Carol Mendizabal v. Wells Fargo Bank, National Association et al

Filing 17

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner. re Stipulation for Protective Order 16 (vm)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP THOMAS R. KAUFMAN, Cal. Bar No. 177936 PAUL BERKOWITZ, Cal. Bar No. 251077 MICHAELA R. GOLDSTEIN, Cal. Bar No. 316455 1901 Avenue of the Stars, Suite 1600 Los Angeles, California 90067 Telephone: 310.228.3700 Facsimile: 310.228.3701 Attorneys for Defendant WELLS FARGO BANK, N.A. JML LAW Joseph M. Lovretovich, STATE BAR NO. 73403 Cathryn G. Fund, STATE BAR NO. 293766 Eden Kalderon, STATE BAR NO. 316925 5855 Topanga Canyon Blvd., Suite 300 Woodland Hills, California 91367 Telephone: (818) 610-8800 Facsimile: (818) 610-3030 Attorneys for Plaintiff CAROL MENDIZABAL 16 UNITED STATES DISTRICT COURT 17 CENTRAL DISTRICT OF CALIFORNIA 18 19 20 21 22 23 24 25 26 Case No. 2:20-cv-04376-DSF-MRW CAROL MENDIZABAL, an individual, STIPULATED PROTECTIVE ORDER Plaintiff, v. (MRW VERSION 4/19) WELLS FARGO BANK, NATIONAL ASSOCIATION, a foreign corporation; and DOES 1-50, inclusive, Check if submitted without material modifications to MRW form Defendants. 27 28 SMRH:4818-9252-3474.1 -1STIPULATED PROTECTIVE ORDER 1 1. INTRODUCTION 2 1.1 PURPOSES AND LIMITATIONS 3 Discovery in this action is likely to involve production of confidential, 4 proprietary, or private information for which special protection from public 5 disclosure and from use for any purpose other than prosecuting this litigation may 6 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 7 enter the following Stipulated Protective Order. The parties acknowledge that this 8 Order does not confer blanket protections on all disclosures or responses to 9 discovery and that the protection it affords from public disclosure and use extends 10 only to the limited information or items that are entitled to confidential treatment 11 under the applicable legal principles. The parties further acknowledge, as set forth 12 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 13 file confidential information under seal; Civil Local Rule 79-5 sets forth the 14 procedures that must be followed and the standards that will be applied when a party 15 seeks permission from the court to file material under seal. 16 1.2 GOOD CAUSE STATEMENT 17 Good cause exists for a Protective Order because Defendant’s document 18 production may disclose information relating to (1) private bank customer 19 information, such as account numbers of bank customers; (2) Plaintiff’s Personally 20 Identifiable Information (“PII”); and (3) the PII of non-party employees of 21 Defendant. See Harmon v. City of Santa Clara, 323 F.R.D. 617, 623 (N.D. Cal. 22 2018) (identifying privacy interests, among others when considering existence of 23 good cause). 24 2. 25 26 DEFINITIONS 2.1 Action: This case, Carol Mendizabal v. Wells Fargo, Case No. 2:20-cv- 04376-DSF-MRW, filed in Los Angeles Superior Court on April 28, 2020. 27 28 SMRH:4818-9252-3474.1 -2STIPULATED PROTECTIVE ORDER 1 2 3 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 4 how it is generated, stored or maintained) or tangible things that qualify for 5 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 6 the Good Cause Statement. 7 8 9 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 10 items that it produces in disclosures or in responses to discovery as 11 “CONFIDENTIAL.” 12 2.6 Disclosure or Discovery Material: all items or information, regardless 13 of the medium or manner in which it is generated, stored, or maintained (including, 14 among other things, testimony, transcripts, and tangible things), that are produced or 15 generated in disclosures or responses to discovery in this matter. 16 2.7 Expert: a person with specialized knowledge or experience in a matter 17 pertinent to the litigation who has been retained by a Party or its counsel to serve as 18 an expert witness or as a consultant in this Action. 19 2.8 House Counsel: attorneys who are employees of a party to this Action. 20 House Counsel does not include Outside Counsel of Record or any other outside 21 counsel. 22 23 24 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a 25 party to this Action but are retained to represent or advise a party to this Action and 26 have appeared in this Action on behalf of that party or are affiliated with a law firm 27 which has appeared on behalf of that party, and includes support staff. 28 SMRH:4818-9252-3474.1 -3STIPULATED PROTECTIVE ORDER 2.11 Party: any party to this Action, including all of its officers, directors, 1 2 employees, consultants, retained experts, and Outside Counsel of Record (and their 3 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 4 5 Discovery Material in this Action. 6 2.13 Professional Vendors: persons or entities that provide litigation 7 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) 9 and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is 10 11 designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery 12 13 Material from a Producing Party. 14 3. SCOPE 15 The protections conferred by this Stipulation and Order cover not only 16 Protected Material (as defined above), but also (1) any information copied or 17 extracted from Protected Material; (2) all copies, excerpts, summaries, or 18 compilations of Protected Material; and (3) any testimony, conversations, or 19 presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial will be governed by the orders of the 20 21 trial judge. This Order does not govern the use of Protected Material at trial. 22 4. 23 DURATION Even after final disposition of this litigation, the confidentiality obligations 24 imposed by this Order will remain in effect until a Designating Party agrees 25 otherwise in writing or a court order otherwise directs. Final disposition will be 26 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 27 or without prejudice; and (2) final judgment herein after the completion and 28 SMRH:4818-9252-3474.1 -4STIPULATED PROTECTIVE ORDER 1 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 2 including the time limits for filing any motions or applications for extension of time 3 pursuant to applicable law. 4 5. DESIGNATING PROTECTED MATERIAL 5 5.1 Exercise of Restraint and Care in Designating Material for Protection. 6 Each Party or Non-Party that designates information or items for protection 7 under this Order must take care to limit any such designation to specific material 8 that qualifies under the appropriate standards. The Designating Party must 9 designate for protection only those parts of material, documents, items, or oral or 10 written communications that qualify so that other portions of the material, 11 documents, items, or communications for which protection is not warranted are not 12 swept unjustifiably within the ambit of this Order. 13 Mass, indiscriminate, or routinized designations are prohibited. Designations 14 that are shown to be clearly unjustified or that have been made for an improper 15 purpose (e.g., to unnecessarily encumber the case development process or to impose 16 unnecessary expenses and burdens on other parties) may expose the Designating 17 Party to sanctions. 18 If it comes to a Designating Party’s attention that information or items that it 19 designated for protection do not qualify for protection, that Designating Party must 20 promptly notify all other Parties that it is withdrawing the inapplicable designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in 22 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 23 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 24 under this Order must be clearly so designated before the material is disclosed or 25 produced. 26 Designation in conformity with this Order requires: 27 28 SMRH:4818-9252-3474.1 -5STIPULATED PROTECTIVE ORDER 1 (a) for information in documentary form (e.g., paper or electronic documents, 2 but excluding transcripts of depositions or other pretrial or trial proceedings), that 3 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 4 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 5 portion or portions of the material on a page qualifies for protection, the Producing 6 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 7 markings in the margins). 8 A Party or Non-Party that makes original documents available for inspection 9 need not designate them for protection until after the inspecting Party has indicated 10 which documents it would like copied and produced. During the inspection and 11 before the designation, all of the material made available for inspection will be 12 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 13 documents it wants copied and produced, the Producing Party must determine which 14 documents, or portions thereof, qualify for protection under this Order. Then, before 15 producing the specified documents, the Producing Party must affix the 16 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 17 portion or portions of the material on a page qualifies for protection, the Producing 18 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 19 markings in the margins). 20 (b) for testimony given in depositions that the Designating Party identify the 21 Disclosure or Discovery Material on the record, before the close of the deposition all 22 protected testimony. 23 (c) for information produced in some form other than documentary and for 24 any other tangible items, that the Producing Party affix in a prominent place on the 25 exterior of the container or containers in which the information is stored the legend 26 “CONFIDENTIAL.” If only a portion or portions of the information warrants 27 28 SMRH:4818-9252-3474.1 -6STIPULATED PROTECTIVE ORDER 1 protection, the Producing Party, to the extent practicable, will identify the protected 2 portion(s). 5.3 3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 4 failure to designate qualified information or items does not, standing alone, waive 5 the Designating Party’s right to secure protection under this Order for such material. 6 Upon timely correction of a designation, the Receiving Party must make reasonable 7 efforts to assure that the material is treated in accordance with the provisions of this 8 Order. 9 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 10 Timing of Challenges. Any Party or Non-Party may challenge a 11 designation of confidentiality at any time that is consistent with the Court’s 12 Scheduling Order. 6.2 13 Meet and Confer. The Challenging Party will initiate the dispute 14 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1 15 et seq. 6.3 16 The burden of persuasion in any such challenge proceeding will be on 17 the Designating Party. Frivolous challenges, and those made for an improper 18 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 19 parties) may expose the Challenging Party to sanctions. Unless the Designating 20 Party has waived or withdrawn the confidentiality designation, all parties will 21 continue to afford the material in question the level of protection to which it is 22 entitled under the Producing Party’s designation until the Court rules on the 23 challenge. 24 7. 25 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 26 disclosed or produced by another Party or by a Non-Party in connection with this 27 Action only for prosecuting, defending, or attempting to settle this Action. Such 28 SMRH:4818-9252-3474.1 -7STIPULATED PROTECTIVE ORDER 1 Protected Material may be disclosed only to the categories of persons and under the 2 conditions described in this Order. When the Action has been terminated, a 3 Receiving Party must comply with the provisions of section 13 below (FINAL 4 DISPOSITION). 5 Protected Material must be stored and maintained by a Receiving Party at a 6 location and in a secure manner that ensures that access is limited to the persons 7 authorized under this Order. 8 9 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 10 Receiving Party may disclose any information or item designated 11 “CONFIDENTIAL” only to: 12 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 13 well as employees of said Outside Counsel of Record to whom it is reasonably 14 necessary to disclose the information for this Action; 15 (b) the officers, directors, and employees (including House Counsel) of 16 the Receiving Party to whom disclosure is reasonably necessary for this Action; 17 (c) Experts (as defined in this Order) of the Receiving Party to whom 18 disclosure is reasonably necessary for this Action and who have signed the 19 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 (d) the Court and its personnel; 21 (e) court reporters and their staff; 22 (f) professional jury or trial consultants, mock jurors, and Professional 23 Vendors to whom disclosure is reasonably necessary for this Action and who have 24 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 26 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 27 28 SMRH:4818-9252-3474.1 -8STIPULATED PROTECTIVE ORDER 1 (h) during their depositions, witnesses ,and attorneys for witnesses, in the 2 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 3 requests that the witness sign the form attached as Exhibit A hereto; and (2) they 4 will not be permitted to keep any confidential information unless they sign the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 6 agreed by the Designating Party or ordered by the court. Pages of transcribed 7 deposition testimony or exhibits to depositions that reveal Protected Material may 8 be separately bound by the court reporter and may not be disclosed to anyone except 9 as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 10 11 mutually agreed upon by any of the parties engaged in settlement discussions. 12 8. 13 IN OTHER LITIGATION 14 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED If a Party is served with a subpoena or a court order issued in other litigation 15 that compels disclosure of any information or items designated in this Action as 16 “CONFIDENTIAL,” that Party must: 17 18 19 (a) promptly notify in writing the Designating Party. Such notification will include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order 20 to issue in the other litigation that some or all of the material covered by the 21 subpoena or order is subject to this Protective Order. Such notification will include 22 a copy of this Stipulated Protective Order; and 23 24 25 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 26 the subpoena or court order will not produce any information designated in this 27 action as “CONFIDENTIAL” before a determination by the court from which the 28 SMRH:4818-9252-3474.1 -9STIPULATED PROTECTIVE ORDER 1 subpoena or order issued, unless the Party has obtained the Designating Party’s 2 permission. The Designating Party will bear the burden and expense of seeking 3 protection in that court of its confidential material and nothing in these provisions 4 should be construed as authorizing or encouraging a Receiving Party in this Action 5 to disobey a lawful directive from another court. 6 9. 7 PRODUCED IN THIS LITIGATION 8 9 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE (a) The terms of this Order are applicable to information produced by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 10 produced by Non-Parties in connection with this litigation is protected by the 11 remedies and relief provided by this Order. Nothing in these provisions should be 12 construed as prohibiting a Non-Party from seeking additional protections. 13 (b) In the event that a Party is required, by a valid discovery request, to 14 produce a Non-Party’s confidential information in its possession, and the Party is 15 subject to an agreement with the Non-Party not to produce the Non-Party’s 16 confidential information, then the Party will: 17 (1) promptly notify in writing the Requesting Party and the Non-Party 18 that some or all of the information requested is subject to a confidentiality 19 agreement with a Non-Party; 20 (2) promptly provide the Non-Party with a copy of the Stipulated 21 Protective Order in this Action, the relevant discovery request(s), and a reasonably 22 specific description of the information requested; and 23 24 (3) make the information requested available for inspection by the Non-Party, if requested. 25 (c) If the Non-Party fails to seek a protective order from this court within 26 14 days of receiving the notice and accompanying information, the Receiving Party 27 may produce the Non-Party’s confidential information responsive to the discovery 28 SMRH:4818-9252-3474.1 -10STIPULATED PROTECTIVE ORDER 1 request. If the Non-Party timely seeks a protective order, the Receiving Party will 2 not produce any information in its possession or control that is subject to the 3 confidentiality agreement with the Non-Party before a determination by the court. 4 Absent a court order to the contrary, the Non-Party will bear the burden and expense 5 of seeking protection in this court of its Protected Material. 6 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 7 8 Protected Material to any person or in any circumstance not authorized under this 9 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 10 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 11 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 12 persons to whom unauthorized disclosures were made of all the terms of this Order, 13 and (d) request such person or persons to execute the “Acknowledgment and 14 Agreement to Be Bound” that is attached hereto as Exhibit A. 15 11. 16 PROTECTED MATERIAL 17 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE When a Producing Party gives notice to Receiving Parties that certain 18 inadvertently produced material is subject to a claim of privilege or other protection, 19 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 20 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 21 procedure may be established in an e-discovery order that provides for production 22 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 23 (e), insofar as the parties reach an agreement on the effect of disclosure of a 24 communication or information covered by the attorney-client privilege or work 25 product protection, the parties may incorporate their agreement in the stipulated 26 protective order submitted to the court. 27 28 SMRH:4818-9252-3474.1 -11STIPULATED PROTECTIVE ORDER 1 12. 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 2 3 MISCELLANEOUS person to seek its modification by the Court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this 4 5 Protective Order no Party waives any right it otherwise would have to object to 6 disclosing or producing any information or item on any ground not addressed in this 7 Stipulated Protective Order. Similarly, no Party waives any right to object on any 8 ground to use in evidence of any of the material covered by this Protective Order. 12.3 Filing Protected Material. A Party that seeks to file under seal any 9 10 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 11 only be filed under seal pursuant to a court order authorizing the sealing of the 12 specific Protected Material at issue. If a Party's request to file Protected Material 13 under seal is denied by the court, then the Receiving Party may file the information 14 in the public record unless otherwise instructed by the court. 15 13. 16 FINAL DISPOSITION After the final disposition of this Action, as defined in paragraph 4, within 60 17 days of a written request by the Designating Party, each Receiving Party must return 18 all Protected Material to the Producing Party or destroy such material. As used in 19 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected 21 Material. Whether the Protected Material is returned or destroyed, the Receiving 22 Party must submit a written certification to the Producing Party (and, if not the same 23 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 24 (by category, where appropriate) all the Protected Material that was returned or 25 destroyed and (2) affirms that the Receiving Party has not retained any copies, 26 abstracts, compilations, summaries or any other format reproducing or capturing any 27 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 28 SMRH:4818-9252-3474.1 -12STIPULATED PROTECTIVE ORDER 1 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 2 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 3 reports, attorney work product, and consultant and expert work product, even if such 4 materials contain Protected Material. Any such archival copies that contain or 5 constitute Protected Material remain subject to this Protective Order as set forth in 6 Section 4 (DURATION). 14. 7 Any willful violation of this Order may be punished by civil or criminal 8 contempt proceedings, financial or evidentiary sanctions, reference to disciplinary 9 authorities, or other appropriate action at the discretion of the Court. 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 SMRH:4818-9252-3474.1 -13STIPULATED PROTECTIVE ORDER 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 DATED: November 17, 2020 /s/ Cathryn Fund Attorneys for Plaintiff DATED: November 17, 2020 /s/ Michaela Goldstein Attorneys for Defendant 4 5 6 7 8 9 10 11 12 I, Michaela Goldstein, attest that all other signatories listed, and on whose behalf this filing is submitted, concur in the document’s content and have authorized the filing. /s/ Michaela R. Goldstein 13 14 15 16 17 18 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 19 20 21 11/18/2020 DATED:_______________ 22 __________________________________ HON. MICHAEL R. WILNER United States Magistrate Judge 23 24 25 26 27 28 SMRH:4818-9252-3474.1 -14STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [full name], of _________________ 5 [full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States 7 District Court for the Central District of California on [date] in the case of 8 ___________ [insert case name and number]. I agree to comply with and to be 9 bound by all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and punishment 11 in the nature of contempt. I solemnly promise that I will not disclose in any manner 12 any information or item that is subject to this Stipulated Protective Order to any 13 person or entity except in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint __________________________ [full 18 name] of _______________________________________ [full address and 19 telephone number] as my California agent for service of process in connection with 20 this action or any proceedings related to enforcement of this Stipulated Protective 21 Order. 22 Date: ______________________________________ 23 City and State where signed: _________________________________ 24 25 Printed name: _______________________________ 26 27 28 Signature: __________________________________ SMRH:4818-9252-3474.1 -15STIPULATED PROTECTIVE ORDER

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