Jamal Akber v. NCO Financial Systems, Inc.

Filing 25

STIPULATED PROTECTIVE ORDER by Magistrate Judge David T. Bristow re Stipulation for Protective Order 22 . (See document for specifics) (mrgo)

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Debbie P. Kirkpatrick, Esq. (SBN 207112)
Damian P. Richard, Esq. (SBN 262805)
SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.P.
1545 Hotel Circle South, Ste. 150
San Diego, CA 92108
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for NCO Financial Systems, Inc.
UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA- EASTERN DIVISION

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JAMAL AKBER, individual,
Plaintiff,
vs.
NCO FINANCIAL SYSTEMS, INC.,
LLC,
Defendants.

) Case No: EDCV14-01388 VAP-DTB
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) STIPULATED PROTECTIVE ORDER
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Plaintiff Jamal Akber and Defendant NCO Financial Systems, Inc., hereby

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stipulate to the following Protective Order in this case:

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1. PURPOSE AND LIMITS OF THIS ORDER

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Discovery in this action is likely to involve confidential, proprietary, or
private information requiring special protection from public disclosure and from

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Stipulated Protective Order
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use for any purpose other than this litigation. Thus, the Court enters this Protective

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Order. This Order does not confer blanket protections on all disclosures or

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responses to discovery, and the protection it gives from public disclosure and use

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extends only to the specific material entitled to confidential treatment under the

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applicable legal principles. This Order does not automatically authorize the filing

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under seal of material designated under this Order. Instead, the parties must

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comply with L.R. 79-5.1 if they seek to file anything under seal. This Order does
not govern the use at trial of material designated under this Order.

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2. DESIGNATING PROTECTED MATERIAL
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2.1

Over-Designation Prohibited. Any party or non-party who

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designates

information

or

items

for

protection

under

this

Order

as

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES
ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a “designator”)

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must only designate specific material that qualifies under the appropriate standards.

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To the extent practicable, only those parts of documents, items, or oral or written

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communications that require protection shall be designated. Designations with a

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higher confidentiality level when a lower level would suffice are prohibited. Mass,

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indiscriminate, or routinized designations are prohibited. Unjustified designations

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expose the designator to sanctions, including the Court’s striking all confidentiality

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designations made by that designator. Designation under this Order is allowed only

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if the designation is necessary to protect material that, if disclosed to persons not

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authorized to view it, would cause competitive or other recognized harm. Material

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may not be designated if it has been made public, or if designation is otherwise

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unnecessary to protect a secrecy interest. If a designator learns that information or

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items that it designated for protection do not qualify for protection at all or do not

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Stipulated Protective Order
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qualify for the level of protection initially asserted, that designator must promptly

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notify all parties that it is withdrawing the mistaken designation.

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2.2 Manner and Timing of Designations. Designation under this Order

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requires the designator to affix the applicable legend (“CONFIDENTIAL,”

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY

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CONFIDENTIAL – SOURCE CODE”) to each page that contains protected

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material. For testimony given in deposition or other proceeding, the designator
shall specify all protected testimony and the level of protection being asserted. It

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may make that designation during the deposition or proceeding, or may invoke,
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on the record or by written notice to all parties on or before the next business day,
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a right to have up to 21 days from the deposition or proceeding to make its
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designation.
2.2.1 A party or non-party that makes original documents or

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materials available for inspection need not designate them for protection

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until after the inspecting party has identified which material it would like

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copied and produced. During the inspection and before the designation, all

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material shall be treated as HIGHLY CONFIDENTIAL – ATTORNEY

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EYES ONLY. After the inspecting party has identified the documents it

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wants copied and produced, the producing party must designate the

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

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2.2.2 Parties shall give advance notice if they expect a deposition or

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other proceeding to include designated material so that the other parties can

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ensure that only authorized individuals are present at those proceedings

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when such material is disclosed or used. The use of a document as an exhibit

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at a deposition shall not in any way affect its designation. Transcripts

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Stipulated Protective Order
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containing designated material shall have a legend on the title page noting

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the presence of designated material, and the title page shall be followed by a

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list of all pages (including line numbers as appropriate) that have been

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designated, and the level of protection being asserted. The designator shall

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inform the court reporter of these requirements. Any transcript that is

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prepared before the expiration of the 21-day period for designation shall be

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treated during that period as if it had been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY unless otherwise agreed.

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After the expiration of the 21-day period, the transcript shall be treated only
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as actually designated.
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2.3

Inadvertent Failures to Designate. An inadvertent failure to

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designate does not, standing alone, waive protection under this Order. Upon
timely assertion or correction of a designation, all recipients must make reasonable

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efforts to ensure that the material is treated according to this Order.

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3.

CHALLENGING CONFIDENTIALITY DESIGANTIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1

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through L.R. 37-4.

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4.

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ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material

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only for this litigation. Designated material may be disclosed only to the

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categories of persons and under the conditions described in this Order.

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4.2

Disclosure of CONFIDENTIAL Material Without Further

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Approval. Unless otherwise ordered by the Court or permitted in writing by the

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designator,

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a

receiving

party

may

disclose

CONFIDENTIAL only to:

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Stipulated Protective Order
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any

material

designated

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4.2.1 The receiving party’s outside counsel of record in this action

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and employees of outside counsel of record to whom disclosure is

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reasonably necessary;

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4.2.2 The officers, directors, and employees of the receiving party to

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whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit A);

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4.2.3 Experts retained by the receiving party’s outside counsel of

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record to whom disclosure is reasonably necessary, and who have signed

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the Agreement to Be Bound (Exhibit A);
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4.2.4 The Court and its personnel;

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4.2.5 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A);

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4.2.6 During their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the Agreement to

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Be Bound (Exhibit A); and

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4.2.7 The author or recipient of a document containing the

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material, or a custodian or other person who otherwise possessed or

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knew the information.

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4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material
Without Further Approval. Unless permitted in writing by the designator, a
receiving party may disclose material designated HIGHLY CONFIDENTIAL –

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Stipulated Protective Order
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ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE

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without further approval only to:
4.3.1 The receiving party’s outside counsel of record in this action

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and employees of outside counsel of record to whom it is reasonably

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necessary to disclose the information;

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4.3.2 The Court and its personnel;

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4.3.3 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A);

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and
4.3.4 The author or recipient of a document containing the

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material, or a custodian or other person who otherwise possessed or

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knew the information.

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4.4

Procedures for Approving or Objecting to Disclosure of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE Material to In-House Counsel or

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Experts. Unless agreed to in writing by the designator:

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4.4.1 A party seeking to disclose to in-house counsel any material
designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must

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first make a written request to the designator providing the full name of the
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in-house counsel, the city and state of such counsel’s residence, and such
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counsel’s current and reasonably foreseeable future primary job duties and
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responsibilities in sufficient detail to determine present or potential
involvement in any competitive decision-making. In-house counsel are not

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Stipulated Protective Order
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authorized to receive material designated HIGHLY CONFIDENTIAL –

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SOURCE CODE.

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4.4.2 A party seeking to disclose to an expert retained by outside counsel of

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record any information or item that has been designated HIGHLY

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CONFIDENTIAL

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–

ATTORNEY

EYES

ONLY

or

HIGHLY

CONFIDENTIAL – SOURCE CODE must first make a written request to
the designator that (1) identifies the general categories of HIGHLY

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CONFIDENTIAL-ATTORNEY

EYES

ONLY

or

HIGHLY

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CONFIDENTIAL – SOURCE CODE information that the receiving party
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seeks permission to disclose to the expert, (2) sets forth the full name of the
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expert and the city and state of his or her primary residence, (3) attaches a
copy of the expert’s current resume, (4) identifies the expert’s current

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employer(s), (5) identifies each person or entity from whom the expert has

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received compensation or funding for work in his or her areas of expertise

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(including in connection with litigation) in the past five years, and (6)

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identifies (by name and number of the case, filing date, and location of

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court) any litigation where the expert has offered expert testimony, including

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by declaration, report, or testimony at deposition or trial, in the past five

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years. If the expert believes any of this information at (4) - (6) is subject to a

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confidentiality obligation to a third party, then the expert should provide

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whatever information the expert believes can be disclosed without violating

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any confidentiality agreements, and the party seeking to disclose the

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information to the expert shall be available to meet and confer with the

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designator regarding any such confidentiality obligations.

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Stipulated Protective Order
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4.4.3 A party that makes a request and provides the information

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specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material

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to the identified in-house counsel or expert unless, within seven days of

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delivering the request, the party receives a written objection from the

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designator providing detailed grounds for the objection.

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4.4.4 All challenges to objections from the designator shall

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proceed under L.R. 37-1 through L.R. 37-4.
5.

SOURCE CODE

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5.1

Designation of Source Code. If production of source code is

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necessary, a party may designate it as HIGHLY CONFIDENTIAL – SOURCE
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CODE if it is, or includes, confidential, proprietary, or trade secret source code.
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5.2

Location

and

Supervision

of

Inspection.

Any

HIGHLY

CONFIDENTIAL – SOURCE CODE produced in discovery shall be made

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available for inspection, in a format allowing it to be reasonably reviewed and

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searched, during normal business hours or at other mutually agreeable times, at an

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office of the designating party’s counsel or another mutually agreeable location.

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The source code shall be made available for inspection on a secured computer in a

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secured room, and the inspecting party shall not copy, remove, or otherwise

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transfer any portion of the source code onto any recordable media or recordable

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device. The designator may visually monitor the activities of the inspecting

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party’s representatives during any source code review, but only to ensure that

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there is no unauthorized recording, copying, or transmission of the source code.

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5.3

Paper Copies of Source Code Excerpts. The inspecting party may

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request paper copies of limited portions of source code that are reasonably

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necessary for the preparation of court filings, pleadings, expert reports, other

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Stipulated Protective Order
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papers, or for deposition or trial. The designator shall provide all such source code

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in

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CONFIDENTIAL – SOURCE CODE.”

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paper

5.4

form,

including

Bates

numbers

and

the

label

“HIGHLY

Access Record. The inspecting party shall maintain a record of any

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individual who has inspected any portion of the source code in electronic or paper

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form, and shall maintain all paper copies of any printed portions of the source code

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in a secured, locked area. The inspecting party shall not convert any of the
information contained in the paper copies into any electronic format other than for

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the preparation of a pleading, exhibit, expert report, discovery document,
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deposition transcript, or other Court document. Any paper copies used during a
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deposition shall be retrieved at the end of each day and must not be left with a
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court reporter or any other unauthorized individual.
6.

PROSECUTION BAR

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Absent written consent from the designator, any individual who receives

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access to HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL - SOURCE CODE information shall not be involved in the

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prosecution of patents or patent applications concerning the field of the invention

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of the patents-in-suit for the receiving party or its acquirer, successor, predecessor,

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or other affiliate during the pendency of this action and for one year after its

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conclusion, including any appeals. “Prosecution” means drafting, amending,

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advising on the content of, or otherwise affecting the scope or content of patent

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claims or specifications. These prohibitions shall not preclude counsel from

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participating in reexamination or inter partes review proceedings to challenge or

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defend the validity of any patent, but counsel may not participate in the drafting of

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amended claims in any such proceedings.

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Stipulated Protective Order
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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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7.1

Subpoenas and Court Orders. This Order in no way excuses non-

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compliance with a lawful subpoena or court order. The purpose of the duties

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described in this section is to alert the interested parties to the existence of this

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Order and to give the designator an opportunity to protect its confidentiality

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interests in the court where the subpoena or order issued.
7.2

Notification Requirement. If a party is served with a subpoena or a

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court order issued in other litigation that compels disclosure of any information or
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items designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL –
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ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE,
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that party must:
7.2.1 Promptly notify the designator in writing. Such

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

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7.2.2 Promptly notify in writing the party who caused the subpoena

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

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covered by the subpoena or order is subject to this Order. Such notification

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shall include a copy of this Order; and

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7.2.3 Cooperate with all reasonable procedures sought by the

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designator whose material may be affected.

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7.3

Wait For Resolution of Protective Order. If the designator timely

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seeks a protective order, the party served with the subpoena or court order shall not

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produce any information designated in this action as CONFIDENTIAL, HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –

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SOURCE CODE before a determination by the court where the subpoena or order

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Stipulated Protective Order
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issued, unless the party has obtained the designator’s permission. The designator

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shall bear the burden and expense of seeking protection of its confidential material

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in that court.

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8.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has

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disclosed designated material to any person or in any circumstance not authorized

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under this Order, it must immediately (1) notify in writing the designator of the
unauthorized disclosures, (2) use its best efforts to retrieve all unauthorized

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copies of the designated material, (3) inform the person or persons to whom
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unauthorized disclosures were made of all the terms of this Order, and (4) use
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reasonable efforts to have such person or persons execute the Agreement to Be
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Bound (Exhibit A).

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9.

INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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When a producing party gives notice that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure

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

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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).

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10.

FILING UNDER SEAL

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Without written permission from the designator or a Court order, a party

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may not file in the public record in this action any designated material. A party

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Stipulated Protective Order
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seeking to file under seal any designated material must comply with L.R. 79-5.1.

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Filings may be made under seal only pursuant to a court order authorizing the

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sealing of the specific material at issue. The fact that a document has been

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designated under this Order is insufficient to justify filing under seal. Instead,

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parties must explain the basis for confidentiality of each document sought to be

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filed under seal. Because a party other than the designator will often be seeking to

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file designated material, cooperation between the parties in preparing, and in
reducing the number and extent of, requests for under seal filing is essential. If a

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receiving party’s request to file designated material under seal pursuant to L.R.
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79-5.1 is denied by the Court, then the receiving party may file the material in the
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public record unless (1) the designator seeks reconsideration within four days of
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the denial, or (2) as otherwise instructed by the Court.
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FINAL DISPOSITION

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Within 60 days after the final disposition of this action, each party shall

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return all designated material to the designator or destroy such material, including

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all copies, abstracts, compilations, summaries, and any other format reproducing

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or capturing any designated material. The receiving party must submit a written

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certification to the designator by the 60-day deadline that (1) identifies (by

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category, where appropriate) all the designated 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

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any of the designated material. This provision shall not prevent counsel from

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

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hearing transcripts, legal memoranda, correspondence, deposition and trial

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exhibits, expert reports, attorney work product, and consultant and expert work

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Stipulated Protective Order
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product, even if such materials contain designated material. Any such archival

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copies remain subject to this Order.

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IT IS SO STIPULATED.

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Dated: January 13, 2015

Respectfully submitted,

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/s/ Jessica F. Anvar
Jessica F. Anvar, Esq.
Shainfeld and Anvar PC
12304 Santa Monica Boulevard
Suite 100
Los Angeles, CA 90025
310-442-1410
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff Jamal Akber

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Dated: January 13, 2015

Respectfully submitted,

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/s/ Damian P. Richard
Damian P. Richard
Sessions Fishman Nathan and Israel LLP
1545 Hotel Circle South Suite 150
San Diego, CA 92108
Telephone: [phone]
Fax: [phone]
Email: [e-mail]]
Attorneys for NCO Financial Systems,
Inc.

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IT IS SO ORDERED.
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DATED January 26, 2015
_________________________________
United States District Judge/Magistrate Judge

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EXHIBIT A

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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

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penalty of perjury that I have read in its entirety and understand the Protective

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Order that was issued by the United States District Court for the Central District of

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California on ____________ [date] in the case of Jamal Akber v. NCO Financial
Systems, Inc., No. 5:14-cv-01388-VAP-DTB (C.D. Cal. July 8, 2014). I agree to

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comply with and to be bound by all the terms of this Protective Order, and I
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understand and acknowledge that failure to so comply could expose me to
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sanctions and punishment for 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 Protective Order to
any person or entity except in strict compliance with this Order.

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

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Court for the Central District of California for the purpose of enforcing this Order,

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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

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action or any proceedings related to enforcement of this Order.

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Stipulated Protective Order
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