Cindy R. Castillo v. Bank of America National Association et al

Filing 47

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott. NOTE CHANGES MADE BY THE COURT AT 6.2. (See document for further details.) #46 (sbou)

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Note changes made by the Court at §6.2 JAMES HAWKINS APLC 1 JAMES R. HAWKINS SBN 192925 GREGORY MAURO, SBN 222239 2 9880 Research Drive, Suite 200 Irvine, California 92618 3 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 4 James@jameshawkinsaplc.com 5 Greg@jameshawkinsaplc.com 6 Attorneys for CINDY R. CASTILLO individually, and on behalf of all others similarly situated 7 MCGUIREWOODS LLP 8 Michael D. Mandel, Esq. (SBN 216934) Email: mmandel@mcguirewoods.com John A. Van Hook, Esq. (SBN 205067) 9 Email: jvanhook@mcguirewoods.com Sean M. Sullivan, Esq. (SBN 286368) 10 Email: ssullivan@mcguirewoods.com 1800 Century Park East, 8th Floor 11 Los Angeles, CA 90067-1501 310.315.8200 12 Telephone: 310.315.8210 Facsimile: 13 Attorneys for Defendant 14 BANK OF AMERICA, N.A. 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 18 19 CINDY R. CASTILLO, individually and on behalf of all others similarly 20 situated, 21 22 23 CASE NO. 8:17-cv-00580-DOC (KESx) [Discovery Document: Referred to Magistrate Judge Karen E. Scott] Plaintiff, [PROPOSED] STIPULATED PROTECTIVE ORDER vs. 24 BANK OF AMERICA NATIONAL ASSOCIATION, a North Carolina 25 Corporation, and DOES 1-10, inclusive, 26 Defendants. 27 28 102032884.2 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the Court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does 7 not confer blanket protections on all disclosures or responses to discovery and that 8 the protection it affords from public disclosure and use extends only to the limited 9 information or items that are entitled to confidential treatment under the applicable 10 legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 11 that this Stipulated Protective Order does not entitle them to file confidential 12 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 13 followed and the standards that will be applied when a party seeks permission from 14 the court to file material under seal. 15 16 B. 17 This action is likely to involve personnel records, proprietary training and education GOOD CAUSE STATEMENT 18 materials, proprietary software and computer processes, trade secrets, valuable research, 19 development, commercial, financial, technical and/or proprietary information for 20 which special protection from public disclosure and from use for any purpose other 21 than prosecution of this action is warranted. Such confidential and proprietary 22 materials and information consist of, among other things, confidential business or 23 financial information, information regarding confidential business practices, or other 24 confidential research, development, or commercial information (including 25 information implicating privacy rights of third parties), information otherwise generally 26 unavailable to the public, or which may be privileged or otherwise protected from 27 disclosure under state or federal statutes, court rules, case decisions, or common law. 28 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of 102032884.2 1 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 disputes over confidentiality of discovery materials, to adequately protect information 2 the parties are entitled to keep confidential, to ensure that the parties are permitted 3 reasonable necessary uses of such material in preparation for and in the conduct of 4 trial, to address their handling at the end of the litigation, and serve the ends of justice, 5 a protective order for such information is justified in this matter. It is the intent of the 6 parties that information will not be designated as confidential for tactical reasons and 7 that nothing be so designated without a good faith belief that it has been maintained 8 in a confidential, non-public manner, and there is good cause why it should not be part 9 of the public record of this case. 10 11 2. DEFINITIONS 12 2.1 Action: this pending federal law suit. 13 2.2 Challenging Party: a Party or Non-Party that challenges the designation 14 of information or items under this Order. 15 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 16 how it is generated, stored or maintained) or tangible things that qualify for protection 17 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 18 Cause Statement. 19 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 20 support staff). 21 2.5 Designating Party: a Party or Non-Party that designates information or 22 items that it produces in disclosures or in responses to discovery as 23 “CONFIDENTIAL.” 24 2.6 Disclosure or Discovery Material: all items or information, regardless of 25 the medium or manner in which it is generated, stored, or maintained (including, 26 among other things, testimony, transcripts, and tangible things), that are produced or 27 generated in disclosures or responses to discovery in this matter. 28 102032884.2 2 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 2.7 Expert: a person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a Party or its counsel to serve as 3 an expert witness or as a consultant in this Action. 4 2.8 House Counsel: attorneys who are employees of a party to this Action. 5 House Counsel does not include Outside Counsel of Record or any other outside 6 counsel. 7 2.9 Non-Party: any natural person, partnership, corporation, association, or 8 other legal entity not named as a Party to this action. 9 2.10 Outside Counsel of Record: attorneys who are not employees of a party 10 to this Action but are retained to represent or advise a party to this Action and have 11 appeared in this Action on behalf of that party or are affiliated with a law firm which 12 has appeared on behalf of that party, and includes support staff. 13 2.11 Party: any party to this Action, including all of its officers, directors, 14 employees, consultants, retained experts, and Outside Counsel of Record (and their 15 support staffs). 16 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 17 Discovery Material in this Action. 18 2.13 Professional Vendors: persons or entities that provide litigation support 19 services (e.g., photocopying, videotaping, translating, preparing exhibits or 20 demonstrations, and organizing, storing, or retrieving data in any form or medium) 21 and their employees and subcontractors. 22 2.14 Protected Material: any Disclosure or Discovery Material that is 23 designated as “CONFIDENTIAL.” 24 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 25 from a Producing Party. 26 27 28 102032884.2 3 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or extracted 4 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 5 Protected Material; and (3) any testimony, conversations, or presentations by Parties 6 or their Counsel that might reveal Protected Material. Any use of Protected Material 7 at trial shall be governed by the orders of the trial judge. This Order does not govern 8 the use of Protected Material at trial. 9 10 4. DURATION 11 Even after final disposition of this litigation, the confidentiality obligations 12 imposed by this Order shall remain in effect until a Designating Party agrees 13 otherwise in writing or a court order otherwise directs. Final disposition shall be 14 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 15 or without prejudice; and (2) final judgment herein after the completion and 16 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 17 including the time limits for filing any motions or applications for extension of time 18 pursuant to applicable law. 19 20 5. 21 22 23 24 25 26 27 28 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify so that other portions of the material, documents, items, or communications 102032884.2 4 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 for which protection is not warranted are not swept unjustifiably within the ambit of 2 this Order. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations 4 that are shown to be clearly unjustified or that have been made for an improper 5 purpose (e.g., to unnecessarily encumber the case development process or to impose 6 unnecessary expenses and burdens on other parties) may expose the Designating Party 7 to sanctions. 8 If it comes to a Designating Party’s attention that information or items that it 9 designated for protection do not qualify for protection, that Designating Party must 10 promptly notify all other Parties that it is withdrawing the inapplicable designation. 11 5.2 Manner and Timing of Designations. Except as otherwise provided in 12 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 13 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 14 under this Order must be clearly so designated before the material is disclosed or 15 produced. 16 Designation in conformity with this Order requires: 17 (a) for information in documentary form (e.g., paper or electronic 18 documents, but excluding transcripts of depositions or other pretrial or trial 19 proceedings), that the Producing Party affix, at a minimum, the legend 20 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 21 contains protected material. If only a portion or portions of the material on a page 22 qualifies for protection, the Producing Party also must clearly identify the protected 23 portion(s) (e.g., by making appropriate markings in the margins). 24 A Party or Non-Party that makes original documents available for inspection 25 need not designate them for protection until after the inspecting Party has indicated 26 which documents it would like copied and produced. During the inspection and before 27 the designation, all of the material made available for inspection shall be deemed 28 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 102032884.2 5 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 copied and produced, the Producing Party must determine which documents, or 2 portions thereof, qualify for protection under this Order. Then, before producing the 3 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” 4 to each page that contains Protected Material. If only a portion or portions of the 5 material on a page qualifies for protection, the Producing Party also must clearly 6 identify the protected portion(s) (e.g., by making appropriate markings in the 7 margins). 8 (b) for testimony given in depositions that the Designating Party identify the 9 Disclosure or Discovery Material on the record, before the close of the deposition. 10 (c) for information produced in some form other than documentary and for 11 any other tangible items, that the Producing Party affix in a prominent place on the 12 exterior of the container or containers in which the information is stored the legend 13 “CONFIDENTIAL.” If only a portion or portions of the information warrants 14 protection, the Producing Party, to the extent practicable, shall identify the protected 15 portion(s). 16 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 17 failure to designate qualified information or items does not, standing alone, waive the 18 Designating Party’s right to secure protection under this Order for such material. 19 Upon timely correction of a designation, the Receiving Party must make reasonable 20 efforts to assure that the material is treated in accordance with the provisions of this 21 Order. 22 23 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 24 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 25 designation of confidentiality at any time that is consistent with the Court’s 26 Scheduling Order. 27 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 28 resolution process under Local Rule 37.1, et seq. Any discovery motion must strictly 102032884.2 6 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 comply with the procedures set forth in Local Rules 37-1 et seq. or follow the 2 procedures for informal telephonic discovery hearings on the Court’s website. 3 6.3 Burden. The burden of persuasion in any such challenge proceeding shall 4 be on the Designating Party. Frivolous challenges, and those made for an improper 5 purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) 6 may expose the Challenging Party to sanctions. Unless the Designating Party has 7 waived or withdrawn the confidentiality designation, all parties shall continue to 8 afford the material in question the level of protection to which it is entitled under the 9 Producing Party’s designation until the Court rules on the challenge. 10 11 7. ACCESS TO AND USE OF PROTECTED MATERIAL 12 7.1 Basic Principles. A Receiving Party may use Protected Material that is 13 disclosed or produced by another Party or by a Non-Party in connection with this 14 Action only for prosecuting, defending, or attempting to settle this Action. Such 15 Protected Material may be disclosed only to the categories of persons and under the 16 conditions described in this Order. When the Action has been terminated, a Receiving 17 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 18 Protected Material must be stored and maintained by a Receiving Party at a 19 location and in a secure manner that ensures that access is limited to the persons 20 authorized under this Order. 21 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 22 otherwise ordered by the Court or permitted in writing by the Designating Party, a 23 Receiving Party may disclose any information or item designated 24 “CONFIDENTIAL” only to: 25 (a) the Receiving Party’s Outside Counsel of Record in this Action, 26 as well as employees of said Outside Counsel of Record to whom it is reasonably 27 necessary to disclose the information for this Action; 28 102032884.2 7 [PROPOSED] STIPULATED PROTECTIVE ORDER (b) 1 the officers, directors, and employees (including House Counsel) 2 of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) 3 Experts (as defined in this Order) of the Receiving Party to whom 4 disclosure is reasonably necessary for this Action and who have signed the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 6 (d) the Court and its personnel; 7 (e) court reporters and their staff; 8 (f) professional jury or trial consultants, mock jurors, and 9 Professional Vendors to whom disclosure is reasonably necessary for this Action and 10 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) 11 the author or recipient of a document containing the information 12 or a custodian or other person who otherwise possessed or knew the information; (h) 13 during their depositions, witnesses, and attorneys for witnesses, in 14 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 15 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they 16 will not be permitted to keep any confidential information unless they sign the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 18 agreed by the Designating Party or ordered by the Court. Pages of transcribed 19 deposition testimony or exhibits to depositions that reveal Protected Material may be 20 separately bound by the court reporter and may not be disclosed to anyone except as 21 permitted under this Stipulated Protective Order; and (i) 22 any mediator or settlement officer, and their supporting personnel, 23 mutually agreed upon by any of the parties engaged in settlement discussions. 24 25 26 27 28 102032884.2 8 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation 4 that compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL,” that Party must: 6 (a) promptly notify in writing the Designating Party. Such 7 notification shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or 9 order to issue in the other litigation that some or all of the material covered by the 10 subpoena or order is subject to this Protective Order. Such notification shall include 11 a copy of this Stipulated Protective Order; and 12 (c) cooperate with respect to all reasonable procedures sought to be 13 pursued by the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served with 15 the subpoena or court order shall not produce any information designated in this action 16 as “CONFIDENTIAL” before a determination by the court from which the subpoena 17 or order issued, unless the Party has obtained the Designating Party’s permission. The 18 Designating Party shall bear the burden and expense of seeking protection in that court 19 of its confidential material and nothing in these provisions should be construed as 20 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 21 directive from another court. 22 23 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 24 PRODUCED IN THIS LITIGATION 25 (a) The terms of this Order are applicable to information produced by 26 a Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 27 produced by Non-Parties in connection with this litigation is protected by the 28 102032884.2 9 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 remedies and relief provided by this Order. Nothing in these provisions should be 2 construed as prohibiting a Non-Party from seeking additional protections. 3 (b) In the event that a Party is required, by a valid discovery request, 4 to produce a Non- Party’s confidential information in its possession, and the Party is 5 subject to an agreement with the Non-Party not to produce the Non-Party’s 6 confidential information, then the Party shall: (1) 7 promptly notify in writing the Requesting Party and the 8 Non-Party that some or all of the information requested is subject to a confidentiality 9 agreement with a Non-Party; (2) 10 promptly provide the Non-Party with a copy of the 11 Stipulated Protective Order in this Action, the relevant discovery request(s), and a 12 reasonably specific description of the information requested; and (3) 13 make the information requested available for inspection by 14 the Non-Party, if requested. 15 (c) If the Non-Party fails to seek a protective order from this Court 16 within 14 days of receiving the notice and accompanying information, the Receiving 17 Party may produce the Non- Party’s confidential information responsive to the 18 discovery request. If the Non-Party timely seeks a protective order, the Receiving 19 Party shall not produce any information in its possession or control that is subject to 20 the confidentiality agreement with the Non-Party before a determination by the Court. 21 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 22 of seeking protection in this Court of its Protected Material. 23 24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 26 Protected Material to any person or in any circumstance not authorized under this 27 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 28 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 102032884.2 10 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 2 persons to whom unauthorized disclosures were made of all the terms of this Order, 3 and (d) request such person or persons to execute the “Acknowledgment and 4 Agreement to Be Bound” that is attached hereto as Exhibit A. 5 6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 7 PROTECTED MATERIAL 8 When a Producing Party gives notice to Receiving Parties that certain 9 inadvertently produced material is subject to a claim of privilege or other protection, 10 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 11 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 12 may be established in an e-discovery order that provides for production without prior 13 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 14 parties reach an agreement on the effect of disclosure of a communication or 15 information covered by the attorney-client privilege or work product protection, the 16 parties may incorporate their agreement in the stipulated protective order submitted 17 to the Court. 18 19 12. MISCELLANEOUS 20 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 21 person to seek its modification by the Court in the future. 22 12.2 Right to Assert Other Objections. By stipulating to the entry of this 23 Protective Order, no Party waives any right it otherwise would have to object to 24 disclosing or producing any information or item on any ground not addressed in this 25 Stipulated Protective Order. Similarly, no Party waives any right to object on any 26 ground to use in evidence of any of the material covered by this Protective Order. 27 12.3 Filing Protected Material. A Party that seeks to file under seal any 28 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 102032884.2 11 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 only be filed under seal pursuant to a court order authorizing the sealing of the specific 2 Protected Material at issue. If a Party’s request to file Protected Material under seal is 3 denied by the Court, then the Receiving Party may file the information in the public 4 record unless otherwise instructed by the Court. 5 6 13. FINAL DISPOSITION 7 After the final disposition of this Action, within 60 days of a written request by 8 the Designating Party, each Receiving Party must return all Protected Material to the 9 Producing Party or destroy such material. As used in this subdivision, “all Protected 10 Material” includes all copies, abstracts, compilations, summaries, and any other 11 format reproducing or capturing any of the Protected Material. Whether the Protected 12 Material is returned or destroyed, the Receiving Party must submit a written 13 certification to the Producing Party (and, if not the same person or entity, to the 14 Designating Party) by the 60 day deadline that (1) identifies (by category, where 15 appropriate) all the Protected Material that was returned or destroyed and (2) affirms 16 that the Receiving Party has not retained any copies, abstracts, compilations, 17 summaries or any other format reproducing or capturing any of the Protected Material. 18 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 19 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 20 correspondence, deposition and trial exhibits, expert reports, attorney work product, 21 and consultant and expert work product, even if such materials contain Protected 22 Material. Any such archival copies that contain or constitute Protected Material 23 remain subject to this Protective Order as set forth in Section 4 (DURATION). 24 // 25 // 26 // 27 // 28 // 102032884.2 12 [PROPOSED] 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 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD 6 7 Dated: July 13, 2018 JAMES HAWKINS APLC 8 By: 9 10 /s/ Greg Mauro James R. Hawkins Gregory E. Mauro Attorneys for Plaintiff Cindy R. Castillo 11 12 DATED: July 13, 2018 13 MCGUIREWOODS LLP 14 By: /s/ Michael D. Mandel Michael Mandel, Esq. John Van Hook, Esq. Sean M. Sullivan, Esq. 15 16 17 Attorneys for Defendant BANK OF AMERICA, N.A. 18 19 20 I attest that all signatories listed above, and on whose behalf this document is submitted, have concurred in and authorized the filing of the document. 21 /s/ Michael D. Mandel MICHAEL D. MANDEL 22 23 24 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 25 DATED: July 13, 2018 ____________________________________ Karen E. Scott United States Magistrate Judge 26 27 28 102032884.2 13 [PROPOSED] STIPULATED PROTECTIVE ORDER EXHIBIT A 1 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 3 I, [print 4 or type full name], of [print or type full address], declare under 5 penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California on [date] in the case 7 of Cindy R. Castillo v. Bank of America National Association, U.S. District Court, Central District 8 9 of California, Case No. 8:17-cv-00580-DOC (KESx). I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise 10 that I will not disclose in any manner any information or item that is subject to this Stipulated 11 Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Central 12 13 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if 14 15 such enforcement proceedings occur after termination of this action. I hereby appoint _____________________________________ [print or type full name] of [print or type full address and telephone 16 17 18 19 number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. Date: 20 City and State where sworn and signed: 21 Printed name: 22 23 Signature: 24 25 26 27 28 102032884.2 14 [PROPOSED] STIPULATED PROTECTIVE ORDER

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