Aleksandr Perstin v. Experian Information Solutions, Inc. et al

Filing 28

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 25 . (kh)

1 Abraham J. Colman (SBN 146933)

Email: [e-mail]

2 Raagini Shah (SBN 268022)

Email: [e-mail]

3 REED SMITH LLP

355 South Grand Avenue, Suite 2900

4 Los Angeles, CA 90071-1514

Telephone: [phone]
[phone]

5 Facsimile:

6 Attorneys for Defendant

BANK OF AMERICA, N.A.

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 ALEKSANDR PERSTIN,

Plaintiff,

12

vs.

13

14 EXPERIAN INFORMATION

SOLUTIONS, INC.; BANK OF

Case No. 8:15-cv-1480-CJC-JCG
STIPULATED PROTECTIVE
ORDER
Honorable Magistrate Judge Jay C.
Gandhi

15 AMERICA, N.A.,

Defendants.

16
17
18 1.

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, customer and pricing lists and

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 confidential business or financial information, information regarding confidential
11 business practices, or other confidential research, development, or commercial
12 information (including information implicating privacy rights of third parties),
13 information otherwise generally unavailable to the public, or which may be privileged
14 or otherwise protected from disclosure under state or federal statutes, court rules, case
15 decisions, or common law. Accordingly, to expedite the flow of information, to
16 facilitate the prompt resolution of disputes over confidentiality of discovery materials,
17 to adequately protect information the parties are entitled to keep confidential, to
18 ensure that the parties are permitted reasonable necessary uses of such material in
19 preparation for and in the conduct of trial, to address their handling at the end of the
20 litigation, and serve the ends of justice, a protective order for such information is
21 justified in this matter. It is the intent of the parties that information will not be
22 designated as confidential for tactical reasons and that nothing be so designated
23 without a good faith belief that it has been maintained in a confidential, non-public
24 manner, and there is good cause why it should not be part of the public record of this
25 case.
26
27
28
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STIPULATED PROTECTIVE ORDER

1 2.

DEFINITIONS

2

2.1

Action: The action entitled Aleksandr Perstin v. Experian Information

3 Solutions, Inc. et al., pending in the United States District Court, Central District of
4 California, Case No. 8:15-cv-1480.
5

2.2

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

6 of information or items under this Order.
7

2.3

“CONFIDENTIAL” Information or Items: information (regardless of

8 how it is generated, stored or maintained) or tangible things that qualify for protection
9 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 Cause Statement.
11

2.4

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

12 support staff).
13

2.5

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

14 items that it produces in disclosures or in responses to discovery as
15 “CONFIDENTIAL.”
16

2.6

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

17 the medium or manner in which it is generated, stored, or maintained (including,
18 among other things, testimony, transcripts, and tangible things), that are produced or
19 generated in disclosures or responses to discovery in this matter.
20

2.7

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

21 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
22 expert witness or as a consultant in this Action.
23

2.8

House Counsel: attorneys who are employees of a party to this Action.

24 House Counsel does not include Outside Counsel of Record or any other outside
25 counsel.
26

2.9

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

27 other legal entity not named as a Party to this action.
28
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STIPULATED PROTECTIVE ORDER

1

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

2 to this Action but are retained to represent or advise a party to this Action and have
3 appeared in this Action on behalf of that party or are affiliated with a law firm which
4 has appeared on behalf of that party, and includes support staff.
5

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

6 employees, consultants, retained experts, and Outside Counsel of Record (and their
7 support staffs).
8

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

9 Discovery Material in this Action.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

2.13 Professional Vendors: persons or entities that provide litigation support

11 services (e.g., photocopying, videotaping, translating, preparing exhibits or
12 demonstrations, and organizing, storing, or retrieving data in any form or medium)
13 and their employees and subcontractors.
14

2.14 Protected Material: any Disclosure or Discovery Material that is

15 designated as “CONFIDENTIAL.”
16

2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

17 from a Producing Party.
18 3.

SCOPE

19

The protections conferred by this Stipulation and Order cover not only

20 Protected Material (as defined above), but also (1) any information copied or extracted
21 from Protected Material; (2) all copies, excerpts, summaries, or compilations of
22 Protected Material; and (3) any testimony, conversations, or presentations by Parties
23 or their Counsel that might reveal Protected Material.
24

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

25 judge. This Order does not govern the use of Protected Material at trial.
26 4.

DURATION

27

Even after final disposition of this litigation, the confidentiality obligations

28 imposed by this Order shall remain in effect until a Designating Party agrees
–4–

STIPULATED PROTECTIVE ORDER

1 otherwise in writing or a court order otherwise directs. Final disposition shall be
2 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
3 or without prejudice; and (2) final judgment herein after the completion and
4 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
5 including the time limits for filing any motions or applications for extension of time
6 pursuant to applicable law.
7 5.

DESIGNATING PROTECTED MATERIAL

8

5.1

Exercise of Restraint and Care in Designating Material for Protection.

9 Each Party or Non-Party that designates information or items for protection under this

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 Order must take care to limit any such designation to specific material that qualifies
11 under the appropriate standards. The Designating Party must designate for protection
12 only those parts of material, documents, items, or oral or written communications that
13 qualify so that other portions of the material, documents, items, or communications
14 for which protection is not warranted are not swept unjustifiably within the ambit of
15 this Order.
16

Mass, indiscriminate, or routinized designations are prohibited. Designations

17 that are shown to be clearly unjustified or that have been made for an improper
18 purpose (e.g., to unnecessarily encumber the case development process or to impose
19 unnecessary expenses and burdens on other parties) may expose the Designating Party
20 to sanctions.
21

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

22 designated for protection do not qualify for protection, that Designating Party must
23 promptly notify all other Parties that it is withdrawing the inapplicable designation.
24

5.2

Manner and Timing of Designations. Except as otherwise provided in

25 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
26 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
27 under this Order must be clearly so designated before the material is disclosed or
28 produced.
–5–

STIPULATED PROTECTIVE ORDER

1

Designation in conformity with this Order requires:
(a)

2

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

3 documents, but excluding transcripts of depositions or other pretrial or trial
4 proceedings),

that the Producing Party affix at a minimum, the legend

5 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
6 contains protected material. If only a portion or portions of the material on a page
7 qualifies for protection, the Producing Party also must clearly identify the protected
8 portion(s) (e.g., by making appropriate markings in the margins).
9

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 need not designate them for protection until after the inspecting Party has indicated
11 which documents it would like copied and produced. During the inspection and
12 before the designation, all of the material made available for inspection shall be
13 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
14 it wants copied and produced, the Producing Party must determine which documents,
15 or portions thereof, qualify for protection under this Order. Then, before producing
16 the specified documents, the Producing Party must affix the “CONFIDENTIAL
17 legend” to each page that contains Protected Material. If only a portion or portions of
18 the material on a page qualifies for protection, the Producing Party also must clearly
19 identify the protected portion(s) (e.g., by making appropriate markings in the
20 margins).
21

(b)

for testimony given in depositions that the Designating Party

22 identify the Disclosure or Discovery Material on the record, before the close of the
23 deposition all protected testimony.
24

(c)

for information produced in some form other than documentary

25 and for any other tangible items, that the Producing Party affix in a prominent place
26 on the exterior of the container or containers in which the information is stored the
27 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants
28
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STIPULATED PROTECTIVE ORDER

1 protection, the Producing Party, to the extent practicable, shall identify the protected
2 portion(s).
3

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

4 failure to designate qualified information or items does not, standing alone, waive the
5 Designating Party’s right to secure protection under this Order for such material.
6 Upon timely correction of a designation, the Receiving Party must make reasonable
7 efforts to assure that the material is treated in accordance with the provisions of this
8 Order.
9 6.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

11 designation of confidentiality at any time that is consistent with the Court’s
12 Scheduling Order.
13

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

14 resolution process under Local Rule 37.1 et seq.
15

6.3

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

16 the Designating Party. Frivolous challenges, and those made for an improper purpose
17 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
18 expose the Challenging Party to sanctions. Unless the Designating Party has waived
19 or withdrawn the confidentiality designation, all parties shall continue to afford the
20 material in question the level of protection to which it is entitled under the Producing
21 Party’s designation until the Court rules on the challenge.
22 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

23

7.1

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

24 disclosed or produced by another Party or by a Non-Party in connection with this
25 Action only for prosecuting, defending, or attempting to settle this Action. Such
26 Protected Material may be disclosed only to the categories of persons and under the
27 conditions described in this Order. When the Action has been terminated, a Receiving
28 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
–7–

STIPULATED PROTECTIVE ORDER

1

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

2 location and in a secure manner that ensures that access is limited to the persons
3 authorized under this Order.
4

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

5 otherwise ordered by the court or permitted in writing by the Designating Party, a
6 Receiving Party may disclose any information or item designated “CONFIDENTIAL”
7 only to:
8

(a)

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

9 well as employees of said Outside Counsel of Record to whom it is reasonably

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 necessary to disclose the information for this Action;
11

(b)

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

12 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
13

(c)

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

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

(d)

the court and its personnel;

17

(e)

court reporters and their staff;

18

(f)

professional jury or trial consultants, mock jurors, and Professional

19 Vendors to whom disclosure is reasonably necessary for this Action and who have
20 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
21

(g)

the author or recipient of a document containing the information or

22 a custodian or other person who otherwise possessed or knew the information;
23

(h)

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

24 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
25 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they
26 will not be permitted to keep any confidential information unless they sign the
27 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
28 by the Designating Party or ordered by the court. Pages of transcribed deposition
–8–

STIPULATED PROTECTIVE ORDER

1 testimony or exhibits to depositions that reveal Protected Material may be separately
2 bound by the court reporter and may not be disclosed to anyone except as permitted
3 under this Stipulated Protective Order; and
4

(i)

any mediator or settlement officer, and their supporting personnel,

5 mutually agreed upon by any of the parties engaged in settlement discussions.
6 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

7 OTHER LITIGATION
8

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

9 that compels disclosure of any information or items designated in this Action as

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 “CONFIDENTIAL,” that Party must:
11

(a)

promptly notify in writing the Designating Party. Such notification

12 shall include a copy of the subpoena or court order;
13

(b)

promptly notify in writing the party who caused the subpoena or

14 order to issue in the other litigation that some or all of the material covered by the
15 subpoena or order is subject to this Protective Order. Such notification shall include a
16 copy of this Stipulated Protective Order; and
17

(c)

cooperate with respect to all reasonable procedures sought to be

18 pursued by the Designating Party whose Protected Material may be affected.
19

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

20 the subpoena or court order shall not produce any information designated in this
21 action as “CONFIDENTIAL” before a determination by the court from which the
22 subpoena or order issued, unless the Party has obtained the Designating Party’s
23 permission. The Designating Party shall bear the burden and expense of seeking
24 protection in that court of its confidential material and nothing in these provisions
25 should be construed as authorizing or encouraging a Receiving Party in this Action to
26 disobey a lawful directive from another court.
27
28
–9–

STIPULATED PROTECTIVE ORDER

1 9.

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

2 IN THIS LITIGATION
3

(a)

The terms of this Order are applicable to information produced by

4 a Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
5 produced by Non-Parties in connection with this litigation is protected by the
6 remedies and relief provided by this Order. Nothing in these provisions should be
7 construed as prohibiting a Non-Party from seeking additional protections.
8

(b)

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

9 to produce a Non-Party’s confidential information in its possession, and the Party is

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 subject to an agreement with the Non-Party not to produce the Non-Party’s
11 confidential information, then the Party shall:

(1)

12

promptly notify in writing the Requesting Party and the

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

(2)

15

promptly provide the Non-Party with a copy of the

16 Stipulated Protective Order in this Action, the relevant discovery request(s), and a
17 reasonably specific description of the information requested; and

(3)

18

make the information requested available for inspection by

19 the Non-Party, if requested.
20

(c)

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

21 within 14 days of receiving the notice and accompanying information, the Receiving
22 Party may produce the Non-Party’s confidential information responsive to the
23 discovery request. If the Non-Party timely seeks a protective order, the Receiving
24 Party shall not produce any information in its possession or control that is subject to
25 the confidentiality agreement with the Non-Party before a determination by the court.
26 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
27 of seeking protection in this court of its Protected Material.
28
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STIPULATED PROTECTIVE ORDER

1 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

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

3 Protected Material to any person or in any circumstance not authorized under this
4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
7 persons to whom unauthorized disclosures were made of all the terms of this Order,
8 and (d) request such person or persons to execute the “Acknowledgment and
9 Agreement to Be Bound” that is attached hereto as Exhibit A.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

11 PROTECTED MATERIAL
12

When a Producing Party gives notice to Receiving Parties that certain

13 inadvertently produced material is subject to a claim of privilege or other protection,
14 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
16 may be established in an e-discovery order that provides for production without prior
17 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
18 parties reach an agreement on the effect of disclosure of a communication or
19 information covered by the attorney-client privilege or work product protection, the
20 parties may incorporate their agreement in the stipulated protective order submitted to
21 the court.
22 12.

MISCELLANEOUS

23

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

24 person to seek its modification by the Court in the future.
25

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

26 Protective Order no Party waives any right it otherwise would have to object to
27 disclosing or producing any information or item on any ground not addressed in this
28
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STIPULATED PROTECTIVE ORDER

1 Stipulated Protective Order. Similarly, no Party waives any right to object on any
2 ground to use in evidence of any of the material covered by this Protective Order.
3

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

4 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
5 only be filed under seal pursuant to a court order authorizing the sealing of the
6 specific Protected Material at issue. If a Party’s request to file Protected Material
7 under seal is denied by the court, then the Receiving Party may file the information in
8 the public record unless otherwise instructed by the court.
9 13.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

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

11 days of a written request by the Designating Party, each Receiving Party must return
12 all Protected Material to the Producing Party or destroy such material. As used in this
13 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
14 summaries, and any other format reproducing or capturing any of the Protected
15 Material. Whether the Protected Material is returned or destroyed, the Receiving
16 Party must submit a written certification to the Producing Party (and, if not the same
17 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
18 (by category, where appropriate) all the Protected Material that was returned or
19 destroyed and (2)affirms that the Receiving Party has not retained any copies,
20 abstracts, compilations, summaries or any other format reproducing or capturing any
21 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
22 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
23 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
24 reports, attorney work product, and consultant and expert work product, even if such
25 materials contain Protected Material. Any such archival copies that contain or
26 constitute Protected Material remain subject to this Protective Order as set forth in
27 Section 4 (DURATION).
28
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STIPULATED PROTECTIVE ORDER

1 14.

Any violation of this Order may be punished by any and all appropriate

2 measures including, without limitation, contempt proceedings and/or monetary
3 sanctions.
4

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

5
6
7

DATED: June 14, 2016

8

REED SMITH LLP

10

By: /s/Raagini Shah1
Raagini Shah
Attorneys for Defendant
BANK OF AMERICA, N.A.

11 DATED: June 14, 2016

JONES DAY

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

9

12
13

15

By: /s/Angela Taylor
Angela Taylor
Attorney for Defendant
EXPERIAN INFORMATION
SOLUTIONS, INC.

16 DATED: June 14, 2016

TATAR LAW FIRM APC

14

17
18

By: /s/Stephanie R. Tatar
Stephanie R. Tatar
Attorneys for Plaintiff
ALEKSANDR PERSTIN

19
20

21 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
22
23

DATED: June 21, 2016
Honorable Jay C. Gandhi
United States District Magistrate Judge

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

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STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, __________ [print or type full name], of __________ [print or type full

4 address], declare under penalty of perjury that I have read in its entirety and
5 understand the Stipulated Protective Order that was issued by the United States
6 District Court for the Central District of California on [date] in the case of Aleksandr
7 Perstin v. Bank of America et al., Case No. 8:15-cv-1480-CJC-JCG. I agree to
8 comply with and to be bound by all the terms of this Stipulated Protective Order and I
9 understand and acknowledge that failure to so comply could expose me to sanctions

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 and punishment in the nature of contempt. I solemnly promise that I will not disclose
11 in any manner any information or item that is subject to this Stipulated Protective
12 Order to any person or entity except in strict compliance with the provisions of this
13 Order.
14

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

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