Eric Delarosa v. Capital One, National Association et al

Filing 27

STIPULATED PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh. re Stipulation for Protective Order 26 . (sbou)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 FIRST STREET COURTHOUSE 11 12 ERIC DELAROSA, Plaintiff, 13 14 v. Case No. 2:16-cv-08544-PJW Assigned to Hon. Patrick J. Walsh Courtroom 790, 7th Floor 15 CAPITAL ONE, NATIONAL ASSOCIATION; and DOES 1 through 10 16 inclusive, STIPULATED PROTECTIVE ORDER Defendants. Complaint Filed: Nov. 16, 2016 Trial Date: March 6, 2018 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-08544-PJW 1 1. INTRODUCTION 2 A. 3 Discovery in this action is likely to involve production of confidential, PURPOSES AND LIMITATIONS 4 proprietary, or private information for which special protection from public disclosure 5 and from use for any purpose other than prosecuting this litigation may be warranted. 6 Accordingly, the parties hereby stipulate to and petition the Court to enter the 7 following Stipulated Protective Order. The parties acknowledge that this Order does 8 not confer blanket protections on all disclosures or responses to discovery and that the 9 protection it affords from public disclosure and use extends only to the limited 10 information or items that are entitled to confidential treatment under the applicable 11 legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 12 that this Stipulated Protective Order does not entitle them to file confidential 13 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 14 followed and the standards that will be applied when a party seeks permission from 15 the court to file material under seal. 16 B. GOOD CAUSE STATEMENT 17 This action is likely to involve defendant Capital One Bank (USA), N.A.’s 18 commercial and/or proprietary information, as well as Plaintiff Eric DelaRosa’s 19 personal identifying information and use of a Capital One credit account for which 20 special protection from public disclosure and from use for any purpose other than 21 prosecution of this action is warranted. Such confidential and proprietary materials 22 and information consist of, among other things, confidential financial information, 23 information regarding confidential business practices, or other confidential 24 commercial information (including information implicating privacy rights of third 25 parties), information otherwise generally unavailable to the public, or which may be 26 privileged or otherwise protected from disclosure under state or federal statutes, court 27 rules, case decisions, or common law. Accordingly, to expedite the flow of 28 information, to facilitate the prompt resolution of disputes over confidentiality of STIPULATED PROTECTIVE ORDER 1 CASE NO. 2:16-CV-08544-PJW 1 discovery materials, to adequately protect information the parties are entitled to keep 2 confidential, to ensure that the parties are permitted reasonable necessary uses of such 3 material in preparation for and in the conduct of trial, to address their handling at the 4 end of the litigation, and serve the ends of justice, a protective order for such 5 information is justified in this matter. It is the intent of the parties that information 6 will not be designated as confidential for tactical reasons and that nothing be so 7 designated without a good faith belief that it has been maintained in a confidential, 8 non-public manner, and there is good cause why it should not be part of the public 9 record of this case. 10 2. DEFINITIONS 11 2.1 Action: this pending federal law suit. 12 2.2 Challenging Party: a Party or Non-Party that challenges the designation 13 of information or items under this Order. 14 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 15 how it is generated, stored or maintained) or tangible things that qualify for protection 16 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 17 Cause Statement. 18 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 19 support staff). 20 2.5 Designating Party: a Party or Non-Party that designates information or 21 items that it produces in disclosures or in responses to discovery as 22 “CONFIDENTIAL.” 23 2.6 Disclosure or Discovery Material: all items or information, regardless of 24 the medium or manner in which it is generated, stored, or maintained (including, 25 among other things, testimony, transcripts, and tangible things), that are produced or 26 generated in disclosures or responses to discovery in this matter. 27 2.7 Expert: a person with specialized knowledge or experience in a matter 28 pertinent to the litigation who has been retained by a Party or its counsel to serve as STIPULATED PROTECTIVE ORDER 2 CASE NO. 2:16-CV-08544-PJW 1 an expert witness or as a consultant in this Action. 2.8 2 House Counsel: attorneys who are employees of a party to this Action. 3 House Counsel does not include Outside Counsel of Record or any other outside 4 counsel. 2.9 5 Non-Party: any natural person, partnership, corporation, association, or 6 other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a party 7 8 to this Action but are retained to represent or advise a party to this Action and have 9 appeared in this Action on behalf of that party or are affiliated with a law firm which 10 has appeared on behalf of that party, and includes support staff. 2.11 Party: any party to this Action, including all of its officers, directors, 11 12 employees, consultants, retained experts, and Outside Counsel of Record (and their 13 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 14 15 Discovery Material in this Action. 2.13 Professional Vendors: persons or entities that provide litigation support 16 17 services (e.g., photocopying, videotaping, translating, preparing exhibits or 18 demonstrations, and organizing, storing, or retrieving data in any form or medium) 19 and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is 20 21 designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 22 23 from a Producing Party. 24 3. SCOPE 25 The protections conferred by this Stipulation and Order cover not only 26 Protected Material (as defined above), but also (1) any information copied or 27 extracted from Protected Material; (2) all copies, excerpts, summaries, or 28 compilations of Protected Material; and (3) any testimony, conversations, or STIPULATED PROTECTIVE ORDER 3 CASE NO. 2:16-CV-08544-PJW 1 presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the 2 3 trial judge. This Order does not govern the use of Protected Material at trial. 4 4. DURATION 5 Even after final disposition of this litigation, the confidentiality obligations 6 imposed by this Order shall remain in effect until a Designating Party agrees 7 otherwise in writing or a court order otherwise directs. Final disposition shall be 8 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 9 or without prejudice; and (2) final judgment herein after the completion and 10 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 11 including the time limits for filing any motions or applications for extension of time 12 pursuant to applicable law. 13 5. DESIGNATING PROTECTED MATERIAL 14 5.1 Exercise of Restraint and Care in Designating Material for Protection. 15 Each Party or Non-Party that designates information or items for protection under this 16 Order must take care to limit any such designation to specific material that qualifies 17 under the appropriate standards. The Designating Party must designate for protection 18 only those parts of material, documents, items, or oral or written communications that 19 qualify so that other portions of the material, documents, items, or communications 20 for which protection is not warranted are not swept unjustifiably within the ambit of 21 this Order. 22 Mass, indiscriminate, or routinized designations are prohibited. Designations 23 that are shown to be clearly unjustified or that have been made for an improper 24 purpose (e.g., to unnecessarily encumber the case development process or to impose 25 unnecessary expenses and burdens on other parties) may expose the Designating 26 Party to sanctions. 27 If it comes to a Designating Party’s attention that information or items that it 28 designated for protection do not qualify for protection, that Designating Party must STIPULATED PROTECTIVE ORDER 4 CASE NO. 2:16-CV-08544-PJW 1 promptly notify all other Parties that it is withdrawing the inapplicable designation. 2 5.2 Manner and Timing of Designations. Except as otherwise provided in 3 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 4 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 5 under this Order must be clearly so designated before the material is disclosed or 6 produced. 7 Designation in conformity with this Order requires: (a) 8 for information in documentary form (e.g., paper or electronic 9 documents, but excluding transcripts of depositions or other pretrial or trial 10 proceedings), that the Producing Party affix at a minimum, the legend 11 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 12 contains protected material. If only a portion or portions of the material on a page 13 qualifies for protection, the Producing Party also must clearly identify the protected 14 portion(s) (e.g., by making appropriate markings in the margins). 15 A Party or Non-Party that makes original documents available for inspection 16 need not designate them for protection until after the inspecting Party has indicated 17 which documents it would like copied and produced. During the inspection and 18 before the designation, all of the material made available for inspection shall be 19 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 20 it wants copied and produced, the Producing Party must determine which documents, 21 or portions thereof, qualify for protection under this Order. Then, before producing 22 the specified documents, the Producing Party must affix the “CONFIDENTIAL 23 legend” to each page that contains Protected Material. If only a portion or portions of 24 the material on a page qualifies for protection, the Producing Party also must clearly 25 identify the protected portion(s) (e.g., by making appropriate markings in the 26 margins). 27 (b) for testimony given in depositions that the Designating Party 28 identify the Disclosure or Discovery Material on the record, before the close of the STIPULATED PROTECTIVE ORDER 5 CASE NO. 2:16-CV-08544-PJW 1 deposition all protected testimony. (c) 2 for information produced in some form other than documentary 3 and for any other tangible items, that the Producing Party affix in a prominent place 4 on the exterior of the container or containers in which the information is stored the 5 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants 6 protection, the Producing Party, to the extent practicable, shall identify the protected 7 portion(s). 5.3 8 Inadvertent Failures to Designate. If timely corrected, an inadvertent 9 failure to designate qualified information or items does not, standing alone, waive the 10 Designating Party’s right to secure protection under this Order for such material. 11 Upon timely correction of a designation, the Receiving Party must make reasonable 12 efforts to assure that the material is treated in accordance with the provisions of this 13 Order. 14 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 15 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 16 designation of confidentiality at any time that is consistent with the Court’s 17 Scheduling Order. 6.2 18 Meet and Confer. The Challenging Party shall initiate the dispute 19 resolution process under Local Rule 37.1 et seq. 6.3 20 The burden of persuasion in any such challenge proceeding shall be on 21 the Designating Party. Frivolous challenges, and those made for an improper purpose 22 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 23 expose the Challenging Party to sanctions. Unless the Designating Party has waived 24 or withdrawn the confidentiality designation, all parties shall continue to afford the 25 material in question the level of protection to which it is entitled under the Producing 26 Party’s designation until the Court rules on the challenge. 27 7. ACCESS TO AND USE OF PROTECTED MATERIAL 28 7.1 Basic Principles. A Receiving Party may use Protected Material that is STIPULATED PROTECTIVE ORDER 6 CASE NO. 2:16-CV-08544-PJW 1 disclosed or produced by another Party or by a Non-Party in connection with this 2 Action only for prosecuting, defending, or attempting to settle this Action. Such 3 Protected Material may be disclosed only to the categories of persons and under the 4 conditions described in this Order. When the Action has been terminated, a Receiving 5 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 6 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 authorized under this Order. 9 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 10 otherwise ordered by the court or permitted in writing by the Designating Party, a 11 Receiving Party may disclose any information or item designated 12 “CONFIDENTIAL” only to: 13 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 14 well as employees of said Outside Counsel of Record to whom it is reasonably 15 necessary to disclose the information for this Action; 16 (b) the officers, directors, and employees (including House Counsel) 17 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 18 (c) Experts (as defined in this Order) of the Receiving Party to whom 19 disclosure is reasonably necessary for this Action and who have signed the 20 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 21 (d) the court and its personnel; 22 (e) court reporters and their staff; 23 (f) professional jury or trial consultants, mock jurors, and 24 Professional Vendors to whom disclosure is reasonably necessary for this Action and 25 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 26 27 28 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses, and attorneys for witnesses, in STIPULATED PROTECTIVE ORDER 7 CASE NO. 2:16-CV-08544-PJW 1 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 2 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they 3 will not be permitted to keep any confidential information unless they sign the 4 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 5 agreed by the Designating Party or ordered by the court. Pages of transcribed 6 deposition testimony or exhibits to depositions that reveal Protected Material may be 7 separately bound by the court reporter and may not be disclosed to anyone except as 8 permitted under this Stipulated Protective Order; and (i) 9 any mediator or settlement officer, and their supporting personnel, 10 mutually agreed upon by any of the parties engaged in settlement discussions. 11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 12 IN OTHER LITIGATION 13 If a Party is served with a subpoena or a court order issued in other litigation 14 that compels disclosure of any information or items designated in this Action as 15 “CONFIDENTIAL,” that Party must: 16 (a) promptly notify in writing the Designating Party. Such notification shall 17 include a copy of the subpoena or court order; 18 (b) promptly notify in writing the party who caused the subpoena or order to 19 issue in the other litigation that some or all of the material covered by the subpoena or 20 order is subject to this Protective Order. Such notification shall include a copy of this 21 Stipulated Protective Order; and 22 (c) cooperate with respect to all reasonable procedures sought to be pursued 23 by the Designating Party whose Protected Material may be affected. 24 If the Designating Party timely seeks a protective order, the Party served with 25 the subpoena or court order shall not produce any information designated in this 26 action as “CONFIDENTIAL” before a determination by the court from which the 27 subpoena or order issued, unless the Party has obtained the Designating Party’s 28 permission. The Designating Party shall bear the burden and expense of seeking STIPULATED PROTECTIVE ORDER 8 CASE NO. 2:16-CV-08544-PJW 1 protection in that court of its confidential material and nothing in these provisions 2 should be construed as authorizing or encouraging a Receiving Party in this Action to 3 disobey a lawful directive from another court. 4 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 5 PRODUCED IN THIS LITIGATION 6 (a) The terms of this Order are applicable to information produced by a 7 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 8 produced by Non-Parties in connection with this litigation is protected by the 9 remedies and relief provided by this Order. Nothing in these provisions should be 10 construed as prohibiting a Non-Party from seeking additional protections. 11 (b) In the event that a Party is required, by a valid discovery request, to 12 produce a Non-Party’s confidential information in its possession, and the Party is 13 subject to an agreement with the Non-Party not to produce the Non-Party’s 14 confidential information, then the Party shall: (1) 15 promptly notify in writing the Requesting Party and the Non-Party 16 that some or all of the information requested is subject to a confidentiality agreement 17 with a Non-Party; (2) 18 promptly provide the Non-Party with a copy of the Stipulated 19 Protective Order in this Action, the relevant discovery request(s), and a reasonably 20 specific description of the information requested; and (3) 21 make the information requested available for inspection by the 22 Non-Party, if requested. 23 (c) If the Non-Party fails to seek a protective order from this court within 14 24 days of receiving the notice and accompanying information, the Receiving Party may 25 produce the Non-Party’s confidential information responsive to the discovery request. 26 If the Non-Party timely seeks a protective order, the Receiving Party shall not 27 produce any information in its possession or control that is subject to the 28 confidentiality agreement with the Non-Party before a determination by the court. STIPULATED PROTECTIVE ORDER 9 CASE NO. 2:16-CV-08544-PJW 1 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 2 of seeking protection in this court of its Protected Material. 3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 5 Protected Material to any person or in any circumstance not authorized under this 6 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 7 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 8 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 9 persons to whom unauthorized disclosures were made of all the terms of this Order, 10 and (d) request such person or persons to execute the “Acknowledgment and 11 Agreement to Be Bound” that is attached hereto as Exhibit A. 12 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 13 PROTECTED MATERIAL 14 When a Producing Party gives notice to Receiving Parties that certain 15 inadvertently produced material is subject to a claim of privilege or other protection, 16 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 17 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 18 may be established in an e-discovery order that provides for production without prior 19 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 20 parties reach an agreement on the effect of disclosure of a communication or 21 information covered by the attorney-client privilege or work product protection, the 22 parties may incorporate their agreement in the stipulated protective order submitted to 23 the court. 24 12. MISCELLANEOUS 25 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 26 person to seek its modification by the Court in the future. 27 12.2 Right to Assert Other Objections. By stipulating to the entry of this 28 Protective Order no Party waives any right it otherwise would have to object to STIPULATED PROTECTIVE ORDER 10 CASE NO. 2:16-CV-08544-PJW 1 disclosing or producing any information or item on any ground not addressed in this 2 Stipulated Protective Order. Similarly, no Party waives any right to object on any 3 ground to use in evidence of any of the material covered by this Protective Order. 12.3 Filing Protected Material. A Party that seeks to file under seal any 4 5 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 6 only be filed under seal pursuant to a court order authorizing the sealing of the 7 specific Protected Material at issue. If a Party's request to file Protected Material 8 under seal is denied by the court, then the Receiving Party may file the information in 9 the public record unless otherwise instructed by the court. 10 13. FINAL DISPOSITION 11 After the final disposition of this Action, as defined in paragraph 4, within 60 12 days of a written request by the Designating Party, each Receiving Party must return 13 all Protected Material to the Producing Party or destroy such material. As used in this 14 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 15 summaries, and any other format reproducing or capturing any of the Protected 16 Material. Whether the Protected Material is returned or destroyed, the Receiving 17 Party must submit a written certification to the Producing Party (and, if not the same 18 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 19 (by category, where appropriate) all the Protected Material that was returned or 20 destroyed and (2)affirms that the Receiving Party has not retained any copies, 21 abstracts, compilations, summaries or any other format reproducing or capturing any 22 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 23 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 24 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 25 reports, attorney work product, and consultant and expert work product, even if such 26 materials contain Protected Material. Any such archival copies that contain or 27 constitute Protected Material remain subject to this Protective Order as set forth in 28 Section 4 (DURATION). STIPULATED PROTECTIVE ORDER 11 CASE NO. 2:16-CV-08544-PJW 1 14. Any violation of this Order may be punished by any and all appropriate 2 measures including, without limitation, contempt proceedings and/or monetary 3 sanctions. 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 6 DATED: May 26, 2017 7 By: /s/ Aidan W. Butler AIDAN W. BUTLER Attorney for Plaintiff ERIC DELAROSA 8 9 10 11 12 DATED: May 26, 2017 DOLL AMIR & ELEY LLP 13 By: /s/ Amy I. Borlund _________ HUNTER R. ELEY AMY I. BORLUND Attorneys for Defendant CAPITAL ONE BANK (USA), N.A. 14 15 16 17 18 SIGNATURE CERTIFICATION 19 20 21 22 Pursuant to Local Rule 5-1(i)(3), I hereby certify that the content of this document is acceptable to Aidan Butler, counsel for Plaintiff, and that I have obtained Mr. Butler’s authorization to affix his electronic signature to this document. 23 DATED: May 26, 2017 DOLL AMIR & ELEY LLP 24 25 By: /s/ Amy I. Borlund 26 Attorneys for Defendant CAPITAL ONE BANK (USA), N.A. AMY I. BORLUND 27 28 STIPULATED PROTECTIVE ORDER 12 CASE NO. 2:16-CV-08544-PJW 1 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 2 3 DATED: 5/30/17 4 _____________________________________ HON. PATRICK W. WALSH United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 13 CASE NO. 2:16-CV-08544-PJW 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _____________________________ [print or type full address], declare under penalty 5 of perjury that I have read in its entirety and understand the Stipulated Protective 6 Order that was issued by the United States District Court for the Central District of 7 California on _____________, 2017 in the case of Delarosa v. Capital One, Case No. 8 2:16-CV-08544-PJW. I agree to comply with and to be bound by all the terms of this 9 Stipulated Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I 11 solemnly promise that I will not disclose in any manner any information or item that 12 is subject to this Stipulated Protective Order to any person or entity except in strict 13 compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint __________________________ [print or 18 type full name] of _______________________________________ [print or type full 19 address and telephone number] as my California agent for service of process in 20 connection with this action or any proceedings related to enforcement of this 21 Stipulated Protective Order. 22 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 Printed name: _______________________________ 26 Signature: __________________________________ 27 28 STIPULATED PROTECTIVE ORDER 14 CASE NO. 2:16-CV-08544-PJW

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