John Kristensen v. Credit One Bank, N.A.

Filing 44

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 43 . See document for details. (yb)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13

JOHN KRISTENSEN, individually
and on behalf of all others similarly
situated,
Plaintiff,

14

PROTECTIVE ORDER

vs.

15
16

Case no. 2:14-cv-07963-DMG-AJW

CREDIT ONE BANK, N.A., and,
FIRST CONTACT, LLC,

17

Defendants.
18
19

Defendant CREDIT ONE BANK, N.A. ("Defendant") and Plaintiff JOHN

20
21
22

KRISTENSEN ("Plaintiff"), through their respective counsel, hereby file this Stipulated
Protective Order as set forth below.

23
24
25

1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

26

confidential, proprietary, or private information for which special protection from public
27
28

disclosure and from use for any purpose other than prosecuting this litigation may be
{00044159;1}

1

1
2
3

warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the
following Stipulated Protective Order. The parties acknowledge that this Order does not
confer blanket protections on all disclosures or responses to discovery and that the

4
5
6

protection it affords from public disclosure and use extends only to the limited
information or items that are entitled to confidential treatment under the applicable legal

7

principles. The parties further acknowledge, as set forth in Section 12.3, below, that this
8
9
10

Stipulated Protective Order does not entitle them to file confidential information under
seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the

11

standards that will be applied when a party seeks permission from the court to file
12
13
14

material under seal.
2.

DEFINITIONS

15
16
17
18

2.1

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

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how

19
20
21
22

it is generated, stored or maintained) or tangible things that qualify for protection under
Federal Rule of Civil Procedure 26(c).
2.3

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

23
24
25

Counsel (as well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or

26

items that it produces in disclosures or in responses to discovery as
27
28

“CONFIDENTIAL.”
{00044159;1}

2

1
2
3

2.5

Disclosure or Discovery Material: all items or information, regardless of

the medium or manner in which it is generated, stored, or maintained (including, among
other things, testimony, transcripts, and tangible things), that are produced or generated

4
5
6

in disclosures or responses to discovery in this matter.
2.6

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

7

pertinent to the litigation who has been retained by a Party or its counsel to serve as an
8
9
10

expert witness or as a consultant in this action.
2.7

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

11

House Counsel does not include Outside Counsel of Record or any other outside
12
13
14

counsel.
2.8

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

15
16
17
18

other legal entity not named as a Party to this action.
2.9

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

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

19
20
21
22

appeared in this action on behalf of that party or are affiliated with a law firm which has
appeared on behalf of that party.
2.10 Party: any party to this action, including all of its officers, directors,

23
24
25

employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).

26

2.11 Producing Party: a Party or Non-Party that produces Disclosure or
27
28

Discovery Material in this action.
{00044159;1}

3

1
2
3

2.12 Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium) and

4
5
6

their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is designated

7

as “CONFIDENTIAL.”
8
9
10

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.

11

3.

SCOPE

12
13
14

The protections conferred by this Stipulation and Order cover not only Protected
Material (as defined above), but also (1) any information copied or extracted from

15
16
17
18

Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
Material; and (3) any testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. However, the protections conferred by

19
20
21
22

this Stipulation and Order do not cover the following information: (a) any information
that is in the public domain at the time of disclosure to a Receiving Party or becomes
part of the public domain after its disclosure to a Receiving Party as a result of

23
24
25

publication not involving a violation of this Order, including becoming part of the
public record through trial or otherwise; and (b) any information known to the

26

Receiving Party prior to the disclosure or obtained by the Receiving Party after the
27
28

disclosure from a source who obtained the information lawfully and under no obligation
{00044159;1}

4

1
2
3

of confidentiality to the Designating Party. Any use of Protected Material at trial shall
be governed by a separate agreement or order.
4.

DURATION

4
5
6

Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees otherwise

7

in writing or a court order otherwise directs. Final disposition shall be deemed to be the
8
9
10

later of (1) dismissal of all claims and defenses in this action, with or without prejudice;
and (2) final judgment herein after the completion and exhaustion of all appeals,

11

rehearings, remands, trials, or reviews of this action, including the time limits for filing
12
13
14

any motions or applications for extension of time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL

5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

15
16
17
18

Party or Non-Party that designates information or items for protection under this Order
must take care to limit any such designation to specific material that qualifies under the

19
20
21
22

appropriate standards. The Designating Party must designate for protection only those
parts of material, documents, items, or oral or written communications that qualify – so
that other portions of the material, documents, items, or communications for which

23
24
25

protection is not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that

26

are shown to be clearly unjustified or that have been made for an improper purpose
27
28

(e.g., to unnecessarily encumber or retard the case development process or to impose
{00044159;1}

5

1
2
3

unnecessary expenses and burdens on other parties) expose the Designating Party to
sanctions.
If it comes to a Designating Party’s attention that information or items that it

4
5
6

designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the mistaken designation.

7

5.2

Manner and Timing of Designations. Except as otherwise provided in this

8
9

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

10

ordered, Disclosure or Discovery Material that qualifies for protection under this Order

11

must be clearly so designated before the material is disclosed or produced.
12
13
14

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but

15
16
17
18

excluding transcripts of depositions or other pretrial or trial proceedings), that the
Producing Party affix the legend “CONFIDENTIAL” to each page that contains
protected material. If only a portion or portions of the material on a page qualifies for

19
20
21
22

protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,
by making appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available for

23
24
25

inspection need not designate them for protection until after the inspecting Party has
indicated which material it would like copied and produced. During the inspection and

26

before the designation, all of the material made available for inspection shall be deemed
27
28

“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
{00044159;1}

6

1
2
3

copied and produced, the Producing Party must determine which documents, or
portions thereof, qualify for protection under this Order. Then, before producing the
specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to

4
5
6

each page that contains Protected Material. If only a portion or portions of the material
on a page qualifies for protection, the Producing Party also must clearly identify the

7

protected portion(s) (e.g., by making appropriate markings in the margins).
8

(b) for testimony given in deposition or in other pretrial or trial proceedings, that

9
10

the Designating Party identify on the record, before the close of the deposition, hearing,

11

or other proceeding, all protected testimony.
12

(c) for information produced in some form other than documentary and for any

13
14

other tangible items, that the Producing Party affix in a prominent place on the exterior

15
16
17
18

of the container or containers in which the information or item is stored the legend
“CONFIDENTIAL.” If only a portion or portions of the information or item warrant
protection, the Producing Party, to the extent practicable, shall identify the protected

19
20

portion(s).
5.3

21
22

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive the

23
24
25

Designating Party’s right to secure protection under this Order for such material. Upon
timely correction of a designation, the Receiving Party must make reasonable efforts to

26

assure that the material is treated in accordance with the provisions of this Order.
27
28

\\\
{00044159;1}

7

1
2
3

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1

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

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

4
5
6

Party’s confidentiality designation is necessary to avoid foreseeable, substantial
unfairness, unnecessary economic burdens, or a significant disruption or delay of the

7

litigation, a Party does not waive its right to challenge a confidentiality designation by
8
9
10

electing not to mount a challenge promptly after the original designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

11

resolution process under Local Rule 37.1, et seq. Any discovery motion must strictly
12
13
14

comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3.6.3.6.3
Burden. The burden of persuasion in any such challenge proceeding shall

15
16
17
18

be on the Designating Party. Frivolous challenges, and those made for an
improper purpose (e.g., to harass or impose unnecessary expenses and burdens
on other parties) may expose the Challenging Party to sanctions. Unless the

19
20
21
22

Designating Party has waived or withdrawn the confidentiality designation, all
parties shall continue to afford the material in question the level of protection to
which it is entitled under the Producing Party’s designation until the Court rules

23
24
25

on the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL

7.1

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

26
27
28

disclosed or produced by another Party or by a Non-Party in connection with this case
{00044159;1}

8

1
2
3

only for prosecuting, defending, or attempting to settle this litigation. Such Protected
Material may be disclosed only to the categories of persons and under the conditions
described in this Order. When the litigation has been terminated, a Receiving Party

4
5
6

must comply with the provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a

7

location and in a secure manner that ensures that access is limited to the persons
8
9
10

authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

11

ordered by the court or permitted in writing by the Designating Party, a Receiving Party
12
13
14

may disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

15
16
17
18

employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” that is attached hereto as Exhibit A;

19
20
21
22

(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

23
24
25

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure
is reasonably necessary for this litigation and who have signed the “Acknowledgment

26

and Agreement to Be Bound” (Exhibit A);
27
28

(d) the court and its personnel;
{00044159;1}

9

1
2
3

(e) court reporters and their staff, professional jury or trial consultants, mock
jurors, and Professional Vendors to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

4
5
6

(Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is

7

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
8
9
10

Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the
court. Pages of transcribed deposition testimony or exhibits to depositions that reveal

11

Protected Material must be separately bound by the court reporter and may not be
12
13
14

disclosed to anyone except as permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a

15
16
17
18

custodian or other person who otherwise possessed or knew the information.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

IN OTHER LITIGATION

19
20
21
22

If a Party is served with a subpoena or a court order issued in other litigation that
compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” that Party must:

23
24
25

(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

26

(b) promptly notify in writing the party who caused the subpoena or order to
27
28

issue in the other litigation that some or all of the material covered by the subpoena or
{00044159;1}

10

1
2
3

order is subject to this Protective Order. Such notification shall include a copy of this
Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by

4
5
6

the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the

7

subpoena or court order shall not produce any information designated in this action as
8
9
10

“CONFIDENTIAL” before a determination by the court from which the subpoena or
order issued, unless the Party has obtained the Designating Party’s permission. The

11

Designating Party shall bear the burden and expense of seeking protection in that court
12
13
14

of its confidential material – and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this action to disobey a lawful directive

15
16
17
18

from another court.
9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION

19
20
21
22

(a) The terms of this Order are applicable to information produced by a NonParty in this action and designated as “CONFIDENTIAL.” Such information produced
by Non-Parties in connection with this litigation is protected by the remedies and relief

23
24
25

provided by this Order. Nothing in these provisions should be construed as prohibiting
a Non-Party from seeking additional protections.

26

(b) In the event that a Party is required, by a valid discovery request, to produce a
27
28

Non-Party’s confidential information in its possession, and the Party is subject to an
{00044159;1}

11

1
2
3

agreement with the Non-Party not to produce the Non-Party’s confidential information,
then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that some

4
5
6

or all of the information requested is subject to a confidentiality agreement with a NonParty;

7

(2) promptly provide the Non-Party with a copy of the Stipulated Protective
8
9
10

Order in this litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and

11

(3) make the information requested available for inspection by the Non-Party.
12
13
14

(c) If the Non-Party fails to object or seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the Receiving

15
16
17
18

Party may produce the Non-Party’s confidential information responsive to the
discovery request. If the Non-Party timely seeks a protective order, the Receiving Party
shall not produce any information in its possession or control that is subject to the

19
20
21
22

confidentiality agreement with the Non-Party before a determination by the court.
Absent a court order to the contrary, the Non-Party shall bear the burden and expense of
seeking protection in this court of its Protected Material.

23
24
25

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

26

Protected Material to any person or in any circumstance not authorized under this
27
28

Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
{00044159;1}

12

1
2
3

the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
all unauthorized copies of the Protected Material, (c) inform the person or persons to
whom unauthorized disclosures were made of all the terms of this Order, and (d)

4
5
6

request such person or persons to execute the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A.

7

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

8
9
10

PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

11

inadvertently produced material is subject to a claim of privilege or other protection, the
12
13
14

obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

15
16
17
18

may be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or

19
20
21
22

information covered by the attorney-client privilege or work product protection, the
parties may incorporate their agreement in the stipulated protective order submitted to
the court.

23
24
25

If a Designating Party inadvertently discloses information in connection with the
pending litigation to another Party that the Designating Party thereafter claims to be

26

privileged or protected by the attorney-client privilege or attorney work product
27
28

protection (“Disclosed Protected Information”), the disclosure of the Disclosed
{00044159;1}

13

1
2
3

Protected Information shall not constitute or be deemed a waiver or forfeiture of any
claim of privilege or work product protection that the Designating Party would
otherwise be entitled to assert with respect to the Disclosed Protected Information and

4
5
6

its subject matter in this proceeding or in any other federal or state proceeding.
A Designating Party may assert in writing attorney-client privilege or work

7

product protection with respect to Disclosed Protected Information. The Receiving
8
9
10

Party must—unless it contests the claim of attorney-client privilege or work product
protection in accordance with sub-paragraph (c)—within five business days of receipt

11

of that writing, (i) return or destroy all copies of the Disclosed Protected Information,
12
13
14

and (ii) provide a certification of counsel that all of the Disclosed Protected Information
has been returned or destroyed. Within five business days after assertion of attorney-

15
16
17
18

client privilege or work product protection with respect to Disclosed Protected
Information, the Designating Party must produce a privilege log with respect to the
Disclosed Protected Information.

19
20
21
22

12.

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.

23
24
25

12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to

26

disclosing or producing any information or item on any ground not addressed in this
27
28

{00044159;1}

14

1
2
3

Stipulated Protective Order. Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. Without written permission from the Designating

4
5
6

Party or a court order secured after appropriate notice to all interested persons, a Party
may not file in the public record in this action any Protected Material. A Party that

7

seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5.
8
9
10

Protected Material may only be filed under seal pursuant to a court order authorizing
the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-

11

5, a sealing order will issue only upon a request establishing that the Protected Material
12
13
14

at issue is privileged, protectable as a trade secret, or otherwise entitled to protection
under the law. If a Receiving Party's request to file Protected Material under seal

15
16
17
18

pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party
may file the information in the public record pursuant to Civil Local Rule 79-5(e)
unless otherwise instructed by the court.

19
20
21
22

13.

FINAL DISPOSITION

Within 60 days after the final disposition of this action, as defined in paragraph 4,
each Receiving Party must return all Protected Material to the Producing Party or

23
24
25

destroy such material. As used in this subdivision, “all Protected Material” includes all
copies, abstracts, compilations, summaries, and any other format reproducing or

26

capturing any of the Protected Material. Whether the Protected Material is returned or
27
28

destroyed, the Receiving Party must submit a written certification to the Producing
{00044159;1}

15

Party (and, if not the same person or entity, to the Designating Party) by the 60 day

1

deadline that (1) identifies (by category, where appropriate) all the Protected Material

2
3

that was returned or destroyed and (2) affirms that the Receiving Party has not retained

4

any copies, abstracts, compilations, summaries or any other format reproducing or

5
6

capturing any of the Protected Material. Notwithstanding this provision, Counsel are

7

entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
8

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

9
10

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

11

such materials contain Protected Material. Any such archival copies that contain or
12

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

13
14

Section 4 (DURATION).

15

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD

16
17

MARTIN & BONTRAGER, APC1

DATED: February 1, 2016

18

By:

19
20

s/ Nicolas Bontrager
Nicolas Bontrager
Attorneys for Plaintiff
JOHN KRISTENSEN

21
22
23
24
25
26
27
28

1

Pursuant to Local Rule 5-4.3.4 Defendant obtained authorization from the other signatories to file this
document

{00044159;1}

16

DATED: February 1, 2016

CARLSON & MESSER LLP

1

By:

2
3
4

s/David J. Kaminski
David J. Kaminski
Stephen A. Watkins
Attorneys for Defendant
CREDIT ONE BANK, N.A.

5
6
7

PURSUANT TO STIPULATION, IT IS SO ORDERED.

8
9
10
11

DATED: __2/22/2016______________ ____________________________________
ANDREW J. WISTRICH
United States Magistrate Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

{00044159;1}

17

1
2
3
4
5
6
7
8

EXHIBIT A

9

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

10

I, _____________________________ [print or type full name], of _________________ [print or type
11
12

full address], declare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District Court for the Central District

13

of California on [date] in the case of Kristensen v. Credit One Bank, N.A. et al., Case No. 2:14-cv-

14

07963-DMG-AJW. I agree to comply with and to be bound by all the terms of this Stipulated

15

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

16
17

sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any
manner any information or item that is subject to this Stipulated Protective Order to any person or
entity except in strict compliance with the provisions of this Order.

18
19

I further agree to submit to the jurisdiction of the United States District Court for the Northern
District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if

20

such enforcement proceedings occur after termination of this action.

21

I hereby appoint __________________________ [print or type full name] of

22

_______________________________________ [print or type full address and telephone number] as

23
24
25
26

my California agent for service of process in connection with this action or any proceedings related to
enforcement of this Stipulated Protective Order.

Date: ______________________________________
City and State where sworn and signed: _________________________________

27
28

Printed name: _______________________________
{00044159;1}

18

1

Signature: __________________________________
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

{00044159;1}

19