Michael Korman v. Experian Information Solutions Inc. et al

Filing 37

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott 36 . (jdo)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9
10

Case No. 8:18-cv-00024-AG-KES

MICHAEL KORMAN, an individual,

11

Plaintiff,

12

14
15
16
17
18
19

STIPULATED PROTECTIVE
ORDER

vs.

13

EXPERIAN INFORMATION
SOLUTIONS INC., is a business
entity, form unknown;
PROGRESSIVE MANAGEMENT
SERVICES, is a business entity, form
unknown; USCB AMERICA, is a
business entity, form unknown, and
DOES 1-10, Inclusive,

20

Defendants.

21
22
23

1.

24
25
26
27
28

A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

proprietary or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

{00094345;1}

1
8:18-cv-00824-AG-KES

1

enter the following Stipulated Protective Order. The parties acknowledge that this

2

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

3

discovery and that the protection it affords from public disclosure and use extends

4

only to the limited information or items that are entitled to confidential treatment

5

under the applicable legal principles. The parties further acknowledge, as set forth

6

in Section 12.3, below, that this Stipulated Protective Order does not entitle them

7

to file confidential information under seal; Civil Local Rule 79-5 sets forth the

8
9

procedures that must be followed and the standards that will be applied when a
party seeks permission from the court to file material under seal.

10
11

B. GOOD CAUSE STATEMENT

12

This action involves allegations of inaccurate credit reporting relating to a

13
14

medical debt potentially owed by a third party who is not the Plaintiff. This

15

litigation contemplates and Plaintiff discovery requests to date seek information

16

relating to disclosure of potentially protected health information. Moreover, as

17

Defendants’ policy and procedure information is likely relevant to their defenses,

18

information relevant to this is likely to involve trade secrets, confidential and

19

proprietary policy and procedure information, other valuable research,

20

development, commercial, financial, technical and/or proprietary information

21

(including, but no limited to, codes, computer systems, software and processes

22

used for credit reporting, and information derived therefrom), for which special

23

protection from public disclosure and from use for any purpose other than

24

prosecution of this action is warranted. Such confidential and proprietary materials

25

and information consist of, among other things, confidential business or financial

26

information, information regarding confidential business practices, or other

27
28

confidential research, development, or commercial information (including
information implicating privacy rights of third parties), information otherwise
{00094345;1}

2
8:18-cv-00824-AG-KES

1

generally unavailable to the public, or which may be privileged or otherwise

2

protected from disclosure under state or federal statutes, court rules, case decisions,

3

or common law. Defendants assert they have invested significant resources in

4

developing their policy and procedure information, and that disclosure of this

5

information to the public and their competitors would compromise that investment.

6

Accordingly, to expedite the flow of information, to facilitate the prompt resolution

7

of disputes over confidentiality of discovery materials, to adequately protect

8
9
10
11
12
13
14

information the parties are entitled to keep confidential, to ensure that the parties
are permitted reasonable necessary uses of such material in preparation for and in
the conduct of trial, to address their handling at the end of the litigation, and serve
the ends of justice, a protective order for such information is justified in this
matter. It is the intent of the parties that information will not be designated as
confidential for tactical reasons and that nothing be so designated without a good

15

faith belief that it has been maintained in a confidential, non-public manner, and

16

there is good cause why it should not be part of the public record of this case.

17
18

2.

DEFINITIONS

19

2.1

Action: this pending federal lawsuit.

20

2.2

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

21

designation of information or items under this Order.
2.3

22

“CONFIDENTIAL” Information or Items: information (regardless of

23

how it is generated, stored or maintained) or tangible things that qualify for

24

protection under Federal Rule of Civil Procedure 26(c), and as specified above in

25

the Good Cause Statement.
2.4

26
27

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

their support staff).

28

2.5

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

{00094345;1}

3
8:18-cv-00824-AG-KES

1

or items that it produces in disclosures or in responses to discovery as

2

“CONFIDENTIAL.”
2.6

3

Disclosure or Discovery Material: all items or information, regardless

4

of the medium or manner in which it is generated, stored, or maintained (including,

5

among other things, testimony, transcripts, and tangible things), that are produced

6

or generated in disclosures or responses to discovery in this matter.

7
8
9

2.7

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

10
11
12
13

2.8

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

Action. House Counsel does not include Outside Counsel of Record or any other
outside counsel.
2.9

14
15

Expert: a person with specialized knowledge or experience in a

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

or other legal entity not named as a Party to this action.

16

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

17

party to this Action but are retained to represent or advise a party to this Action

18

and have appeared in this Action on behalf of that party or are affiliated with a law

19

firm that has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,

20
21

employees, consultants, retained experts, and Outside Counsel of Record (and their

22

support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

23
24

Discovery Material in this Action.

25

2.13 Professional Vendors: persons or entities that provide litigation

26

support services (e.g., photocopying, videotaping, translating, preparing exhibits or

27
28

demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
{00094345;1}

4
8:18-cv-00824-AG-KES

2.14 Protected Material: any Disclosure or Discovery Material that is

1
2

designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery

3
4

Material from a Producing Party.

5
6

3.

SCOPE

7

The protections conferred by this Stipulation and Order cover not only

8

Protected Material (as defined above), but also (1) any information copied or

9

extracted from Protected Material; (2) all copies, excerpts, summaries, or

10
11

compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.
4.

Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be
deemed to be the later of (1) dismissal of all claims and defenses in this Action,
with or without prejudice; and (2) final judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
including the time limits for filing any motions or applications for extension of
time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

27
28

DURATION

Exercise of Restraint and Care in Designating Material for Protection.

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

{00094345;1}

5
8:18-cv-00824-AG-KES

1

this Order must take care to limit any such designation to specific material that

2

qualifies under the appropriate standards. The Designating Party must designate

3

for protection only those parts of material, documents, items or oral or written

4

communications that qualify so that other portions of the material, documents,

5

items or communications for which protection is not warranted are not swept

6

unjustifiably within the ambit of this Order.

7
8
9
10
11
12
13
14
15

Mass, indiscriminate or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to
impose unnecessary expenses and burdens on other parties) may expose the
Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2

16
17

Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

18

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

19

under this Order must be clearly so designated before the material is disclosed or

20

produced.
Designation in conformity with this Order requires:

21

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

22
23

documents, but excluding transcripts of depositions or other pretrial or trial

24

proceedings), that the Producing Party affix at a minimum, the legend

25

“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

26

contains protected material. If only a portion of the material on a page qualifies for

27

protection, the Producing Party also must clearly identify the protected portion(s)

28

(e.g., by making appropriate markings in the margins).
{00094345;1}

6
8:18-cv-00824-AG-KES

1

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

2

need not designate them for protection until after the inspecting Party has indicated

3

which documents it would like copied and produced. During the inspection and

4

before the designation, all of the material made available for inspection shall be

5

deemed “CONFIDENTIAL.” After the inspecting Party has identified the

6

documents it wants copied and produced, the Producing Party must determine

7

which documents, or portions thereof, qualify for protection under this Order.

8

Then, before producing the specified documents, the Producing Party must affix

9

the “CONFIDENTIAL legend” to each page that contains Protected Material. If

10

only a portion of the material on a page qualifies for protection, the Producing

11

Party also must clearly identify the protected portion(s) (e.g., by making

12

appropriate markings in the margins).
(b) for testimony given in depositions that the Designating Party

13
14

identifies the Disclosure or Discovery Material on the record, before the close of

15

the deposition all protected testimony.

16

(c) for information produced in some form other than documentary and

17

for any other tangible items, that the Producing Party affix in a prominent place on

18

the exterior of the container or containers in which the information is stored the

19

legend “CONFIDENTIAL.” If only a portion or portions of the information

20
21

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

22
23
24
25
26

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such
material. Upon timely correction of a designation, the Receiving Party must make

27

reasonable efforts to assure that the material is treated in accordance with the

28

provisions of this Order.
{00094345;1}

7
8:18-cv-00824-AG-KES

1
2

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1

3

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

4

designation of confidentiality at any time that is consistent with the Court’s

5

Scheduling Order.

6
7

6.2

resolution process under Local Rule 37.1 et seq.

8
9
10
11
12
13
14
15
16

Meet and Confer. The Challenging Party shall initiate the dispute

6.3

The burden of persuasion in any such challenge proceeding shall be

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

17
18

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

19

Basic Principles. A Receiving Party may use Protected Material that

20

is disclosed or produced by another Party or by a Non-Party in connection with this

21

Action only for prosecuting, defending or attempting to settle this Action. Such

22

Protected Material may be disclosed only to the categories of persons and under

23

the conditions described in this Order. When the Action has been terminated, a

24

Receiving Party must comply with the provisions of section 13 below (FINAL

25

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

26
27

location and in a secure manner that ensures that access is limited to the persons

28

authorized under this Order.
{00094345;1}

8
8:18-cv-00824-AG-KES

7.2

1

Disclosure of “CONFIDENTIAL” Information or Items. Unless

2

otherwise ordered by the court or permitted in writing by the Designating Party, a

3

Receiving Party may disclose any information or item designated

4

“CONFIDENTIAL” only to:

5

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

6

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

7

necessary to disclose the information for this Action;

8
9

(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;

10
11
12
13

(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;

14
15

(e) court reporters and their staff;

16

(f) professional jury or trial consultants, mock jurors, and Professional

17

Vendors to whom disclosure is reasonably necessary for this Action and who have

18

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a

19
20

custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in

21
22

the Action to whom disclosure is reasonably necessary provided: (1) the deposing

23

party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)

24

they will not be permitted to keep any confidential information unless they sign the

25

“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

26

agreed by the Designating Party or ordered by the court. Pages of transcribed

27
28

deposition testimony or exhibits to depositions that reveal Protected Material may
be separately bound by the court reporter and may not be disclosed to anyone
{00094345;1}

9
8:18-cv-00824-AG-KES

1

except as permitted under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,

2
3

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

4
5

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

6

IN OTHER LITIGATION

7

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

8

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

9

“CONFIDENTIAL,” that Party must:

10
11

(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

12
13
14
15
16

(b) promptly notify in writing the party who caused the subpoena or
order to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification shall
include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be

17
18

pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served

19
20

with the subpoena or court order shall not produce any information designated in

21

this action as “CONFIDENTIAL” before a determination by the court from which

22

the subpoena or order issued, unless the Party has obtained the Designating Party’s

23

permission. The Designating Party shall bear the burden and expense of seeking

24

protection in that court of its confidential material and nothing in these provisions

25

should be construed as authorizing or encouraging a Receiving Party in this Action

26

to disobey a lawful directive from another court.

27
28

{00094345;1}

10
8:18-cv-00824-AG-KES

1

9.

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

2

(a) The terms of this Order are applicable to information produced by a

3
4

Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

5

produced by Non-Parties in connection with this litigation is protected by the

6

remedies and relief provided by this Order. Nothing in these provisions should be

7

construed as prohibiting a Non-Party from seeking additional protections.

8

(b) In the event that a Party is required, by a valid discovery request, to

9

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

10
11

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

12
13
14
15

(1) promptly notify in writing the Requesting Party and the NonParty that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated

16
17
18

Protective Order in this Action, the relevant discovery request(s), and a reasonably
specific description of the information requested; and
(3) make the information requested available for inspection by the

19
20

Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court within

21
22

14 days of receiving the notice and accompanying information, the Receiving

23

Party may produce the Non-Party’s confidential information responsive to the

24

discovery request. If the Non-Party timely seeks a protective order, the Receiving

25

Party shall not produce any information in its possession or control that is subject

26

to the confidentiality agreement with the Non-Party before a determination by the

27

court. Absent a court order to the contrary, the Non-Party shall bear the burden

28

and expense of seeking protection in this court of its Protected Material.
{00094345;1}

11
8:18-cv-00824-AG-KES

1
2

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

3

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

4

disclosed Protected Material to any person or in any circumstance not authorized

5

under this Stipulated Protective Order, the Receiving Party must immediately (a)

6

notify in writing the Designating Party of the unauthorized disclosures, (b) use its

7

best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform

8

the person or persons to whom unauthorized disclosures were made of all the terms

9

of this Order, and (d) request such person or persons to execute the

10
11

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
A.

12
13

11.

14

PROTECTED MATERIAL

15
16
17
18
19
20

When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for
production without prior privilege review.

21
22
23
24
25
26

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

If a Producing Party inadvertently discloses information in connection with
the pending litigation to another Party that the Producing Party thereafter claims to
be privileged or protected by the attorney-client privilege or attorney work product
protection (“Disclosed Protected Information”), the disclosure of the Disclosed
Protected Information shall not constitute or be deemed a waiver or forfeiture of
any claim of privilege or work product protection that the Producing Party would

27
28

{00094345;1}

12
8:18-cv-00824-AG-KES

1

otherwise be entitled to assert with respect to the Disclosed Protected Information

2

and its subject matter in this proceeding or in any other federal or state proceeding.
A Producing Party may assert in writing attorney-client privilege or work

3
4

product protection with respect to Disclosed Protected Information. The Receiving

5

Party must—unless it contests the claim of attorney-client privilege or work

6

product protection—within five business days of receipt of that writing, (i) return

7

or destroy all copies of the Disclosed Protected Information, and (ii) provide a

8

certification of counsel that all of the Disclosed Protected Information has been

9

returned or destroyed. Within five business days after assertion of attorney-client

10

privilege or work product protection with respect to Disclosed Protected

11

Information, the Producing Party must produce a privilege log with respect to the

12

Disclosed Protected Information.

13
14
15

12.

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

16
17

MISCELLANEOUS

any person to seek its modification by the Court in the future.

18

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

19

Protective Order, no Party waives any right it otherwise would have to object to

20

disclosing or producing any information or item on any ground not addressed in

21

this Stipulated Protective Order. Similarly, no Party waives any right to object on

22
23

any ground to use in evidence of any of the material covered by this Protective
Order.

24
25
26
27
28

12.3 Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Local Civil Rule 79-5. Protected Material
may only be filed under seal pursuant to a court order authorizing the sealing of the
specific Protected Material at issue. If a Party’s request to file Protected Material

{00094345;1}

13
8:18-cv-00824-AG-KES

1

under seal is denied by the court, then the Receiving Party may file the information

2

in the public record unless otherwise instructed by the court.

3
4

13.

FINAL DISPOSITION

5

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

6

60 days of a written request by the Designating Party, each Receiving Party must

7

return all Protected Material to the Producing Party or destroy such material. As

8

used in this subdivision, “all Protected Material” includes all copies, abstracts,

9

compilations, summaries, and any other format reproducing or capturing any of the

10
11
12
13
14
15
16
17

Protected Material. Whether the Protected Material is returned or destroyed, the
Receiving Party must submit a written certification to the Producing Party (and, if
not the same person or entity, to the Designating Party) by the 60 day deadline that
(1) identifies (by category, where appropriate) all the Protected Material that was
returned or destroyed and (2) affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel

18

are entitled to retain an archival copy of all pleadings, motion papers, trial,

19

deposition, and hearing transcripts, legal memoranda, correspondence, deposition

20

and trial exhibits, expert reports, attorney work product, and consultant and expert

21

work product, even if such materials contain Protected Material. Any such

22

archival copies that contain or constitute Protected Material remain subject to this

23

Protective Order as set forth in Section 4 (DURATION).

24

///

25

///

26

///

27

///

28

///
{00094345;1}

14
8:18-cv-00824-AG-KES

1

14.

2

Any violation of this Order may be punished by appropriate measures including,

3

without limitation, contempt proceedings and/or monetary sanctions.

VIOLATION

4
5

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

6
7

DATED: June 15, 2018

8

LAW OFFICES OF ROBERT F. BRENNAN, APC

9

/s/ Robert F. Brennan
Robert F. Brennan
Attorneys for Plaintiff
Michael Korman

10
11
12
13

DATED: June 15, 2018

14

CARLSON & MESSER LLP

15

/s/ David J. Kaminski
David J. Kaminski
Stephen A. Watkins
Attorneys for Defendant
USCB, Inc.

16
17
18
19
20
21
22
23

DATED: June 15, 2018
JONES DAY
/s/ Donna Woo
Donna Woo
Attorneys for Defendant
EXPERIAN

24
25

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

26
27

DATED: June 19, 2018

_______________________________
HON. KAREN E. SCOTT
United States Magistrate Judge

28

{00094345;1}

15
8:18-cv-00824-AG-KES

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4

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

5

_________________ [print or type full address], declare under penalty of perjury

6

that I have read in its entirety and understand the Stipulated Protective Order that

7

was issued by the United States District Court for the Central District of California

8

on [date] in the case of Michael Korman v. Experian Information Systems, Inc. et

9

al. 8:18-cv-00824-AG-KES. I agree to comply with and to be bound by all the

10

terms of this Stipulated Protective Order and I understand and acknowledge that

11

failure to so comply could expose me to sanctions and punishment in the nature of

12

contempt. I solemnly promise that I will not disclose in any manner any

13

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

14

or entity except in strict compliance with the provisions of this Order.

15

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

16

the Central District of California for enforcing the terms of this Stipulated

17

Protective Order, even if such enforcement proceedings occur after termination of

18

this action. I hereby appoint __________________________ [print or type full

19

name] of _______________________________________ [print or type full

20

address and telephone number] as my California agent for service of process in

21

connection with this action or any proceedings related to enforcement of this

22

Stipulated Protective Order.

23

Date: ______________________________________

24

City and State where sworn and signed: _________________________________

25
26

Printed name: _______________________________

27
28

Signature: __________________________________
{00094345;1}

16
8:18-cv-00824-AG-KES

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

{00094345;1}

17
8:18-cv-00824-AG-KES