ACI Worldwide Corp. v. Citizens Business Bank

Filing 35

STIPULATED PROTECTIVE ORDER by Magistrate Judge David T Bristow re Stipulation for Protective Order 33 . (See document for specifics) (mrgo)

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Gregory C. Scaglione
(Bar No. 19368 NE admitted pro hac vice)
KOLEY JESSEN PC LLO
One Pacific rd
Place, Suite 800
1125 S. 103 St.
Omaha, NE 68154
[phone]
[phone] (Facsimile)
[e-mail]
[Local Counsel, Kathryn A. Heiberg, Listed on Signature Page]
Attorneys for Plaintiff.
BUCHALTER NEMER
A Professional Corporation
GLENN P. ZWANT (SBN: 112295)
RANDALL L. MANVITZ (SBN: 224598)
333 Market Street, 25th Floor
San Francisco, CA 94105-2126
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendant.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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ACI WORLDWIDE CORP. a
Nebraska corporation, f/k/a ACI
Worldwide (MA), Inc.,

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STIPULATED
PROTECTIVE ORDER

Plaintiff,

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Case No. 11-1435-JFW (DTBx)

v.

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Courtroom: 16
Judge: John F. Walter

CITIZENS BUSINESS BANK, a
California corporation,
Defendant.

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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WHEREAS the parties to this proceeding, ACI Worldwide Corp. f/k/a ACI

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WORLDWIDE (MA), INC. (“ACI”) and Citizens Business Bank (“Bank”)

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recognize that during the course of this proceeding, issues may arise which may

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require the disclosure of trade secrets, confidential research, or sensitive

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commercial, financial, process, marketing or business information, or other

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confidential information and the parties desire to plan for that contingency by

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entry of this Stipulated Protective Order ("Order");

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WHEREAS such information should not be released into the public

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domain, but rather should be treated as confidential pursuant to the privacy

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interests of the parties;

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WHEREAS the parties have, through counsel, agreed to be bound by and

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stipulated to entry of this Order to prevent unnecessary disclosure or

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dissemination of such confidential information;

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WHEREAS the Court has found that the parties should respect and

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recognize the privacy interests of each other by the avoidance of any release of

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the confidential information, documents, or things that are produced in this

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action;

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IT IS HEREBY STIPULATED, AGREED AND ORDERED that the terms

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and conditions of this Order shall govern the production and handling of

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documents and things, answers to interrogatories, depositions, pleadings, exhibits

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and other information exchanged by the parties, or received from non-parties, in

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this action:

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1.

This Order is entered for the purposes of this case and shall remain

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in full force and effect unless modified by an Order of this Court or by the written

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stipulation of the parties filed with the Court. Without limiting the foregoing, this

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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Order shall survive and remain in full force and effect after the termination of this

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litigation.

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2.

This Order will become effective upon the signature of counsel for

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ACI and counsel for Bank and the approval of the U.S. Magistrate or his

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designee.

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3.

Nothing in this Order shall limit or preclude any party from applying

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to the Court to modify the terms of this Order or the status of any particular

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information, document, or thing, or for relief from this Order, or for such further

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or additional Protective Orders as the Court may deem appropriate.

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4.

Any party to this litigation, or any third party who elects to be

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covered by this Order, who, during the course of the above-captioned proceeding,

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produces or discloses any document, thing, information, or other item, including,

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without limitation, any document, thing, interrogatory answer, deposition

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testimony, and all other discovery as well as pleadings, briefs, memoranda, and -

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to the extent permitted by the Court upon further motion - testimony adduced at

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the hearing and materials introduced into evidence, and all other information

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produced or furnished by or on behalf of any party to this Order or third party,

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may designate that item as:

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a.

“CONFIDENTIAL” where such item contains confidential or

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proprietary technical, scientific or business information, including, but not

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necessarily limited to, current and future financial information and plans,

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further business plans, and/or sales information, which is not generally

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known and which the designating party would not normally reveal to third

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parties or would cause third parties to maintain in confidence, or

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information, the present disclosure of which would, in the good faith

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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judgment of the designating party, be detrimental to the designating party

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in the conduct of its business.

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Information that exists in tangible form including discovery materials,

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motions, memoranda of law and affidavits, shall be designated by visibly marking

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it as “CONFIDENTIAL.” In the event that the producing party elects to produce

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original files and records for inspection and the inspecting party desires to inspect

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these files and records, no marking need be made by the producing party in

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advance of the initial inspection. For purposes of the initial inspection, all

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documents within the produced files and records shall be considered as marked

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“CONFIDENTIAL.”

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copying by the inspecting party, the producing party shall mark the copies of such

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documents as “CONFIDENTIAL,” as appropriate, prior to that party’s producing

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the copies to the inspecting party. Counsel shall agree on a mutually acceptable

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manner for the identification of protected information that cannot be readily or

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easily marked in a visible manner.

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5.

Thereafter, upon selection of specified documents for

Information which becomes available to any party via inspection,

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measurement, analysis, or testing of any sample or thing marked as provided in

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Paragraph 4 received from another party, or prepared or derived by utilizing

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information designated as “CONFIDENTIAL,” and supplied pursuant to this

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Order, shall also be considered to be, and treated as, “CONFIDENTIAL.”

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6.

With respect to the deposition(s) of any deponent or any person

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employed by, formerly employed by, or acting on behalf of a party to this action,

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such deponent or party shall have until thirty (30) days after receipt of the

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deposition transcript in which to inform the other parties that portions of the

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transcript are designated “CONFIDENTIAL.” Similarly, a third party deponent

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shall have until thirty (30) days after receipt of his, her, or its deposition transcript

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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in which to inform the parties that portions of the deposition transcript are

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designated “CONFIDENTIAL.” The designating party shall send a written list of

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the particular pages of the transcript that contain such information to all counsel

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subject to this Order. No such deposition transcript shall be disclosed to any

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person other than persons described in Paragraph 8 below (and qualified under

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Paragraph 10, if necessary) and the deponent during these thirty (30) days. No

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person attending such deposition shall disclose the contents of the deposition to

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any person other than those qualified to receive information designated as

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“CONFIDENTIAL” pursuant to this Order during said thirty (30) clays. Upon

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being informed that certain portions of a deposition are to be designated as

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“CONFIDENTIAL,” each party shall cause each copy of the transcript in its

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custody or control to be appropriately marked immediately.

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7.

All “CONFIDENTIAL” material shall not be used by any recipient

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or disclosed to anyone for any purpose other than in connection with the above-

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captioned action or any proceeding between the parties related to the same subject

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matter as the above-captioned action and shall not be disclosed by the recipient to

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anyone other than those persons designated (and qualified, if necessary) below, or

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in Court filings with redactions made to those portions of the filings that include

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“CONFIDENTIAL” material, unless and until the restrictions herein are removed

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either by written agreement of counsel for the parties or by Order of the Court.

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8.

Access to materials or information designated by any party as

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“CONFIDENTIAL”

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(“AUTHORIZED PERSONS”) on behalf of the receiving party:

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a.

shall

be

restricted

to

the

following

persons

Litigation counsel for ACI and litigation counsel for Bank and

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their secretaries, paralegals, project assistants or staff, including local and

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in-house counsel, of the parties in this action. Access to CONFIDENTIAL

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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documents for outside counsel shall include access for their employees,

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outside copy services, trial preparation firms, and graphics firms assisting

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such counsel or the independent outside experts designated pursuant to

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Paragraph 8(c);

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b.

Court personnel and stenographic reporters, engaging in such

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proceedings as are necessarily incident to the preparation for trial (e.g.,

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depositions) and/or trial of this action; and

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c.

Independent

outside

experts

or

independent

outside

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consultants retained by or on behalf of a party to assist outside counsel for

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any party in the preparation for trial and/or trial of this action, and such

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persons must become qualified to receive such materials and information in

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accordance with the procedures in Paragraph 10 below before receiving

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such information; and
d.

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Officers and employees who, before receiving such materials

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or information, have signed an affidavit in the form of Exhibit A attached

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hereto (“AUTHORIZED PERSONS”).

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9.

This Order shall not bar or otherwise restrict any attorney from

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rendering advice to his or her client with respect to this litigation, and in the

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course thereof, referring to or relying generally upon his or her examination of

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documents or “CONFIDENTIAL” material provided, however, that in rendering

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such advice and in otherwise communicating with his or her client, the attorney

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shall not disclose the content or source of such “CONFIDENTIAL” information

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contrary to the terms of this Order.

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10.

Every independent expert or consultant retained by any party for

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purposes of this case, to whom all or part of any materials or information

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designated as “CONFIDENTIAL” is disclosed, shall be shown this Order before

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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disclosure of such materials or information and shall agree in writing, by signing

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the affidavit agreement attached hereto as Exhibit A, which by this reference is

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made a part hereof, to be bound by the terms of this Order with regard to any use

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or disclosure to others of such confidential information, prior to receipt of such

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confidential information. A duplicate original of said affidavit agreement will be

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provided to each party for any such independent expert or consultant at such time

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that it is determined that the independent expert or consultant's testimony will be

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offered as evidence by the party that retained them.

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In the event that a party receiving information that the other party

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has designated “CONFIDENTIAL” disagrees with the propriety of that

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designation, then the parties first will try, in good faith, to resolve such dispute on

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an informal basis before presenting the dispute to the Court by motion, pursuant

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to Local Rule 37-1.

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challenging party may bring a motion pursuant to Local Rules 37-1 and 37-2,

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which must meet the Rule 37-2’s Joint Stipulation requirement. The Court then

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may determine whether or not the information at issue should be considered

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“CONFIDENTIAL” and, if so, may rule on what restrictions to access or

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disclosure should be imposed. At the hearing on any such application, the party

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designating the information “CONFIDENTIAL” shall have the burden of

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establishing the confidentiality of the material so designated. All information

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whose designation as “CONFIDENTIAL” has been disputed shall be treated as

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designated by the producing party until such time as the Court determines or the

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parties agree otherwise. No party shall be obligated to challenge the propriety of

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the “CONFIDENTIAL” designation at the time of production. A failure to so

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challenge the propriety of the “CONFIDENTIAL” designation at the time of

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production shall not preclude a subsequent challenge to the propriety of such

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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If the parties are unable to resolve the dispute, then the

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designation. Nothing shall prevent disclosure beyond the terms of this Order if

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the party designating the “CONFIDENTIAL material expressly consents to such

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disclosure, either in writing or in the record of any proceeding in this action, or if

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the Court, after notice to all affected parties, orders such disclosure.

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This Order shall not bar or otherwise restrict:
a.

a producing party from opposing production of any

information;
b.

an “AUTHORIZED PERSON” from making abstracts, digests

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and analyses of “CONFIDENTIAL” materials, so long as such abstracts,

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digests and analyses are for use solely in connection with the evaluation or

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defense of claims and/or defenses asserted in this action, providing such

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abstracts, digest and analyses are marked with the appropriate designation

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as “CONFIDENTIAL”;

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c.

an “AUTHORIZED PERSON” from rendering advice or

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opinions with respect to this action to his/her client or employer based upon

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his/her examination of “CONFIDENTIAL” materials, as long as such

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person does not disclose any materials or information marked

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“CONFIDENTIAL” to a person not authorized by this Order to have

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access to it.

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d.

a producing party from using its own “CONFIDENTIAL”

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materials in any manner it sees fit, or from revealing such materials or

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information marked “CONFIDENTIAL” to whomever it chooses, without

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the prior consent of any other party or order of the Court; or

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e.

a producing party from applying to the Court at any time for

additional protection or relief.

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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13.

If “CONFIDENTIAL” materials in the possession of any receiving

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party is subpoenaed by any Court, administrative or legislative body, or by any

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other person purporting to have authority to subpoena such information, the party

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to whom the subpoena is directed will not produce such information without first

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giving written notice (including the delivery of a copy of the subpoena by

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facsimile), to the attorneys of record for the party whose information or materials

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have been subpoenaed, except as legally required, at least ten business days prior

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to the return date of the subpoena, unless a subpoena purports to require

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production of “CONFIDENTIAL” materials on less than ten business days notice

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in which event the party to whom the subpoena is directed shall give immediate

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notice by facsimile of the receipt of such subpoena. Nothing in this Order shall

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be construed as authorizing a party to disobey a lawful subpoena issued in another

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action.

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Notwithstanding any of the foregoing, the restrictions of this Order

shall not apply to any document or information that:
a.

was, is or becomes published or public knowledge, without

fault of the receiving party:
b.

is lawfully acquired by the receiving party from any source

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independent of and not originating with discovery in this action, provided

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that the receiving party obtained the information lawfully and under no

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obligation of confidentiality to the producing party;

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c.

was lawfully possessed free of restrictions upon its use by the

receiving party prior to the effective date of this order; or
d.

was independently developed by the receiving party without

the use of “CONFIDENTIAL” materials of the producing party.

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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The burden of establishing that the restrictions of this Order do not apply to

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a document or information pursuant to this paragraph is on the party asserting that

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the restrictions do not apply.

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In the event that any papers to be filed with the Court contain

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information that has been designated as “CONFIDENTIAL,” the proposed filing

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shall be accompanied by an application to file the papers or the portion thereof

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containing the designated information (if such portion is segregable) under seal.

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The application shall be directed to the judge to whom the papers are directed.

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For motions, the parties must file a redacted version of the motion and supporting

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papers.
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Counsel for each party shall take reasonable precautions with regard

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to storage, custody, and use to prevent the unauthorized or inadvertent disclosure

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of any confidential information.

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The inadvertent or unintentional disclosure of “CONFIDENTIAL”

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materials regardless of whether the information or material was so designated at

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the time of disclosure, shall not be deemed a waiver, in whole or in part, of a

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party's claim of confidentiality, either as to the specific information disclosed

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therein or as to any other information thereto or on the same or related subject

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matter. However, if counsel to whom disclosure is made transmits

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“CONFIDENTIAL” materials to a client or other person in the good faith belief

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that the supplying or designating party does not deem the information to

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constitute “CONFIDENTIAL” materials, then such further disclosure by counsel

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shall not be construed as a violation of this Order, so long as such further

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disclosure by counsel is made prior to receipt of notification that the initial

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disclosure by the supplying or designating party was inadvertently or

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unintentionally not designated as “CONFIDENTIAL.”

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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18.

Inadvertent production of documents subject to work product

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immunity or the attorney-client privilege shall not constitute a waiver of the

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immunity or privilege, provided that the producing party promptly notifies the

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receiving party in writing of such inadvertent production after the producing party

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learns of such inadvertent production. If prompt notification is made and the

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producing party establishes the circumstances surrounding the document's

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inadvertent production, such inadvertently produced documents and all copies

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thereof shall be returned to the producing party or destroyed, upon written

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request. No use shall be made of such documents during deposition or at trial, nor

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shall they be shown to anyone who was not given access to them prior to the

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request to return or destroy them. If, after conferring, the parties are unable to

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reach a satisfactory agreement within five (5) business days of receipt of the

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written request to return or destroy them, the producing party may move the

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Court regarding the matter within ten (10) business days after conferring. The

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receiving party shall not disclose the documents for which the belated claim of

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immunity or privilege is being made to any person, other than those persons who

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have had them in their possession prior to the receipt of notification from the

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producing part until the expiration of the ten (10) day period identified in this

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paragraph, or if a motion to the Court is submitted, until disposition of that

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motion. Following expiration of the ten (10) day term following conferral,

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nothing in this Order shall preclude either party from moving the Court for return

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or destruction of later discovered, inadvertently produced work product immunity

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or attorney-client privileged documents.

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19.

The failure to designate information in accordance with this Order or

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the failure to object to a designation at or within a given time shall not preclude

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the filing of a motion at a later date seeking to impose such designation or

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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challenge the propriety thereof. This Order shall not be construed as a waiver of

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any right to object to the furnishings of information in response to discovery.

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Promptly after final termination of this action by judgment,

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settlement, or otherwise, all “CONFIDENTIAL” information and materials

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furnished or produced under the terms of this Order, including all copies thereof

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and all documents incorporating such information, except all pleadings filed with

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the Court, all exhibits marked in discovery or at trial, and materials which, in the

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judgment of the attorney in possession of the materials, are work product

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materials, shall be destroyed or delivered to the counsel for the designating party,

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unless otherwise agreed in writing. Outside counsel for a party may retain all

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materials in their files relating to this case, but in so doing must comply with the

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terms of this Order, meaning that all “CONFIDENTIAL” information and

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materials, including but not limited to the above-described pleadings, exhibits,

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and work product materials, must be retained in confidence under the terms of

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this Order.

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August 29

_______ ___, 2011

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UNITED STATES JUDGE

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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Agreed as to form and content:

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ACI WORLDWIDE CORP., Plaintiff,

CITIZEN BUSINESS BANK, Defendant,

By: s/Gregory C. Scaglione
Gregory C. Scaglione, NE #19368
KOLEY JESSEN P.C., L.L.O.
One Pacific Place, Suite 800
1125 South 103rd Street
Omaha, NE 68124-1079
[phone]
[phone] (facsimile)
[e-mail]

By: s/Randall L. Manvitz
Glenn P. Zwant (#112295)
Randall L. Manvitz (#224598)
Buchalter Nemer, a Professional
Corporation
333 Market Street, 25th Floor
San Francisco, CA 94105-2126
[phone]
[phone] (facsimile)
[e-mail]

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and

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Kathryn A. Heiberg, #97043
K. A. Heiberg, PLC
1932 Eastman Avenue, Suite 108
Ventura, CA 93003
[phone]
[phone] (facsimile)
[e-mail]

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Attorneys for Defendant

Attorneys for Plaintiff

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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EXHIBIT A

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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Case No. 11-1435-JFW (DTBx)

ACI WORLDWIDE CORP. a
Nebraska corporation, f/k/a ACI
Worldwide (MA), Inc.,

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Plaintiff,

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v.

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CITIZENS BUSINESS BANK, a
California corporation,
Defendant.

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CERTIFICATE OF COMPLIANCE
WITH PROTECTIVE ORDER

STATE OF ________________

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COUNTY OF ______________

)
) ss.
)

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________________ hereby certifies that I have read and am fully

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familiar with the provisions of the Protective Order entered by the Court in

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the above-captioned matter, hereinafter referred to as the “Order.”

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As condition precedent to my review or handling of any of the

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documents

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information produced pursuant to the Order or my obtaining any such

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information contained in said documents or other materials, I hereby agree to

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observe and comply with all of the provisions of the Order. I understand that

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the CONFIDENTIAL information and my copies or notes relating thereto may

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only be disclosed to or discussed with those persons permitted by the Order to

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receive such information.

or

other

materials

containing

CONFIDENTIAL

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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I hereby submit to the jurisdiction of this Court for the purposes of

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enforcement of the Order and waive any and all objections to jurisdiction and

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venue.

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At the conclusion of this proceeding, I will return all materials

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containing CONFIDENTIAL information, copies thereof and notes that I have

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prepared relating thereto, to counsel of record.

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I declare under penalty of perjury of the laws of the United States of

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America that the foregoing is true and correct and that this Certificate of

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Compliance is executed on the____ day of ___________, 2011 at [City or Town]

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_________________ and [State] ________.

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Name:

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Address:

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Signature:

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SUBSCRIBED AND SWORN TO before me this ______ day of

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__________ 2011.

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Notary Public

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(SEAL)

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582260.3

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. CV 11-01435 JFW (DTBX)

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