Rutherford Dawson v. Equifax Inc et al

Filing 52

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 42 (ec)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ) ) ) Plaintiff, ) v. ) ) EQUIFAX INC.; EQUIFAX INFORMATION SERVICES LLC; A ) ) FOREING LIMITED LIABILITY ) COMPANY; AND VERIZON ) CALIFORNIA, ) ) Defendants. ) RUTHERFORD DAWSON, Case No: CV13-07100-JAK(MANx) PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES STIPULATION Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties’ Stipulation for Protective Order (“Stipulation”) filed on May 2, 2014, the terms of the protective order to which the parties have agreed are adopted as a 25 protective order of this Court (which generally shall govern the pretrial phase of 26 this action) except to the extent, as set forth below, that those terms have been 27 substantively modified by the Court’s amendment of paragraphs I. 1 and 2, and III, 28 of the Stipulation. 1 1 The parties are expressly cautioned that the designation of any information, 2 document, or thing as Confidential, Confidential — Attorneys’ Eyes Only, or other 3 designation(s) used by the parties, does not, in and of itself, create any entitlement 4 to file such information, document, or thing, in whole or in part, under seal. 5 Accordingly, reference to this Protective Order or to the parties’ designation of any 6 information, document, or thing as Confidential, Confidential — Attorneys’ Eyes 7 Only, or other designation(s) used by the parties, is wholly insufficient to warrant a 8 filing under seal. 9 10 11 12 13 14 15 16 There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The parties’ mere designation of any information, document, or thing as Confidential, Confidential -Attorneys’ Eyes Only, or other designation(s) used by parties, does not -- without the submission of competent evidence, in the form of a declaration or declarations, establishing that the material sought to be filed under seal 17 qualifies as confidential, privileged, or otherwise protectable - constitute good 18 cause. 19 Further, if sealing is requested in connection with a dispositive motion or 20 trial, then compelling reasons, as opposed to good cause, for the sealing must be 21 shown, and the relief sought shall be narrowly tailored to serve the specific interest 22 to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th 23 Cir. 2010). For each item or type of information, document, or thing sought to be 24 filed or introduced under seal in connection with a dispositive motion or trial, the 25 party seeking protection must articulate compelling reasons, supported by specific 26 facts and legal justification, for the requested sealing order. Again, competent 27 28 2 1 evidence supporting the application to file documents under seal must be 2 provided by declaration. 3 Any document that is not confidential, privileged, or otherwise protectable in 4 its entirety will not be filed under seal if the confidential portions can be redacted. 5 If documents can be redacted, then a redacted version for public viewing, omitting 6 only the confidential, privileged, or otherwise protectable portions of the document, 7 shall be filed. Any application that seeks to file documents under seal in their 8 entirety should include an explanation of why redaction is not feasible. 9 10 11 12 13 14 Notwithstanding any other provision of this Protective Order, in the event that this case proceeds to trial, all information, documents, and things discussed or introduced into evidence at trial will become public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise. THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND 15 16 ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE 17 HONORABLE JOHN A. KRONSTADT, UNITED STATES DISTRICT 18 JUDGE, INCLUDING THOSE APPLICABLE TO FILINGS UNDER SEAL. 19 AGREED TERMS OF PROTECTIVE ORDER AS ADOPTED AND 20 MODIFIED BY THE COURT1 21 22 23 I. DESIGNATING PROTECTED MATERIAL 24 Any Party or Third-Party may determine in good faith whether any Material 25 should be designated as “CONFIDENTIAL” (“Designating Party”). However, 26 27 28 1 The Court’s substantive modifications of agreed terms of the Protective Order are generally indicated in bold typeface. 3 1 such good faith belief must be based on the fact that such information has not been 2 made public and the Designating Party must have a good faith belief that if such 3 information is disclosed it will have the effect of causing harm to a Party’s 4 competitive position or otherwise impinge upon a Party’s right to privacy. 5 Parties and Third-Parties shall also have the right to designate as 6 “CONFIDENTIAL” material produced, served, or provided by other Parties or 7 Third-Parties, in which case the Designating Party shall notify the other Parties 8 and/or Third-Parties of the Material that should be treated as “CONFIDENTIAL,” 9 10 11 12 13 14 15 16 17 18 pursuant to this Protective Order. Any Material, or any part thereof, designated as “CONFIDENTIAL” shall be used only for the preparation and trial of this action, including discovery, pre-trial proceedings, trial, appellate proceedings and petitions for reconsideration and/or review, and shall not be used for any business, commercial, or other purpose. Except as otherwise provided in this Protective Order, or as otherwise stipulated or ordered, any Material that a Party or ThirdParty deems “CONFIDENTIAL” must be clearly so designated. Designation in conformity with this Protective Order requires the following: 1. For Material in documentary form (apart from transcripts of 19 depositions), the Designating Party producing the documents shall affix the legend 20 “CONFIDENTIAL” at the top or bottom or by watermarking of each page of a 21 document that contains Confidential Information. The Designating Party that makes 22 original documents available for inspection need not designate them for protection 23 under this Protective Order until after the inspecting Party has indicated which 24 documents it would like copied and produced. During the inspection and before the 25 designation, all documents made available for inspection shall be deemed 26 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” After the inspecting Party has 27 identified the documents it wants copied and produced, the Designating Party must 28 4 1 determine which documents qualify for protection under this Protective Order; 2 then, before producing the specified documents, the producing Party must affix the 3 legend “CONFIDENTIAL” to each page of the documents that contain 4 Confidential Information. If, after production, a Party or Third-Party designates as 5 “CONFIDENTIAL” documents not previously designated, then any Party in 6 possession of such documents shall designate the documents as such in accordance 7 with this Protective Order. 8 9 10 11 12 13 14 15 16 2. For testimony given in deposition, the Designating Party shall identify either: (a) on the record before the close of the deposition; or (b) within 20 days after receiving the transcript of such deposition, all portions of the testimony that it wants to designate as “CONFIDENTIAL.” Only those portions of the testimony that are designated for protection during the deposition, or within the 20 days after receipt of the transcript of such testimony, shall be covered by the provisions of this Protective Order. The court reporter shall affix to the top or bottom of each page of a deposition transcript containing Confidential Information the legend 17 “CONFIDENTIAL” as instructed by a Designating Party’s instructions. For 18 testimony given in pretrial, trial proceedings, or any such court proceedings, the 19 Parties will address any Confidential Information with the judicial officer 20 conducting the proceeding at or before, if practicable, the time of any such 21 proceeding. 22 3. For any Material produced in other than documentary form and for 23 any other tangible items, the Designating Party producing such Material or tangible 24 item shall affix in a prominent place on the exterior of the container or containers in 25 which the material or item is stored the legend “CONFIDENTIAL.” 26 portions of the information or item warrant protection, the Designating Party, to the 27 If only extent practicable, shall identify the protected portions. If, after production, a Party 28 5 1 or Third-Party designates as “CONFIDENTIAL” any non-documentary Material or 2 tangible item not previously designated, then any Party in possession of such 3 Material or tangible item shall designate it as such in accordance with this 4 Protective Order. 5 II. ACCESS TO AND USE OF CONFIDENTIAL INFORMATION 6 1. 7 8 9 10 11 12 13 14 15 16 17 Subject to paragraph 3 below, all Material designated as “CONFIDENTIAL” may be disclosed only to: a. Outside counsel for a Party and in-house counsel for Defendants responsible for overseeing this action, as well as their employees and other persons or entities retained by such counsel to provide litigation-related services; b. Experts, consultants, and other independent contractors retained or employed to consult with, advise, or assist counsel for a Party in the preparation or trial of this case, as well as their employees; c. The Parties to this action and their current directors, officers, and employees; d. Witnesses who are being prepared by counsel to give testimony at a 18 deposition or at trial, or who are being examined by counsel at a deposition or at 19 trial; and 20 e. Personnel employed by the United States District Court for the Central 21 District of California or any appellate court, including the Ninth Circuit Court of 22 Appeals, judges, court reporters, clerks, and administrative support personnel. 23 2. A Designating Party may designate as “CONFIDENTIAL- 24 ATTORNEYS EYES ONLY” any Material that contains private, confidential, 25 proprietary, and/or trade secret information that is so sensitive that such Material 26 should not be disclosed to the directors, officers, or non-attorney employees of 27 other Parties. Material designated as “CONFIDENTIAL-ATTORNEYS’ EYES 28 6 1 ONLY” may be disclosed only to those persons and entities identified in paragraph 2 II(1) (a), (b) and (e) above. 3 3. Parties shall take appropriate measures to ensure that all persons 4 permitted 5 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” under paragraph II(1) (b), (c) or 6 (d) of this Protective Order have agreed, prior to reviewing any such Confidential 7 Information, to be bound by the terms and conditions hereof with respect to the 8 restricted disclosure and use of such Confidential Information. Prior to receiving 9 10 11 12 13 14 15 16 access to Material designated as “CONFIDENTIAL” or any Confidential Information, those persons shall sign a copy of the statement attached hereto as Exhibit A, agreeing to be bound by the terms of this Protective Order and submitting to the jurisdiction of the United States District Court for the Central District of California to enforce this Protective Order. The Party who obtains any such signed statements shall retain possession of the statements and shall provide a copy of the statements at the written request of another Party. However, under no circumstances shall any Party be required to disclose the 17 identity or existence of any expert, consultant, or witness until otherwise required 18 to do so by law or order of the United State District Court for the Central District of 19 California or other court of competent jurisdiction. 20 III. 21 If, at any time during the pendency of this action, counsel for any Party 22 wishes to challenge a Designating Party’s designation of Material as containing 23 Confidential Information, and to exclude such Material from the provisions of this 24 Protective Order, the Party shall follow the procedures for seeking judicial 25 intervention for discovery disputes, as set forth in Local Rule 37.1. The Parties 26 shall also first meet and confer in a good faith effort to resolve informally any 27 CHALLENGING CONFIDENTIALITY DESIGNATIONS disputes concerning this Protective Order before seeking judicial intervention. The 28 7 1 Designating Party shall bear the burden of establishing the propriety of the 2 challenged designation. 3 IV. 4 INADVERTENT OR UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION 5 Inadvertent production without prior designation of any Confidential or 6 privileged Information shall be without prejudice to a Designating Party’s right to 7 later file a petition seeking to have the Confidential or privileged Information 8 designated as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES 9 10 11 12 13 14 15 ONLY,” or to any other Party’s right to argue that production of such Confidential Information constitutes a waiver under applicable law of the right to designate any Confidential as “CONFIDENTIAL” or “CONFIDENTIAL- ATTORNEYS’ EYES ONLY,” or that such material must be returned as privileged. V. MAINTENANCE AND FILING OF CONFIDENTIAL INFORMATION 16 17 Information 1. All Material designated as “CONFIDENTIAL” or “CONFIDENTIAL- 18 ATTORNEYS’ EYES ONLY” shall be kept in secure facilities. A “secure facility” 19 is a place where access is restricted to only those designated persons set forth in 20 paragraphs 11(1)(a) and (b) of this Protective Order. Such requirement is not 21 applicable to the Court and/or those designated persons set forth in paragraph 22 II(1)(e). 23 2. Any information, including, but not limited to, documents, 24 interrogatory responses, and depositions designated as containing Confidential 25 Information -- when submitted to the Court as part of, or with a, pleading or as 26 evidence -- shall be submitted to the Court with an application to file such materials 27 under seal, which shall comply with the requirements of Local Rule 79.5-1 et seq. 28 8 1 and this Protective Order. 2 Confidential Information subject to the sealing application shall be lodged under 3 seal. 4 3. Pending a judicial ruling on the application, the Documents or other information designated as containing Confidential 5 Information pursuant to this Protective Order shall become public absent a separate 6 Court order upon written motion and sufficient cause shown. 7 8 9 4. grant a VI. 11 1. file documents labeled “CONFIDENTIAL” or CONFIDENTIAL INFORMATION SUBPOENAED OR The terms of this Protective Order shall apply to all manner and means of discovery, including subpoenas duces tecum. 2. 15 16 to ORDERED PRODUCED IN OTHER LITIGATION 12 14 request “CONFIDENTIAL ATTORNEYS’ EYES ONLY” under seal. 10 13 Nothing in this Protective Order requires the Court to automatically the In the event that a Party is served with a subpoena that seeks to compel production of Material designated as “CONFIDENTIAL” or 17 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” the Party upon whom the 18 subpoena is served shall give written notice of the subpoena to the Designating 19 Party at least seven (7) calendar days before the production date (or, if the subpoena 20 provides less than seven (7) days notice, within one (1) business day after service of 21 the subpoena). The Designating Party may then file a petition or motion to quash 22 the subpoena and/or obtain such other relief as will protect the confidential nature 23 of the documents. 24 production date specified in the subpoena, the Party upon whom the subpoena is 25 served shall not produce the requested documents until after the United States 26 District Court for the Central District of California or other appropriate court has 27 If the Designating Party files such a petition before the ruled on the petition or motion. Nothing in this Protective Order should be 28 9 1 construed as authorizing a Party in this action to disobey a lawful directive from 2 another court. 3 VII. FINAL DISPOSITION 4 Within 30 days after the final termination of this action, counsel for each 5 Party shall destroy any and all Material designated as “CONFIDENTIAL” or 6 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” and shall destroy all copies, 7 digests or summaries which have been made of, or prepared from, such 8 Confidential Information, and shall provide counsel for the Party or Third-Party 9 10 11 12 13 14 15 16 who produced such Material (upon request) with a declaration under penalty of perjury attesting to such return and/or destruction. For purposes of this Protective Order, the term “final termination” shall refer to the time after any final order or award is entered in this action, with no timely petition for reconsideration or petition for review having been filed, or, if any such petition is filed, after a final decision is rendered by the United States District Court or any appellate court with no further petition or appeal pending or possible. 17 VIII. MISCELLANEOUS 18 1. Subject to the Provision of Paragraph VI(2), above, nothing in this 19 Protective Order shall be construed to relieve any Party from the obligation to 20 timely respond to a discovery request, nor shall this Protective Order be construed 21 as a waiver of the right to assert any objection to a discovery request. 22 2. This Protective Order is intended to regulate the production and 23 dissemination of Confidential Information during the entirety of this action, and 24 thereafter shall remain in full force and effect, unless and until modified, 25 superseded, or terminated by written agreement of all Parties or by order of the 26 United States District Court. The United States District Court for the Central 27 District of California shall retain jurisdiction to enforce the provisions of this 28 10 1 Protective Order and to enter amendments, modifications, and additions to this 2 Protective Order as the United States District Court for the Central District of 3 California may from time to time deem appropriate upon noticed motion of a Party 4 or upon the United States District Court for the Central District of California’s own 5 motion. 6 3. Counsel for both parties shall present to the district court, at the 7 earliest possible time prior to trial, any application or motion deemed appropriate 8 and necessary for the proper handling of “CONFIDENTIAL” exhibits/information 9 10 11 12 13 14 15 at trial. 4. Nothing in this Protective Order shall be construed as improperly limiting the rights of third parties involved in other actions to conduct discovery or to limit the subpoena power of another court unless a Court in such other proceedings grants a properly noticed motion for protective order. IT IS SO ORDERED. 16 17 18 19 20 21 Dated: June 12, 2014 ____________________________________ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 11

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