National Real Estate Solutions v. U.S. Bank National Association

Filing 24

PROTECTIVE ORDER by Magistrate Judge Steve Kim. In re: Stipulation for Protective Order 23 (mkr)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

9
10 National Real Estate Solutions,
11

Plaintiff,

Case No. 2:16-CV-06972-RGK-SK

12 v.

[PROPOSED] STIPULATED
PROTECTIVE ORDER

13 U.S. Bank National Association, et al.,

Judge: Hon. R. Gary Klausner

14

[Discovery Document: Referred to
Magistrate Judge Steve Kim]

15

Defendants.

16
17
18
19
20
21
22
23
24
25
26
27
28
-1-

1 1.

A. PURPOSES AND LIMITATIONS

2
3

Discovery in this action is likely to involve production of confidential,

4 proprietary, or private information for which special protection from public
5 disclosure and from use for any purpose other than prosecuting this litigation may
6 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
7 enter the following Stipulated Protective Order. The parties acknowledge that this
8 Order does not confer blanket protections on all disclosures or responses to
9 discovery and that the protection it affords from public disclosure and use extends
10 only to the limited information or items that are entitled to confidential treatment
11 under the applicable legal principles. The parties further acknowledge, as set forth
12 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
13 file confidential information under seal; Civil Local Rule 79-5 sets forth the
14 procedures that must be followed and the standards that will be applied when a
15 party seeks permission from the court to file material under seal.
16
17

B. GOOD CAUSE STATEMENT

18
19

This action is likely to involve trade secrets, customer and pricing lists and

20 other valuable commercial, financial, and/or proprietary information for which
21 special protection from public disclosure and from use for any purpose other than
22 prosecution of this action is warranted. Such confidential and proprietary materials
23 and information consist of, among other things, confidential business or financial
24 information, information regarding confidential business practices, or other
25 confidential commercial information (including information implicating privacy
26 rights of third parties, such as financial account numbers), information otherwise
27 generally unavailable to the public, or which may be privileged or otherwise
28 protected from disclosure under state or federal statutes, court rules, case decisions,
-2-

1 or common law. Accordingly, to expedite the flow of information, to facilitate the
2 prompt resolution of disputes over confidentiality of discovery materials, to
3 adequately protect information the parties are entitled to keep confidential, to
4 ensure that the parties are permitted reasonable necessary uses of such material in
5 preparation for and in the conduct of trial, to address their handling at the end of the
6 litigation, and serve the ends of justice, a protective order for such information is
7 justified in this matter. It is the intent of the parties that information will not be
8 designated as confidential for tactical reasons and that nothing be so designated
9 without a good faith belief that it has been maintained in a confidential, non-public
10 manner, and there is good cause why it should not be part of the public record of
11 this case.
12
13 2.

DEFINITIONS

14

2.1

Action: this pending federal lawsuit, entitled National Real Estate

15 Solutions v. U.S. Bank National Association, et al., 2:16-CV-06972-RGK-SK..
16

2.2

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

17 designation of information or items under this Order.
18

2.3

“CONFIDENTIAL” Information or Items: information (regardless of

19 how it is generated, stored or maintained) or tangible things that qualify for
20 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
21 the Good Cause Statement.
22

2.4

Counsel: Outside Counsel of Record and House Counsel (as well as

23 their support staff).
24

2.5

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

25 items that it produces in disclosures or in responses to discovery as
26 “CONFIDENTIAL.”
27

2.6

Disclosure or Discovery Material: all items or information, regardless

28 of the medium or manner in which it is generated, stored, or maintained (including,
-3-

1 among other things, testimony, transcripts, and tangible things), that are produced
2 or generated in disclosures or responses to discovery in this matter.
3

2.7

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

4 pertinent to the litigation who has been retained by a Party or its counsel to serve as
5 an expert witness or as a consultant in this Action.
6

2.8

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

7 House Counsel does not include Outside Counsel of Record or any other outside
8 counsel.
9

2.9

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

10 other legal entity not named as a Party to this action.
11

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

12 party to this Action but are retained to represent or advise a party to this Action and
13 have appeared in this Action on behalf of that party or are affiliated with a law firm
14 which has appeared on behalf of that party, and includes support staff.
15

2.11 Party: any party to this Action, including all of its officers, directors,

16 employees, consultants, retained experts, and Outside Counsel of Record (and their
17 support staffs).
18

2.12 Producing Party: a Party or Non-Party that produces Disclosure or

19 Discovery Material in this Action.
20

2.13 Professional Vendors: persons or entities that provide litigation

21 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
22 demonstrations, and organizing, storing, or retrieving data in any form or medium)
23 and their employees and subcontractors.
24

2.14 Protected Material: any Disclosure or Discovery Material that is

25 designated as “CONFIDENTIAL.”
26

2.15 Receiving Party: a Party that receives Disclosure or Discovery

27 Material from a Producing Party.
28
-4-

1 3.

SCOPE

2

The protections conferred by this Stipulation and Order cover not only

3 Protected Material (as defined above), but also (1) any information copied or
4 extracted from Protected Material; (2) all copies, excerpts, summaries, or
5 compilations of Protected Material; and (3) any testimony, conversations, or
6 presentations by Parties or their Counsel that might reveal Protected Material.
7

Any use of Protected Material at trial shall be governed by the orders of the

8 trial judge. This Order does not govern the use of Protected Material at trial.
9 4.
10

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

11 imposed by this Order shall remain in effect until a Designating Party agrees
12 otherwise in writing or a court order otherwise directs. Final disposition shall be
13 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
14 with or without prejudice; and (2) final judgment herein after the completion and
15 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
16 including the time limits for filing any motions or applications for extension of time
17 pursuant to applicable law.
18
19 5.

DESIGNATING PROTECTED MATERIAL

20

5.1

Exercise of Restraint and Care in Designating Material for Protection.

21 Each Party or Non-Party that designates information or items for protection under
22 this Order must take care to limit any such designation to specific material that
23 qualifies under the appropriate standards. The Designating Party must designate for
24 protection only those parts of material, documents, items, or oral or written
25 communications that qualify so that other portions of the material, documents,
26 items, or communications for which protection is not warranted are not swept
27 unjustifiably within the ambit of this Order.
28

Mass, indiscriminate, or routinized designations are prohibited. Designations

-5-

1 that are shown to be clearly unjustified or that have been made for an improper
2 purpose (e.g., to unnecessarily encumber the case development process or to
3 impose unnecessary expenses and burdens on other parties) may expose the
4 Designating Party to sanctions.
5

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

6 designated for protection do not qualify for protection, that Designating Party must
7 promptly notify all other Parties that it is withdrawing the inapplicable designation.
8

5.2

Manner and Timing of Designations. Except as otherwise provided in

9 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
10 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
11 under this Order must be clearly so designated before the material is disclosed or
12 produced.
13

Designation in conformity with this Order requires:

14

(a)

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

15 documents, but excluding transcripts of depositions or other pretrial or trial
16 proceedings), that the Producing Party affix at a minimum, the legend
17 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
18 contains protected material. If only a portion or portions of the material on a page
19 qualifies for protection, the Producing Party also must clearly identify the protected
20 portion(s) (e.g., by making appropriate markings in the margins).
21

A Party or Non-Party that makes original documents available for inspection

22 need not designate them for protection until after the inspecting Party has indicated
23 which documents it would like copied and produced. During the inspection and
24 before the designation, all of the material made available for inspection shall be
25 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
26 documents it wants copied and produced, the Producing Party must determine
27 which documents, or portions thereof, qualify for protection under this Order. Then,
28 before producing the specified documents, the Producing Party must affix the
-6-

1 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
2 portion or portions of the material on a page qualifies for protection, the Producing
3 Party also must clearly identify the protected portion(s) (e.g., by making
4 appropriate markings in the margins).
5

(b)

for testimony given in depositions that the Designating Party identify

6 the Disclosure or Discovery Material on the record, before the close of the
7 deposition all protected testimony.
8

(c)

for information produced in some form other than documentary and

9 for any other tangible items, that the Producing Party affix in a prominent place on
10 the exterior of the container or containers in which the information is stored the
11 legend “CONFIDENTIAL.” If only a portion or portions of the information
12 warrants protection, the Producing Party, to the extent practicable, shall identify the
13 protected portion(s).
14

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

15 failure to designate qualified information or items does not, standing alone, waive
16 the Designating Party’s right to secure protection under this Order for such
17 material. Upon timely correction of a designation, the Receiving Party must make
18 reasonable efforts to assure that the material is treated in accordance with the
19 provisions of this Order.
20
21 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

22

6.1

Timing of Challenges.

Any Party or Non-Party may challenge a

23 designation of confidentiality at any time that is consistent with the Court’s
24 Scheduling Order.
25

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

26 resolution process under Local Rule 37.1 et seq.
27

6.3

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

28 the Designating Party. Frivolous challenges, and those made for an improper
-7-

1 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
2 parties) may expose the Challenging Party to sanctions. Unless the Designating
3 Party has waived or withdrawn the confidentiality designation, all parties shall
4 continue to afford the material in question the level of protection to which it is
5 entitled under the Producing Party’s designation until the Court rules on the
6 challenge.
7
8 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

9

7.1

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

10 disclosed or produced by another Party or by a Non-Party in connection with this
11 Action only for prosecuting, defending, or attempting to settle this Action. Such
12 Protected Material may be disclosed only to the categories of persons and under the
13 conditions described in this Order. When the Action has been terminated, a
14 Receiving Party must comply with the provisions of section 13 below (FINAL
15 DISPOSITION).
16

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

17 location and in a secure manner that ensures that access is limited to the persons
18 authorized under this Order.
19

7.2

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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

Party

may

disclose

any

information

or

item

designated

22 “CONFIDENTIAL” only to:
23

(a)

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

24 well as employees of said Outside Counsel of Record to whom it is reasonably
25 necessary to disclose the information for this Action;
26

(b)

the officers, directors, and employees (including House Counsel) of

27 the Receiving Party to whom disclosure is reasonably necessary for this Action;
28

(c)

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

-8-

1 disclosure is reasonably necessary for this Action and who have signed the
2 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
3

(d)

the court and its personnel;

4

(e)

court reporters and their staff;

5

(f)

professional jury or trial consultants, mock jurors, and Professional

6 Vendors to whom disclosure is reasonably necessary for this Action and who have
7 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
8

(g)

the author or recipient of a document containing the information or a

9 custodian or other person who otherwise possessed or knew the information;
10

(h)

during their depositions, witnesses, and attorneys for witnesses, in the

11 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
12 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they
13 will not be permitted to keep any confidential information unless they sign the
14 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
15 agreed by the Designating Party or ordered by the court. Pages of transcribed
16 deposition testimony or exhibits to depositions that reveal Protected Material may
17 be separately bound by the court reporter and may not be disclosed to anyone
18 except as permitted under this Stipulated Protective Order; and
19

(i)

any mediator or settlement officer, and their supporting personnel,

20 mutually agreed upon by any of the parties engaged in settlement discussions.
21
22 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

23 IN OTHER LITIGATION
24

If a Party is served with a subpoena or a court order issued in other litigation

25 that compels disclosure of any information or items designated in this Action as
26 “CONFIDENTIAL,” that Party must:
27

(a)

promptly notify in writing the Designating Party. Such notification

28 shall include a copy of the subpoena or court order;
-9-

1

(b)

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

2 to issue in the other litigation that some or all of the material covered by the
3 subpoena or order is subject to this Protective Order. Such notification shall include
4 a copy of this Stipulated Protective Order; and
5

(c)

cooperate with respect to all reasonable procedures sought to be

6 pursued by the Designating Party whose Protected Material may be affected. If the
7 Designating Party timely seeks a protective order, the Party served with the
8 subpoena or court order shall not produce any information designated in this action
9 as “CONFIDENTIAL” before a determination by the court from which the
10 subpoena or order issued, unless the Party has obtained the Designating Party’s
11 permission. The Designating Party shall bear the burden and expense of seeking
12 protection in that court of its confidential material and nothing in these provisions
13 should be construed as authorizing or encouraging a Receiving Party in this Action
14 to disobey a lawful directive from another court.
15 9.

A

NON-PARTY’S

PROTECTED

MATERIAL

SOUGHT

TO

BE

16 PRODUCED IN THIS LITIGATION
17

(a)

The terms of this Order are applicable to information produced by a

18 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
19 produced by Non-Parties in connection with this litigation is protected by the
20 remedies and relief provided by this Order. Nothing in these provisions should be
21 construed as prohibiting a Non-Party from seeking additional protections.
22

(b)

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

23 produce a Non-Party’s confidential information in its possession, and the Party is
24 subject to an agreement with the Non-Party not to produce the Non-Party’s
25 confidential information, then the Party shall:
26

(1) promptly notify in writing the Requesting Party and the Non Party

27 that some or all of the information requested is subject to a confidentiality
28 agreement with a Non-Party;
-10-

(2) promptly provide the Non-Party with a copy of the Stipulated

1

2 Protective Order in this Action, the relevant discovery request(s), and a reasonably
3 specific description of the information requested; and
(3) make the information requested available for inspection by the

4

5 Non-Party, if requested.
6

(c)

If the Non-Party fails to seek a protective order from this court within

7 14 days of receiving the notice and accompanying information, the Receiving Party
8 may produce the Non-Party’s confidential information responsive to the discovery
9 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
10 not produce any information in its possession or control that is subject to the
11 confidentiality agreement with the Non-Party before a determination by the court.
12 Absent a court order to the contrary, the Non-Party shall bear the burden and
13 expense of seeking protection in this court of its Protected Material.
14
15 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

16

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

17 Protected Material to any person or in any circumstance not authorized under this
18 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
19 writing the Designating Party of the unauthorized disclosures, (b) use its best
20 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the
21 person or persons to whom unauthorized disclosures were made of all the terms of
22 this Order, and (d) request such person or persons to execute the “Acknowledgment
23 and Agreement to Be Bound” that is attached hereto as Exhibit A.
24
25 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

26 PROTECTED MATERIAL
27

When a Producing Party gives notice to Receiving Parties that certain

28 inadvertently produced material is subject to a claim of privilege or other
-11-

1 protection, the obligations of the Receiving Parties are those set forth in Federal
2 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
3 whatever procedure may be established in an e-discovery order that provides for
4 production without prior privilege review.
5
6

(a)

The inadvertent disclosure or production of any information or

7 document that is subject to an objection on the basis of attorney-client privilege or
8 work-product immunity, including but not limited to information or documents that
9 may be considered confidential information or otherwise protected under this
10 Stipulated Protective Order, will not be deemed to waive a Party’s claim to its
11 privileged or protected nature or estop that Party or the privilege holder from
12 designating the information or document as attorney-client privileged or subject to
13 the work product doctrine at a later date.
14

(b)

Any Party receiving any such information or document shall return or

15 destroy it upon request from the Producing Party. Upon receiving such a request as
16 to specific information or documents, the Receiving Party shall return or destroy the
17 information or documents to the Producing Party within five (5) business days,
18 regardless of whether the Receiving Party agrees with the claim of privilege and/or
19 work product protection.
20

(c)

Disclosure of the information or document by the other Party prior to

21 such later designation shall not be deemed a violation of the provisions of this
22 Stipulated Protective Order.
23

(d)

This clawback provision shall be governed by Rule 502(d) of the

24 Federal Rules of Evidence.
25
26 12.

MISCELLANEOUS

27

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

28 person to seek its modification by the Court in the future.
-12-

1

12.2 Right to Assert Other Objections. By stipulating to the entry of this

2 Protective Order no Party waives any right it otherwise would have to object to
3 disclosing or producing any information or item on any ground not addressed in
4 this Stipulated Protective Order. Similarly, no Party waives any right to object on
5 any ground to use in evidence of any of the material covered by this Protective
6 Order.
7

12.3 Filing Protected Material. A Party that seeks to file under seal any

8 Protected Material must comply with Civil Local Rule 79-5. Protected Material
9 may only be filed under seal pursuant to a court order authorizing the sealing of the
10 specific Protected Material at issue. If a Party's request to file Protected Material
11 under seal is denied by the court, then the Receiving Party may file the information
12 in the public record unless otherwise instructed by the court.
13
14 13.

FINAL DISPOSITION

15

After the final disposition of this Action, as defined in paragraph 4, within 60

16 days of a written request by the Designating Party, each Receiving Party must
17 return all Protected Material to the Producing Party or destroy such material. As
18 used in this subdivision, “all Protected Material” includes all copies, abstracts,
19 compilations, summaries, and any other format reproducing or capturing any of the
20 Protected Material. Whether the Protected Material is returned or destroyed, the
21 Receiving Party must submit a written certification to the Producing Party (and, if
22 not the same person or entity, to the Designating Party) by the 60 day deadline that
23 (1) identifies (by category, where appropriate) all the Protected Material that was
24 returned or destroyed and (2)affirms that the Receiving Party has not retained any
25 copies, abstracts, compilations, summaries or any other format reproducing or
26 capturing any of the Protected Material. Notwithstanding this provision, Counsel
27 are entitled to retain an archival copy of all pleadings, motion papers, trial,
28 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
-13-

1 and trial exhibits, expert reports, attorney work product, and consultant and expert
2 work product, even if such materials contain Protected Material. Any such archival
3 copies that contain or constitute Protected Material remain subject to this Protective
4 Order as set forth in Section 4 (DURATION).
5
6 14.

Any violation of this Order may be punished by any and all appropriate

7 measures including, without limitation, contempt proceedings and/or monetary
8 sanctions.
9
10 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
11
12 DATED April 27, 2017
13
14

s/ Michael S. Wildermuth

15 Attorneys for Plaintiff
16
17 DATED: April 27, 2017
18
19

s/ Eric R. Sherman

20 Attorneys for Defendant
21
22 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
23
24 DATED: May 2, 2017
25
26 ____________________________________
Honorable Steve Kim
27
United States Magistrate Judge
28
-14-

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4 I,

_____________________________

[print

or

type

full

name],

of

5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that
7 was issued by the United States District Court for the Central District of California
8 on [date] in the case of National Real Estate Solutions v. U.S. Bank National
9 Association, et al., 2:16-CV-06972-RGK-SK. I agree to comply with and to be
10 bound by all the terms of this Stipulated Protective Order and I understand and
11 acknowledge that failure to so comply could expose me to sanctions and
12 punishment in the nature of contempt. I solemnly promise that I will not disclose in
13 any manner any information or item that is subject to this Stipulated Protective
14 Order to any person or entity except in strict compliance with the provisions of this
15 Order. I further agree to submit to the jurisdiction of the United States District
16 Court for the Central District of California for the purpose of enforcing the terms of
17 this Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint __________________________ [print
19 or type full name] of _______________________________________ [print or type
20 full address and telephone number] as my California agent for service of process in
21 connection with this action or any proceedings related to enforcement of this
22 Stipulated Protective Order.
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25
26 Printed name: _______________________________
27
28 Signature: __________________________________
-15-