Green Payment Solutions, LLC v. First Data Corporation et al

Filing 24

STIPULATED PROTECTIVE ORDER 23 by Magistrate Judge Alka Sagar. (SEE ORDER FOR COMPLETE DETAILS). (clee)

POLSINELLI LLP
JOHN PETERSON (SBN: 179343)
[e-mail]
2 401 Commerce Street, Suite 900
Nashville, TN 37219
3 Telephone: [phone]
Facsimile: [phone]
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5

Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9
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Green Payment Solutions, LLC,

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Case No. 2:18-cv-1463 DSF (ASx)

Plaintiff,

12

STIPULATED PROTECTIVE
ORDER

v.

13

Judge: Hon. Dale S. Fischer

First Data Merchant Services
Corporation; Wells Fargo Bank, N.A.;
14 and Does 1 to 100,
15

Magistrate Judge: Hon. Alka Sagar

Defendants.

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First Data Merchant Services LLC and
Wells Fargo Bank, N.A.,

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Counter-Plaintiffs,

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v.
Green Payment Solutions, LLC

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Counter-Defendant.

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1.

A. PURPOSES AND LIMITATIONS

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

26

proprietary, or private information for which special protection from public

27

disclosure and from use for any purpose other than prosecuting this litigation may

28

be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
1
64156267.4

STIPULATED PROTECTIVE ORDER
CASE NO. 2:18-CV-1463 DSF (ASX)

1 enter the following Stipulated Protective Order. The parties acknowledge that this
2 Order does not confer blanket protections on all disclosures or responses to
3 discovery and that the protection it affords from public disclosure and use extends
4 only to the limited information or items that are entitled to confidential treatment
5 under the applicable legal principles. The parties further acknowledge, as set forth
6 in Section 12.3, below, that this Stipulated Protective Order does not entitle them
7 to file confidential information under seal; Civil Local Rule 79-5 sets forth the
8 procedures that must be followed and the standards that will be applied when a
9 party seeks permission from the court to file material under seal.
10

B. GOOD CAUSE STATEMENT

11

This action is likely to involve non-public, confidential, proprietary,

12

financial, technical, or commercially or legally sensitive or protected information

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for which special protection from public disclosure and from use for any purpose

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other than prosecution of this action is warranted. Such confidential and

15

proprietary materials and information consist of, among other things, confidential

16

business or financial information, information regarding confidential business

17

practices, or other confidential research, development, or commercial information

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(including information implicating privacy rights of third parties), information

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otherwise generally unavailable to the public, or which may be privileged or

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otherwise protected from disclosure under state or federal statutes, court rules, case

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decisions, or common law. Accordingly, to expedite the flow of information, to

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facilitate the prompt resolution of disputes over confidentiality of discovery

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materials, to adequately protect information the parties are entitled to keep

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confidential, to ensure that the parties are permitted reasonable necessary uses of

25

such material in preparation for and in the conduct of trial, to address their

26

handling at the end of the litigation, and serve the ends of justice, a protective order

27

for such information is justified in this matter. It is the intent of the parties that

28

information will not be designated as confidential for tactical reasons and that
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:18-CV-1463 DSF (ASX)
64156267.4

1

nothing be so designated without a good faith belief that it has been maintained in

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a confidential, non-public manner, and there is good cause why it should not be

3

part of the public record of this case.

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2.

DEFI NITIONS

5

2.1

Action: this pending federal law suit, styled Green Payment Solutions,

6 LLC v. First Data Merchant Services Corp. et al., Case No. 2:18-cv-1463 DSF
7 (ASx).
8

2.2

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

9 designation of information or items under this Order.
10

2.3

“CONFIDENTIAL” Information or Items: information (regardless of

11 how it is generated, stored or maintained) or tangible things that qualify for
12 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
13 the Good Cause Statement.
14

2.4

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

15 their support staff).
16

2.5

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

17 or items that it produces in disclosures or in responses to discovery as
18 “CONFIDENTIAL.”
19

2.6

Disclosure or Discovery Material: all items or information, regardless

20 of the medium or manner in which it is generated, stored, or maintained (including,
21 among other things, testimony, transcripts, and tangible things), that are produced
22 or generated in disclosures or responses to discovery in this matter.
23

2.7

Expert:

a person with specialized knowledge or experience in a

24 matter pertinent to the litigation who has been retained by a Party or its counsel to
25 serve as an expert witness or as a consultant in this Action.
26

2.8

House Counsel:

attorneys who are employees of a party to this

27 Action. House Counsel does not include Outside Counsel of Record or any other
28 outside counsel.

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2.9

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

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

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

3

4 party to this Action but are retained to represent or advise a party to this Action
5 and have appeared in this Action on behalf of that party or are affiliated with a law
6 firm which 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,

7

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

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

10

11 Discovery Material in this Action.

2.13 Professional Vendors:

12

persons or entities that provide litigation

13 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
14 demonstrations, and organizing, storing, or retrieving data in any form or medium)
15 and their employees and subcontractors.

2.14 Protected Material:

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any Disclosure or Discovery Material that is

17 designated as “CONFIDENTIAL.”

2.15 Receiving Party:

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a Party that receives Disclosure or Discovery

19 Material from a Producing Party.
20

3.

SCOPE

21

The protections conferred by this Stipulation and Order cover not only

22 Protected Material (as defined above), but also (1) any information copied or
23 extracted from Protected Material; (2) all copies, excerpts, summaries, or
24 compilations of Protected Material; and (3) any testimony, conversations, or
25 presentations by Parties or their Counsel that might reveal Protected Material.
26 Any use of Protected Material at trial shall be governed by the orders of the trial
27 judge. This Order does not govern the use of Protected Material at trial.
28 4.

DURATION
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64156267.4

Even after final disposition of this litigation, the confidentiality obligations

1

2 imposed by this Order shall remain in effect until a Designating Party agrees
3 otherwise in writing or a court order otherwise directs. Final disposition shall be
4 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
5 with or without prejudice; and (2) final judgment herein after the completion and
6 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
7 including the time limits for filing any motions or applications for extension of
8 time pursuant to applicable law.
9 5.

DESIGNATING PROTECTED MATERIAL

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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

12 under this Order must take care to limit any such designation to specific material
13 that qualifies under the appropriate standards. The Designating Party must
14 designate for protection only those parts of material, documents, items, or oral or
15 written communications that qualify so that other portions of the material,
16 documents, items, or communications for which protection is not warranted are not
17 swept unjustifiably within the ambit of this Order.
18

Mass, indiscriminate, or routinized designations are prohibited. Designations

19 that are shown to be clearly unjustified or that have been made for an improper
20 purpose (e.g., to unnecessarily encumber the case development process or to
21 impose unnecessary expenses and burdens on other parties) may expose the
22 Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it

24 designated for protection do not qualify for protection, that Designating Party must
25 promptly notify all other Parties that it is withdrawing the inapplicable designation.
26

5.2

Manner and Timing of Designations. Except as otherwise provided in

27 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
28 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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1 under this Order must be clearly so designated before the material is disclosed or
2 produced.
3

Designation in conformity with this Order requires:

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

5 documents, but excluding transcripts of depositions or other pretrial or trial
6 proceedings), that the Producing Party affix at a minimum, the legend
7 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
8 contains protected material. If only a portion or portions of the material on a page
9 qualifies for protection, the Producing Party also must clearly identify the
10 protected portion(s) (e.g., by making appropriate markings in the margins).
11

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

12 need not designate them for protection until after the inspecting Party has indicated
13 which documents it would like copied and produced. During the inspection and
14 before the designation, all of the material made available for inspection shall be
15 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
16 documents it wants copied and produced, the Producing Party must determine
17 which documents, or portions thereof, qualify for protection under this Order.
18 Then, before producing the specified documents, the Producing Party must affix
19 the “CONFIDENTIAL legend” to each page that contains Protected Material. If
20 only a portion or portions of the material on a page qualifies for protection, the
21 Producing Party also must clearly identify the protected portion(s) (e.g., by making
22 appropriate markings in the margins).

(b)

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for testimony given in depositions that the Designating Party identify

24 the Disclosure or Discovery Material on the record, before the close of the
25 deposition all protected testimony.

(c)

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for information produced in some form other than documentary and

27 for any other tangible items, that the Producing Party affix in a prominent place on
28 the exterior of the container or containers in which the information is stored the

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1 legend “CONFIDENTIAL.” If only a portion or portions of the information
2 warrants protection, the Producing Party, to the extent practicable, shall identify
3 the protected portion(s).

5.3

4

Inadvertent Failures to Designate. If timely corrected, an inadvertent

5 failure to designate qualified information or items does not, standing alone, waive
6 the Designating Party’s right to secure protection under this Order for such
7 material. Upon timely correction of a designation, the Receiving Party must make
8 reasonable efforts to assure that the material is treated in accordance with the
9 provisions of this Order.
10 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

12 designation of confidentiality at any time that is consistent with the Court’s
13 Scheduling Order.

6.2 Meet and Confer. The Challenging Party shall initiate the dispute

14

15 resolution process under Local Rule 37.1 et seq.

6.3

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The burden of persuasion in any such challenge proceeding shall be

17 on the Designating Party. Frivolous challenges, and those made for an improper
18 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
19 parties) may expose the Challenging Party to sanctions. Unless the Designating
20 Party has waived or withdrawn the confidentiality designation, all parties shall
21 continue to afford the material in question the level of protection to which it is
22 entitled under the Producing Party’s designation until the Court rules on the
23 challenge.
24 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

25

7.1

Basic Principles. A Receiving Party may use Protected Material that

26 is disclosed or produced by another Party or by a Non-Party in connection with
27 this Action only for prosecuting, defending, or attempting to settle this Action.
28 Such Protected Material may be disclosed only to the categories of persons and

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STIPULATED PROTECTIVE ORDER
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1 under the conditions described in this Order. When the Action has been
2 terminated, a Receiving Party must comply with the provisions of section 13
3 below (FINAL DISPOSITION).

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

4

5 location and in a secure manner that ensures that access is limited to the persons
6 authorized under this Order.

7.2

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Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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

Receiving Party may disclose any information or item designated

10 “CONFIDENTIAL” only to:
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(a)

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

12 well as employees of said Outside Counsel of Record to whom it is reasonably
13 necessary to disclose the information for this Action;
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(b)

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

15 the Receiving Party to whom disclosure is reasonably necessary for this Action;
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(c)

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

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

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

22 Vendors to whom disclosure is reasonably necessary for this Action and who have
23 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
24

(g)

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

25 custodian or other person who otherwise possessed or knew the information;
26

(h)

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

27 Action to whom disclosure is reasonably necessary provided: (1) the deposing
28 party requests that the witness sign the form attached as Exhibit A hereto; and (2)

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STIPULATED PROTECTIVE ORDER
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1 they will not be permitted to keep any confidential information unless they sign the
2 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
3 agreed by the Designating Party or ordered by the court. Pages of transcribed
4 deposition testimony or exhibits to depositions that reveal Protected Material may
5 be separately bound by the court reporter and may not be disclosed to anyone
6 except as permitted under this Stipulated Protective Order; and

(i)

7

any mediator or settlement officer, and their supporting personnel,

8 mutually agreed upon by any of the parties engaged in settlement discussions.
9 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

10 IN OTHER LITIGATION
11

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

12 that compels disclosure of any information or items designated in this Action as
13 “CONFIDENTIAL,” that Party must:
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15
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(a)

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;
(b)

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

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

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Stipulated Protective Order; and

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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

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

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

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

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

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seeking protection in that court of its confidential material and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in
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1

this Action 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 by a

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Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

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

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

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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 request, to

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

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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:
(1)

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promptly notify in writing the Requesting Party and the Non-

14 Party that some or all of the information requested is subject to a confidentiality
15 agreement with a Non-Party;

(2)

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promptly provide the Non-Party with a copy of the Stipulated

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

(3)

19

make the information requested available for inspection by the

20 Non-Party, if requested.
21

(c)

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

22 14 days of receiving the notice and accompanying information, the Receiving
23 Party may produce the Non-Party’s confidential information responsive to the
24 discovery request. If the Non-Party timely seeks a protective order, the Receiving
25 Party shall not produce any information in its possession or control that is subject
26 to the confidentiality agreement with the Non-Party before a determination by the
27 court. Absent a court order to the contrary, the Non-Party shall bear the burden and
28 expense of seeking protection in this court of its Protected Material.

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1 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

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

3 disclosed Protected Material to any person or in any circumstance not authorized
4 under this Stipulated Protective Order, the Receiving Party must immediately (a)
5 notify in writing the Designating Party of the unauthorized disclosures, (b) use its
6 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
7 the person or persons to whom unauthorized disclosures were made of all the terms
8 of this Order, and (d) request such person or persons to execute the
9 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
10 A.
11 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

12 PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain

13

14 inadvertently produced material is subject to a claim of privilege or other
15 protection, the obligations of the Receiving Parties are those set forth in Federal
16 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
17 whatever procedure may be established in an e-discovery order that provides for
18 production without prior privilege review. Pursuant to Federal Rule of Evidence
19 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
20 of a communication or information covered by the attorney-client privilege or
21 work product protection, the parties may incorporate their agreement in the
22 stipulated protective order submitted to the court.
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12.

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

25 person to seek its modification by the Court in the future.
26

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

27 Protective Order no Party waives any right it otherwise would have to object to
28 disclosing or producing any information or item on any ground not addressed in

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STIPULATED PROTECTIVE ORDER
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64156267.4

1 this Stipulated Protective Order. Similarly, no Party waives any right to object on
2 any ground to use in evidence of any of the material covered by this Protective
3 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
6 may 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
9 in 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

12 60 days of a written request by the Designating Party, each Receiving Party must
13 return all Protected Material to the Producing Party or destroy such material. As
14 used in this subdivision, “all Protected Material” includes all copies, abstracts,
15 compilations, summaries, and any other format reproducing or capturing any of the
16 Protected Material. Whether the Protected Material is returned or destroyed, the
17 Receiving Party must submit a written certification to the Producing Party (and, if
18 not the same person or entity, to the Designating Party) by the 60 day deadline that
19 (1) identifies (by category, where appropriate) all the Protected Material that was
20 returned or destroyed and (2)affirms that the Receiving Party has not retained any
21 copies, abstracts, compilations, summaries or any other format reproducing or
22 capturing any of the Protected Material. Notwithstanding this provision, Counsel
23 are entitled to retain an archival copy of all pleadings, motion papers, trial,
24 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
25 and trial exhibits, expert reports, attorney work product, and consultant and expert
26 work product, even if such materials contain Protected Material. Any such archival
27 copies that contain or constitute Protected Material remain subject to this
28 Protective Order as set forth in Section 4 (DURATION).

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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: July 3, 2018
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/s/ Brianna Dahlberg
Attorneys for Plaintiff

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DATED: July 3, 2018

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/s/ John W. Peterson
Attorneys for Defendant

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED:

July 3, 2018

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23

/s/
24 Honorable Alka Sagar
25 United States Magistrate Judge
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1 Dated: July 3, 2018

POLSINELLI LLP

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By: /s/ John W. Peterson
John W. Peterson

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Attorneys for Defendants

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1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________, of ___________________________,

4 declare under penalty of perjury that I have read in its entirety and understand the
5 Stipulated Protective Order that was issued by the United States District Court for
6 the Central District of California on ________ in the case of Green Payment
7 Solutions, LLC v. First Data Merchant Services Corp. et al., Case No. 2:18-cv8 1463 DSF (ASx). 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
12 that is subject to this Stipulated Protective Order to any person or entity except in
13 strict compliance with the provisions of this Order.
14

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

15 Court for the Central District of California for the purpose of enforcing the terms
16 of this Stipulated Protective Order, even if such enforcement proceedings occur
17 after termination of this action. I hereby appoint __________________________
18 of _______________________________________ as my California agent for
19 service of process in connection with this action or any proceedings related to
20 enforcement of this Stipulated Protective Order.
21 Date: ______________________________________
22 City and State where sworn and signed: _________________________________
23 Printed name: _______________________________
24 Signature: __________________________________
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