Terry Poplin v. Synchrony Bank

Filing 20

PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re REQUEST for Protective Order for re Treatment of Confidential Information 18 (sbu)

1 Raagini Shah (SBN 268022)

Email: [e-mail]

2 REED SMITH LLP

355 South Grand Avenue

3 Suite 2900

Los Angeles, CA 90071-1514

4 Telephone: [phone]
5

Facsimile: [phone]
Attorney for Defendant

6 SYNCHRONY BANK
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10
11 TERRY POPLIN,

No. 5:17-CV-1061-PSG-RAO
Plaintiff,

12

STIPULATED PROTECTIVE
ORDER

vs.

13

The Honorable Philip S. Gutierrez

14 SYNCHRONY BANK; and
15

DOES 1 through 10,

16

Defendant.

17
18 A.

PURPOSES AND LIMITATIONS

19

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

20 proprietary, or private information for which special protection from public disclosure
21 and from use for any purpose other than prosecuting this litigation may be warranted.
22 Accordingly, the parties hereby stipulate to and petition the Court to enter the
23 following Stipulated Protective Order. The parties acknowledge that this Order does
24 not confer blanket protections on all disclosures or responses to discovery and that the
25 protection it affords from public disclosure and use extends only to the limited
26 information or items that are entitled to confidential treatment under the applicable
27 legal principles. The parties further acknowledge, as set forth in Section 12.3, below,
28 that this Stipulated Protective Order does not entitle them to file confidential
–1–

STIPULATED PROTECTIVE ORDER

1 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
2 followed and the standards that will be applied when a party seeks permission from
3 the court to file material under seal.
4

B.

GOOD CAUSE STATEMENT

5

This action is likely to involve trade secrets, commercial, financial, technical

6 and/or proprietary information for which special protection from public disclosure and
7 from use for any purpose other than prosecution of this action is warranted. Such
8 confidential and proprietary materials and information consist of, among other things,
9 confidential business or financial information, information regarding confidential

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 business practices, or other confidential research, development, or commercial
11 information (including information implicating privacy rights of third parties),
12 information otherwise generally unavailable to the public, or which may be privileged
13 or otherwise protected from disclosure under state or federal statutes, court rules, case
14 decisions, or common law. Accordingly, to expedite the flow of information, to
15 facilitate the prompt resolution of disputes over confidentiality of discovery materials,
16 to adequately protect information the parties are entitled to keep confidential, to
17 ensure that the parties are permitted reasonable necessary uses of such material in
18 preparation for and in the conduct of trial, to address their handling at the end of the
19 litigation, and serve the ends of justice, a protective order for such information is
20 justified in this matter. It is the intent of the parties that information will not be
21 designated as confidential for tactical reasons and that nothing be so designated
22 without a good faith belief that it has been maintained in a confidential, non-public
23 manner, and there is good cause why it should not be part of the public record of this
24 case.
25 I.

DEFINITIONS

26

A.

Action: The action entitled Terry Poplin v. Synchrony Bank, pending in

27 the United States District Court, Central District of California, Case No.
28 5:17−cv−01061−PSG−RAO.
–2–

STIPULATED PROTECTIVE ORDER

1

B.

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

2 of information or items under this Order.
3

C.

“CONFIDENTIAL” Information or Items: information (regardless of

4 how it is generated, stored or maintained) or tangible things that qualify for protection
5 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
6 Cause Statement.
7

D.

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

8 support staff).
9

E.

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 items that it produces in disclosures or in responses to discovery as
11 “CONFIDENTIAL.”
12

F.

Disclosure or Discovery Material: all items or information, regardless of

13 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

G.

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 an
18 expert witness or as a consultant in this Action.
19

H.

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

I.

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

23 other legal entity not named as a Party to this action.
24

J.

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

25 to this Action but are retained to represent or advise a party to this Action and have
26 appeared in this Action on behalf of that party or are affiliated with a law firm which
27 has appeared on behalf of that party, and includes support staff.
28
–3–

STIPULATED PROTECTIVE ORDER

1

K.

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

2 employees, consultants, retained experts, and Outside Counsel of Record (and their
3 support staffs).
4

L.

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

5 Discovery Material in this Action.
6

M.

Professional Vendors: persons or entities that provide litigation support

7 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.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

N.

Protected Material: any Disclosure or Discovery Material that is

11 designated as “CONFIDENTIAL.”
12

O.

Receiving Party: a Party that receives Disclosure or Discovery Material

13 from a Producing Party.
14 II.

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 extracted
17 from Protected Material; (2) all copies, excerpts, summaries, or compilations of
18 Protected Material; and (3) any testimony, conversations, or presentations by Parties
19 or their Counsel that might reveal Protected Material.
20

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

21 judge. This Order does not govern the use of Protected Material at trial.
22 III.

DURATION

23

Even after final disposition of this litigation, the confidentiality obligations

24 imposed by this Order shall remain in effect until a Designating Party agrees
25 otherwise in writing or a court order otherwise directs. Final disposition shall 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 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
–4–

STIPULATED PROTECTIVE ORDER

1 including the time limits for filing any motions or applications for extension of time
2 pursuant to applicable law.
3 IV.

DESIGNATING PROTECTED MATERIAL

4

A.

Exercise of Restraint and Care in Designating Material for Protection.

5 Each Party or Non-Party that designates information or items for protection under this
6 Order must take care to limit any such designation to specific material that qualifies
7 under the appropriate standards. The Designating Party must designate for protection
8 only those parts of material, documents, items, or oral or written communications that
9 qualify so that other portions of the material, documents, items, or communications

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 for which protection is not warranted are not swept unjustifiably within the ambit of
11 this Order.
12

Mass, indiscriminate, or routinized designations are prohibited. Designations

13 that are shown to be clearly unjustified or that have been made for an improper
14 purpose (e.g., to unnecessarily encumber the case development process or to impose
15 unnecessary expenses and burdens on other parties) may expose the Designating Party
16 to sanctions.
17

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

18 designated for protection do not qualify for protection, that Designating Party must
19 promptly notify all other Parties that it is withdrawing the inapplicable designation.
20

B.

Manner and Timing of Designations. Except as otherwise provided in

21 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
22 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
23 under this Order must be clearly so designated before the material is disclosed or
24 produced.
25
26

Designation in conformity with this Order requires:
1.

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

27 documents, but excluding transcripts of depositions or other pretrial or trial
28 proceedings), that the Producing Party affix at a minimum, the legend
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STIPULATED PROTECTIVE ORDER

1 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
2 contains protected material. If only a portion or portions of the material on a page
3 qualifies for protection, the Producing Party also must clearly identify the protected
4 portion(s) (e.g., by making appropriate markings in the margins).
5

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

6 need not designate them for protection until after the inspecting Party has indicated
7 which documents it would like copied and produced. During the inspection and
8 before the designation, all of the material made available for inspection shall be
9 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 it wants copied and produced, the Producing Party must determine which documents,
11 or portions thereof, qualify for protection under this Order. Then, before producing
12 the specified documents, the Producing Party must affix the “CONFIDENTIAL
13 legend” to each page that contains Protected Material. If only a portion or portions of
14 the material on a page qualifies for protection, the Producing Party also must clearly
15 identify the protected portion(s) (e.g., by making appropriate markings in the
16 margins).

2.

17

for testimony given in depositions that the Designating Party

18 identify the Disclosure or Discovery Material on the record, before the close of the
19 deposition all protected testimony.

3.

20

for information produced in some form other than documentary

21 and for any other tangible items, that the Producing Party affix in a prominent place
22 on the exterior of the container or containers in which the information is stored the
23 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants
24 protection, the Producing Party, to the extent practicable, shall identify the protected
25 portion(s).
26

C.

Inadvertent Failures to Designate. If timely corrected, an inadvertent

27 failure to designate qualified information or items does not, standing alone, waive the
28 Designating Party’s right to secure protection under this Order for such material.
–6–

STIPULATED PROTECTIVE ORDER

1 Upon timely correction of a designation, the Receiving Party must make reasonable
2 efforts to assure that the material is treated in accordance with the provisions of this
3 Order.
4 V.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

5

A.

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

6 designation of confidentiality at any time that is consistent with the Court’s
7 Scheduling Order.
8

B.

Meet and Confer. The Challenging Party shall initiate the dispute

9 resolution process under Local Rule 37.1 et seq.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

C.

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

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

ACCESS TO AND USE OF PROTECTED MATERIAL

18

A.

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

19 disclosed or produced by another Party or by a Non-Party in connection with this
20 Action only for prosecuting, defending, or attempting to settle this Action. Such
21 Protected Material may be disclosed only to the categories of persons and under the
22 conditions described in this Order. When the Action has been terminated, a Receiving
23 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
24

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

25 location and in a secure manner that ensures that access is limited to the persons
26 authorized under this Order.
27

B.

Disclosure of “CONFIDENTIAL” Information or Items. Unless

28 otherwise ordered by the court or permitted in writing by the Designating Party, a
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STIPULATED PROTECTIVE ORDER

1 Receiving Party may disclose any information or item designated “CONFIDENTIAL”
2 only to:
3

1.

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

4 well as employees of said Outside Counsel of Record to whom it is reasonably
5 necessary to disclose the information for this Action;
6

2.

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

7 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
8

3.

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

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
11

4.

the court and its personnel;

12

5.

court reporters and their staff;

13

6.

professional jury or trial consultants, mock jurors, and Professional

14 Vendors to whom disclosure is reasonably necessary for this Action and who have
15 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
16

7.

the author or recipient of a document containing the information or

17 a custodian or other person who otherwise possessed or knew the information;
18

8.

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

19 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
20 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they
21 will not be permitted to keep any confidential information unless they sign the
22 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
23 by the Designating Party or ordered by the court. Pages of transcribed deposition
24 testimony or exhibits to depositions that reveal Protected Material may be separately
25 bound by the court reporter and may not be disclosed to anyone except as permitted
26 under this Stipulated Protective Order; and
27

9.

any mediator or settlement officer, and their supporting personnel,

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

STIPULATED PROTECTIVE ORDER

1 VII.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

2

OTHER LITIGATION

3

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

4 that compels disclosure of any information or items designated in this Action as
5 “CONFIDENTIAL,” that Party must:
6

1.

promptly notify in writing the Designating Party. Such notification

7 shall include a copy of the subpoena or court order;
8

2.

promptly notify in writing the party who caused the subpoena or

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 subpoena or order is subject to this Protective Order. Such notification shall include a
11 copy of this Stipulated Protective Order; and
12

3.

cooperate with respect to all reasonable procedures sought to be

13 pursued by the Designating Party whose Protected Material may be affected.
14

If the Designating Party timely seeks a protective order, the Party served with

15 the subpoena or court order shall not produce any information designated in this
16 action as “CONFIDENTIAL” before a determination by the court from which the
17 subpoena or order issued, unless the Party has obtained the Designating Party’s
18 permission. The Designating Party shall bear the burden and expense of seeking
19 protection in that court of its confidential material and nothing in these provisions
20 should be construed as authorizing or encouraging a Receiving Party in this Action to
21 disobey a lawful directive from another court.
22 VIII. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
23
24

IN THIS LITIGATION
1.

The terms of this Order are applicable to information produced by

25 a Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
26 produced by Non-Parties in connection with this litigation is protected by the
27 remedies and relief provided by this Order. Nothing in these provisions should be
28 construed as prohibiting a Non-Party from seeking additional protections.
–9–

STIPULATED PROTECTIVE ORDER

1

2.

In the event that a Party is required, by a valid discovery request,

2 to produce a Non-Party’s confidential information in its possession, and the Party is
3 subject to an agreement with the Non-Party not to produce the Non-Party’s
4 confidential information, then the Party shall:

a.

5

promptly notify in writing the Requesting Party and the

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

b.

8

promptly provide the Non-Party with a copy of the

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 reasonably specific description of the information requested; and

c.

11

make the information requested available for inspection by

12 the Non-Party, if requested.
13

3.

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

14 within 14 days of receiving the notice and accompanying information, the Receiving
15 Party may produce the Non-Party’s confidential information responsive to the
16 discovery request. If the Non-Party timely seeks a protective order, the Receiving
17 Party shall not produce any information in its possession or control that is subject to
18 the confidentiality agreement with the Non-Party before a determination by the court.
19 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
20 of seeking protection in this court of its Protected Material.
21 IX.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

22

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

23 Protected Material to any person or in any circumstance not authorized under this
24 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
25 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
26 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
27 persons to whom unauthorized disclosures were made of all the terms of this Order,
28
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STIPULATED PROTECTIVE ORDER

1 and (d) request such person or persons to execute the “Acknowledgment and
2 Agreement to Be Bound” that is attached hereto as Exhibit A.
3 X.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

4

PROTECTED MATERIAL

5

When a Producing Party gives notice to Receiving Parties that certain

6 inadvertently produced material is subject to a claim of privilege or other protection,
7 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
8 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
9 may be established in an e-discovery order that provides for production without prior

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
11 parties reach an agreement on the effect of disclosure of a communication or
12 information covered by the attorney-client privilege or work product protection, the
13 parties may incorporate their agreement in the stipulated protective order submitted to
14 the court.
15 XI.

MISCELLANEOUS

16

A.

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

17 person to seek its modification by the Court in the future.
18

B.

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

19 Protective Order no Party waives any right it otherwise would have to object to
20 disclosing or producing any information or item on any ground not addressed in this
21 Stipulated Protective Order. Similarly, no Party waives any right to object on any
22 ground to use in evidence of any of the material covered by this Protective Order.
23

C.

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

24 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
25 only be filed under seal pursuant to a court order authorizing the sealing of the
26 specific Protected Material at issue. If a Party’s request to file Protected Material
27 under seal is denied by the court, then the Receiving Party may file the information in
28 the public record unless otherwise instructed by the court.
– 11 –

STIPULATED PROTECTIVE ORDER

1 XII.

FINAL DISPOSITION

2

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

3 days of a written request by the Designating Party, each Receiving Party must return
4 all Protected Material to the Producing Party or destroy such material. As used in this
5 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
6 summaries, and any other format reproducing or capturing any of the Protected
7 Material. Whether the Protected Material is returned or destroyed, the Receiving
8 Party must submit a written certification to the Producing Party (and, if not the same
9 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 (by category, where appropriate) all the Protected Material that was returned or
11 destroyed and (2)affirms that the Receiving Party has not retained any copies,
12 abstracts, compilations, summaries or any other format reproducing or capturing any
13 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
14 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
15 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
16 reports, attorney work product, and consultant and expert work product, even if such
17 materials contain Protected Material. Any such archival copies that contain or
18 constitute Protected Material remain subject to this Protective Order as set forth in
19 Section 4 (DURATION).
20 XIII. Any violation of this Order may be punished by any and all appropriate
21

measures including, without limitation, contempt proceedings and/or monetary

22

sanctions.

23 ///
24
25
26
27
28
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STIPULATED PROTECTIVE ORDER

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

1
2
3

DATED: November 7, 2017

4

By: /s/ Raagini Shah1______________
Raagini Shah
Attorney for Defendant
SYNCHRONY BANK

5
6
7
8

DATED: November 7, 2017

9

REED SMITH LLP

LAW OFFICES OF L. PAUL MANKIN
By: /s/ Erin E. Rounds________________
Erin E. Rounds
Attorney for Plaintiff
TERRY POPLIN

10
A limited liability partnership formed in the State of Delaware

REED SMITH LLP

11
12
13
14
15

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

16 DATED: November 20, 2017
17

Honorable Rozella A. Oliver
United States Magistrate Judge

18
19
20
21
22
23
24
25
26
27

Pursuant to Central District Local Rule 5-4.3.4(a)(2)(i), filing counsel attests that all
other signatories listed and on whose behalf this filing is submitted concur in the
28 filing’s content and have authorized the filing.
1

– 13 –

STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, __________, of ____________________, declare under penalty of perjury

4 that I have read in its entirety and understand the Stipulated Protective Order that was
5 issued by the United States District Court for the Central District of California on
6 [date] in the case of Terry Poplin v. Synchrony Bank, Case No.
7 5:17−cv−01061−PSG−RAO. I agree to comply with and to be bound by all the terms
8 of this Stipulated Protective Order and I understand and acknowledge that failure to so
9 comply could expose me to sanctions and punishment in the nature of contempt. I

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 solemnly promise that I will not disclose in any manner any information or item that is
11 subject to this Stipulated Protective Order to any person or entity except in strict
12 compliance with the provisions of this Order.
13

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

14 for the Central District of California for the purpose of enforcing the terms of this
15 Stipulated Protective Order, even if such enforcement proceedings occur after
16 termination of this action. I hereby appoint __________ [print or type full name] of
17 __________ [print or type full address and telephone number] as my California agent
18 for service of process in connection with this action or any proceedings related to
19 enforcement of this Stipulated Protective Order.
20
21 Date:

________________________

22 City and State where sworn and signed: __________________________________
23 Printed name: __________________
24 Signature:

____________________

25
26
27
28
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STIPULATED PROTECTIVE ORDER