Raquel Rubio v. Capital One Financial Corporation

Filing 72

PROTECTIVE ORDER by Magistrate Judge Carla Woehrle, Based on the Stipulation Governing the Designation and Handling of Confidential Documents and Information filed by the parties, a copy of which is attached to this Order (Stipulation), and good caus e appearing therefore, IT IS HEREBY ORDERED that the Stipulation is approved and entered as an Order of the Court and that the terms of the Stipulation shall have the force and effect of an Order of the Court. re Stipulation for Protective Order 70 (lmh)

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1 2 3 4 5 6 7 8 9 10 11 JAMES F. McCABE (CA SBN 104686) JMcCabe@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 NANCY R. THOMAS (CA SBN 236185) NThomas@mofo.com SYLVIA RIVERA (CA SBN 223203) SRivera@mofo.com MORRISON & FOERSTER LLP 555 West Fifth Street Los Angeles, California 90013-1024 Telephone: 213.892.5200 Facsimile: 213.892.5454 Attorneys for Defendant CAPITAL ONE BANK (USA), N.A. 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RAQUEL RUBIO, on behalf of herself and all others similarly situated, Plaintiff, v. CAPITAL ONE BANK (USA), N.A. and DOE DEFENDANTS 110, et al., Defendant. Case No. CV 07-06766 ABC (CWx) Hon. Carla Woehrle [PROPOSED] ORDER GOVERNING THE DESIGNATION AND HANDLING OF CONFIDENTIAL DOCUMENTS AND INFORMATION Action Filed: October 18, 2007 Discovery Cut-Off: Pretrial Conference: Trial Date: [PROPOSED] ORDER 1 2 3 4 5 6 7 Based on the Stipulation Governing the Designation and Handling of Confidential Documents and Information filed by the parties, a copy of which is attached to this Order (“Stipulation”), and good cause appearing therefore, IT IS HEREBY ORDERED that the Stipulation is approved and entered as an Order of the Court and that the terms of the Stipulation shall have the force and effect of an Order of the Court. 8 9 10 11 12 IT IS SO ORDERED. Dated: January 23, 2012 By ____________/s/______________ Honorable Carla Woehrle 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit A 1 2 3 4 5 6 7 8 9 10 11 JAMES F. McCABE (CA SBN 104686) JMcCabe@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 NANCY R. THOMAS (CA SBN 236185) NThomas@mofo.com SYLVIA RIVERA (CA SBN 223203) SRivera@mofo.com MORRISON & FOERSTER LLP 555 West Fifth Street Los Angeles, California 90013-1024 Telephone: 213.892.5200 Facsimile: 213.892.5454 Attorneys for Defendant CAPITAL ONE BANK (USA), N.A. 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RAQUEL RUBIO, on behalf of herself and all others similarly situated, Plaintiff, v. CAPITAL ONE BANK (USA), N.A. and DOE DEFENDANTS 110, et al., Defendant. Case No. CV 07-06766 ABC (CWx) STIPULATION GOVERNING THE DESIGNATION AND HANDLING OF CONFIDENTIAL DOCUMENTS AND INFORMATION Hon. Carla Woehrle Action Filed: October 18, 2007 Discovery Cut-Off: Pretrial Conference: Trial Date: 1 I. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve 3 production of confidential, proprietary, or private information for which special 4 protection from public disclosure and from use for any purpose other than 5 prosecuting or defending this litigation would be warranted. Accordingly, the 6 parties hereby stipulate to the following Stipulation Governing the Designation and 7 Handling of Confidential Documents and Information and request that the Court 8 enter this Stipulation as an Order of the Court (“Stipulated Protective Order”). The parties acknowledge that this Stipulated Protective Order does not confer 9 10 blanket protections on all disclosures or responses to discovery and that the 11 protection it affords extends only to the limited information or items that are 12 entitled under the applicable legal principles to treatment as confidential. The 13 parties further acknowledge that this Stipulated Protective Order creates no 14 entitlement to file confidential information under seal; Central District Local Rule 15 79-5 sets forth the procedures that must be followed and reflects the standards that 16 will be applied when a Party seeks permission from the Court to file material under 17 seal. 18 II. 19 20 21 DEFINITIONS 1. “Material” means any document, data compilation, transcript, or other information in any form provided in connection with this case. 2. “Confidential Material” means Material that is designated as 22 “Confidential” or “Confidential – Subject to Protective Order” in accordance with 23 this order and protected from disclosure under the terms of this order. Confidential 24 Material is material that a party reasonably and in good faith believes contains or 25 discloses confidential, non-public, proprietary, and/or sensitive information such as 26 customer financial information and data, proprietary, competitively-sensitive 27 nonpublic commercial information such as business policies, strategic planning, 28 and competitive analyses, and other competitively sensitive information that is of a 1 1 nonpublic nature that was created, received and/or maintained on a confidential 2 basis. Confidential Material includes: a) personal and financial information of 3 Plaintiff or any other individual; b) sensitive customer information such as mailing 4 addresses, account numbers, and account information; c) non-public revenue, cost, 5 sales and financial information, and projections; d) non-public marketing plans; e) 6 pricing information; and f) any other information the Producing Party can 7 demonstrate is sufficiently sensitive that disclosure would reveal business, 8 competitive, proprietary, or financial information of the Producing Party. 9 3. “Party” or “Parties” means the named parties in this lawsuit. 10 4. “Producing Party” means a person who produces Material in 11 connection with this case. 12 5. “Receiving Party” means a person who receives Material in connection 13 with this case. 14 6. “Designating Party” means a person who designates Material as 15 “Confidential” or “Confidential – Subject to Protective Order” in connection with 16 this case. 17 7. “Expert” means a person with specialized knowledge or experience in 18 a matter pertinent to the litigation who has been retained by a Party or its counsel to 19 serve as an expert witness or as a consultant in this action and who is not a current 20 employee of a Party or of a Party’s competitor and who, at the time of retention, is 21 not anticipated to become an employee of a Party or a competitor of a Party. This 22 definition includes a professional jury or trial consultant retained in connection with 23 this litigation. 24 III. 25 SCOPE The protections conferred by this Stipulated Protective Order cover not only 26 Confidential Material but also any information copied or extracted there from, as 27 well as all copies, excerpts, summaries or compilations thereof, plus testimony, 28 2 1 conversations or presentations by parties or counsel that might reveal Confidential 2 Material. Nothing herein shall impose any restrictions on a Designating Party from 3 4 disclosing its own Confidential Material as it deems appropriate. 5 IV. 6 DESIGNATING CONFIDENTIAL MATERIAL 1. The Producing Party must stamp the label “Confidential” or 7 “Confidential – Subject to Protective Order” on each page of Material (other than 8 deposition transcripts) that the Producing Party wants to subject to the protections 9 of this order. If the Material is in an electronic format, and if the Producing Party is 10 unable to print the label on each page of the Material, the Producing Party must 11 instead mark “Confidential” or “Confidential – Subject to Protective Order” on the 12 medium that contains the Material (e.g. the face of the hard drive or disk) if it is 13 possible to do so or, if it is not, mark its container. Other than for internal use, any 14 party that uses hard copy versions of any material produced in electronic form that 15 was not suitable for labeling in the produced format must label the hard copy 16 versions with the confidentiality designation that appeared on the medium or 17 container. 18 2. A Receiving Party may designate Material produced by a non-party 19 pursuant to a subpoena as “Confidential” or “Confidential – Subject to Protective 20 Order” by producing a properly designated copy of the Material to all Parties within 21 21 days after the Material is initially produced by the non-party. All Material 22 produced by non-parties in response to subpoenas in this case shall be treated as 23 Confidential Material during that 21-day period. 24 3. A non-party who produces Material in this case may designate the 25 Material as “Confidential” or “Confidential – Subject to Protective Order” in 26 accordance with this Order and such Material will be protected from disclosure to 27 the same extent as other Confidential Material. 28 3 1 4. Depositions shall be treated as Confidential Material until 21 days 2 after counsel for any Party receives a copy of the transcript. During this 21-day 3 period, any Party may designate parts of the transcript “Confidential” or 4 “Confidential – Subject to Protective Order” by giving written notice to counsel for 5 all Parties of the page(s) and line number(s) of the transcript that are designated and 6 by furnishing a copy of the transcript pages with the appropriate text marked and 7 designated in a way that can be reproduced by photocopying. 8 5. Regardless of whether Material is designated as “Confidential” or 9 “Confidential – Subject to Protective Order,” the protections of this order do not 10 apply to Material that: (a) is or was in the possession of the Receiving Party at the 11 time this lawsuit was filed or comes into the possession of the Receiving Party 12 during this lawsuit other than through discovery or a subpoena; or (b) was acquired 13 by a non-party before this case or is acquired by a non-party during this case, other 14 than pursuant to a confidentiality agreement or a court-imposed confidentiality 15 protective order. 16 6. Before designating Material as “Confidential” or “Confidential – 17 Subject to Protective Order,” the Producing Party must make a good faith 18 determination that: (a) the Material can be subjected to the protections of this order 19 under the previous paragraph, and (b) good cause exists for protecting the Material 20 from disclosure under the standards embodied in Fed. R. Civ. P. 26(c). 21 7. The inadvertent or unintentional disclosure or failure to designate 22 documents or material as “Confidential” or “Confidential – Subject to Protective 23 Order” shall not be deemed a waiver in whole or in part of a Producing Party’s 24 claim of confidentiality, either as to the specific information disclosed or as to any 25 other information relating thereto. Upon learning of an inadvertent or unintentional 26 disclosure of Confidential Material, the Producing Party shall provide notice to the 27 parties who have received such Confidential Material as to how the information 28 should have been designated and shall thereafter have ten (10) business days to 4 1 make the appropriate designation. During this ten-day period, the information may 2 not be used in a manner inconsistent with such notice. Upon receipt of properly re- 3 designated documents, counsel for the Receiving Party shall, within ten (10) 4 business days, either return to counsel for the Producing Party all versions of that 5 information that were not so designated or certify in writing that they have been 6 destroyed. 7 V. DISCLOSING, USING, AND HANDLING CONFIDENTIAL 8 MATERIAL 9 1. Basic Principles: A Receiving Party may use Confidential Material 10 that is disclosed or produced by another Party or by a non-party in connection with 11 this case only for prosecuting, defending or attempting to settle this litigation. Such 12 Confidential Material may be disclosed only to the categories of persons and under 13 the conditions described in this Stipulated Protective Order. When the litigation 14 has been terminated, a Receiving Party must comply with the provisions of ¶ IX 15 below (FINAL DISPOSITION). 16 Confidential Material must be stored and maintained by a Receiving Party at 17 a location and in a secure manner ensuring that access is limited to the persons 18 authorized under this Order. 19 2. Unless otherwise ordered by the Court or authorized in writing by the 20 Designating Party, Confidential Material and any matter that summarizes, 21 paraphrases or otherwise reveals the substance of Confidential Material only may 22 be disclosed to: (a) the named Parties, including their officers, directors, and 23 employees to whom disclosure is reasonably necessary; (b) the Parties’ counsel and 24 their staff, including in-house counsel; (c) the Court and its staff; (d) court reporters 25 engaged to record or transcribe depositions in this case; (e) witnesses in connection 26 with a deposition or hearing in this case; (f) people who are identified as an author 27 or recipient of the Material (other than as a Receiving Party); (g) photocopy, 28 imaging and similar service providers; and (h) Experts (as defined above). Before 5 1 being shown any Confidential Material, Experts and witnesses, other than persons 2 described in 2(f), must sign a declaration in the form of Exhibit A stating that the 3 declarant has read this Order, agrees to be bound by it, and submits to the Court’s 4 jurisdiction for the purpose of enforcing the Order. 5 3. Declarations signed under paragraph 2 are not discoverable except 6 upon good cause shown in connection with a bona fide dispute about compliance 7 with this Stipulated Protective Order, upon the signor's disclosure as a testifying 8 expert, or upon the termination of the case. 9 4. Any Receiving Party may challenge whether Material should be 10 protected under this order by sending the Designating Party written notice of the 11 challenge. In that event, counsel for the Parties shall meet and confer within 10 12 calendar days of the Designating Party’s receipt of that notice and the Designating 13 Party shall thereafter follow the procedure set forth in Central District Local Rule 14 37 to resolve the dispute. If the Designating Party does not comply with the 15 timeline set forth in Local Rule 37 to file a motion to keep the protections granted 16 by this Order, the Designating Party shall be deemed to have waived such 17 protections. The Designating Party shall bear the burden of establishing that the 18 Material at issue is entitled to protection. The Material retains any protection it has 19 under this Order until the Designating Party agrees to remove the designations or 20 the Court rules on any Joint Stipulation filed in accordance with Local Rule 37. 21 5. A Receiving Party that is served with a subpoena or an order issued in 22 other litigation that would compel disclosure of Confidential Material shall 23 immediately notify the Producing Party's counsel of the subpoena in writing by fax 24 or email, affording the Producing Party the opportunity to move to quash the 25 subpoena. Such notification must include a copy of the subpoena or court order. 26 The Producing Party shall have the burden of defending against such subpoena or 27 process. The Party or person receiving the subpoena or process shall, once the 28 Producing Party has received notice and a reasonable opportunity to object, be 6 1 entitled to comply with the subpoena except to the extent the Producing Party 2 (i) has a motion or ex parte application pending, and the recipient of the subpoena 3 has not been compelled by court order to produce such documents, or (ii) is 4 successful in obtaining an order modifying or quashing it. 5 VI. 6 UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 7 Confidential Material to any person or in any circumstance not authorized under 8 this Stipulated Protective Order, the Receiving Party must immediately: (a) notify 9 in writing the Designating Party of the unauthorized disclosures; (b) use its best 10 efforts to retrieve all copies of the Confidential Material; (c) inform the person or 11 persons to whom unauthorized disclosures were made of all the terms of this Order; 12 and (d) request such person or persons to execute the “Agreement to Be Bound by 13 Stipulated Protective Order” (Exhibit A). 14 VII. INADVERTENT PRODUCTION OF PRIVILEGED OR PROTECTED 15 DOCUMENTS AND INFORMATION 16 The inadvertent or unintentional disclosure of information subject to a claim 17 of privilege (including work-product immunity) shall not be deemed a waiver in 18 whole or in part of a Producing Party’s claim of privilege (including work-product 19 immunity), either as to the specific information disclosed or as to any other 20 information relating thereto. Upon learning of an inadvertent or unintentional 21 disclosure of privileged information, the Producing Party shall provide notice to the 22 parties who have received such information. Within ten (10) business days of the 23 date of that notice, the documents or materials described in that notice shall be 24 returned to counsel for the Producing Party, all copies of such documents or 25 materials shall be destroyed, and any reference to such documents or materials in 26 any other documents or materials shall be expunged. If the Receiving Party intends 27 to challenge the assertion of privilege, it must provide written notice within this ten- 28 day period, explaining the grounds for its challenge. Pending the Court’s ruling, 7 1 the Party challenging the assertion of privilege shall segregate the affected 2 documents and materials, place them in a sealed envelope and shall not make any 3 use of such information. 4 VIII. FILING CONFIDENTIAL MATERIAL 1. 5 Except as identified in the next paragraph, without written permission 6 from the Producing Party or a court order secured after notice to all interested 7 persons, a Party may not file Confidential Material or any information copied or 8 extracted therefrom in the public record in this action. Any Party seeking to file 9 with the Court Confidential Material or any information copied or extracted 10 therefrom shall comply with the provisions of Local Rule 79-5 for filing the 11 Material under seal. The parties shall cooperate in connection with any filing under 12 seal. 2. 13 Any personal, identifying information about any Capital One credit 14 cardholder, including Plaintiff, must be redacted to identify only the cardholder’s 15 last name and the last four digits of the credit card account number. Material 16 redacted in this way need not be filed under seal. 17 IX. FINAL DISPOSITION 18 Unless otherwise ordered or agreed in writing by the Producing Party, within 19 30 days after the final termination of this action, each Receiving Party must either: 20 (i) return all Confidential Material, including any copies, abstracts, compilations or 21 summaries of such Material, and including all such documents in the hands of 22 outside experts or consultants, to counsel for the Party or Non-Party who provided 23 it; or (ii) destroy all such documents and certify in writing that the documents have 24 been destroyed. 25 Notwithstanding this provision, counsel are entitled to retain an archival copy 26 of all pleadings, motion papers, transcripts, legal memoranda, correspondence and 27 attorney work product even if such materials contain Confidential Material. Any 28 such copies that contain or constitute Confidential Material remain subject to this 8 1 Stipulated Protective Order as set forth below. In addition, all restrictions in this 2 Order regarding the use by any person of information or knowledge obtained from 3 Confidential Material shall continue even after such Confidential Materials are 4 returned or destroyed. 5 X. BINDING NATURE OF ORDER PRIOR TO ENTRY All parties to this Stipulated Protective Order shall be bound by its terms 6 7 pending entry of the Order by the Court. 8 XI. 9 PRESERVATION OF RIGHTS AND PRIVILEGES Nothing contained in this Order shall: (a) affect the right, if any, of any Party 10 or non-party to make any type of objection, claim, or other response to any 11 discovery request, including, without limitation, any interrogatories, requests for 12 admissions, requests for production of documents or questions at a deposition; (b) 13 be construed as a waiver of any legally cognizable privilege to withhold any 14 Confidential Material, or of any right to assert such privilege at any stage of the 15 litigation; or (c) prevent any Party from applying to the Court for relief from this 16 Order, modification of this Order or additional protective orders. 17 XII. NO ADMISSION 18 A Party’s compliance with the terms of this Order shall not operate as an 19 admission that any particular document or other information is or is not (i) 20 confidential, (ii) privileged or (iii) admissible in evidence at trial. The Parties retain 21 the right to challenge the use or admissibility of all documents or information 22 exchanged under this Order. 23 XIII. DURATION OF THIS ORDER 24 This Order shall remain in force and effect until modified, superseded or 25 terminated by written consent of all parties or by an Order of the Court. The Court 26 expressly retains jurisdiction to enforce of the provisions of this Order following 27 the final disposition of the litigation. 28 9 1 2 IT IS SO STIPULATED. Dated: January 17, 2012 MORRISON & FOERSTER LLP 3 4 By: 5 /s/ Nancy R. Thomas Nancy R. Thomas Attorneys for Defendant CAPITAL ONE BANK (USA), N.A. 6 7 8 9 10 11 Dated: January 17, 2012 KIRTLAND & PACKARD LLP By: /s/Behram V. Parekh[with permission] Behram V. Parekh Attorneys for Plaintiff RAQUEL RUBIO, and all others similarly situated 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 1 EXHIBIT A 2 AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER 3 I, ______________________________________, declare under penalty of 4 perjury that I have read in its entirety and understand the Stipulated Protective 5 Order that was issued by the United States District Court for the Central District of 6 California on ________________________ in the case of Rubio v. Capital One 7 Bank (USA), N.A., Case No. CV07-06766 ABC (CWx). 8 I agree to comply with and be bound by all the terms of this Stipulated 9 Protective Order, and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly 11 promise that I will not disclose in any manner any information or item that is 12 subject to this Stipulated Protective Order to any person or entity except in strict 13 compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order even if such enforcement proceedings occur after 17 termination of this action. 18 I hereby appoint: 19 Name: 20 Address: 21 Telephone Number: 22 as my California agent for service of process in connection with this action or any 23 proceedings related to enforcement of this Stipulated Protective Order. 24 DATED: (Signature) 25 26 27 28 11

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