Paul Sapan v. Lendingtree, LLC

Filing 38

STIPULATED PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick re Stipulation for Protective Order 37 . See document for details. (es)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Lauren A. Deeb (SBN 234143) Nelson Mullins Riley & Scarborough LLP 19191 S. Vermont Ave., Suite 900 Torrance, CA 90502 Telephone: 424.221.7413 Facsimile: 424.221.7499 Kevin P. Polansky (Admitted Pro Hac Vice) Nelson Mullins Riley & Scarborough LLP One Financial Center, Suite 3500 Boston, MA 02111 Telephone: 617.217.4700 Facsimile: 617.217.4710 Attorneys for Defendant LendingTree, LLC Justin Prato SBN 246968 Christopher J. Reichman SBN 250485 PRATO & REICHMAN, APC 3675 Ruffin Road, Suite 220 San Diego, CA 92123 Telephone: 619-886-0252 Email: Attorneys for Plaintiff and the Proposed Class 16 17 UNITED STATES DISTRICT COURT 18 CENTRAL DISTRICT OF CALIFORNIA 19 20 21 PAUL SAPAN, individually and on Behalf of All Others Similarly Situated, Plaintiff, 22 23 24 25 26 v. Case No.: 8:23-cv-00071-JWH-DFM xxxxxxxxxxx STIPULATED [PROPOSED] PROTECTIVE ORDER LENDINGTREE, LLC, Defendant. 27 28 [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 4 disclosure and from use for any purpose other than this litigation may be 5 warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. The parties further acknowledge, as set forth 11 in Section 12.3, below, that this Stipulated Protective Order does not entitle them 12 to file confidential information under seal; Civil Local Rule 79-5 sets forth the 13 procedures that must be followed and the standards that will be applied when a 14 party seeks permission from the court to file material under seal. 15 B. GOOD CAUSE STATEMENT 16 This action is likely to involve customer lists (including, without limitation, 17 customer names, telephone numbers, and other personally identifying information), 18 confidential agreements between vendors and purchasers, and other valuable 19 commercial, financial, technical, and/or proprietary information for which special 20 protection from public disclosure of this action is warranted. Such confidential and 21 proprietary materials and information consist of, among other things, confidential 22 business or financial information, information regarding confidential business 23 practices, or other confidential research, development, or commercial information 24 (including information implicating privacy rights of third parties), information 25 otherwise generally unavailable to the public, or which may be privileged or 26 otherwise protected from disclosure under state or federal statutes, court rules, case 27 decisions, or common law. Accordingly, to expedite the flow of information, to 28 2 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 facilitate the prompt resolution of disputes over confidentiality of discovery 2 materials, to adequately protect information the parties are entitled to keep 3 confidential, to ensure that the parties are permitted reasonable necessary uses of 4 such material in preparation for and in the conduct of trial, to address their 5 handling at the end of the litigation, and serve the ends of justice, a protective order 6 for such information is justified in this matter. It is the intent of the parties that 7 information will not be designated as confidential for tactical reasons and that 8 nothing be so designated without a good faith belief that it has been maintained in 9 a confidential, non-public manner, and there is good cause why it should not be 10 part of the public record of this case. 11 2. 12 13 14 15 16 DEFINITIONS 2.1. Action: Paul Sapan v. LendingTree, LLC, Case No. 8:23-cv-00071- JWH-DFM. 2.2. Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.3. “CONFIDENTIAL” Information or Items: information (regardless of 17 how it is generated, stored or maintained) or tangible things that qualify for 18 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 19 the Good Cause Statement. 20 21 22 2.4. Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5. Designating Party: a Party or Non-Party that designates information 23 or items that it produces in disclosures or in responses to discovery as 24 “CONFIDENTIAL.” 25 26 2.6. Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, 27 28 3 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 without limitation, testimony, transcripts, and tangible things), that are produced or 2 generated in disclosures or responses to discovery in this matter. 3 2.7. Expert: a person with specialized knowledge or experience in a 4 matter pertinent to the litigation who has been retained by a Party or its counsel to 5 serve as an expert witness or as a consultant in this Action. 6 2.8. House Counsel: attorneys who are employees of a party to this 7 Action. House Counsel does not include Outside Counsel of Record or any other 8 outside counsel. 9 2.9. 10 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 11 2.10. Outside Counsel of Record: attorneys who are not employees of a 12 party to this Action but are retained to represent or advise a party to this Action 13 and have appeared in this Action on behalf of that party or are affiliated with a law 14 firm that has appeared on behalf of that party, including support staff. 15 2.11. Party: any party to this Action, including all of its officers, directors, 16 employees, consultants, retained experts, and Outside Counsel of Record (and their 17 support staffs). 18 19 20 2.12. Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 2.13. Professional Vendors: persons or entities that provide litigation 21 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 22 demonstrations, and organizing, storing, or retrieving data in any form or medium) 23 and their employees and subcontractors. 24 2.14. Protected Material: 25 26 27 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing party. 28 4 [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 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial will be governed by the orders of the 8 trial judge. This Order does not govern the use of Protected Material at trial. 9 4. DURATION 10 Even after the final disposition of this litigation, the confidentiality 11 obligations imposed by this Order will remain in effect until a Designating Party 12 agrees otherwise in writing or a court order otherwise directs. Final disposition 13 will be deemed to be the later of (1) dismissal of all claims and defenses in this 14 Action, with or without prejudice; and (2) final judgment herein after the 15 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of 16 this Action, including the time limits for filing any motions or applications for 17 extension of time pursuant to applicable law. 18 5. 19 DESIGNATING PROTECTED MATERIAL 5.1. Exercise of Restraint and Care in Designating Material for Protection. 20 Each Party or Non-Party that designates information or items for protection under 21 this Order must take care to limit any such designation to specific material that 22 qualifies under the appropriate standards. The Designating Party must designate for 23 protection only those parts of material, documents, items, or oral or written 24 communications that qualify so that other portions of the material, documents, 25 items, or communications for which protection is not warranted are not swept 26 unjustifiably within the ambit of this Order. 27 28 5 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 Mass, indiscriminate, or routinized designations are prohibited. 2 Designations that are shown to be clearly unjustified or that have been made for an 3 improper purpose (e.g., to unnecessarily encumber the case development process 4 or to impose unnecessary expenses and burdens on other parties) may expose the 5 Designating Party to sanctions. 6 If it comes to a Designating Party’s attention that information or items that it 7 designated for protection do not qualify for protection, that Designating Party must 8 promptly notify all other Parties that it is withdrawing the inapplicable designation. 9 5.2. Manner and Timing of Designations. Except as otherwise provided in 10 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 11 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 12 under this Order must be clearly so designated before the material is disclosed or 13 produced. 14 Designation in conformity with this Order requires: 15 (a) for information in documentary form (e.g., paper or electronic 16 documents, but excluding transcripts of depositions or other pretrial or trial 17 proceedings), that the Producing Party affix at a minimum, the legend 18 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 19 contains protected material. If only a portion or portions of the material on a page 20 qualifies for protection, the Producing Party also must clearly identify the 21 protected portion(s) (e.g., by making appropriated marking in the margins). 22 A Party or Non-Party that makes original documents available for inspection 23 need not designate them for protection until after the inspecting Party has indicated 24 which documents it would like copied and produced. During the inspection and 25 before the designation, all of the material made available for inspection shall be 26 deemed “CONFIDENTIAL.” 27 documents it wants copied and produced, the Producing Party must determine After the inspecting Party has identified the 28 6 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 which documents, or portions thereof, qualify for protection under this Order. 2 Then, before producing the specified documents, the Producing Party must affix 3 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 4 only a portion or portions of the material on a page qualifies for protection, the 5 Producing Party also must clearly identify the protected portion(s) (e.g., by making 6 appropriate markings in the margins). 7 (b) for testimony given in depositions that the Designating Party identify 8 the Disclosure or Discovery Material on the record, before the close of the 9 deposition all protected testimony. 10 (c) for information produced in some form other than documentary and 11 for any other tangible items, that the Producing Party affix in a prominent place on 12 the exterior of the container or containers in which the information is stored the 13 legend “CONFIDENTIAL.” 14 warrants protection, the Producing Party, to the extent practicable, will identify the 15 protected portion(s). 16 5.3. If only a portion or portions of the information Inadvertent Failures to Designate. If timely corrected, an inadvertent 17 failure to designate qualified information or items does not, standing alone, waive 18 the Designating Party’s right to secure protection under this Order for such 19 material. Upon timely correction of a designation, the Receiving Party must make 20 reasonable efforts to assure that the material is treated in accordance with the 21 provisions of this Order. 22 6. 23 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1. Timing of Challenges. Any Party or Non-Party may challenge a 24 designation of confidentiality at any time that is consistent with the Court’s 25 Scheduling Order. 26 27 6.2. Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local rule 37.1 et seq. 28 7 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 6.3. The burden of persuasion in any such challenge proceeding shall be 2 on the Designating Party. Frivolous challenges, and those made for an improper 3 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 4 parties) may expose the Challenging Party to sanctions. Unless the Designating 5 Party has waived or withdrawn the confidentiality designation, all parties shall 6 continue to afford the material in question the level of protection to which it is 7 entitled under the Producing Party’s designation until the Court rules on the 8 challenge. 9 7. 10 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1. Basic Principles. A Receiving Party may use Protected Material that 11 is disclosed or produced by another Party or by a Non-Party in connection with this 12 Action only for prosecuting, defending, or attempting to settle this Action. Such 13 Protected Material may be disclosed only to the categories of persons and under 14 the conditions described in this Order. When the Action has been terminated, a 15 Receiving Party must comply with the provisions of section 13 below (FINAL 16 DISPOSITION). 17 Protected Material must be stored and maintained by a Receiving Party at a 18 location and in a secure manner that ensures that access is limited to the persons 19 authorized under this Order. 20 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless 21 otherwise ordered by the court or permitted in writing by the Designating Party, a 22 Receiving 23 “CONFIDENTIAL” only to: 24 (a) Party may disclose any information or item designated the Receiving Party’s Outside Counsel of Record in this Action, as 25 well as employees of said Outside Counsel of Record to whom it is reasonably 26 necessary to disclose the information for this Action; 27 28 8 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 2 3 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) 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 Professional 9 10 11 12 13 Vendors to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses, and attorneys for witnesses, in the 14 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) 16 they 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 20 be separately bound by the court reporter and may not be disclosed to anyone 21 except as permitted under this Stipulated Protective Order; and 22 23 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions. 24 25 26 27 28 9 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 8. 2 IN OTHER LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 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 7 (a) promptly notify in writing the Designating Party. Such notification will include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order 9 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 11 include a copy of this Stipulated Protective Order; and 12 13 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served 15 with the subpoena or court order shall not produce any information designated in 16 this action as “CONFIDENTIAL” before a determination by the court from which 17 the subpoena or order issued, unless the Party has obtained the Designating Party’s 18 permission. The Designating Party will bear the burden and expense of seeking 19 protection in that court of its confidential material and nothing in these provisions 20 should be construed as authorizing or encouraging a Receiving Party in this Action 21 to disobey a lawful directive from another court. 22 9. 23 PRODUCED IN THIS LITIGATION 24 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE (a) The terms of this Order are applicable to information produced by a 25 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 26 produced by Non-Parties in connection with this litigation is protected by the 27 28 10 [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, to 4 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: 7 (1) promptly notify in writing the Requesting Party and the Non-Party 8 that some or all of the information requested is subject to a confidentiality 9 agreement with a Non-Party; 10 (2) promptly provide the Non-Party with a copy of the Stipulated 11 Protective Order in this Action, the relevant discovery request(s), and a reasonably 12 specific description of the information requested; and 13 14 (3) make the information requested available for inspection by the NonParty, if requested. 15 (c) If the Non-Party fails to seek a protective order from this court within 16 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 20 to the confidentiality agreement with the Non-Party before a determination by the 21 court. Absent a court order to the contrary, the Non-Party will bear the burden and 22 expense of seeking protection in this court of its Protected Material. 23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has 25 disclosed Protected Material to any person or in any circumstance not authorized 26 under this Stipulated Protective Order, the Receiving Party must immediately 27 (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use 28 11 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 its best efforts to retrieve all unauthorized copies of the Protected Material, 2 (c) inform the person or persons to whom unauthorized disclosures were made of 3 all the terms of this Order, and (d) request such person or persons to execute the 4 “Acknowledgment and Agreement to Be Bound” that is attached hereto as 5 Exhibit A. 6 11. 7 PROTECTED MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 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 10 protection, the obligations of the Receiving Parties are those set forth in Federal 11 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 12 whatever procedure may be established in an e-discovery order that provides for 13 production without prior privilege review. Pursuant to Federal Rule of Evidence 14 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 15 of a communication or information covered by the attorney-client privilege or 16 work product protection, the parties may incorporate their agreement in the 17 stipulated protective order submitted to the court. 18 12. 19 20 MISCELLANEOUS 12.1. Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 21 12.2. Right to Assert Other Objections. By stipulating to the entry of this 22 Protective Order no Party waives any right it otherwise would have to object to 23 disclosing or producing any information or item on any ground not addressed in 24 this Stipulated Protective Order. Similarly, no Party waives any right to object on 25 any ground to use in evidence of any of the material covered by this Protective 26 Order. 27 28 12 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 12.3. Filing Protected Material. A Party that seeks to file under seal any 2 Protected Material must comply with Civil Local Rule 79-5. Protected Material 3 may only be filed under seal pursuant to a court order authorizing the sealing of the 4 specific Protected Material at issue. If a Party's request to file Protected Material 5 under seal is denied by the court, then the Receiving Party may file the information 6 in the public record unless otherwise instructed by the court. 7 13. FINAL DISPOSITION 8 After the final disposition of this Action, as defined in paragraph 4, within 9 60 days of a written request by the Designating Party, each Receiving Party must 10 return all Protected Material to the Producing Party or destroy such material. As 11 used in this subdivision, “all Protected Material” includes all copies, abstracts, 12 compilations, summaries, and any other format reproducing or capturing any of the 13 Protected Material. Whether the Protected Material is returned or destroyed, the 14 Receiving Party must submit a written certification to the Producing Party (and, if 15 not the same person or entity, to the Designating Party) by the 60 day deadline that 16 (1) identifies (by category, where appropriate) all the Protected Material that was 17 returned or destroyed and (2) affirms that the Receiving Party has not retained any 18 copies, abstracts, compilations, summaries or any other format reproducing or 19 capturing any of the Protected Material. Notwithstanding this provision, Counsel 20 are entitled to retain an archival copy of all pleadings, motion papers, trial, 21 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 22 and trial exhibits, expert reports, attorney work product, and consultant and expert 23 work product, even if such materials contain Protected Material. Any such archival 24 copies that contain or constitute Protected Material remain subject to this 25 Protective Order as set forth in Section 4 (DURATION). 26 27 28 13 [PROPOSED] STIPULATED PROTECTIVE ORDER 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 6 under penalty of perjury that I have read in its entirety and understand the 7 Stipulated Protective Order that was issued by the United States District Court for 8 the Central District of California on [date] in the case of Paul Sapan v. 9 LendingTree, LLC, Case No. 8:23-cv-00071-JWH-DFM. I agree to comply with 10 and to be bound by all the terms of this Stipulated Protective Order and I 11 understand and acknowledge that failure to so comply could expose me to 12 sanctions and punishment in the nature of contempt. I solemnly promise that I will 13 not disclose in any manner any information or item that is subject to this Stipulated 14 Protective Order to any person or entity except in strict compliance with the 15 provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court for 17 the Central District of California for the purpose of enforcing the terms of this 18 Stipulated Protective Order, even if such enforcement proceedings occur after 19 termination of this action. I hereby appoint 20 type full name] of 21 address and telephone number] as my California agent for service of process in 22 connection with this action or any proceedings related to enforcement of this 23 Stipulated Protective Order. 24 Date: 25 City and State where sworn and signed: _______________________ 26 Printed name: 27 Signature: [print or [print or type full 28 15 [PROPOSED] STIPULATED PROTECTIVE ORDER

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