William Brown v. Blackbaud, Inc.

Filing 15

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson. re Stipulation for Protective Order 13 . (sbou)

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PILLSBURY WINTHROP SHAW PITTMAN LLP
BARBARA L. CROUTCH (SBN 151428)
[e-mail]
AMY L. PIERCE (SBN 210539)
[e-mail]
725 South Figueroa Street, Ste. 2800
Los Angeles, CA 90017
Telephone:
213.488.7100
Facsimile:
213.629.1033

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Attorneys for Defendant BLACKBAUD, INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WILLIAM BROWN, on Behalf of
Himself and all Others Similarly Situated,

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Plaintiff,

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Case No. 2:18-cv-3549-AB-KS
STIPULATED PROTECTIVE
ORDER1

v.
BLACKBAUD, INC.,

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Defendant.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based

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on the parties’ Stipulation for Protective Order (“Stipulation”) filed on May 22,

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2018, the terms of the protective order to which the parties have agreed are

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adopted as a protective order of this Court (which generally shall govern the

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pretrial phase of this action) except to the extent, as set forth below, that those

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terms have been modified by the Court’s amendment of paragraph 6.2 and

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Attachment/Exhibit A to the Stipulation.

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//

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//

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This Stipulated Protective Order is based substantially on the model protective order
provided under Magistrate Judge Alexander F. MacKinnon’s Procedures.

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STIPULATED PROTECTIVE ORDER
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1.

A.

PURPOSES AND LIMITATIONS

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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 disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does

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not confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable

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legal principles.

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B.

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This action is likely to involve Plaintiff William Brown’s (“Plaintiff”) private

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and confidential information, and Defendant Blackbaud, Inc.’s (“Defendant”), as well

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as its client schools’ (“Schools”), trade secrets, customer and pricing lists and other

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valuable research, development, commercial, financial, technical and/or proprietary

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

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

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proprietary materials and information consist of, among other things, Plaintiff’s

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address, children’s names, and credit card information, and Defendant’s and the

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Schools’ confidential business or financial information (e.g., tuition amounts, fees,

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and related information), information regarding confidential business practices, or

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other confidential research, development, or commercial information (including

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information implicating privacy rights of third parties), information otherwise

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

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

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law.

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resolution of disputes over confidentiality of discovery materials, to adequately

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protect information the parties are entitled to keep confidential, to ensure that the
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GOOD CAUSE STATEMENT

Accordingly, to expedite the flow of information, to facilitate the prompt

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parties are permitted reasonable necessary uses of such material in preparation for and

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in the conduct of trial, to address their handling at the end of the litigation, and serve

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the ends of justice, a protective order for such information is justified in this matter. It

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is the intent of the parties that information will not be designated as confidential for

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tactical reasons and that nothing be so designated without a good faith belief that it

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has been maintained in a confidential, non-public manner, and there is good cause

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why it should not be part of the public record of this case.

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C.

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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 under

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

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

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material under seal.

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

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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

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

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

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cause showing), and a specific showing of good cause or compelling reasons with

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proper evidentiary support and legal justification, must be made with respect to

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

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of Disclosure or Discovery Material as CONFIDENTIAL does not—without the

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submission of competent evidence by declaration, establishing that the material sought

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to be filed under seal qualifies as confidential, privileged, or otherwise protectable—

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constitute good cause.
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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 relief

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

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

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

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

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articulate compelling reasons, supported by specific facts and legal justification, for

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the

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requested sealing order. Again, competent evidence supporting the application to file

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//

documents under seal must be provided by declaration.

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

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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 only

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

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

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should include an explanation of why redaction is not feasible.

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2.

DEFINITIONS
2.1.

Action: this pending federal lawsuit titled Brown v. Blackbaud, Inc.,

Case No. 2:18-CV-3549.
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 protection

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

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Cause Statement.

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2.4.

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

support staff).
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2.5.

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

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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 of

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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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//

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2.7.

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

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

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expert witness or as a consultant in this Action.

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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

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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 has

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

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

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Protected Material; and (3) any testimony, conversations, or presentations by Parties

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or their Counsel that might reveal Protected Material.

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

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

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

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

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

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5.

DESIGNATING PROTECTED MATERIAL
5.1.

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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 under this

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

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

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only those parts of material, documents, items or oral or written communications that

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

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which protection is not warranted are not swept unjustifiably within the ambit of this

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Order.

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Mass, indiscriminate or routinized designations are prohibited. Designations

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

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purpose (e.g., to unnecessarily encumber the case development process or to impose

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unnecessary expenses and burdens on other parties) may expose the Designating Party

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to sanctions.

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

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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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:

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

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

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

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the specified documents, the Producing Party must affix the “CONFIDENTIAL

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legend” to each page that contains Protected Material. If only a portion of the material

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on a page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings 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 warrants

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

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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 the

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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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//

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//
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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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6.2.

Meet and Confer.

The Challenging Party shall initiate the dispute

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resolution process under Local Rule 37-1 et seq. and consistent with the Court’s

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pre-motion discovery procedures.

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6.3.

Joint Stipulation. Any challenge submitted to the Court shall be via a

joint stipulation pursuant to Local Rule 37-2.

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6.4.

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 purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has waived

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or withdrawn the confidentiality designation, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing

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Party’s designation until the Court rules on the challenge.

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7.

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 Receiving

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Party must comply with the provisions of section 13 below (FINAL 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.
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Disclosure of “CONFIDENTIAL” Information or Items.
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STIPULATED PROTECTIVE ORDER
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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”

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only to:

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(a)

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

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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 whom

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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 Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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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, in

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

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party requests that the witness sign the “Acknowledgment and Agreement to Be

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Bound” attached as Exhibit A hereto (“Exhibit A”); and (2) they will not be permitted

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to keep any confidential information unless they sign Exhibit A, unless otherwise

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agreed by the Designating Party or ordered by the court.

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deposition testimony or exhibits to depositions that reveal Protected Material may be

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

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permitted under this Stipulated Protective Order; and

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(i)
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any mediator or settlement officer, and their supporting personnel,
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mutually agreed upon by any of the parties engaged in settlement discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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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 a

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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. The Designating Party shall bear the burden and expense of seeking

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

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should be construed as authorizing or encouraging a Receiving Party in this Action to

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disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION

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

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to 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:

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(1)

promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the

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Stipulated Protective Order in this Action, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and

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(3)

make the information requested available for inspection by

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the Non-Party, if requested.

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(c)

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

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within 14 days of receiving the notice and accompanying information, the Receiving

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Party may produce the Non-Party’s confidential information responsive to the

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discovery request. If the Non-Party timely seeks a protective order, the Receiving

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Party shall not produce any information in its possession or control that is subject to

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the confidentiality agreement with the Non-Party before a determination by the court.

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Absent a court order to the contrary, the Non-Party shall bear the burden and expense

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of seeking protection in this court of its Protected Material.

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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.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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 prior

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

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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 to

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the court.

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12.

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

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

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

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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

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

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

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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 in

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the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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

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days of a written request by the Designating Party, each Receiving Party must return

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all Protected Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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

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

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Party must submit a written certification to the Producing Party (and, if not the same

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person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

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(by category, where appropriate) all the Protected Material that was returned or

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destroyed and (2) affirms that the Receiving Party has not retained any copies,

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

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of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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

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

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materials contain Protected Material.

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

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Section 4 (DURATION).

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Any such archival copies that contain or

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14.

VIOLATION
Any violation of this Order may be punished by appropriate measures

including, without limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: May 22, 2018

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/s/ Yeremey Krivoshey, Esq.

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Attorneys for Plaintiff William Brown

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DATED: May 22, 2018

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/s/ Barbara L. Croutch, Esq.

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Attorneys for Defendant Blackbaud, Inc.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: May 23, 2018
HON. KAREN L. STEVENSON
United States Magistrate Judge

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-154811-4286-7814.v1

STIPULATED PROTECTIVE ORDER
Case No: 2:18-CV-3549-AB-KS

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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 that I

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

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by the United States District Court for the Central District of California on [date] in

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the case of Brown v. Blackbaud, Inc., Case No: 2:18-CV-3549-AB-KS. I agree to

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comply with and to be bound by all the terms of this Stipulated Protective Order and I

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understand and acknowledge that failure to so comply could expose me to sanctions

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and punishment in the nature of contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the provisions of this

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Order.

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

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Central District of California for enforcing the terms of this Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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

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_________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or

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any proceedings related to enforcement of this Stipulated Protective 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:
-164811-4286-7814.v1

STIPULATED PROTECTIVE ORDER
Case No: 2:18-CV-3549-AB-KS