Patricia Arreola et al v. Bank of America National Association et al

Filing 45

AMENDED PROTECTIVE ORDER 44 by Magistrate Judge Paul L. Abrams (See attached order) (es)

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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Mary J. Hackett (appearing pro hac vice)
[e-mail]
Sharon L. Rusnak (appearing pro hac vice)
[e-mail]
REED SMITH LLP
225 Fifth Avenue
Pittsburgh, PA 15222
Telephone: [phone]
Facsimile: [phone]
Michael A. Garabed (State Bar No. 223511)
E-mail: [e-mail]
REED SMITH LLP
355 South Grand Ave, Suite 2900
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: 213.457.8080
Attorneys for Defendant
Bank of America, N.A.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 11-cv-06237 DDP (PLAx)
PATRICIA ARREOLA, ALFREDO
PARRA, LILLIAN A. RAMIREZ,
JAVIER A. GALINDO, PASCUAL
CHAVEZ-RAMIREZ, JOSE RENTERIA, AMENDED
JESSE MORENO, MARIA PLIEGO,
PROTECTIVE ORDER
RENE PLIEGO, AND JOSE GARCIA,
On Their Own Behalf and on Behalf of All
Others Similarly Situated,
Plaintiffs,
vs.
BANK OF AMERICA, NATIONAL
ASSOCIATION, a National Banking
Association; PABLO ARAQUE, an
individual; and DOES 1 through 100,
inclusive;
Defendants.

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11-cv-06237 DDP (PLAx)
[Proposed] Amended Protective Order

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STATEMENT OF GOOD CAUSE FOR ORDER FOR THE PROTECTION OF

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CONFIDENTIAL INFORMATION

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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This matter is before the Court pursuant to Rule 26(c) of the Federal Rules of
Civil Procedure for entry of a Protective Order, for good cause and with the consent
and agreement of the parties, governi ng the disclosure and protection of confide ntial
and proprietary business information that may be sought during discovery in this case.
Discovery of this case will involve the exch ange of highly sensitive business and/or
personal information, including non-public pe rsonal and financial information which
the named plaintiffs as well as absent pu tative class members submitted to Financial
Plus and its related entities; additional financial information such as can celled checks
and statements which contain personal and bank account information of non-parties;
non-public information related to internal banking opera tions including personnel
information; and other inform ation that is not available to the public. In order to
safeguard privacy interests an d confidential commercial information but to disclose
this information for purposes of discove ry, good cause exists for entry of a Protective
Order:
WHEREAS, in connection with the a bove-captioned matter, good cause exists
in order to disclose inform

ation containing confidential personal, business and

commercial information within the m eaning of Rule 26(c)(1) of the Federal Rules of
Civil Procedure, by the parties and/or nonpar ties voluntarily and/or in response to
discovery demands;
WHEREAS, the part ies acknowledge that this Order does not confer blanket
protections on all disclosures or response s to di scovery and that the protection it
affords from public disclosu re and use extends only to t he limited information or
items that are entitled to confidential treatment under the applicable legal principles;

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11-cv-06237 DDP (PLAx)
[Proposed] Amended Protective Order

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WHEREAS, it would serve the interests of the parties to conduct discovery in

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this action under a Protective Order pursuant to Rule 26 (c)(1) of t he Federal Rules of

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Civil Procedure; and

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WHEREAS, the parties have agreed to be bound by the terms of thi s Order and
have presented the same for entry as an Order of Court;

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IT IS HEREBY ORDERED:

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In order to facilitate discovery

while preserving and m

aintaining the

REED SMITH LLP

confidentiality of certain documents or te stimony that may be sought by the parties,

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A limited liability partnership formed in the State of Delaware

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and in the interests of justice and having

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determined that good cause exists, it

is

hereby ORDERED by the Court that:
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This Confidentiality and Protective Order (this “Protective Order”) shall

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govern the use and dissem ination of all inform ation, documents or m aterials that are

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produced in this action and designated as

“Confidential” or “C onfidential Attorney

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Eyes Only.” Any Party may, in good fa

ith, designate as “C onfidential” or

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“Confidential Attorney Eyes Only” any docum ents, interrogatory answers, responses

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to requests for adm ission, deposition tran scripts, information or other written,

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recorded, or graphic material produced or disclosed in this litigation that the Party

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considers to be subject to this Protective Order.

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2.

Exercise of Restraint and Care in

Designating Material for Protection:

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Each party or Non-Party that designates info rmation or items for protection under this

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Order must take care to lim it any such desi gnation to specific mat erial that qualifies

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under the appropria te standards. The Desi gnating Party shoul d make an effort to

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designate for protection only those part s of material, documents, item s or oral or

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written communications that qualify – so

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documents, items or communications for wh ich protection i s not warranted are not

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swept unjustifiably within the

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determines that information or items that it designated for protection do not qualify for

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that other portions of the material,

ambit of th is Order. If a De

-2[Proposed] Amended Protective Order-

signating Party later

11-cv-06237 DDP (PLAx)

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protection, that Designating Party m ust notify all other Parties th at it is withdrawing

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the mistaken designation(s).

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3.

The term “Confidential Information,” as used in this Protective Order,

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shall mean: (a) inform ation not in th e public domain t hat reflects confidential

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financial or commercial info rmation, or inform ation otherwise entitled to protection

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under Fed. R. Civ. P. 26, (b) matters that constitute or contain trade secrets pursuant to

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applicable law, and (c) non-public personal information.

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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4.

The term “Confidential Attorney Eyes Only Information,” as used in this

Protective Order, shall m ean information not i n the publ ic domain that is so

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proprietary or competitively sensitive that its disclosure may cause competitive injury.

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Such information may include, but is no t limited to, highly se nsitive financial and

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trade secret information. The parties recognize that the type of information which can

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properly be considered “Conf idential Attorney Eyes On ly” is the refore limited;

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accordingly, the parties expect to use this designation sparingly.

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5.

Nothing in this Protective Order sh all limit the right of a Party to use

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documents or information that (a) was lawfu lly in its possession prior to the initiation

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of this action; (b) w as, is, or beco mes public knowledge, not i n violation of t his

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Protective Order; (c) is acquired by the non-producing Party from a third part y who

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breached no legal obligation in providing the document(s) to the non-producing Party;

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or (d) becom es declassified under t he Protective Order. The Parties shall not

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designate information as “Confidential” or “Confidential Attorneys Eyes Only” for the

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purpose of interfering with the rights of the receiving Party to conduct discovery.
Confidential and Confidential Attorney Eyes Only Information

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6.

Any Party to this action or other

person or entity, including any third

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party, who produces or supplies information, documents or other materials used in this

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action (hereinafter the “Designating Party” or the “Producing Pa rty”) may designate

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as “Confidential” or “Confidential Attorn

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document or m aterial that it reasonably and in good faith believes constit utes or

ey Eyes Only” any such inform

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ation,

11-cv-06237 DDP (PLAx)

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contains Confidential Information or Conf idential Attorney Ey es Only Inform ation

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under the terms of this Protective Order.

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“Confidential Attorney Eyes Only” shall be mad e by affixing on the document or

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material containing such information, and upon each page so designated if practicable,

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a legend that in substance states:

The designation “C

onfidential” or

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“CONFIDENTIAL” or “CONFI DENTIAL ATTORNEY EYES

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ONLY”

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7.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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Depositions may be de signated “Confidential” or “Confidential Attorney

Eyes Only” by indicating that fact on the

record at the deposition or by provi ding

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written notice to the other Party within thirty

(30) days of re ceipt of the hard cop y

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transcript. If a Designating Party has advi

sed the court reporter that Confidential

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Information or Confidential Attorney Eyes

Only Inform ation has been disclosed

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during a deposition, the court reporter sha ll include on the cover page the following

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indication:

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“DEPOSITION CONTAINS [CON FIDENTIAL INFORMATION/

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CONFIDENTIAL ATTORNEY EYES O NLY] OF [NAME OF

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DESIGNATING

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ORDER.”

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Within thirty (30) business days of r eceipt of the initial deposition transcript,

PARTY] - SUBJECT TO PROTECTIVE

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the Designating Party shall advise opposing counsel of t he specific pages and lines in

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which Confidential Inform ation or Confid ential Attorney Eyes Only Inform ation

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appears. Until expiration of the thirty da

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deposition shall be treated as “Confidenti al Attorney Eyes Only” information, subject

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to this Protective Order and protected from disclosure.

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8.

y period, all informa tion disclosed at a

Confidential Information used in this litigation may be disclosed only to:
a.

This Court and i ts personnel; court reporters and videographers

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engaged by counsel of record to transcribe testimony in connection

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with this action.
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11-cv-06237 DDP (PLAx)

b.

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The Parties’ counsel and em ployees of such counsel assigned to
and necessary to assist such counsel in this action.

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c.

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The named Parties, including a ny past, present or future officer,

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director, or representative of the Parties, but only for use in the

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prosecution, defense, or settlement of this action.
d.

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Any consultant, investigator or expert (collectively, “Expert”) who
the extent reasonably necessary to enable such Expert to render

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REED SMITH LLP

is assisting in the preparation and trial of this litigation, but only to

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A limited liability partnership formed in the State of Delaware

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such assistance in this action.
e.

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A deponent or witness, prior to

or in t he course of testim ony,

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provided that such persons may be

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material only during the course

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testimony, or in the actual course of his or her testi mony, and may

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not retain any designate d material and m ust be inform ed of the

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confidential nature of the materials.
f.

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shown copies of designated
of preparation for his or her

An outside photocopy vendor reta ined by counsel who is assisting

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in the preparation and trial of this litigation by making photocopies

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of documents, but only t o the extent necessary to enable th e

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photocopy vendor to render such assistance in this action.
g.

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or a custodian who possessed the information.

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The author or recipient of a do cument containing the information

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Confidential Attorney Eyes Only Information used in this litigation may

be disclosed only to:
a.

This Court and i ts personnel; court reporters and videographers

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engaged by counsel of record to transcribe testimony in connection

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with this case.

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b.

Outside counsel of record and in -house counsel i n this litigation
(including staff persons employed by such counsel).
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11-cv-06237 DDP (PLAx)

c.

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Any consultant, investigator or expert (collectively, “Expert”) who

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is assisting in the preparation and trial of this litigation, but only to

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the extent reasonably necessary to enable such Expert to render

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such assistance.
d.

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A deponent, prior to or in the course of a deposition, provided that
during the course of preparation fo r his or her testi mony, or in the

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actual course of deposition, may not retain any designated material

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REED SMITH LLP

such persons m ay be shown copi es of designated material only

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A limited liability partnership formed in the State of Delaware

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and must be informed of the confidential nature of the materials.
e.

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An outside photocopy vendor reta ined by counsel who is assisting

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in the preparation and trial of this litigation by making photocopies

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of documents, but only t o the extent necessary to enable th e

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photocopy vendor to render such assistance.
f.

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or a custodian who possessed the information.

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The author or recipient of a do cument containing the information

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If a Party wishes to disclose C onfidential Information or Confidential

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Attorney Eyes Only Information to any person not described in Paragraphs 8 and 9 of

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this Protective Order, permission to so

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Designating Party i n writing. If withi n seven (7) business da ys of request for

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permission, the Designating Party objects to the proposed disclosure, such disclosure

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shall not be made unless, upon m otion by the Party requesting such permission, this

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Court orders otherwise.

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disclose m ust be requested from the

Prior to obtaining a ccess to Confid ential Information or Confidential

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Attorney Eyes Only Information, any pe

rson to whom such information may be

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disclosed pursuant to Paragraphs 8, 9, and 10 hereof, except as in Paragraphs 8(a) and

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9(a), shall be shown and sha ll read a copy of this Protec tive Order and shall agree in

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writing to be bound by its term

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Acknowledgment attached hereto as Exhi bit A (“Confidentiality Acknowledgment”).

s by si gning a copy of the Confidentiality
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[Proposed] Amended Protective Order-

11-cv-06237 DDP (PLAx)

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Counsel for the Party obtaining a person’s si

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Acknowledgment shall retain the origina l signed acknowledgment, and, if requested

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by the Designating Party, sh all provide a copy of the

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counsel for the Designating Party, with the exception that the Designating Party is not

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entitled to see an acknowledgem ent signed by any expert who has not yet been

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disclosed as a testifying expert. Rather, counsel shall certify that all such experts have

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acknowledged the confidentiality agreement.

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gnature on the Confidentiali ty
signed acknowledgment to

Where any Confidential Information, or Confidential Attorney Eyes Only

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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Information, is included in any Court fili ng, such papers shall be acco mpanied by an

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application to file t he papers under seal. The application must show good cause for

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the seal filing and fil ed pursuant to Local Rule 79-5 and the Cour t’s practices related

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to filing under seal. The application shall be directed to the judge to whom the papers

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are directed. Pending the ruling on the app

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subject to the sealing application shall be lodged under seal.
General Provisions

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lication, the papers or portions thereof

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Except to the extent expressly au

thorized in this Protective Order,

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Confidential Information and Confidential Attorney Eyes Only Inform ation shall not

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be used or disclosed for any purpose other than the preparation and trial of this case,

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and/or any appeal therefrom, subject to the provisions of this Protective Order. Use or

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disclosure of Confidential Inform

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Information in any other litigation or for any other purposes is expressly prohibited.

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ation and Confidential Attorney Eyes Only

Any summary, com pilation, notes, c opy, electronic image or database

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containing Confidential Information and/

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Information shall be subject to the terms of this Protective Order to the same extent as

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the material or information from which such summary, com pilation, notes, copy,

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electronic image or database is made or derived.

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or Confidential Attorney Eyes Only

The parties shall meet and con fer in good faith to attem pt to resolve any

dispute over the designation of materials under the Protectiv e Order. Local Rule 37
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11-cv-06237 DDP (PLAx)

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controls. If the parties want to file the

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under seal, the parties m ay file a stipulation to that effect or a party may file an ex

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parte application making t he appropriate re quest. The parties m ust set forth good

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cause in the stipulation or exparte appli

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portions thereof should be filed under seal.

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16.

Joint Stipulation re quired by Local Rule 37

cation as to why t he Joint Stipulation or

Inadvertent failure to designate

any inform ation pursuant to t

his

protection, so long a s such claim is asserted within ninety (90) days of t he discovery

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REED SMITH LLP

Protective Order shall not constitute a wa

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A limited liability partnership formed in the State of Delaware

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of the inadvertent failure. At such time, a rrangements shall be made for the return to

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the Designating Party of all copies of the inadvertently misdesignated documents and

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for the substitution, where ap propriate, of properly labeled copies. If m ore than 90

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days has elapsed, the same may be de

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Confidential Attorney Eyes Only by agre ement between the Parties or by filing a

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motion with the Court.

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iver of any otherwise valid claim

for

signated as Confidential Inform ation and

Nothing in this Protective Order sh

all be deemed to restrict in any

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manner the use by any Designating Party of any information in its own documents and

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materials.

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It shall not be deemed a violation of any of the term s of this Protective

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Order for a Party to produce inform ation in response to a subpoe na or order of any

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court or governm ental agency that require s production of Confident ial Information

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and/or Confidential Attorney Eyes Only In formation that a Party has obtained under

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the terms of this Pr otective Order provided that: (a) such Party shall prom ptly notify

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the Party who origi nally designated as “Confidential” or “Confidential – Attorneys’

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Eyes Only” the information requested; (b) said notification shall be m ade in a timely

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manner, in writing, and at least seven (7)

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compliance pursuant to the sub poena or Order in order to afford the producing Party

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an opportunity to object to the subpoena or

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Party receiving such subpoena or Order sha ll employ its good faith efforts to secure

business days prior to the due date of
seek relief from the Order; and (c)

-8[Proposed] Amended Protective Order-

the

11-cv-06237 DDP (PLAx)

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Confidential treatment, whether by prote ctive order or otherwise and under term s as

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restrictive as this Order, for any such in formation eventually produced in compliance

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with the subpoena or order.

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19.

This Protective Order is without prejudi ce to the right of any Party to

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seek modification of it from the Court. It sh all remain in effect until such time as it is

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modified, amended, or rescin ded by the Court. This Prot ective Order does not affect

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any Party’s rights to object to discovery on any grounds other than an objection based

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solely on the ground that the information sought is confidential in nature.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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20.

This Protective Order is a pre-trial protective order and is not intended to

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govern the use of Confidenti al Information or Confidenti al Attorney Eyes Only

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Information at any trial of this action.

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21.

Nothing in this Protective Order sha ll be deemed to be a waiver of any

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Party’s right to oppose production or adm issibility of any inform ation or documents

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on any ground, incl uding without limitation, lack of timeliness of the request, lack of

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relevance, lack of materia lity, as a privileged communication, as work product of

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counsel, or as not calculated to lead to

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Moreover, nothing in this Prot ective Order shall preclude a P arty from seeking such

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additional protection with regard to c

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appropriate.

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the discovery of adm

issible evidence.

onfidentiality as that Party may deem

Nothing in this Protective Order

shall require any Party to produce

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Confidential Information or documents c ontaining Confidential Information, and

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nothing in this Prot ective Order shall re sult in t he waiver by any Party of any

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objection to any discovery request or the production of Confidential Inform ation or

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any document containing Confid ential Information. The pr oduction subject to t his

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Protective Order of Confidential Informa tion or documents containing Confidential

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Information shall not be deemed a waiver of any objection to the admissibility of such

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documents or their contents that may exist under any applicable Rules of Evidence. It

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-9[Proposed] Amended Protective Order-

11-cv-06237 DDP (PLAx)

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is the intent of the Parties an

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asserted prior to and at trial.
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d the Cou rt hereto that any such objections m ay be

This Protective Order shall not preclude any Party from seeking and

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obtaining from the Court additional prot ection with respect to the issues addressed in

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the Protective Order. The Par ties agree that this Protective Order is without prejudice

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to any position the Parties may take in any other cases.
24.

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The inadvertent production of any document or in formation protected by

REED SMITH LLP

the attorney-client privilege, work produc t doctrine, and/or a ny other applicable

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A limited liability partnership formed in the State of Delaware

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privilege shall not constitute a waiver of a ny such privilege or doctrine. Upon receipt

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of notice of such inadvertent production fro m the producing party, the receiving party

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shall, within seven (7) busi ness days of such notice, return all copies of such

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document(s) to the producing party othe r than copies containing attorney’s note s or

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other attorney work product that m ay have been placed thereon by counsel for the

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receiving party and shall destr oy all copies of such documen ts that contain such notes

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or other attorney w ork product. A part y returning such documents may then, if

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appropriate, pursue production of the documents pursuant to Local Rule 37, provided

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that the returning party may not challenge the privilege, protection or immunity claims

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by arguing that the disclosure waived th e privilege, protection or imm unity and may

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not use the documents, testimony or i nformation for any other purpose whatsoever

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until the Court has determined that the document is not privileged. If the parties want

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to file the Joint Stipulation required by Local Rule 37 under seal, the parties may file a

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stipulation to that effect or a party ma

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appropriate request. The parties must set forth good cause in the stipulation or exparte

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application as to w hy the Joi nt Stipulation or portions thereof should be filed under

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seal.

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y file an ex parte application m

aking the

This Court shall have continuing jurisdiction to modify, enforce, interpret

or rescind this Protective Order, notwithstanding the termination of this action.
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11-cv-06237 DDP (PLAx)

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26.

Within sixty (60) days after the c onclusion of this action, including the

Confidential Information and Confidential Attorney Eyes Only Inform ation produced

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in this litigation (other than exhibits at the official court of record) to return to the

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Designating Party or destroy such informati on. Counsel for any Party or third party

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receiving Confidential Inform ation and/or Confidential

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Information shall make written certification of using their best efforts to co mply with

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this provision and shall deliv er the same to counsel for each Designating Party within

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REED SMITH LLP

exhaustion of all appeals, couns el for all parties shall em ploy best efforts to locate all

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A limited liability partnership formed in the State of Delaware

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one hundred twenty (120) days after the c

Attorney Eyes Only

onclusion of this action, including the

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exhaustion of all appeals. Should any Party or third part y subsequently discover that,

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despite the use of best effo

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Attorney Eyes Only Information inadvertently was not returned or destroyed, in either

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electronic or hard copy form ats, such Party must immediately take steps to return or

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destroy such information as outlined above.

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rts, any Confidential Inform ation and/or Confidenti al

The foregoing is hereby approved by the Court as a Protective Order pursuant
to Federal Rule of Civil Procedure 26(c)(1).
The terms and form of this and Protective Order are hereby consented to:

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- 11 [Proposed] Amended Protective Order-

11-cv-06237 DDP (PLAx)

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DATED: September 13, 2012

PEARSON, SIMON, WARSHAW &
PENNY, LLP

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By

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CAPRETZ & ASSOCIATES
James T. Caprtez
Anthony Chu

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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GIRARDI & KEESE
Thomas V. Girardi
Graham B. Lippsmith

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Attorneys for Plaintiffs

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DATED: September 13, 2012
By

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REED SMITH LLP
/s/ Sharon L. Rusnak
Sharon L. Rusnak
Michael A. Garabed
Mary J. Hackett
Joseph E. Culleiton
Gretchen Woodruff Root
Attorneys for Defendant
Bank of America, N.A.

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/s/ Robert Retana
Bruce L. Simon
George S. Trevor
Robert G. Retana

DATED: September 13, 2012
By

Pablo Araque, pro se

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- 12 [Proposed] Amended Protective Order-

11-cv-06237 DDP (PLAx)

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SO ORDERED:

September 19, 2012
Date

Honorable Paul L. Abrams
United States Magistrate Judge

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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- 13 [Proposed] Amended Protective Order-

11-cv-06237 DDP (PLAx)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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PATRICIA ARREOLA, ALFREDO
PARRA, LILLIAN A. RAMIREZ,
JAVIER A. GALINDO, PASCUAL
CHAVEZ-RAMIREZ, JOSE
RENTERIA, JESSE MORENO,
MARIA PLIEGO, RENE PLIEGO,
AND JOSE GARCIA, On Their Own
Behalf and on Behalf of All Others
Similarly Situated,

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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EXHIBIT A TO PROTECTIVE
ORDER

Plaintiffs,

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No. 11-CV-06237 DDP (PLAx)

vs.
BANK OF AMERICA, NATIONAL
ASSOCIATION, a National Banking
Association; PABLO ARAQUE, an
individual, and DOES 1 through 100,
inclusive,
Defendants.

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I, __________________________________, being duly sworn on oath, state
the following:
1.

I have read and understand the Pro tective Order (“Protective Order”) to

which this Acknowledgement is attached and I attest to my understanding that access
to information designated “Confidential” a nd/or “Confidential Attorney Eyes Only”
may be provided to me and that such acce ss is pursuant to the term s and conditions
and restrictions of t he Protective Order.

I agree to be bound by the

terms of the

Protective Order. I hereby subm it to the juri sdiction of this Cour t for the purpose of
enforcement of this Acknowledgment of the Protective Order.
2.

I shall not use or disclose to

others, except in accordance with the

Protective Order, an y Confidential Informa tion or Confidential Attorney Eyes Only
Information. I also shall return all Co

nfidential Information and any Confidential

28

11-cv-06237 DDP (PLAx)
[Proposed] Protective Order--

-

1

Attorney Eyes Only Inform ation provided to me in this litigation to counsel for the

2

Party I represent within sixty (60) days afte r the conclusion of this action, including

3

the exhaustion of all appeals. If I fail to abide by the terms of the Protective Order, I

4

understand that I may be subject to sanctions under the contempt power of this Court,

5

which includes the power to im pose compensatory damages to remedy contemptuous

6

conduct.

7
8

Dated:

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

9

Signature

10
11

Printed Name

12
13

Address

14
15

Individual or Entity Represented

16
17
18

This the

day of

, 2012

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20
21
22
23
24
25
26
27
28
- ii -

[Proposed] Protective Order

11-cv-06237 DDP (PLAx)