Robert J Neely v. JP Morgan Chase Bank, N.A.

Filing 46

PROTECTIVE ORDER for Confidentiality of Discovery Material by Magistrate Judge Karen E. Scott, re Stipulation for Protective Order 44 . (see document for details). (dro)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBERT J. NEELY, individually, and
on behalf of the class of all others
similarly situated,

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Plaintiff,

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vs.

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JP MORGAN CHASE BANK, N.A.,

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Defendant.

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Case No. 8:16-cv-01924-AG (KESx)
[PROPOSED] PROTECTIVE
ORDER FOR CONFIDENTIALITY
OF DISCOVERY MATERIAL

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[PROPOSED] PROTECTIVE ORDER FOR CONFIDENTIALITY OF DISCOVERY MATERIAL
Case No. 8:16-cv-01924-AG (KESx)
LA 52037412

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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

purpose other than this litigation. Thus, the Court enters this Protective Order. This

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Order does not confer blanket protections on all disclosures or responses to

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

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the specific material entitled to confidential treatment under the applicable legal

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principles. This Order does not automatically authorize the filing under seal of

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information requiring special protection from public disclosure and from use for any

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material designated under this Order. Instead, the parties must comply with

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L.R. 79-5.1 if they seek to file anything under seal. This Order does not govern the

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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 designates

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information or items for protection under this Order as “CONFIDENTIAL,”

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

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CONFIDENTIAL – SOURCE CODE” (a “designator”) must only designate specific

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material that qualifies under the appropriate standards. To the extent practicable,

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only those parts of documents, items, or oral or written communications that require

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protection shall be designated. Designations with a higher confidentiality level when

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a lower level would suffice are prohibited. Mass, indiscriminate, or routinized

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designations are prohibited. Unjustified designations expose the designator to

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sanctions, including the Court’s striking all confidentiality designations made by that

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designator. Designation under this Order is allowed only if the designation is

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necessary to protect material that, if disclosed to persons not authorized to view it,

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would cause competitive or other recognized harm. Material may not be designated

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if it has been made public, or if designation is otherwise unnecessary to protect a

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secrecy interest. If a designator learns that information or items that it designated for

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protection do not qualify for protection at all or do not qualify for the level of
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protection initially asserted, that designator must promptly notify all parties that it is

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withdrawing the mistaken designation.

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2.2.

Manner and Timing of Designations. Designation under this Order

“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

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specify all protected testimony and the level of protection being asserted. The

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

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designator may make that designation during the deposition or proceeding, or may

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invoke, on the record or by written notice to all parties, a right to have up to 30 days

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from the deposition or proceeding to make its designation.
2.2.1. A party or non-party that makes original documents or materials

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available for inspection need not designate them for protection until after the

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inspecting party has identified which material it would like copied and

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produced. During the inspection and before the designation, all material shall

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be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY.

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After the inspecting party has identified the documents it wants copied and

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produced, the producing party must designate the documents, or portions

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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 when

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

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deposition shall not in any way affect its designation. Transcripts containing

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designated material shall have a legend on the title page noting the presence

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

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pages (including line numbers as appropriate) that have been designated, and

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the level of protection being asserted. The designator shall inform the court
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reporter of these requirements. Any transcript that is prepared before the

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expiration of the 30-day period for designation shall be treated during that

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period as if it had been designated HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY unless otherwise agreed. After the expiration of

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the 30-day period, the transcript shall be treated only as actually designated.

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2.3.

Inadvertent Failures to Designate. An inadvertent failure to designate

or correction of a designation, all recipients must make reasonable efforts to ensure

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does not, standing alone, waive protection under this Order. Upon timely assertion

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that the material is treated according to this Order.

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3.

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

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

through L.R. 37-4.

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4.

ACCESS TO DESIGNATED MATERIAL

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4.1.

Basic Principles. A receiving party may use designated material only

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

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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, a receiving party may disclose any material designated CONFIDENTIAL

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only to:
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 reasonably

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necessary;
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 the

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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 Be

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Bound (Exhibit A); and
4.2.7. The author or recipient of a document containing the material,

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or a custodian or other person who otherwise possessed or knew the

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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

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Further Approval. Unless permitted in writing by the designator, a receiving party

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may disclose material designated HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE without further approval

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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); and

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4.3.4. The author or recipient of a document containing the material,

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or a custodian or other person who otherwise possessed or knew the

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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 CONFIDENTIAL

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– SOURCE CODE Material to In-House Counsel or Experts. Unless agreed to in

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writing by the designator:
4.4.1. A party seeking to disclose to in-house counsel any material

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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

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involvement in any competitive decision-making. In-house counsel are not

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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

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counsel of record any information or item that has been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE must first make a written request to the

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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

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

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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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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 to

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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.
4.4.4. All challenges to objections from the designator shall proceed

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

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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

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CONFIDENTIAL – SOURCE CODE material 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. The

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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 transfer
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any portion of the source code onto any recordable media or recordable device. The

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designator may visually monitor the activities of the inspecting party’s

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representatives during any source code review, but only to ensure that there is no

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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

for the preparation of court filings, pleadings, expert reports, other papers, or for

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deposition or trial. The designator shall provide all such source code in paper form,

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

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including Bates numbers and the label “HIGHLY CONFIDENTIAL – SOURCE

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CODE.”
5.4.

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

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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, deposition

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transcript, or other Court document. Any paper copies used during a deposition shall

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be retrieved at the end of each day and must not be left with a court reporter or any

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other unauthorized individual.

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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 of

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

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

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including any appeals. “Prosecution” means drafting, amending, advising on the

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content of, or otherwise affecting the scope or content of patent claims or
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specifications. These prohibitions shall not preclude counsel from participating in

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reexamination or inter partes review proceedings to challenge or defend the validity

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of any patent, but counsel may not participate in the drafting of amended claims in

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any such proceedings.

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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
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 Order

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and to give the designator an opportunity to protect its confidentiality interests in the

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court where the subpoena or order issued.

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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, that

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party must:
7.2.1. Promptly notify the designator in writing. Such notification

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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 or

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

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the subpoena or order is subject to this Order. Such notification shall include

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a copy of this Order; and
7.2.3. Cooperate with all reasonable procedures sought by the

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designator whose material may be affected.
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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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 in

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that court.

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8.

UNAUTHORIZED DISCLOSURE OF DESIGNATED

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MATERIAL

designated material to any person or in any circumstance not authorized under this

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

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Order, it must immediately (1) notify in writing the designator of the unauthorized

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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the

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designated material, (3) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (4) use reasonable efforts to

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have such person or persons execute the Agreement to Be Bound (Exhibit A).

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INADVERTENT PRODUCTION OF PRIVILEGED OR

OTHERWISE PROTECTED MATERIAL
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 26(b)(5)(B).

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This provision is not intended to modify whatever procedure may be established in

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an e-discovery order that provides for production without prior privilege review

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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 may

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

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file under seal any designated material must comply with L.R. 79-5.1. Filings may

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be made under seal only pursuant to a court order authorizing the sealing of the

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specific material at issue. The fact that a document has been designated under this

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Order is insufficient to justify filing under seal. Instead, parties must explain the
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basis for confidentiality of each document sought to be filed under seal. A party

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other than the designator will often seek to file designated material, cooperation

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between the parties in preparing, and in reducing the number and extent of, requests

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for under seal filing is essential. If a receiving party’s request to file designated

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material under seal pursuant to L.R. 79-5.1 is denied by the Court, then the receiving

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party may file the material in the public record unless (1) the designator seeks

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reconsideration within four days of the denial, or (2) as otherwise instructed by the

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Court.

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FINAL DISPOSITION

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

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

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

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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 category,

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where appropriate) all the designated material that was returned or destroyed, and (2)

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affirms that the receiving party has not retained any copies, abstracts, compilations,

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summaries, or any other format reproducing or capturing any of the designated

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material. This provision shall not prevent counsel from retaining an archival copy of

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all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

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work product, and consultant and expert work product, even if such materials contain

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designated material. Any such archival copies remain subject to this Order.

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IT IS SO ORDERED.

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Dated:

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June 12, 2017

Karen E. Scott
United States 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

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

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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 Robert J. Neely v.

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JP Morgan Chase Bank, N.A., Case No. 8:16-cv-01924-AG (KESx). I agree to

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___________________________________ [print or type full address], declare under

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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 sanctions

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and punishment for contempt. I solemnly promise that I will not disclose in any

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manner any information or item that is subject to this Protective Order to any person

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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 Court

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for the Central District of California for the purpose of enforcing this Order, even if

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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

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Order.

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Date:
City and State where sworn and signed:

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Printed name:

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[printed name]
Signature:
[signature]

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CERTIFICATE OF SERVICE

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I hereby certify that on June 6, 2017, a copy of the foregoing [PROPOSED]

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PROTECTIVE ORDER FOR CONFIDENTIALITY OF DISCOVERY

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MATERIAL was filed electronically and served by mail on anyone unable to accept

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electronic filing. Notice of this filing will be sent by e-mail to all parties by

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operation of the court’s electronic filing system or by mail to anyone unable to

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accept electronic filing as indicated on the Notice of Electronic Filing. Parties may

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access this filing through the court’s CM/ECF System.

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/s/ Benjamin G. Diehl
Benjamin G. Diehl

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