Evan Hightower et al v. Washington Mutual Bank et al

Filing 76

PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams re Notice of Lodging 72 . **See Order for details** (ch)

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MORGAN, LEWIS & BOCKIUS LLP
CARRIE A. GONELL, SBN 257163
[e-mail]
JOHN D. HAYASHI, SBN 211077
[e-mail]
ALEXANDER L. GRODAN, SBN 261374
[e-mail]
5 Park Plaza, Suite 1750
Irvine, CA 92614
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
JPMORGAN CHASE BANK, N.A.
UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EVAN HIGHTOWER and ANN
ROSS, individually, and on behalf of
all other similarly situated,

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vs.

Case No. 11-CV-01802-PSG-PLAx
[DISCOVERY MATTER]

Plaintiffs,
PROTECTIVE ORDER

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JPMORGAN CHASE BANK, N.A.;
and DOES 1 - 10, inclusive,

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Defendants.

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CAROLYN SALAZAR, ROGER ALCHAIKH, and ESTELLA SLIKKER,
individually, and on behalf of all other
members of the general public
similarly situated,

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vs.

Plaintiffs,

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JPMORGAN CHASE BANK, N.A.;
and DOES 1 through 10, inclusive,

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Defendant.

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ATTORNEYS AT LAW
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REGINA M. SIMPSON and REGINA
STURDIVANT, individually, on
behalf of themselves, all other
similarly situated, and on behalf of the
general public;
vs.

Plaintiffs,

JPMORGAN CHASE BANK, a New
York corporation; JPMORGAN
CHASE & CO., a Delaware
corporation; CHASE HOME
FINANCE LLC, a Delaware limited
liability company; and DOES 1 to 10,
inclusive,
Defendants.
DENNIS KHUTORETSKY,
MIKHAIL LIRMAN, and BORIS
SHULMAN, on behalf of themselves
and all other similarly situated,
vs.

Plaintiffs,

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J.P. MORGAN CHASE & CO., and
J.P. MORGAN CHASE BANK, N.A.,

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Defendants.

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M ORGAN , L EWIS &
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ATTORNEYS AT LAW
IRVINE

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DEFINITIONS
1.

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(a)

documents, or in testimony;
(b)

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“Document” is defined broadly to include tangible paper

as well as information stored electronically on disc, tape or otherwise;

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“Information” is defined broadly to include information in

any form, whether provided in response to a request for information, in

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For the purpose of this Order:

(c)

“Confidential Material” is defined to include information

designated as “Confidential” or “Highly Confidential – Attorneys’ Eyes
Only” or provisionally treated as “Confidential” or “Highly Confidential –
Attorneys’ Eyes Only” under the terms of this Order.
SCOPE, DESIGNATION AND USE OF CONFIDENTIAL MATERIAL
2.

The parties acknowledge that they will be requesting and exchanging

documents and information solely because they are parties to the Litigation and
therefore agree that all material exchanged between them will be used only for
purposes of and in connection with prosecuting or defending this Litigation, actions
that have been related to this Litigation, and/or alternative dispute resolution efforts
between the parties hereto and for no other purpose. In addition, the parties
acknowledge that certain of the documents and materials exchanged in discovery in
this Litigation will be sensitive and confidential and deserve additional protections
from disclosure, as set forth in this Order. Counsel for each party, and each person
receiving Confidential Material must take reasonable precautions to prevent the
unauthorized or inadvertent disclosure of such information.
3.

A party or non-party subject to discovery in the Litigation may

designate as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only”
documents or information produced in discovery that the party or non-party

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M ORGAN , L EWIS &
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ATTORNEYS AT LAW
IRVINE

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[PROPOSED] PROTECTIVE ORDER

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considers in good faith to contain confidential information, including but not
limited to information falling within the following categories:

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(a)

INFORMATION” is defined herein as:

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(i)

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(ii)

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current or former, including the following: Social

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Security number, date of birth, medical records, medical

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information, personnel records, address(es), telephone

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records/numbers, e-mail address(es), wage and benefit

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data, account numbers, tax records, and other financial

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information such as credits, loans, or other business

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transactions, assets, and/or income data;

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any sensitive personal information of nonparties, the
parties, or their managers, representatives or employees,

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a trade secret or other confidential research, development
or commercial information; and/or

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Confidential Information. “CONFIDENTIAL

(b)

Attorneys’ Eyes Only Information. “ATTORNEYS’

EYES ONLY INFORMATION” is defined herein as CONFIDENTIAL
INFORMATION which constitutes, discloses, reveals, describes or
discusses, in whole or in part, a trade secret within the meaning of the
California Uniform Trade Secrets Act, financial statements or budgets of
Defendant, provided however, to the extent that any party intends to rely on
that party’s budgets, financial statements or net worth information in support
of, or in defense against, a claim for damages or for recovery of equitable
relief of a monetary nature, such information shall be designated as
Confidential, and not Attorneys’ Eyes Only.
4.

A party or non-party seeking to designate as “Confidential” or “Highly

Confidential – Attorneys’ Eyes Only” any document that that party or non-party

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ATTORNEYS AT LAW
IRVINE

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produces in response to a document request or subpoena in the Litigation shall
designate the document as confidential by labeling the document “Confidential” or
“Highly Confidential – Attorneys’ Eyes Only” on the face of each page of the
document, along with an indication identifying the producing party. In the event a
producing party elects to produce materials for inspection, no marking need be
made by the producing party in advance of the initial inspection. For purposes of
the initial inspection, all materials produced will be considered as "Highly
Confidential – Attorneys’ Eyes Only” and must be treated as such pursuant to the
terms of this Order. Thereafter, upon selection of specified materials for copying
by the inspecting party, the producing party must, within a reasonable time prior to
producing those materials to the inspecting party, mark the copies of those materials
that contain Confidential Information with the appropriate confidentiality marking.
5.

If a party believes that a document produced by someone other than

that party contains confidential information, the party wishing to designate such
confidential information under the terms of this Order shall notify the other party in
the Litigation in writing that it considers the information confidential, label the
affected document with the legend “Confidential” or “Highly Confidential –
Attorneys’ Eyes Only” on the face of each page of the document along with an
indication identifying the party designating the document as confidential, and send
a copy of the document with the appropriate “Confidential” or “Highly Confidential
– Attorneys’ Eyes Only” legend to the non-designating party.
6.

A party or non-party seeking to designate as “Confidential” or “Highly

Confidential – Attorneys’ Eyes Only” any written response to an interrogatory or
other request provided by that party or non-party shall designate the response as
confidential by clearly indicating the page(s) or section(s) of the response that is
designated as confidential, including by placing the legend “Confidential” or
“Highly Confidential – Attorneys’ Eyes Only” on the face of each page of the

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ATTORNEYS AT LAW
IRVINE

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response that contains confidential information. If a party believes that a written
discovery response served by someone other than the party seeking to designate the
response or any portion thereto as confidential, the designating party shall designate
the response as confidential by clearly indicating the page(s) or section(s) of the
response that is designated as confidential, including by placing the legend
“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” on the face of each
page of the response that contains confidential information, and shall send a copy of
the document with the appropriate confidentiality legend to the non-designating
party.
7.

A party also may designate as “Confidential” or “Highly Confidential

– Attorneys’ Eyes Only” any deposition testimony by (a) stating orally on the
record of a deposition that the entire transcript or portion thereof is “Confidential”
or “Highly Confidential – Attorneys’ Eyes Only”; or (b) by written notice to
counsel for the other party in the Litigation of such designation within seven (7)
days after receipt of the deposition transcript.
(a)

Disclosure of Confidential Transcripts to the Deponent.

Deposition transcripts containing Protected Material may be shown to the
deponent for the purpose of correction, but the deponent may not retain a
copy of the transcript unless (s)he agrees to be bound by this Protective
Order by signing a copy of the Acknowledgement Form.
(b)

Transcript pages containing or constituting

CONFIDENTIAL INFORMATION shall be separately bound by the court
reporter and marked “CONFIDENTIAL” on each page. If a Receiving Party
wishes to show non-CONFIDENTIAL portions of a document or transcript
containing CONFIDENTIAL INFORMATION to a person or party not
described below in Paragraph 12, it shall first redact all pages designated
CONFIDENTIAL.

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M ORGAN , L EWIS &
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ATTORNEYS AT LAW
IRVINE

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8.

The parties shall provisionally treat all documents and written

discovery responses as Confidential until five (5) calendar days after receipt of such
documents or discovery responses, unless otherwise agreed by the parties in
writing. The parties shall provisionally treat all deposition testimony as
Confidential until seven (7) calendar days after the receipt of each volume of
deposition transcript, unless otherwise agreed by the parties in writing. If no party
or non-party has designated documents, written discovery responses, deposition
testimony or other information as confidential within these time periods, the
documents and information shall thereafter be treated as if they are not Confidential
Material, unless and until a party later designates such documents, written
discovery responses or deposition as Confidential Material.
9.

Failure to designate material as Confidential using the procedures

described above shall not operate to waive a party’s or non-party’s ability to later so
designate such material. Information inadvertently disclosed without being
designated as confidential may thereafter be designated confidential by promptly
notifying the party/ies receiving the information in writing that such information is
confidential, and, where appropriate, sending copies of the designated pages
containing confidential information with the appropriate “Confidential” or “Highly
Confidential – Attorneys’ Eyes Only” legend placed on the face of each page that
contains confidential information.
10.

Neither the original nor any copy of any document, response,

testimony or information which contains or constitutes Confidential Material nor
any excerpt, quotation, paraphrase or other description thereof which conveys the
confidential contents thereof shall be disclosed to any person, or used for any
purpose, except in accordance with the terms of this Order.
11.

Access to and disclosure of sensitive personal information and

documents that have been designated as “Confidential,” including but not limited to

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employee personnel files and employee payroll information, shall be limited to the
to those persons identified in Paragraphs 12(a), (b), (d), and (f) and the employee to
whom the personal documents and information relates.
12.

Subject to Paragraph 11, access to and disclosure of other documents

or information designated by any party or non-party as “Confidential” shall be
limited, except as otherwise provided herein, or agreed by the parties in writing, or
as otherwise ordered by the Court, to:
(a)

The attorneys of record in this Litigation or any action

that has been related to this Litigation and in-house counsel, if any, for said
parties, their clerical, paralegal and other employees, and Defendants’
managers, officers, executives, and directors, who reasonably need access to
the Confidential Material in connection with and to assist with the
prosecution or defense of this action, and personnel from any third-party
vendors retained to assist the attorneys with document collection, translation,
photocopying, scanning, or other services related to the prosecution or
defense of this Litigation;
(b)

This Court, any court to which a party petitions for

discovery of a non-party, and court personnel, including but not limited to
court reporters, translators and persons operating video recording equipment;
(c)

The parties to this action and those employees of the

parties who reasonably need access to the Confidential Material in
connection with and to assist with the prosecution or defense of this action;
(d)

Any person who authored or received the Confidential

Material prior to the commencement of the Litigation;
(e)

Any witness not encompassed by the terms of paragraphs

12(c) or 12(d), above, whose deposition is taken in this action or who is

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[PROPOSED] PROTECTIVE ORDER

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being prepared by counsel to give testimony at deposition, provided that any
such witness abide by the terms of paragraph 14 below; and

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(f)

Outside experts and consultants for any party, whose

advice or consultation is being or will be used by such party in connection
with this Litigation, and their employees who reasonably need access to the
Confidential Material in connection with and to assist with the prosecution or
defense of this Litigation, provided that any such outside expert, consultant,
or their employees witness abide by the terms of paragraph 14 below.
13.

Access to and disclosure of documents or information designated by

any party or non-party as “Highly Confidential – Attorneys’ Eyes Only” shall be
limited, except as otherwise provided herein, or agreed by the parties in writing, or
as otherwise ordered by the Court, to those persons identified in Paragraphs 12(a),
(b), (d), (e), and/or (f).
14.

The attorneys for a party may disclose Confidential Material to any

person described in Paragraph 12(e), above, provided, however, that the witness
first must be shown this Order and agree to abide by its terms by signing the NonDisclosure Agreement attached hereto as Exhibit 1. Any such deponent or witness
may be shown Confidential Material but shall not retain the original, any copy or
any notes of any such Confidential Material.
15.

The attorneys for a party may disclose Confidential Material to any

person described in Paragraph 12(f), above, provided, however, that the expert,
consultant or employee of an expert or consultant first must be shown this Order
and agree to abide by its terms by signing the Non-Disclosure Agreement attached
hereto as Exhibit 1. Any such expert, consultant or employee of an expert or
consultant shall not retain the original, any copy or any notes of any such
Confidential Material for longer than three (3) months after the final termination of
the Litigation.

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B OCKIUS LLP
ATTORNEYS AT LAW
IRVINE

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16.

If a party or any of its representatives, including counsel, inadvertently

discloses any Confidential Material to a person not authorized by this Order to use
or possess such Confidential Material, the disclosing party shall provide immediate
written notice of the disclosure to the party or non-party whose Confidential
Material was inadvertently disclosed. The disclosing party shall also promptly take
reasonable measures to obtain the return of such inadvertently disclosed
information. If a party has actual knowledge that Confidential Material is being
used or possessed by a person not authorized to use or possess that material,
regardless of how the material was disclosed or obtained by such person, the party
shall provide immediate written notice of the unauthorized use or possession to the
party or non-party whose Confidential Material is being used or possessed.
17.

Any party, through counsel, may make a good faith written objection

to the designation of any document, response, testimony or information as
“Confidential” or “Highly Confidential – Attorneys’ Eyes Only.” The good faith
written objection must notify counsel for the designating party of the objected-to
materials and the grounds for the objection. The parties shall meet and confer in
good faith to attempt to resolve the dispute without the intervention of the Court. If
it is not possible to resolve the dispute, the party making the confidentiality
designation shall make a motion before the Court pursuant to Local Rule 37
seeking to preserve the confidentiality designation. Applicable California law shall
govern the burden and standard of proof on any such motion. The failure to object
to the confidential designation shall not be construed as a concession that the
information is confidential.
18.

Any party or non-party may remove or downgrade its own

confidentiality designation of documents or information by providing written notice
to the other party or to the parties of the de-designation or downgrade, or by

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ATTORNEYS AT LAW
IRVINE

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[PROPOSED] PROTECTIVE ORDER

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providing new copies of the documents or materials with any confidentiality legend
removed or replaced with the appropriate legend.
19.

In the event that any brief, memorandum or other paper to be

submitted to the Court by or on behalf of a party or non-party contains Confidential
Material of any other party or non-party that designated that material as
confidential, the party or non-party submitting the Confidential Material to the
Court shall file the Confidential Material provisionally under seal pursuant to any
applicable Local Rules of the Court. Good cause must be shown in the application
to file under seal. If a party needing to submit Confidential Material designated by
the other party or a non-party in connection with a brief, memorandum or other
paper to be submitted to the Court believes that the confidentiality designation is
incorrect, such that the Confidential Material need not be filed provisionally under
seal, that party shall meet and confer with the designating party or non-party
pursuant to paragraph 17 of this Order reasonably in advance of the date the
Confidential Material is to be submitted to the Court. If a non-party designated the
material to be submitted to the Court as confidential, the party submitting the
Confidential Material to the Court shall meet and confer with that designating nonparty reasonably in advance of the date the Confidential Material is to be submitted
to the Court and/or provide contemporaneous notice to the non-party that its
Confidential Information has been submitted to the Court provisionally under seal.
20.

This Order shall not and does not constitute an admission or

concession or permit an inference that any document, response, testimony or
information constituting Confidential Material is, in fact, confidential for purposes
other than the proper safeguarding of materials produced in discovery in this
Litigation. Conversely, any disclosure of Confidential Material under this Order
shall not be construed as a waiver of the confidentiality of the information.
TERMINATION OF LITIGATION

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[PROPOSED] PROTECTIVE ORDER

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21.

maintain and limit access and disclosure to all material in the manner provided in
this Order. No later than three (3) months after the final termination of the
Litigation, including the exhaustion of any appeals and cross-appeals and requests
for discretionary review, each person or party subject to the terms of this Protective
Order upon request (1) shall either (a) return all materials produced to it in
discovery to the party or non-party that produced the document, written response or
information; or (b) destroy all materials produced to it in discovery to the party or
non-party that produced the document, written response or information, and (2)
shall promptly certify in writing to the other party and any non-parties that such
documents have been destroyed or returned. Nothing herein shall obligate any
person or party to destroy (i) attorney work product, including, without limitation,
attorney notes or memos, collections of documents used for litigation purposes, and
deposition summaries; (ii) any transcript of any deposition, hearing, or trial
proceeding and exhibits attached to such a transcript; and/or (iii) any pleading or
paper served on another party or filed with the Court in the Litigation, and any
exhibits attached to such a pleading or paper.
22.

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This Court shall retain jurisdiction over the Litigation following its

termination (whether by judgment, settlement, or otherwise) for the purpose of
enforcing this Order.

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After termination of this Litigation, each party shall continue to

MISCELLANEOUS
23.

If any party receives from a third party a subpoena, discovery request

or other demand for information disclosed in this case by the other party or a nonparty, the party receiving the subpoena, discovery request or other demand shall
immediately notify the producing party or non-party that it has received a demand
for the information, and shall not provide any response or information until at least
fifteen (15) days have passed from said notice, unless the subpoena provides a

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[PROPOSED] PROTECTIVE ORDER

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sh
horter time period. The party re
T
eceiving th subpoen discove request or other
he
na,
ery
de
emand shal reasonab coopera with th designating party if the produ
ll
bly
ate
he
ucing party
y
or non-party seeks a pr
r
y
rotective order or oth limitati on disc
o
her
ion
closure of t
the
Co
onfidential Material. The prod
l
ducing party shall pay the reasonable expe
ty
y
ense of
su cooper
uch
rative effor
rts.
24.

Nothing in this Order and no a
i
action take pursuan to it shall be
en
nt
l

co
onstrued or asserted to be (a) an agreemen by the parties to pr
r
t
n
nt
roduce any
y
do
ocuments or supply any inform
o
a
mation or testimony in discovery not other
n
y
rwise
ag
greed upon or require by appli
n
ed
icable Cali
ifornia law (b) a wai
w;
iver by any person or
y
r
pa of any right to ob
arty
y
bject to or seek a furt
ther protec
ctive order with respe to any
ect
di
iscovery re
equest in th or any other action or (c) a waiver of any claim of
his
o
n.;
f
m
im
mmunity or privilege with regar to any te
r
rd
estimony, d
documents or inform
s
mation.
25.

Nothing in this Order and no a
i
action take pursuan to it shall be
en
nt
l

co
onstrued or asserted to waive an objectio to the al
r
t
ny
on
lleged relev
vancy or
ad
dmissibility of any do
y
ocument, te
estimony o other ev
or
vidence at a procee
any
eding in the
e
Li
itigation.
26.

This Orde does not govern th treatmen of Confi
er
t
he
nt
idential Ma
aterial at

tri which the parties and the Court will a
ial,
s
C
address by a Stipulati and Or
ion
rder issued
at an approp
t
priate time in the futu
ure.
27.

This Orde may be modified in part or entirely by written agreement of
er
m
f
n

th parties hereto or up applica
he
h
pon
ation to an entry of an Order b the Cou for
nd
f
by
urt
go cause shown.
ood
s
T
RDERED.
IT IS SO OR
gust
2
Dated: Aug 8, 2012

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Hono
orable Paul L. Abram
l
ms
Unite States M
ed
Magistrate Judge

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B OCKIUS L
LLP
ATTORNEYS AT LAW
IRVINE

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OSED] PROTEC
CTIVE ORDER
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EXHIBIT “1” TO PROTECTIVE ORDER

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NON-DISCLOSURE AGREEMENT
I certify that I have carefully read the Protective Order in the case of
Hightower, et al., vs. JPMorgan Chase Bank, N.A., Central District of California
Case No. 11-CV-01802-PSG-PLAx, and that I fully understand the terms of the
Order. I understand that Confidential Material is being provided to me pursuant to
the terms and restrictions of the Protective Order. I recognize that I am bound by
the terms of this Protective Order and I agree to comply with those terms. I certify
that I will not reveal Confidential Material to anyone except as allowed by the
Protective Order and will maintain all such Confidential Material, including copies,
notes or other transcripts made therefrom, in a secure manner to prevent
unauthorized access to it.
I hereby consent to the personal jurisdiction of the United States District
Court, Central District of California for any proceedings involving the enforcement
of that Order.
Executed this day ____ of ____________, 20___, at ___________________,
.

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Signature

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Name
Affiliation or Company
Business Address

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Home Address

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