Jovan Johnson v. Capital One, N.A. et al

Filing 32

STIPULATED PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re Stipulation for Protective Order 31 (dml)

1 Dennis N. Lueck, Jr. (SBN 292414)
[e-mail]
2 HINSHAW & CULBERTSON LLP
633 West 5th Street, 47th Floor
3 Los Angeles, CA 90071
Telephone: [phone]
4 Facsimile: 310-614-7399
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6
7
8
9

Ashley M. Brettingen (SBN 315703)
[e-mail]
HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
Telephone: [phone]
Facsimile: 310-909-8001

10 Attorneys for Defendant
NAVIENT SOLUTIONS, LLC f/k/a
11 NAVIENT SOLUTIONS, INC.
12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

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15
16

JOVAN JOHNSON, an Individual,

(Honorable Otis D. Wright, II)

Plaintiff,

17

vs.

18

CAPITAL ONE, N.A.; NAVIENT
19 SOLUTIONS, INC.; and EQUIFAX
INFORMATION SERVICES, LLC,
20
Defendants.
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Case No. 2:18-CV-02109-ODW-RAO
STIPULATED PROTECTIVE
ORDER1
Hearing Date: TBA
Hearing Time: TBA
Courtroom: 10D
Complaint Filed: 3/13/17
Discovery Cut-off: 6/17/19
Pre-Trial Conference: 9/9/19
Trial: 10/1/19

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

This Stipulated Protective Order is substantially based on the model protective order provided
under Magistrate Judge Rozella A. Oliver’s Procedures.
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STIPULATED PROTECTIVE ORDER
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1.

A. PURPOSES AND LIMITATIONS

2

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

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proprietary or private information for which special protection from public

4

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

5

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

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enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to

8

discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles.

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B. GOOD CAUSE STATEMENT

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This action is likely to involve confidential business, financial, technical,

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proprietary and/or personal information for which special protection from public

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disclosure and from use for any purpose other than prosecution of this action is

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warranted. Such confidential and proprietary materials and information consist of,

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among other things: (1) confidential business information; (2) proprietary business

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methods or practices; (3) personal information, including personal financial

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information about customers or applicants, third parties, the parties, or an employee

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of any party to this action; (4) personal information regarding any individual's

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banking or lending relationships, including, without limitation, information

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regarding any individual's loan or credit history; and (5) information otherwise

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

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

24

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

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prompt resolution of disputes over confidentiality of discovery materials, to

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adequately protect information the parties are entitled to keep confidential, to ensure

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that the parties are permitted reasonable necessary uses of such material in

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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preparation for and in the conduct of trial, to address their handling at the end of the

2

litigation, and serve the ends of justice, a protective order for such information is

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justified in this matter. It is the intent of the parties that information will not be

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designated as confidential for tactical reasons and that nothing be so designated

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without a good faith belief that it has been maintained in a confidential, non-public

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manner, and there is good cause why it should not be part of the public record of this

7

case.

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C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

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The parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information

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under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

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and the standards that will be applied when a party seeks permission from the court

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to file material under seal.

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There is a strong presumption that the public has a right of access to judicial

15

proceedings and records in civil cases. In connection with non-dispositive motions,

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good cause must be shown to support a filing under seal. See Kamakana v. City and

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County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors

18

Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,

19

Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

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require good cause showing), and a specific showing of good cause or compelling

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reasons with proper evidentiary support and legal justification, must be made with

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respect to Protected Material that a party seeks to file under seal. The parties’ mere

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designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

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without the submission of competent evidence by declaration, establishing that the

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material sought to be filed under seal qualifies as confidential, privileged, or

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otherwise protectable—constitute good cause.

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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Further, if a party requests sealing related to a dispositive motion or trial, then

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compelling reasons, not only good cause, for the sealing must be shown, and the

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relief sought shall be narrowly tailored to serve the specific interest to be protected.

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See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For

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each item or type of information, document, or thing sought to be filed or introduced

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under seal in connection with a dispositive motion or trial, the party seeking

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protection must articulate compelling reasons, supported by specific facts and legal

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justification, for the requested sealing order. Again, competent evidence supporting

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the application to file documents under seal must be provided by declaration.

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Any document that is not confidential, privileged, or otherwise protectable in

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its entirety will not be filed under seal if the confidential portions can be redacted. If

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documents can be redacted, then a redacted version for public viewing, omitting

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only the confidential, privileged, or otherwise protectable portions of the document,

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shall be filed. Any application that seeks to file documents under seal in their

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entirety should include an explanation of why redaction is not feasible.

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2.

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DEFINITIONS
2.1.

Action: Jovan Johnson v. Capital One, Inc., et al., Case No. 2:18-CV-

02109-ODW-RAO.
2.2.

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

of information or items under this Order.
2.3.

“CONFIDENTIAL” Information or Items: information (regardless of

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

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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2.4.

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

their support staff).

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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2.5.

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

2

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

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“CONFIDENTIAL.”

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2.6.

Disclosure or Discovery Material: all items or information, regardless

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

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.7.

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

pertinent to the litigation who has been retained by a Party or its counsel to serve as
an expert witness or as a consultant in this Action.
2.8.

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

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

13

counsel.

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2.9.

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

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

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

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

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

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has appeared on behalf of that party, and includes support staff.

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

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

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support staffs).

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2.12. Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.13. Professional Vendors: persons or entities that provide litigation support

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

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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

2

and their employees and subcontractors.

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

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2.15. Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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

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

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

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This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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Once a case proceeds to trial, information that was designated as

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CONFIDENTIAL or maintained pursuant to this protective order used or introduced

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as an exhibit at trial becomes public and will be presumptively available to all

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members of the public, including the press, unless compelling reasons supported by

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specific factual findings to proceed otherwise are made to the trial judge in advance

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of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

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showing for sealing documents produced in discovery from “compelling reasons”

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standard when merits-related documents are part of court record). Accordingly, the

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terms of this protective order do not extend beyond the commencement of the trial.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1.

Exercise of Restraint and Care in Designating Material for Protection.

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

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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

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

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protection only those parts of material, documents, items or oral or written

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communications that qualify so that other portions of the material, documents, items

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or communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this Order.

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Mass, indiscriminate or routinized designations are prohibited. If it comes to a

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Designating Party’s attention that information or items that it designated for

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protection do not qualify for protection, that Designating Party must promptly notify

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all other Parties that it is withdrawing the inapplicable designation.
5.2.

Manner and Timing of Designations. Except as otherwise provided in

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

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

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

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produced.

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Designation in conformity with this Order requires:
(a)

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

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

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).

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

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine which

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documents, or portions thereof, qualify for protection under this Order. Then, before

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producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

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portion of the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by making appropriate markings

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in the margins).

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(b)

for testimony given in depositions that the Designating Party

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identifies the Disclosure or Discovery Material on the record, before the close of the

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deposition all protected testimony.

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(c)

for information produced in some form other than documentary

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

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

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

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warrants protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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5.3.

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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Upon timely correction of a designation, the Receiving Party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

Timing of Challenges.

Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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6.2.

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

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6.3.

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

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

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

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

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

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

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

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

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

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DISPOSITION).

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

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

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authorized under this Order.

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7.2.

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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

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Receiving

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“CONFIDENTIAL” only to:

Party

may

disclose

any

information

or

item

designated

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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(a)

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

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

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necessary to disclose the information for this Action;

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(b)

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

of 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

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

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

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(g)

the author or recipient of a document containing the information

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

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(h)

during their depositions, witnesses, and attorneys for witnesses,

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in the Action to whom disclosure is reasonably necessary provided: (1) the deposing

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party requests that the witness sign the form attached as Exhibit A hereto; and (2)

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they will not be permitted to keep any confidential information unless they sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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

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deposition testimony or exhibits to depositions that reveal Protected Material may

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

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as permitted under this Stipulated Protective Order; and

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(i)

any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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

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

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“CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such

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

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(b)

promptly notify in writing the party who caused the subpoena or

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order 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 include

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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 with

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

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

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

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permission.

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9.

A

NON-PARTY’S

PROTECTED

MATERIAL

SOUGHT

TO

BE

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PRODUCED IN THIS LITIGATION

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

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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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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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

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

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without

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prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar

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as the parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order submitted

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to the court.

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12.

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

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

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

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

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

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Suite 800
Los Angeles, CA 90025
310-909-8000

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

2

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

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

4

Protected Material must comply with Local Civil Rule 79-5. Protected Material may

5

only be filed under seal pursuant to a court order authorizing the sealing of the

6

specific Protected Material at issue. If a Party’s request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information

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in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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Within 60 days of the final disposition of this Action, each Receiving Party

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must return all Protected Material to the Producing Party or destroy such material.

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As used in this subdivision, “all Protected Material” includes all copies, abstracts,

13

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

14

Protected Material. Whether the Protected Material is returned or destroyed, the

15

Receiving Party must submit a written certification to the Producing Party (and, if

16

not the same person or entity, to the Designating Party) by the 60 day deadline that

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

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

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

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capturing any of the Protected Material.

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: April 11, 2019
/s/ WAYNE SINNETT
WAYNE SINNETT
SINNETT LAW, APC
Attorneys for Plaintiff
JOVAN JOHNSON

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DATED: April 11, 2019

______

/s/ ASHLEY M. BRETTINGEN
DENNIS N. LUECK, JR.
ASHLEY M. BRETTINGEN
HINSHAW & CULBERTSON LLP
Attorneys for Defendant
NAVIENT SOLUTIONS, LLC
f/k/a NAVIENT SOLUTIONS, INC.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: April 11, 2019

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HON. ROZELLA A. OLIVER
United States Magistrate Judge

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11601 Wilshire Blvd.
Suite 800
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310-909-8000

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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

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

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

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on [date] in the case of Jovan Johnson v. Capital One, Inc., et al., Case No. 2:18-

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CV-02109-ODW-RAO. I agree to comply with and to be bound by all the terms of

9

this 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. I further agree to submit to the

14

jurisdiction of the United States District Court for the Central District of California

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for enforcing the terms of this Stipulated Protective Order, even if such enforcement

16

proceedings

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__________________________

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Stipulated Protective

21

Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

occur

after

termination
[print

of

this
or

action.
type

I
full

hereby

appoint

name]

of

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27
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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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STIPULATED PROTECTIVE ORDER
302734545v1 1007704