Donald M Lusnak v. Bank of America, N.A. et al

Filing 66

STIPULATED PROTECTIVE ORDER by Judge George H. Wu. (See document for details) (mrgo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DONALD M. LUSNAK, on behalf
of himself and all others similarly
situated,

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Plaintiff,

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STIPULATED PROTECTIVE
ORDER

v.

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Case No. CV 14-1855-GW(AFMx)

BANK OF AMERICA, N.A.; and
DOES 1 through 10, inclusive,

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Defendants.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01855-GW (AJW)

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective Order.

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The parties acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from public

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disclosure and use extends only to the limited information or items that are entitled

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to confidential treatment under the applicable legal principles.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
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Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.5

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which they are generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that are

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produced or generated in depositions, disclosures or responses to discovery in this

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matter.

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2.6

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this action.

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2.7

House Counsel: attorneys who are employees of a party to this action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.8

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.

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2.9

Outside Counsel of Record: attorneys who are not employees of a

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party to this action but are retained to represent or advise a party to this action and

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have appeared in this action on behalf of that party or are affiliated with a law firm

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which has appeared on behalf of that party.

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2.10 Party: any party to this action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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2.13 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”

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2.14 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

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SCOPE
The protections conferred by this Stipulation and Order cover not only

Protected Material (as defined above), but also: (1) any information copied or
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time

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of disclosure to a Receiving Party or becomes part of the public domain after its

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disclosure to a Receiving Party as a result of publication not involving a violation

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of this Order, including becoming part of the public record through trial or

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otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source

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who obtained the information lawfully and under no obligation of confidentiality to

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the Designating Party. Any use of Protected Material at trial shall be governed by a

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separate agreement or order.

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4.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of: (1) dismissal of all claims and defenses in this action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written
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communications that qualify – so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each

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page that contains protected material.

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A Party or Non-Party that makes original documents or materials available

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for inspection need not designate them for protection until after the inspecting Party

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has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL” legend to each page that contains Protected Material.

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(b)

for testimony given in deposition or in other pretrial or trial

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proceedings, that the Designating Party identify on the record, before the close of

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the deposition, hearing, or other proceeding, whether any or all of the deposition
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transcript is being designated confidential. If the deposition transcript is to be

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designated confidential, the Designating Party must identify all claimed protected

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testimony within 30 days after receipt of the deposition transcript.

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(c)

for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a prominent place

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on the exterior of the container or containers in which the information or item is

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stored the legend “CONFIDENTIAL.” If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. An inadvertent failure to designate

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qualified information or items does not, standing alone, waive the Designating

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Party’s right to secure protection under this Order for such material. Upon

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correction of a designation, the Receiving Party must make reasonable efforts to

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assure that the material is treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a

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Designating Party’s confidentiality designation is necessary to avoid delay of the

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litigation, a Party is not required to promptly mount a challenge to the original

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designation, and does not waive its right to challenge a confidentiality designation

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by electing not to mount a challenge promptly after the original designation is

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disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging

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and generally describing the basis for each challenge. The challenge must be made

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in good faith. To avoid ambiguity as to whether a challenge has been made, the

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written notice must recite that the challenge to confidentiality is being made in

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accordance with this specific paragraph of the Protective Order. The parties shall
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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attempt to resolve each challenge in good faith and must begin the process by

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conferring directly (in voice to voice dialogue; other forms of communication are

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not sufficient) within 14 days of the date of service of notice. In conferring, the

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Designating Party must explain the basis for its belief that the confidentiality

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designation was proper. A Challenging Party may then proceed to the next stage of

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the challenge process if it has engaged in this meet and confer process first or

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establishes that the Designating Party is unwilling to participate in the meet and

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confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Designating Party shall file and serve a motion to retain

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confidentiality within 21 days of the initial notice of challenge or within 14 days of

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the parties agreeing that the meet and confer process will not resolve their dispute,

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whichever is later. Each such motion must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph. Failure by the Designating Party

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to make such a motion including the required declaration within 21 days (or 14

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days, if applicable) shall automatically waive the confidentiality designation for

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each challenged designation. In addition, the Challenging Party may file a motion

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challenging a confidentiality designation at any time if there is good cause for doing

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so, including a challenge to the designation of a deposition transcript or any

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portions thereof. Any motion brought pursuant to this provision must be

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accompanied by a competent declaration affirming that the movant has complied

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with the meet and confer requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Unless the Designating Party has waived the confidentiality

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designation by failing to file a motion to retain confidentiality as described above,

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all parties shall continue to afford the material in question the level of protection to

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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which it is entitled under the Producing Party’s designation until the court rules on

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the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this

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case only for prosecuting, defending, or attempting to settle this litigation. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this action,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation;

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(b)

the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

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litigation;

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(c)

Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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(e)

court reporters and their staff, professional jury or trial

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consultants, mock jurors, and Professional Vendors to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(f)

during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A) (witnesses who are employees of the

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Designating Party shall not be required to sign Exhibit A), unless otherwise agreed

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by the Designating Party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material must be

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separately bound by the court reporter and may not be disclosed to anyone except

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as permitted under this Stipulated Protective Order.

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(g)

the author or recipient of a document containing the information

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or a custodian or other person who otherwise possessed or knew the information.

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8.

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IN OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:

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(a)

notify in writing the Designating Party within three business

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days after receiving, through service or otherwise, a copy of the subpoena or court

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order. Such notification shall include a copy of the subpoena or court order;

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(b)

notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena

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or order is subject to this Protective Order within three business days after

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receiving, through service or otherwise, a copy of the subpoena or court order. Such

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notification shall include a copy of this Stipulated Protective Order; and

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01855-GW (AJW)

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(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action

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to disobey a lawful directive from another court.

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9.

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PRODUCED IN THIS LITIGATION

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
(a)

The terms of this Order are applicable to information produced

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by a Non-Party in this action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is protected

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by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery

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request, to produce a Non-Party’s confidential information in its possession, and the

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Party is subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and

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the Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the

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Stipulated Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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(3)

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inspection by the Non-Party.

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(c)

make the information requested available for

If the Non-Party fails to object or seek a protective order from

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this court within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its Protected

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Material.

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10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

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PROTECTED MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
11.1 Pursuant to Federal Rule of Evidence 502(d) and (e), the Parties agree

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that inspection or production of documents (including physical objects) shall not,

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standing alone, constitute waiver of the attorney-client privilege or work product

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immunity or any other applicable privilege immunity from discovery, if both: (a)

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within ten calendar days after the Producing Party becomes aware of any

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inadvertent or unintentional disclosure, the Producing Party designates any such
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document as within the attorney-client privilege or work product immunity or any

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other applicable privilege or immunity and requests in writing the return or

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destruction of such documents and provides the factual basis for the assertion of

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privilege or immunity; and (b) the Producing Party took reasonable steps to prevent

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disclosure of such document(s). When a Producing Party gives notice, including

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pursuant to subpart (a) of this section 11.1, that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the

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Receiving Parties and Producing Party are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). A Receiving Party that wishes to challenge the Producing

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Party’s claim, pursuant to Rule 26(b)(5)(B), must provide notice of such challenge

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to the Producing Party within ten calendar days of receiving notice of the claim

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from the Producing Party pursuant to this paragraph. If such a challenge is timely

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noticed, the parties shall first meet and confer to attempt to resolve the challenge. If

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they are unable to resolve the challenge through meet and confer, the information

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shall promptly be presented to the Court, under seal, for a determination pursuant to

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Rule 26(b)(5)(B). If the Receiving Party does not notice a challenge within the ten

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calendar day time frame stated herein, the Receiving Party shall return or destroy

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the document(s) at issue within seven calendar days of the deadline for noticing the

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challenge. If a challenge is timely noticed but withdrawn following meet and

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confer, or if the challenge is resolved by the Court in favor of the Producing Party,

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the Receiving Party shall return or destroy the document(s) at issue within seven

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calendar days of such event. This provision is not intended to modify whatever

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procedure may be established in an e-discovery order that provides for production

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without prior privilege review, nor is intended to restrict the parties from entering

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into agreements in the future with respect to the production of privileged materials.

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12.

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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives any right to object on

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any ground to use in evidence of any of the material covered by this Protective

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Order.

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12.3 Filing Protected Material. Except as otherwise provided in this Order

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or otherwise ordered by the Court, any Party wishing to file any Protected Material

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must either (1) obtain written permission from the Producing Party to file such

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material in the public record, or (2) move the Court for leave to file the Protected

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Material under seal pursuant to Local Rule 79-5. Unless and until the Court has

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ruled on such a motion, a Receiving Party may not file any Protected Material in

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the public record. Nothing herein shall preclude any party from filing a redacted

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version of such a pleading, brief, exhibit or other document in the public record that

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omits the Protected Material.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in

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paragraph 4, each Receiving Party must return all Protected Material to the

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Producing Party or destroy such material. As used in this subdivision, “all Protected

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Material” includes all copies, abstracts, compilations, summaries, and any other

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format reproducing or capturing any of the Protected Material. Whether the

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Protected Material is returned or destroyed, the Receiving Party must submit a

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written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2)

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affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
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archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if

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such materials contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION).

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: January 15, 2019

________________________________
GEORGE H. WU,
United States District Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Stipulated Protective Order that

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was issued by the United States District Court for the Central District of California

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in the case of Lusnak v. Bank of America, N.A., Case No. 2:14-cv-01855-GW

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(AJW). I agree to comply with and to be bound by all the terms of this Stipulated

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Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly

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promise that I will not disclose in any manner any information or item that is

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subject to this Stipulated Protective Order to any person or entity except in strict

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compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court

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for the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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