Candice Ritenour et al v. Carrington Mortgage Services, LLC

Filing 37

STIPULATED PROTECTIVE ORDER 36 by Magistrate Judge Douglas F. McCormick. (es)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Edwin Aiwazian (Cal. State Bar No. 232943) Arby Aiwazian (Cal. State Bar No. 269827) Jill J. Parker (Cal. State Bar No. 274230) LAWYERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, California 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 Attorneys for Plaintiffs CANDICE RITENOUR and CHERYL WEISER TERRY E. SANCHEZ (SBN 101318) KATHERINE M. FORSTER (SBN 217609) MARGARET G. MARASCHINO (SBN 267034) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, Thirty-Fifth Floor Los Angeles, California 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for Defendant CARRINGTON MORTGAGE SERVICES, LLC 16 UNITED STATES DISTRICT COURT 17 CENTRAL DISTRICT OF CALIFORNIA 18 19 20 21 22 CANDICE RITENOUR, individually, and on behalf of other members of the general public similarly situated; CHERYL WEISER, individually, and on behalf of other members of the general public similarly situated, Plaintiffs, 23 vs. 24 25 26 CARRINGTON MORTGAGE SERVICES, LLC, an unknown business entity; and DOES 1 through 100, inclusive, 27 Defendant. 28 35457352.1 Case No. 8:16-CV-02011-CJC-DFM [Discovery Document: Referred to Magistrate Judge Douglas F. McCormick] STIPULATED PROTECTIVE ORDER 1 2 1. PURPOSES, LIMITATIONS AND GOOD CAUSE STATEMENT Disclosure and discovery activity in this action are likely to involve production 3 of confidential, financial, proprietary, or private information for which special 4 protection from public disclosure and from use for any purpose other than prosecuting 5 this litigation may be warranted. Such materials include personnel records (including 6 information regarding non-parties), confidential compensation arrangements (e.g., 7 payroll records and compensation plans), documents reflecting Defendant’s internal 8 policies, procedures, and confidential business practices such as handbooks, internal 9 policies, training information, and organizational charts. This personal and 10 commercial business information is maintained in confidence and generally 11 unavailable to the public. It includes information that implicates privacy rights of 12 third parties and which may be privileged or otherwise protected from disclosure 13 under state or federal statutes, court rules, case decisions, or common law. 14 Accordingly, to expedite the flow of information, to facilitate the prompt 15 resolution of disputes over confidentiality of discovery materials, to adequately 16 protect information the parties are entitled to keep confidential, to ensure that the 17 parties are permitted reasonable necessary uses of such material in preparation for and 18 in the conduct of trial, to address their handling at the end of the litigation, and serve 19 the ends of justice, a protective order for such information is justified in this matter. It 20 is the intent of the parties that information will not be designated as confidential for 21 tactical reasons and that nothing be so designated without a good faith belief that it 22 has been maintained in a confidential, non-public manner, and there is good cause 23 why it should not be part of the public record of this case. 24 Thus, the parties hereby stipulate to and petition the Court to enter the 25 following Stipulated Protective Order. The parties acknowledge that this Order does 26 not confer blanket protections on all disclosures or responses to discovery and that the 27 protection it affords from public disclosure and use extends only to the limited 28 information or items that are entitled to confidential treatment under the applicable 35457352.1 2 1 legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 2 that this Stipulated Protective Order does not entitle them to file confidential 3 information under seal; Local Rule 79-5 sets forth the procedures that must be 4 followed and the standards that will be applied when a party seeks permission from 5 the Court to file material under seal. 6 2. 7 8 9 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of 10 how it is generated, stored or maintained) or tangible things that qualify for protection 11 under Federal Rule of Civil Procedure 26(c). 12 13 14 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or 15 items that it produces in disclosures or in responses to discovery as 16 “CONFIDENTIAL.” 17 2.5 Disclosure or Discovery Material: all items or information, regardless of 18 the medium or manner in which it is generated, stored, or maintained (including, 19 among other things, testimony, transcripts, and tangible things), that are produced or 20 generated in disclosures or responses to discovery in this matter. 21 2.6 Expert: a person with specialized knowledge or experience in a matter 22 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 23 expert witness or as a consultant in this action. 24 2.7 House Counsel: attorneys who are employees of a party to this action. 25 House Counsel does not include Outside Counsel of Record or any other outside 26 counsel. 27 28 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 35457352.1 3 2.9 1 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. 2.10 Party: any party to this action, including all of its officers, directors, 5 6 employees, consultants, retained experts, and Outside Counsel of Record (and their 7 support staffs). 2.11 Producing Party: a Party or Non-Party that produces Disclosure or 8 9 Discovery Material in this action. 2.12 Professional Vendors: persons or entities that provide litigation support 10 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. 2.13 Protected Material: any Disclosure or Discovery Material that is 14 15 designated as “CONFIDENTIAL.” 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material 16 17 from a Producing Party. 18 3. 19 SCOPE 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. However, the protections 24 conferred by this Stipulation and Order do not cover the following information: (a) 25 any information that is in the public domain at the time of disclosure to a Receiving 26 Party or becomes part of the public domain after its disclosure to a Receiving Party as 27 a result of publication not involving a violation of this Order, including becoming part 28 of the public record through trial or otherwise; and (b) any information known to the 35457352.1 4 1 Receiving Party prior to the disclosure or obtained by the Receiving Party after the 2 disclosure from a source who obtained the information lawfully and under no 3 obligation of confidentiality to the Designating Party. Any use of Protected Material at 4 trial shall be governed by a separate agreement or order. 5 4. DURATION Even after final disposition of this litigation, the confidentiality obligations 6 7 imposed by this Order shall remain in effect until a Designating Party agrees 8 otherwise in writing or a court order otherwise directs. Final disposition shall be 9 deemed to be the later of (1) dismissal of all claims and defenses in this action, with or 10 without prejudice; and (2) final judgment herein after the completion and exhaustion 11 of all appeals, rehearings, remands, trials, or reviews of this action, including the time 12 limits for filing any motions or applications for extension of time pursuant to 13 applicable law. 14 5. 15 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 16 Each Party or Non-Party that designates information or items for protection under this 17 Order must take care to limit any such designation to specific material that qualifies 18 under the appropriate standards. The Designating Party must designate for protection 19 only those parts of material, documents, items, or oral or written communications that 20 qualify – so that other portions of the material, documents, items, or communications 21 for which protection is not warranted are not swept unjustifiably within the ambit of 22 this Order. 23 Mass, indiscriminate, or routinized designations are prohibited. Designations 24 that are shown to be clearly unjustified or that have been made for an improper 25 purpose (e.g., to unnecessarily encumber the case development process or to impose 26 unnecessary expenses and burdens on other parties) may expose the Designating Party 27 to sanctions. If it comes to a Designating Party’s attention that information or items 28 35457352.1 5 1 that it designated for protection do not qualify for protection, that Designating Party 2 must promptly notify all other Parties that it is withdrawing the mistaken designation. 3 5.2 Manner and Timing of Designations. Except as otherwise provided in 4 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 5 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 6 under this Order must be clearly so designated before the material is disclosed or 7 produced. 8 Designation in conformity with this Order requires: 9 (a) for information in documentary form (e.g., paper or electronic 10 documents, but excluding transcripts of depositions or other pretrial or trial 11 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each 12 page that contains protected material. If only a portion or portions of the material on a 13 page qualifies for protection, the Producing Party also must clearly identify the 14 protected portion(s) (e.g., by making appropriate markings in the margins). 15 A Party or Non-Party that makes original documents or materials available for 16 inspection need not designate them for protection until after the inspecting Party has 17 indicated which material it would like copied and produced. During the inspection and 18 before the designation, all of the material made available for inspection shall be 19 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 20 it wants copied and produced, the Producing Party must determine which documents, 21 or portions thereof, qualify for protection under this Order. Then, before producing the 22 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend 23 to each page that contains Protected Material. If only a portion or portions of the 24 material on a page qualifies for protection, the Producing Party also must clearly 25 identify the protected portion(s) (e.g., by making appropriate markings in the 26 margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, 27 28 that the Designating Party identify on the record, before the close of the deposition, 35457352.1 6 1 hearing, or other proceeding, all protected testimony. (c) for information produced in some form other than documentary and for 2 3 any other tangible items, that the Producing Party affix in a prominent place on the 4 exterior of the container or containers in which the information or item is stored the 5 legend “CONFIDENTIAL.” If only a portion or portions of the information or item 6 warrant protection, the Producing Party, to the extent practicable, shall identify the 7 protected portion(s). 5.3 8 9 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the 10 Designating Party’s right to secure protection under this Order for such material. 11 Upon timely correction of a designation, the Receiving Party must make reasonable 12 efforts to assure that the material is treated in accordance with the provisions of this 13 Order. 14 6. 15 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 16 designation of confidentiality at any time. Unless a prompt challenge to a Designating 17 Party’s confidentiality designation is necessary to avoid foreseeable, substantial 18 unfairness, unnecessary economic burdens, or a significant disruption or delay of the 19 litigation, a Party does not waive its right to challenge a confidentiality designation by 20 electing not to mount a challenge promptly after the original designation is disclosed. 21 22 23 24 25 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37-1 et seq. 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint stipulation pursuant to Local Rule 37-2 et seq. 6.4 The burden of persuasion in any such challenge proceeding shall be on 26 the Designating Party. Frivolous challenges, and those made for an improper purpose 27 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 28 expose the Challenging Party to sanctions. Unless the Designating Party has waived or 35457352.1 7 1 withdrawn the confidentiality designation, all parties shall continue to afford the 2 material in question the level of protection to which it is entitled under the Producing 3 Party’s designation until the Court rules on the challenge. 4 7. 5 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 6 disclosed or produced by another Party or by a Non-Party in connection with this case 7 only for prosecuting, defending, or attempting to settle this litigation. Such Protected 8 Material may be disclosed only to the categories of persons and under the conditions 9 described in this Order. When the litigation has been terminated, a Receiving Party 10 11 must comply with the provisions of section 13 below (FINAL DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 12 location and in a secure manner that ensures that access is limited to the persons 13 authorized under this Order. 14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 15 otherwise ordered by the Court or permitted in writing by the Designating Party, a 16 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 17 only to: (a) the Receiving Party’s Outside Counsel of Record in this action, as well 18 19 as employees of said Outside Counsel of Record to whom it is reasonably necessary to 20 disclose the information for this litigation; (b) the officers, directors, and employees (including House Counsel) of the 21 22 Receiving Party to whom disclosure is reasonably necessary for this litigation and 23 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom 24 25 disclosure is reasonably necessary for this litigation and who have signed the 26 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 (d) the Court and its personnel; 28 (e) court reporters and their staff, videographers, professional jury or trial 35457352.1 8 1 consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably 2 necessary for this litigation and who have signed the “Acknowledgment and 3 Agreement to Be Bound” (Exhibit A); (f) during their depositions, witnesses, and attorneys for the witnesses, in 4 5 the action to whom disclosure is reasonably necessary and who have signed the 6 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 7 by the Designating Party or ordered by the Court. Pages of transcribed deposition 8 testimony or exhibits to depositions that reveal Protected Material must be separately 9 bound by the court reporter and may not be disclosed to anyone except as permitted 10 under this Stipulated Protective Order. (g) the author or recipient of a document containing the information or a 11 12 custodian or other person who otherwise possessed or knew the information; (h) any mediator or settlement officer, and their supporting personnel, 13 14 mutually agreed upon by any of the parties engaged in settlement discussions. 15 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 16 OTHER LITIGATION 17 If a Party is served with a subpoena or a court order issued in other litigation 18 that compels disclosure of any information or items designated in this action as 19 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall 20 21 include a copy of the subpoena or court order; 22 (b) promptly notify in writing the party who caused the subpoena or order to 23 issue in the other litigation that some or all of the material covered by the subpoena or 24 order is subject to this Protective Order. Such notification shall include a copy of this 25 Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued 26 27 28 by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 35457352.1 9 1 the subpoena or court order shall not produce any information designated in this 2 action as “CONFIDENTIAL” before a determination by the court from which the 3 subpoena or order issued, unless the Party has obtained the Designating Party’s 4 permission. The Designating Party shall bear the burden and expense of seeking 5 protection in that court of its confidential material – and nothing in these provisions 6 should be construed as authorizing or encouraging a Receiving Party in this action to 7 disobey a lawful directive from another court. 8 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 9 10 (a) The terms of this Order are applicable to information produced by a 11 Non-Party in this action and designated as “CONFIDENTIAL.” Such information 12 produced by Non-Parties in connection with this litigation is protected by the 13 remedies and relief provided by this Order. Nothing in these provisions should be 14 construed as prohibiting a Non-Party from seeking additional protections. 15 (b) In the event that a Party is required, by a valid discovery request, to 16 produce a Non-Party’s confidential information in its possession, and the Party is 17 subject to an agreement with the Non-Party not to produce the Non-Party’s 18 confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party 19 20 that some or all of the information requested is subject to a confidentiality agreement 21 with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated 22 23 Protective Order in this litigation, the relevant discovery request(s), and a reasonably 24 specific description of the information requested; and (3) make the information requested available for inspection by the Non- 25 26 Party. (c) If the Non-Party fails to object or seek a protective order from this Court 27 28 within 14 days of receiving the notice and accompanying information, the Receiving 35457352.1 10 1 Party may produce the Non-Party’s confidential information responsive to the 2 discovery request. If the Non-Party timely seeks a protective order, the Receiving 3 Party shall not produce any information in its possession or control that is subject to 4 the confidentiality agreement with the Non-Party before a determination by the Court. 5 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 6 of seeking protection in this Court of its Protected Material. 7 10. If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 8 9 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL Protected Material to any person or in any circumstance not authorized under this 10 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 11 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 12 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 13 persons to whom unauthorized disclosures were made of all the terms of this Order, 14 and (d) request such person or persons to execute the “Acknowledgment and 15 Agreement to Be Bound” that is attached hereto as Exhibit A. 16 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 17 PROTECTED MATERIAL 18 When a Producing Party gives notice to Receiving Parties that certain 19 inadvertently produced material is subject to a claim of privilege or other protection, 20 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 21 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 22 may be established in an e-discovery order that provides for production without prior 23 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 24 parties reach an agreement on the effect of disclosure of a communication or 25 information covered by the attorney-client privilege or work product protection, the 26 parties may incorporate their agreement in the stipulated protective order submitted to 27 the Court. 28 35457352.1 11 1 12. 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 2 3 MISCELLANEOUS person to seek its modification by the Court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this 4 5 Protective Order no Party waives any right it otherwise would have to object to 6 disclosing or producing any information or item on any ground not addressed in this 7 Stipulated Protective Order. Similarly, no Party waives any right to object on any 8 ground to use in evidence of any of the material covered by this Protective Order. 12.3 FILING PROTECTED MATERIAL 9 A Party that seeks to file under seal any Protected Material must comply with 10 11 Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court 12 order authorizing the sealing of the specific Protected Material at issue. If a Party’s 13 request to file Protected Material under seal is denied by the Court, then the Receiving 14 Party may file the information in the public record unless otherwise instructed by the 15 Court. 16 13. 17 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 18 4, each Receiving Party must return all Protected Material to the Producing Party or 19 destroy such material. As used in this subdivision, “all Protected Material” includes 20 all copies, abstracts, compilations, summaries, and any other format reproducing or 21 capturing any of the Protected Material. Whether the Protected Material is returned or 22 destroyed, the Receiving Party must submit a written certification to the Producing 23 Party (and, if not the same person or entity, to the Designating Party) by the 60 day 24 deadline that (1) identifies (by category, where appropriate) all the Protected Material 25 that was returned or destroyed and (2) affirms that the Receiving Party has not 26 retained any copies, abstracts, compilations, summaries or any other format 27 reproducing or capturing any of the Protected Material. Notwithstanding this 28 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 35457352.1 12 1 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 2 deposition and trial exhibits, expert reports, attorney work product, and consultant and 3 expert work product, even if such materials contain Protected Material. Any such 4 archival copies that contain or constitute Protected Material remain subject to this 5 Protective Order as set forth in Section 4 (DURATION). 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 35457352.1 13 1 14. VIOLATION 2 Violation of this Order may be punished by appropriate measures including, without 3 limitation, contempt proceedings and/or monetary sanctions. 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 Respectfully submitted, 6 7 Date: June 29, 2017 LAWYERS for JUSTICE, PC 8 BY: /s/ Jill J. Parker Jill J. Parker Attorneys for Plaintiffs 9 10 11 12 Date: June 29, 2017 MUNGER, TOLLES & OLSON LLP 13 BY: /s/ Margaret G. Maraschino Margaret G. Maraschino Attorneys for Defendant 14 15 16 17 18 19 Pursuant to Local Rule 5-4.3.4(a)(2), the filer attests that all other signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the filing. 20 21 22 PURSUANT TO STIPULATION, IT IS SO ORDERED. 23 24 DATED: July 6, 2017 ____________________________________ 25 Honorable Douglas F. McCormick United States Magistrate Judge 26 27 28 35457352.1 14 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury that 5 I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Northern District of California on 7 [date] in the case of Ritneour, et. al. v. Carrington Mortgage Services, LLC, Case No. 8 8:16-CV-02011-CJC-DFM. I agree to comply with and to be bound by all the terms 9 of this Stipulated Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I 11 solemnly promise that I will not disclose in any manner any information or item that is 12 subject to this Stipulated Protective Order to any person or entity except in strict 13 compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Central District of California for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this 17 action. 18 I hereby appoint __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Stipulated Protective 22 Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 Printed name: _______________________________ 27 28 Signature: __________________________________ 35457352.1 15

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