Thomas Young et al v. Babettee E. Heimbuch et al

Filing 35

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 33 (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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THOMAS YOUNG and GREGORY
FILZEN, individually and on behalf of all
others similarly situated,

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Plaintiffs,
v.

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BABETTE E. HEIMBUCH, et al.,
Defendants.

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CASE No. 2:10-cv-08914-ODW-MAN
PROTECTIVE ORDER ENTERED
PURSUANT TO THE PARTIES’
STIPULATION

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties’

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Stipulation for Protective Order Regarding Subpoena To Produce and Permit Inspection and

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Copying of Documents (“Stipulation”) filed on May 3, 2011, the terms of the Protective Order to

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which the parties have agreed are adopted as an order of this Court.

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The parties are expressly cautioned that the designation of any information, document, or

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thing as confidential, or other designation(s) used by the parties, does not, in and of itself, create

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any entitlement to file such information, document, or thing, in whole or in part, under seal.

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Accordingly, reference to this Protective Order or to the parties’ designation of any information,

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document, or thing as confidential, or other designation(s) used by the parties, is wholly

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insufficient to warrant a filing under seal.
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There is a strong presumption that the public has a right of access to judicial proceedings

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and records in civil cases. In connection with non-dispositive motions, good cause must be

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shown to support a filing under seal.

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document, or thing as confidential, or other designation(s) used by parties, does not — without

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the submission of competent evidence, in the form of a declaration or declarations,

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establishing that the material sought to be filed under seal qualifies as confidential,

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privileged, or otherwise protectable — constitute good cause.

The parties’ mere designation of any information,

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Further, if sealing is requested in connection with a dispositive motion or trial, then

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compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief

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sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v.

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Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of

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information, document, or thing sought to be filed or introduced under seal in connection with a

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dispositive motion or trial, the party seeking protection must articulate compelling reasons,

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supported by specific facts and legal justification, for the requested sealing order. Again,

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competent evidence supporting the application to file documents under seal must be

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provided by declaration.

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Any document that is not confidential, privileged, or otherwise protectible in its entirety

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will not be filed under seal if the confidential portions can be redacted. If documents can be

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redacted, then a redacted version for public viewing, omitting only the confidential, privileged,

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or otherwise protectible portions of the document, shall be filed. Any application that seeks to

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file documents under seal in their entirety should include an explanation of why redaction is not

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feasible.

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Notwithstanding any other provision of this Protective Order, in the event that this case

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proceeds to trial, all information, documents, and things discussed or introduced into evidence at

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trial will become public and available to all members of the public, including the press, unless

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sufficient cause is shown in advance of trial to proceed otherwise.

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THE TERMS OF THE PROTECTIVE ORDER PURSUANT TO THE PARTIES’
STIPULATION

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Plaintiffs Thomas Young and Gregory Filzen (“Plaintiffs”) and the Federal Deposit

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Insurance Corporation, in its capacity as receiver of First Federal Bank of California (“FDIC-

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Receiver”) (together, the “Parties”), by and through their respective legal counsel, stipulate and

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apply to the Court for the issuance of a protective order as follows (“Protective Order”):

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1.

On March 3, 2011, Plaintiffs served a records only “Subpoena in a Civil Case”

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upon the FDIC-Receiver in the above-referenced action (“Records Only Subpoena”).
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2.

On March 16, 2011, counsel for Plaintiffs and the FDIC-Receiver met and

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conferred regarding the Records Only Subpoena, including the nature and extent of documents

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sought by Plaintiffs.

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3.

On March 23, 2011, the FDIC-Receiver served objections and responses to the

Subpoena (“Objections and Responses”).
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On April 14, 2011, the FDIC-Receiver through its counsel, and without waiver of

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its rights or objections raised in the Objections and Responses, identified 282 pages of
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documents responsive to the Records Only Subpoena that it had collected. The documents

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include the Employee Stock Ownership Plan (“Plan”), as amended and restated effective as of

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July 1, 2005, various amendments thereto, summaries of material modifications, summary plan

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descriptions, plan administrative committee minutes and resolutions, and some correspondence

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(collectively, the “Plan Documents”). The FDIC-Receiver identified additional documents being

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withheld on the basis of privilege.

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5.

The FDIC-Receiver has agreed to produce to Plaintiffs the Plan Documents

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referenced in paragraph 4 above, provided that certain of the documents are treated as

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confidential.

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6.

Plaintiffs intend to reference and attach certain of the Plan Documents in

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pleadings filed with the Court in this action.
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For purposes of this Protective Order, the Plan Documents referenced in

paragraph 4 above shall be treated as confidential (“Confidential Documents”) by the Plaintiffs
with the exception of the following documents, which are not confidential, and which, among

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other things, may be attached to pleadings filed with the Court:

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a. The Plan, as amended and restated effective as of July 1, 2005;

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b. Any Summary Plan Descriptions;

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c. Any Plan amendments;

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d. Any Summaries of Material Modification; and

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e. Any Summary Annual Reports.

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8.

The Parties agree that Plaintiffs may reference Administrative Committee

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resolutions and minutes in pleadings filed with the Court. However, if Plaintiffs wish to attach

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Administrative Committee resolutions or minutes to any pleading, Plaintiffs shall seek leave to

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file such documents under seal in accordance with this Protective Order. In the event such leave

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is not granted, the documents shall not be attached pending a further meet and confer between

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Plaintiffs and the FDIC-Receiver to determine how to proceed further. Additionally, the FDIC-

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Receiver and Plaintiffs may at anytime meet and confer regarding the appropriateness of

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classifying the Administrative Committee resolutions or minutes as confidential.
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9.

By entering into this agreement, neither the FDIC-Receiver nor Plaintiffs waive

any of their rights under the Records Only Subpoena or Objections and Responses.
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Plaintiffs reserve their right to meet and confer with the FDIC-Receiver after they

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have had an opportunity to review the Plan Documents identified in paragraph 4 that are

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produced by the FDIC-Receiver. To the extent Plaintiffs and the FDIC-Receiver agree to the

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production of additional documents, including electronically stored information, Plaintiffs and

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the FDIC-Receiver may enter into a separate protective order governing the production of such

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documents.

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Further, entering into or agreeing to this Protective Order, and/or producing the

documents referenced in paragraph 4, does not prejudice in any way the rights of either the

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FDIC-Receiver or Plaintiffs to petition the Court for a further protective order relating to the
Records Only Subpoena.
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No later than ten (10) days after the FDIC-Receiver’s production of any

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documents pursuant to this Protective Order, Plaintiffs’ counsel shall reimburse the FDIC-

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Receiver for the costs of producing documents pursuant to the Records Only Subpoena as

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provided for under 12 CFR 309.5 as follows: (a) all employee time spent searching for the

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Confidential Documents, at the rate of $109.00 per hour for executive level staff, $71.00 per
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hour for professional level staff, and $33.00 per hour for clerical level staff (the total amount to

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be supplied by the FDIC-Receiver with enough detail to show each person who worked on this

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matter, a description of the basis for the listed rates for each person, the number of hours worked

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on this matter, and an indication of the amount of time spent for each task associated with this

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matter); (b) the actual cost of copying the documents produced, at the rate of $0.25 per page (i.e.,

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$70.50 for the 282 pages of documents being produced by the FDIC-Receiver); and (c) the cost

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of mailing, by overnight mail service, the documents to Plaintiffs.
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13.

All Confidential Documents made available to the Plaintiffs and/or their counsel

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pursuant to this Protective Order are provided solely for use in connection with the preparation,

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discovery in connection with, trial, and any appeal of this case, and for no other purpose. The

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Parties and their agents shall use reasonable steps to safeguard the confidentiality of all

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Confidential Documents. The attorneys of record for the Parties and all other persons receiving

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information governed by this Protective Order shall take all reasonable steps to ensure that the

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information and Discovery Material governed by this Stipulation and Protective Order are:

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(i) used only for the purposes specified herein; and (ii) disclosed only to authorized persons.

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Plaintiffs shall seek leave to file under seal Confidential Documents used in pre-

trial submissions or in other documents filed with the Court (including any amendments to the

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complaint). In the event such leave is not granted, the Confidential Documents shall not be

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attached pending a further meet and confer between Plaintiffs and the FDIC-Receiver to

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determine how to proceed further.

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anytime meet and confer regarding the appropriateness of classifying any Confidential

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Additionally, the FDIC-Receiver and Plaintiffs may at

Documents as confidential.
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Subject to the other terms and conditions set forth in this Protective Order, the

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contents of Confidential Documents may be disclosed or communicated by Plaintiffs to counsel
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for the defendants and the defendants in this action, persons who are assisting counsel in the

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preparation and trial of this action, and to persons who may be called upon by any party to testify

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in this action, provided that counsel for any party seeking to make such disclosure or

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communication reasonably believes, in good faith, that such disclosure or communication is

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necessary to the prosecution or defense of this case, and further, provided that before making

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such disclosure or communication to any person not employed or working for counsels’ law

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firms, the person to whom such disclosure and/or communication is made acknowledges in
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writing that he or she has read this Protective Order, and agrees to be bound by it. No witness,

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potential witness or other person retained or consulted by the Parties shall disclose in any manner

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the information contained in any Confidential Document, except in testimony during the trial, to

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persons not authorized to receive such information under this Protective Order. If a witness,

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potential witness, or other person consulted in connection with this trial is provided with copies

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of Confidential Documents, he or she shall promptly return them to Plaintiffs’ counsel once he or

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she has finished using them. The return of such information shall occur no later than the

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conclusion of this action, which shall be deemed to include the time within which appeals may

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be taken. Plaintiffs’ counsel shall maintain and keep current a list of all persons to whom

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Confidential Documents and/or their contents have been disclosed.

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The FDIC-Receiver does not waive any claim of privilege or any other legal right

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that it may have under State or Federal law by reason of any documents being made available

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under this Protective Order. The FDIC-Receiver shall have standing in this action to seek

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enforcement of this Protective Order.

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Within 90 days of completion of this case, including any appeals, Plaintiffs’

counsel shall return all copies of the Confidential Documents in their possession to the FDIC-

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Receiver or destroy such Confidential Documents within the same time period and certify to the
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FDIC-Receiver that the documents have been destroyed.
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The Parties agree to be bound by the terms of the Stipulation pending the entry by

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the Court of the Protective Order, or an alternative thereto which is satisfactory to the Parties and

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the Court, and any violation of the terms of the Stipulation while entry of the Protective Order by

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the Court is pending, shall be subject to the same sanctions and penalties as if the Protective

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Order had been entered by the Court.

Any violation of the terms of the Stipulation and

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Protective Order shall be punishable by relief deemed appropriate by the Court.
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This Protective Order shall bind all parties to this agreement upon the entry of the

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Protective Order as an order of this Court; however, the FDIC-Receiver, the Plaintiffs and/or the

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defendants and their counsel shall have the right to seek modification of this Protective Order

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upon reasonable notice to all parties bound by it. The provisions of this Protective Order shall

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remain in full force and effect, and shall be binding on all persons through the end of the trial,
and any and all appeals.
IT IS SO ORDERED.

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Dated: May 6, 2011

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____________________________________
MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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