Terry J Fanning et al v. HSBC Card Services Inc et al

Filing 114

PROTECTIVE ORDER by Magistrate Judge Robert N. Block, GOVERNING USE AND DISSEMINATION OF CONFIDENTIAL DOCUMENTS AND MATERIALS: re Stipulation for Protective Order 108 : (See document for details.) (rla)

1
2
3
4
5
6
7
8
9

STROOCK & STROOCK & LAVAN LLP
JULIA B. STRICKLAND (State Bar No. 083013)
LISA M. SIMONETTI (State Bar No. 165996)
KRISTINA DEL VECCHIO (State Bar No. 283782)
ARJUN P. RAO (State Bar No. 265347)
2029 Century Park East
Los Angeles, CA 90067-3086
Telephone: [phone]
Facsimile: 310-556-5959
Email:
[e-mail]
Attorneys for Defendants
HSBC CARD SERVICES INC. and HSBC
TECHNOLOGY & SERVICES (USA) INC.
UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12
13
14
15
16
17
18

TERRY J. FANNING and TATIANA
JABBAR, each individually and on
behalf of all others similarly situated,
Plaintiffs,
vs.
HSBC CARD SERVICES INC. and
HSBC TECHNOLOGY & SERVICES
(USA) INC.,
Defendants.

19
20
21
22
23
24
25
26
27
28
LA 51609678

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 8:12-CV-00885-JVS-RNB
[Assigned to the Hon. James V. Selna]
[PROPOSED] PROTECTIVE
ORDER GOVERNING USE AND
DISSEMINATION OF
CONFIDENTIAL DOCUMENTS
AND MATERIALS
Action Filed: June 4, 2012
[Stipulation Re Protective Order
Governing Use and Dissemination of
Confidential Documents and Materials
filed concurrently]

RECITALS

1
2

A.

The parties in the above-captioned action may seek discovery that the

3

responding parties assert may contain certain highly sensitive, confidential, trade

4

secret information and documents.

5

B.

The protective order sought herein ("Protective Order") is warranted

6

under the circumstances and is sufficiently tailored to avoid unduly hindering the

7

public's access to the Court's records and files in this matter.

8

CONFIDENTIALITY ORDER

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

9

11

Upon stipulation of the parties, and good cause appearing for the entry of this
Protective Order,
IT IS HEREBY ORDERED that:
I.

12

DEFINITIONS

13

1.

As used in this Protective Order:

14

a.

"Action" means the above-captioned action presently pending in the

15
16
17
18
19
20

United States District Court for the Central District of California.
b.

"Confidential Material" means Material designated as Confidential in

this Action in accordance with the terms of this Protective Order.
c.

"Discovering Counsel" means counsel for a Discovering Party in this

Action.
d.

"Discovering Party" means the Party or Parties to whom Material is

21

being provided, produced, or made available for inspection by a Producing Party or

22

Producing Person in this Action.

23

e.

"Material" means any document or part of a document, testimony or

24

information in any form or medium whatsoever, including, without limitation, any

25

written or printed matter provided, produced or made available for inspection

26

through discovery in this Action by any Party or Person before or after the date of

27

this Protective Order.

28
-1LA 51609678

1

f.

"Trade Secret," as used in this Protective Order means information,

2

including a formula, pattern, compilation, program, design, device, method,

3

technique or process that:
(1)

4

Derives independent economic value, actual or potential, from not

5

being generally known to the public or to other persons who can obtain economic

6

value from its disclosure or use; and
(2)

7
8

circumstances to maintain its secrecy.
g.

"Party" or "Parties" means Plaintiffs, Defendants HSBC Card Services

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

9

Is the subject of efforts that are reasonable under the

Inc., and HSBC Technology & Services (USA) Inc. (collectively, "Defendants"), and

11

any future parties in this Action.

12

h.

"Person" means any individual, corporation, partnership, unincorporated

13

association, governmental agency, or other business or governmental entity, whether

14

a party or not, including non-Parties, from whom discovery is sought in this Action.

15

i.

"Producing Party" means any Party who provides, produces, or makes

16

available for inspection Material during the course of this Action. "Producing

17

Person" means any person who provides, produces, or makes available for inspection

18

Material during the course of this Action.
II.

19
20

2.

SCOPE AND PURPOSE OF PROTECTIVE ORDER

This Protective Order shall govern all Confidential Material in whatever

21

form, including documents, data, information, interrogatory responses, live

22

deposition testimony, deposition transcripts, responses to requests for admission, and

23

any other Confidential Material provided, produced, or made available for inspection

24

in response to any method of discovery conducted in this Action.

25

3.

All Confidential Material received from another Party or Person in this

26

Action shall be used for the purpose of the prosecution or defense of this Action and

27

not for any business or other purpose. All Materials designated as Confidential in

28

this Action or otherwise deemed Confidential pursuant to this Protective Order shall
-2LA 51609678

1

not be disclosed to any Person except as provided herein. The use of information or

2

Material that was lawfully in the possession of a Party prior to being designated

3

Confidential Material, was obtained from a third party having the apparent right to

4

disclose such information, or has become public, other than in violation of this

5

Protective Order, shall not be subject to these restrictions.
III.

6

CONFIDENTIAL MATERIAL

7

A.

Confidential Designation

8

4.

A Producing Party or Producing Person may designate as Confidential

any Material that said party or person has the good faith belief constitutes: (a) Trade

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

9

Secret Material; (b) confidential information of other Persons to whom a duty of

11

confidentiality is owed and designated in such manner as described below; (c) any

12

Material that contains confidential information and, if disclosed to the general public

13

or competitors of any Party or Producing Person, could reasonably be expected to

14

cause competitive harm in the marketplace to a Party or Producing Person; or (d) any

15

other Material that contains confidential information and that the Party or Producing

16

Person has a lawful basis other than as set forth above to prevent the disclosure of

17

this Material to individuals or entities who are not Parties to this Action.

18

5.

Materials designated Confidential consistent with Paragraph 4 of this

19

Protective Order are subject to the provisions of this Protective Order, and shall be

20

protected, used, handled and disposed of in accordance with the provisions of this

21

Protective Order.

22

6.

A Producing Party or Producing Person may designate the following

23

Material and Confidential Material for protection under this Protective Order by one

24

of the following methods:

25

a.

By marking any documentary Material as Confidential prior to its

26

production. Such Confidential Material shall be marked by the Producing Party with

27

a legend bearing the word "CONFIDENTIAL" and an identifying document control

28

number prefixed with one or more letters identifying the Producing Party or
-3LA 51609678

1

Producing Person. In cases where Material to be produced is in a form other than

2

paper, including, without limitation, audiotape, videotape computer tape, computer

3

card, computer disc, compact disc, microfilm or microfiche, the Producing Party or

4

Producing Person shall affix to the Material itself or to its container a stamp or other

5

clear designation bearing the word "CONFIDENTIAL."

6
7
8

By marking or identifying any Material as Confidential prior to making

such documents available for inspection by the Discovering Party;
c.

By stating in writing, at or prior to the time of the inspection of things or

premises, that Confidential Material will be disclosed by the inspection. Such

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

9

b.

writing shall specify, if reasonably practicable, those parts of things or those areas of

11

the premises in which its Confidential Material will be revealed; and

12

d.

By stating orally on the record during the course of a deposition upon

13

oral examination or pursuant to subpoena that all deposition testimony, or any part

14

thereof, is Confidential. Notwithstanding the foregoing, except as otherwise agreed,

15

all information disclosed during a deposition shall be deemed Confidential for ten

16

(10) days after delivery of the transcript to the witness or counsel for the witness

17

unless otherwise agreed, whether or not portions of the transcript have previously

18

been designated Confidential. Upon the expiration of the foregoing period, testimony

19

shall be deemed Confidential Material only if the Material is or has been designated

20

as Confidential Material and the Producing Party specifies in writing those portions

21

of the testimony containing Confidential Material. In the case of a non-party

22

witness, testimony can be designated as containing Confidential Material either by

23

Party or the non-party witness.

24
25
26
27

7.

Confidential Material does not lose its designation merely because it is

contained in any summary, digest, or analysis.
8.

The Parties may agree in writing to modify the foregoing designation

procedures where compliance with them proves impracticable or unduly

28
-4LA 51609678

1

burdensome. The Court may modify the terms of this Stipulation and Order based on

2

the application by any Party, the needs of public policy or other considerations.

3

B.

Restriction on Use of Confidential Material

4

9.

All Confidential Material shall be kept secure by the Discovering Party

5

and access to Confidential Material shall be limited to Persons authorized pursuant to

6

Paragraph 10 of this Protective Order.

7

10.

Except with the prior written consent of the Producing Party or

Producing Person, Confidential Material and information derived therefrom may be

9

disclosed to the Court and its officers and personnel and to qualified Persons only,

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

8

but only to the extent reasonably required for such individuals to assist in the

11

litigation of this Action or in any settlement negotiations or technical discussions

12

between the parties. For purposes of this Protective Order, qualified Persons are

13

defined to consist exclusively of:

14
15
16
17
18

a.

Any Party to this Action (including their insurers and counsel to their

insurers);
b.

Counsel of record, their associated attorneys, paralegals, assistants,

secretaries and support staff participating in this Action;
c.

Counsel who are employed by either Party as "in-house counsel" and

19

such in-house counsel's employees who are assisting in the prosecution and/or

20

defense of this Action, including paralegals, assistants, secretaries, and clerical staff;

21
22
23

d.

Court reporters, notaries and their staff retained by the Parties for the

purpose of recording witness testimony in this Action;
e.

Experts and consultants (including their secretarial, technical and

24

clerical employees) retained by the Parties or their counsel with respect to this

25

Action;

26

f.

27

Officers, directors and other current employees of the Parties, as well as

former employees of the Parties who were identified as authors or recipients of the

28
-5LA 51609678

1

Confidential Material while they were employed, who are reviewing the Confidential

2

Material in order to assist in connection with the Action;
g.

3

Outside service personnel for the purposes of photocopying or assisting

4

in the photocopying or delivery of documents or the retrieval of electronically stored

5

information in connection with this Action;
h.

6

Any witness and the witness's counsel (if any), if the party deems

7

disclosure necessary for the purpose of the prosecution and/or defense of this Action;

8

and

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

9

i.

Any other persons agreed to in writing by the Parties, either as to all or

any Confidential Material.

11

C.

Certification to Be Bound by Protective Order

12

11.

Before the Discovering Party may disclose Confidential Material to any

13

Person described in subparagraphs 10(d), 10(e), 10(g), and 10(h), the Person to

14

whom disclosure is to be made shall read a copy of this Protective Order, and shall

15

evidence his or her agreement to be bound by its terms, conditions, and restrictions

16

by signing a copy of the certification attached as Exhibit A hereto; provided,

17

however, that if an expert or consultant is to be shown Confidential Material for the

18

first time at deposition, at trial or at a hearing, the requirements of this paragraph will

19

be satisfied if the expert or a consultant first declares under oath and on the record

20

that he or she has received a copy of the Protective Order and agrees to be bound by

21

its provisions. Confidential Material may be disclosed to a witness who will not sign

22

the Certification, or will not declare under oath that he or she will be bound by the

23

provisions of this Protective Order, only in a deposition at which the Producing Party

24

is represented, and provided that any such witness will not be permitted to retain a

25

copy of any Confidential Material that is shown to him or her.

26

12.

Counsel for the Party who disclosed Confidential Material to any person

27

listed in subparagraphs 10(d), 10(e), 10(g), and 10(h) in connection with a signed

28

certification shall maintain a file of such certifications. Such certifications shall be
-6LA 51609678

1

provided to an opposing Party or the Producing Party within five court days of

2

signing the certification.

3

D.

Use of Confidential Material in Pleadings and Other Court Papers

4

13.

No items will be filed under seal without a prior application to, and

subject to this Order shall file any Confidential or "Confidential -Attorneys' Eyes

7

Only" Material with the Court without first informing the Producing Party in writing

8

of its intention to do so and providing a reasonable opportunity for the Producing

9

Party to request by way of motion or ex parte application (if circumstances warrant

10
2029 Century Park East
Los Angeles, California 90067-3086

order from, the judge presiding over the hearing or trial. No Party or other person

6

STROOCK & STROOCK & LAVAN LLP

5

such an emergency application) that such material be filed under seal. Only when

11

the judge presiding over the hearing or trial permits filing an item or items under seal

12

may confidential material filed with the Court be filed in a sealed envelope or other

13

container marked on the outside with the caption of this action and the following

14

statement: "CONFIDENTIAL -SUBJECT TO PROTECTIVE ORDER." If any

15

person fails to file protected documents or information under seal, any party to this

16

lawsuit may request that the Court place the filing under seal.

17

14.

In the event of an Emergency Filing, within the meaning of L.R. 77-1,

18

or any other filing by counsel herein which contains or otherwise includes

19

Confidential or "Confidential -Attorneys' Eyes Only" Material, and which filing is

20

subject to a deadline under the Court’s Scheduling Order, under the Federal Rules of

21

Civil Procedure, or the Local Rules of the Central District of California, and for

22

which said counsel is unable, in good faith, to provide the Producing Party a

23

reasonable time to consider a challenge to the public filing of such Confidential or

24

"Confidential -Attorneys' Eyes Only" Material, then in such circumstances the

25

proposed filing shall be accompanied by an application to file the papers or the

26

portion thereof containing the protected information (if such portion is segregable)

27

under seal; and such application shall be directed to the judge to whom the papers are

28
-7LA 51609678

1

directed. In the event the filing in question is a motion, the filing party shall further

2

file a redacted version of the motion and supporting papers.

3

15.

Whenever the Court grants a party permission to file an item under seal,

a duplicate disclosing all non-confidential information shall be filed and made part of

5

the public record. The item may be redacted to eliminate confidential material from

6

the public document. The public document shall be titled to show that it corresponds

7

to an item filed under seal, e.g., "Redacted Copy of Sealed Declaration of John Smith

8

in Support of Motion for Summary Judgment." The sealed and redacted documents

9

shall be filed simultaneously.

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

4

E.

Objections to Designation

11

16.

The following procedures shall govern any challenges to confidentiality

12

designations:

13

a.

If a party reasonably believes that information should not be designated

14

as Confidential, it must specify to the Producing Person or Producing Party in

15

writing (i) the information at issue and (ii) the grounds for questioning the

16

confidentiality designation. The Producing Person or Producing Party must respond

17

in writing within ten business days, or within such different time agreed to by

18

counselor or as ordered by the Court. If no response is received by that time, the

19

Confidential designation shall be deemed withdrawn.

20

b.

If agreement cannot be reached, the party challenging the confidential

21

designation may move the court to lift the designation. Central District of California

22

Local Rules 37-1 and 37-2 shall apply to any motion requesting that the confidential

23

designation be lifted. Until the Court rules, the confidential designation shall remain

24

in effect. Nothing in this Order shall be deemed to allocate or reallocate any

25

substantive burdens with respect to confidentiality; the party claiming confidentiality

26

shall have the burden to establish that the challenged documents are entitled to

27

confidential treatment.

28
-8LA 51609678

1

F.

Produced

2
3

“Attorneys' Eyes Only” Confidentiality of Certain Materials

17.

Certain Materials produced by the Parties and/or other Producing Person

Person shall only designate Materials that fall into this category if the information

6

designated consists of sensitive and confidential information that, if disclosed to third

7

parties including a Party or Producing Person's competitors, would likely cause

8

significant competitive injury or disadvantage to a Party or Producing Person. Such

9

Materials are not only deemed to be "Confidential Material" as described herein and

10
2029 Century Park East
Los Angeles, California 90067-3086

may be designated as "Confidential-Attorneys' Eyes Only." A Party or Producing

5

STROOCK & STROOCK & LAVAN LLP

4

treated as such, but these Materials are also restricted and protected in that they may

11

only be viewed by the Court as set forth herein and the following: (a) the attorneys

12

for the Parties in this action, their office staff, in-house counsel for the Parties, and

13

the Parties' independent, retained expert witnesses provided they have executed an

14

undertaking in the form attached as Attachment A; and (b) any witness(es) in

15

deposition or at a hearing in this action so long as the viewing witness(es) has

16

previously seen and/or are familiar with the Materials pursuant to circumstances

17

where the witness(es) either prepared or reviewed the Material at the time of its

18

preparation in the ordinary course of business and the witness has executed an

19

undertaking in the form attached as Attachment A.

20

18.

If any Party objects to the designation of any Materials as Confidential-

21

Attorneys' Eyes Only as compared to some other designation, the Parties or

22

Producing Persons shall utilize the provisions for objecting to such designation (as

23

compared to some other level of designation or not at all) set forth in Paragraph 16.

24

G.

Return of Confidential Material

25

19.

Within ninety (90) calendar days after the settlement or termination of

26

this Action becomes final, Discovering Counsel shall return or destroy, at

27

Discovering Counsel's option, all Confidential Material provided by a Producing

28

Party, and all copies thereof, except to the extent that any Confidential Material has
-9LA 51609678

been filed with the Court in this Action, in which event (a) Discovering Counsel may

2

retain such Confidential Material in the form in which it has been filed with the

3

Court but may not disclose the Confidential Material to any other persons in a

4

manner inconsistent with this Order and (b) the Producing Party or Producing Person

5

may petition the Court for the return of the Confidential Materials. The Discovering

6

Counsel may also retain any attorney-client or attorney work product information,

7

but shall delete any Confidential Material therefrom. Outside counsel for the

8

Discovering Party shall promptly provide a written certification to the Producing

9

Party that all Confidential Materials that are required to be returned or destroyed

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

1

under the provisions of this paragraph have been so returned or so destroyed. Upon

11

written request from the Producing Party, any documents filed under seal may be

12

returned by the Court to the counsel who filed such documents.

13

H.

Other Provisions

14

20.

Before trial of this Action or any hearing involving Confidential

15

Materials or information derived therefrom, the Parties, through counsel, shall confer

16

in an attempt to agree on an appropriate form of order to submit to the Court

17

regarding the Confidential status, if any, to be afforded documents, testimony or

18

other information to be disclosed during the course of the trial or hearing. Nothing in

19

this Protective Order shall be construed to affect in any way the admissibility of any

20

documents, testimony or other evidence at trial, nor constitute a waiver of any

21

objection thereto.

22

21.

Nothing in this Protective Order shall require production of information

23

that a Party contends is protected from disclosure by the attorney-client privilege, the

24

work product doctrine, or any other applicable privilege.

25

22.

Nothing herein shall be construed to prevent a Producing Party and/or

26

Producing Person from reviewing, using, or disclosing its own Confidential Material

27

in any manner that it deems appropriate, provided however that the manner in which

28
-10LA 51609678

1

such information is used or disclosed may be used by a Discovering Party as a basis

2

for challenging the designation of Confidential Material.

3

23.

If at any time any Confidential Material protected by this Protective

Order is subpoenaed from the Discovering Party by any Court, administrative or

5

legislative body, or is requested by any other Person purporting to have authority to

6

require the production of such Material, .the Party to whom the subpoena or other

7

request is directed shall within five (5) business days from receipt of such subpoena

8

or request, unless a shorter time is required under the circumstances, give written

9

notice thereof to the Producing Party or Producing Person with respect to

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

4

Confidential Material sought. However, nothing contained in this Protective Order is

11

intended or should be construed as authorizing or encouraging a party in this action

12

to disobey a lawful subpoena issued in another action.

13

24.

The fact of designation or failure to designate Materials as Confidential

14

pursuant to this Protective Order shall not be admissible for any purpose in a trial on

15

the merits or at any other proceeding other than at a proceeding arising from or

16

related to this Protective Order.

17

25.

The confidentiality obligations of this Protective Order shall continue

18

during the pendency of, and shall survive the conclusion of, this Action, unless

19

modified by further order of the Court.

20

IT IS SO ORDERED.

21
22

Dated:___________________
April 15, 2013

23

_______________________________________
United States Magistrate Judge Robert N. Block

24
25
26
27
28

-11LA 51609678

1

Attachment A

2

NONDISCLOSURE AGREEMENT

3

The undersigned hereby acknowledges that (he)(she) has been advised of the
terms or has read the PROTECTIVE ORDER GOVERNING USE AND

5

DISSEMINATION OF CONFIDENTIAL DOCUMENTS AND MATERIALS

6

("Order") entered in the following action: Terry J. Fanning and Tatiana Jabbar, both

7

individually and on behalf of all others similarly situated v. HSBC Card Services Inc.

8

and HSBC Technology & Services (USA) Inc., Case No. 8:12-CV-00885-JVS-RNB.

9

I agree to be bound by the terms of said Order, to be subject to the jurisdiction

10
2029 Century Park East
Los Angeles, California 90067-3086

STROOCK & STROOCK & LAVAN LLP

4

of the appropriate court solely for purposes of any disputes arising with respect to the

11

terms of the Order or performance thereunder, and, pursuant to the terms of the

12

Order, agree to maintain in strict confidence all Materials designated Confidential

13

Materials and/or Confidential-Attorneys' Eyes Only as defined therein. I understand

14

that this material and its subject matter is to remain in my personal custody and shall

15

not be disclosed to any persons other than those bound by the terms of this Order

16

until I have completed my assigned duties, whereupon such information is to be

17

returned to counsel who provided it to me. I further agree to notify any personnel

18

assisting me of the terms of said Order and to obtain an agreement from such

19

personnel to be bound by it to the same extent that I am bound.

20
21

Dated: _____________

________________________________________

22
23
24
25
26
27
28
-12LA 51609678