained
in the letter is confidential, non-public commercial information that, if disclosed to
the general public or competitors of LSW could reasonably and in good faith be
expected to result in prejudice or harm. For this reason, it was designated as
CONFIDENTIAL.

(ii) |Brosnahan Dec., Ex. E is an internal LSW document containing discussions
of LSW’s business strategies and internal compliance policies. The face of the
document states “For Agent Use Only—Not For Use With The Public.” And with
good reason: this document contains, among other things, confidential
communications between LSW and its agents about marketing policies,
replacement of policies, and procedures for addressing customer complaints. This
is confidential, non-public commercial information about LSW that, if disclosed to
the general public or competitors of LSW, could reasonably and in good faith be
expected to result in prejudice or harm. For that reason, it was designated
CONFIDENTIAL.

(iii) Brosnahan Dec., Ex. F is a non-party’s LSW Illustration, which contains
confidential information about an individual, including age, underwriting class and
policy value. This is confidential, non-public personal identifying information
that, if disclosed could reasonably and in good faith be expected to result in
prejudice or harm. For that reason, it was designated CONFIDENTIAL.

(iv) Brosnahan Dec., Ex. I is an internal LSW email chain discussing marketing
strategies and compliance policies, as well as strategies regarding positioning vis-

a-vis LSW’s competitors. Specifically, it discusses marketing strategies for a
2

ActiveUS 100916059v.1

0 oN A NH BW NY KO

NO wNO NP WN NO NHN HN HN KN HH HF KF PF FF Pr OF OR Ph oe
oN DWN nr BW NY KF OD UO WAI Da fF WW NY KF CO

8118087v1
9/11/2012 6:39 PM

se 2:10-cv-09198-JVS -RNB Document 329 Filed 09/11/12 Page 4of9 PageID
particular category of consumers (doctor. This is confidential, non-public
commercial information about LSW products that, if disclosed to the general
public or competitors of LSW, could reasonably and in good faith be expected to
result in prejudice or harm. For that reason, it was designated CONFIDENTIAL.
(v) Brosnahan Dec., Ex. S contains excerpts from the deposition of Elizabeth
MacGowan. In the testimony excerpted therein, Ms. MacGowan testified to,
among other things, LSW’s strategy regarding confidential actuarial calculations.
Ms. MacGowan also testified about a document discussing LSW’s strategies
regarding the pricing of various aspects of its products and the margin that it
receives on those products. This is confidential, non-public commercial
information that, if disclosed to the general public or competitors of LSW, could
reasonably and in good faith be expected to result in prejudice or harm.

(vi) Brosnahan Dec., Ex. U contains excerpts from the deposition of Michael
Richardson. In the testimony excerpted herein, Mr. Richardson testified to, among
other things, the internal workings of LSW’s proprietary computer software,
including certain strategic choices made by LSW in determining the content of
illustrations generated by the ICS software program. This is confidential, non-
public commercial information that, if disclosed to the general public or
competitors of LSW, could reasonably and in good faith be expected to result in
prejudice or harm. For that reason, this testimony was designated
CONFIDENTIAL.

Declaration of Dr. Patrick Lee Brockett and Certain Exhibits Thereto

(i) | The Declaration of Dr. Patrick Lee Brockett refers to and/or directly quotes
confidential information from the exhibits listed below.

Gi) Brockett Dec., Ex. Gis an internal LSW document that discusses LSW’s
business strategies, including pricing goals and constraints for certain LSW
products. This includes sensitive information about LSW’s margins, overhead, and
commissions. It includes discussions about LSW’s pricing targets for its return-
on-investment, planned rate structures and the algorithm used to determine

minimum premiums. It also includes assumed lapse rates. This is confidential, non-
3

ActiveUS 100916059v.1

0 ON A NW BR WOW NY KO

NO wNO NBO WN HN NHN HN NHN KN HH HF KF PF Fr Pr OF OU RP oe
on DWN nN BW NY FP ODO UO WAI Da fF WW NY KF CO

8118087v1
9/11/2012 6:39 PM

se 2:10-cv-09198-JVS -RNB Document 329 Filed 09/11/12 Page5of9 PageID
public commercial information dice LsW products that, if disclosed to the
general public or competitors of LSW, could reasonably and in good faith be
expected to result in prejudice or harm. For that reason, it was designated
CONFIDENTIAL.

(ii) Brockett Dec., Ex. H is an internal LSW document that contains internal
testing data and internal pricing assumptions. It also discusses LSW’s historic
distribution of business by risk class and issue age as well as its compensation
structure for agents and expenses per policy issued. It includes information about
LSW’s average policy size (in dollars). This is confidential, non-public
commercial information about LSW and LSW’s products that, if disclosed to the
general public or competitors of LSW, could reasonably and in good faith be
expected to result in prejudice or harm. For that reason, it was designated
CONFIDENTIAL.

(iv) Brockett Dec., Ex. L is a letter from LSW to Plaintiffs, which contains
information about LSW’s internal processes with respect to life insurance policies,
which are proprietary. This letter was drafted by LSW for Plaintiffs pursuant to a
negotiated agreement which contemplated confidential treatment of the
information provided. If released, this information would likely be sufficient to
allow a competitor understand how LSW designs, constructs, and implements its
life policies. Thus, this document further reflects confidential financial
information about the value of Plaintiffs’ LSW policies. The information contained
in the letter is confidential, non-public commercial information that, if disclosed to
the general public or competitors of LSW could reasonably and in good faith be
expected to result in prejudice or harm. For this reason, it was designated as
CONFIDENTIAL.

(v) Brockett Dec., Ex. Q contains excerpts from the deposition of Elizabeth
MacGowan. In the testimony excerpted therein, Ms. MacGowan testified to,
among other things, LSW’s strategy regarding confidential actuarial calculations.
Ms. MacGowan also testified about a document discussing LSW’s strategies

regarding the pricing of various aspects of its products. This is confidential, non-
4

ActiveUS 100916059v.1

se 2:10-cv-09198-JVS -RNB Document 329 Filed 09/11/12 Page6of9 Page ID
public commercial information fiat | if disclosed to the general public or
competitors of LSW, could reasonably and in good faith be expected to result in
prejudice or harm. For that reason, this testimony was designated Confidential.
(vi) Brockett Dec., Ex. S contains excerpts from the deposition of Michael
Richardson. In the testimony excerpted herein, Mr. Richardson testified to, among
other things, the internal workings of LSW’s proprietary computer software,
including certain strategic choices made by LSW in determining the content of

illustrations generated by the ICS software program. This is confidential, non-

0 ON A NW BR WOW NH KO

public commercial information that, if disclosed to the general public or

_
i)

competitors of LSW, could reasonably and in good faith be expected to result in

—
—

prejudice or harm. For that reason, this testimony was designated

CONFIDENTIAL.
Declaration of Lesa Dinglasan and Certain Exhibits Thereto

17. The Declaration of Lesa Dinglasan refers to and/or directly quotes

a
aA BP W WN

confidential information from the exhibits listed below. It also provides

—
ON

information gathered from a sample of policyholder files provided by LSW to

—
—

Plaintiffs, subject to the Protective Order.

—_
(oe)

18. Dinglasan Dec., Ex. C is an Agent’s Report relating to a non-party. It

=
\O

contains confidential information about a non-party’s LSW policy, net worth,

N
i)

household income, and contact information. This is personal identifying

N
—

information that, if disclosed could reasonably and in good faith be expected to

N
Nw

result in prejudice or harm. For that reason, it was designated Confidential.

N
ie)

19. Dinglasan Dec., Ex. D is a non-party’s policy application. It contains

~~)
aN

confidential personal, contact, financial, and medical information (including family

N
N

medical history) about a non-party and that person’s LSW policy. This is

N
ON

confidential, non-public personal identifying information that, if disclosed to the

N
—

general public or competitors of LSW, could reasonably and in good faith be

N
oO

expected to result in prejudice or harm. For that reason, it was designated
Confidential.

8118087v1
9/11/2012 6:39 PM 5

ActiveUS 100916059v.1

0 oN A nH BR WOW NY KO

NO wo PO WN NO NHN HN NHN KN HH HF KF PF Fr RP OF OR Ph oe
on DWN nr BW NY KF TO UO WAI Dna FW NY KF OO

8118087v1
9/11/2012 6:39 PM

se 2:10-cv-09198-JVS -RNB Document 329 Filed 09/11/12 Page 7of9 PageID

20. Dinglasan Dec., Ex. Bis B nendpares LSW Illustration. It contains
confidential financial information about the age and underwriting class of a non-
party and the value of a non-party’s LSW policy. This is confidential, non-public
commercial information and personal identifying information that, if disclosed to
the general public or competitors of LSW, could reasonably and in good faith be
expected to result in prejudice or harm. For that reason, it was designated
Confidential.

21. Dinglasan Dec., Ex. F is a non-party’s LSW Illustration. It contains
confidential financial information about the age and underwriting class of a non-
party and the value of a non-party’s LSW policy. This is confidential, non-public
commercial information and personal identifying information that, if disclosed to
the general public or competitors of LSW, could reasonably and in good faith be
expected to result in prejudice or harm. For that reason, it was designated
Confidential.

22. Dinglasan Dec., Ex. H contains excerpts from the deposition of
Elizabeth MacGowan. In the testimony excerpted therein, Ms. MacGowan
testified to, among other things, LSW’s strategy regarding confidential actuarial
calculations. Ms. MacGowan also testified about a document discussing LS W’s
strategies regarding the pricing of various aspects of its products. This is
confidential, non-public commercial information that, if disclosed to the general
public or competitors of LSW, could reasonably and in good faith be expected to
result in prejudice or harm. For that reason, this testimony was designated
Confidential.

II. Conclusion

For all the foregoing reasons, LSW requests that the Court issue an
Order sealing (1) Plaintiffs’ Motion for Class Certification; (2) exhibits C, E, F, I,
S, and U to the Declaration of Brian P. Brosnahan; (3) the Declaration of Dr.
Patrick L. Brockett and exhibits G, H, L, N, Q, and S thereto; and (4) the
Declaration of Lesa Dinglasan and exhibits C, D, E, F, and H thereto.

6

ActiveUS 100916059v.1

Case 2:10-cv-09198-JVS -RNB Document 329 Filed 09/11/12 Page 8of9 Page ID
4619

Dated: September 11, 2012 Respectfully submitted,

WILMER CUTLER PICKERING HALE
AND DORR LLP

By:__/s/ Joel Fleming
Joel Fleming

Attorneys for Defendant
LIFE INSURANCE COMPANY OF THE
SOUTHWEST

Oo won nan a ff WO NO

NO wNoO NO NHN NO NHN HN ND KN HH HF KF PF Fr Pr OF OP oe
oN DWN nN BW NY KF ODO UO WAI Duna FW NY KF CO

8118087v1
9/11/2012 6:39 PM 7

ActiveUS 100916059v.1

Case 2:10-cv-09198-JVS -RNB Document 329 Filed 09/11/12 Page9of9 Page ID
4620

Oo wornANnn una ff WO NO

NO wNoO PO NHN NO NHN HN NHN KN HH HF KF KF Fr Pr OF OP Ph oe
on DWN nN BW NY KF ODO UO WAI Duna fF WwW NY KF CO

8118087v1
9/11/2012 6:39 PM

PROOF OF SERVICE

I am a resident of the Commonwealth of Massachusetts, over the age of

mane ears, and not a party to the within action. My business address 1s
i

Imer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, MA 02109.
On September 11, 2012 I served the within document(s):

APPLICATION TO SEAL PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION AND CERTAIN DOCUMENTS AND EXHIBITS
SUBMITTED IN SUPPORT THEREOF

I placed the document(s) listed above in a sealed envelope with postage
thereon fully prepaid, in the United States mail at Boston, MA addressed
as set forth below.

I personally caused to be emailed the document(s) listed above to the
person(s) at the address(es) set forth below.

I electronically filed the document(s) listed above via the CM/ECF
system.

I personally caused to be delivered by Facsimile the document(s) listed
above to the person(s) at the facsimile number(s) set forth below.

Brian P. Brosnahan

Charles N. Freiberg

Jacob Foster

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 California Street, Suite 2300

San Francisco, CA 94111

(415) 358-4278

Harvey R. Levine

LEVINE & MILLER

550 West C. Street, Suite 1810
San Diego, CA 92101-8596
(619) 231-8638

/s/ Joel Flemin
Joel Fleming

ActiveUS 100916059v.1