Jacques vs. Bank of America Corporation, et al.

Filing 91

ORDER on Stipulation and Protective Order signed by Magistrate Judge Stanley A. Boone on 5/23/2014. (Kusamura, W)

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Edwards Wildman Palmer LLP
1901 Avenue of the Stars, Suite 1700
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310.860.3800
Edwards Wildman Palmer LLP
William N. Le, Bar No. 228390
3 Park Plaza, Suite 400
Irvine, CA 92614
Telephone: [phone]
Facsimile: 949.423.2101
Attorneys for Defendant
BANK OF AMERICA, N.A.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TROY JACQUES,
Plaintiff,

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Case No. 1:12-cv-00821-SAB
Assigned For All Purposes To:
Hon. Stanley A. Boone, Courtroom 9

v.
BANK OF AMERICA
CORPORATION, a Delaware
corporation, aka BANK OF
AMERICA, N.A.; FIRST
ADVANTAGE BACKGROUND
SERVICES CORP., a Florida
corporation; EARLY WARNING
SERVICES, LLC, a Limited
Liability company; and DOES 1
through 50,

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ORDER ON STIPULATION AND
PROTECTIVE ORDER —
CONFIDENTIAL DESIGNATION ONLY
Pretrial Conf.: April 17, 2015
Trial: June 2, 2015

Defendants.

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IT IS HEREBY STIPULATED by and between Plaintiff, Bank of

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America, N.A., and Early Warning Services, LLC by and through their respective

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counsel of record, that in order to facilitate the exchange of information and

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documents which may be subject to confidentiality limitations on disclosure due to

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federal laws, state laws, and privacy rights, the Parties stipulate as follows:

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shall have the following meanings:

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In this Stipulation and Protective Order, the words set forth below

a.

"Proceeding" means the above-entitled proceeding United

States Eastern District of California Case No. 1:12-cv-00821-SAB.

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b.

"Court" means the Honorable Stanley A. Boone, or any other

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judge to which this Proceeding may be assigned, including Court staff participating

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in such proceedings.

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c.

"Confidential" means any information which is in the

possession of a Designating Party who believes in good faith that such information
is entitled to confidential treatment under applicable law.

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d.

"Confidential Materials" means any Documents, Testimony or

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Information as defined below designated as "Confidential" pursuant to the

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provisions of this Stipulation and Protective Order.

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e.

"Designating Party" means the Party that designates Materials

as "Confidential."

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f.

"Disclose" or "Disclosed" or "Disclosure" means to reveal,

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divulge, give, or make available Materials, or any part thereof, or any information

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contained therein.

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g.

"Documents" means (i) any "Writing," "Original," and

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"Duplicate" as those terms are defined by California Evidence Code Sections 250,

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255, and 260, which have been produced in discovery in this Proceeding by any

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person, and (ii) any copies, reproductions, or summaries of all or any part of the

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foregoing.

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h.

"Information" means the content of Documents or Testimony.

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i.

"Testimony" means all depositions, declarations or other

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testimony taken or used in this Proceeding.
2.

The Designating Party shall have the right to designate as

"Confidential" any Documents, Testimony or Information that the Designating
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Party in good faith believes to contain non-public information that is entitled to

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confidential treatment under applicable law.

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3.

The entry of this Stipulation and Protective Order does not alter,

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waive, modify, or abridge any right, privilege or protection otherwise available to

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any Party with respect to the discovery of matters, including but not limited to any

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Party's right to assert the attorney-client privilege, the attorney work product

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doctrine, or other privileges, or any Party's right to contest any such assertion.

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4.

Any Documents, Testimony or Information to be designated as

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"Confidential" must be clearly so designated before the Document, Testimony or

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Information is Disclosed or produced. The "Confidential" designation should not

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obscure or interfere with the legibility of the designated Information.

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a.

For Documents (apart from transcripts of depositions or other

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pretrial or trial proceedings), the Designating Party must affix the legend

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"Confidential" on each page of any Document containing such designated

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Confidential Material.

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b.

For Testimony given in depositions the Designating Party may

either:
i.

identify on the record, before the close of the deposition,

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all "Confidential" Testimony, by specifying all portions of the

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Testimony that qualify as "Confidential;" or

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ii.

designate the entirety of the Testimony at the deposition

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as "Confidential" (before the deposition is concluded) with the right to

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identify more specific portions of the Testimony as to which

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protection is sought within 30 days following receipt of the deposition

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transcript.

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Testimony are designated for protection, the transcript pages

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containing "Confidential" Information may be separately bound by the

In circumstances where portions of the deposition

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court reporter, who must affix to the top of each page the legend

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"Confidential," as instructed by the Designating Party.

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c.

For Information produced in some form other than Documents,

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and for any other tangible items, including, without limitation, compact discs or

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DVDs, the Designating Party must affix in a prominent place on the exterior of the

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container or containers in which the Information or item is stored the legend

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"Confidential." If only portions of the Information or item warrant protection, the

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Designating Party, to the extent practicable, shall identify the "Confidential"

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portions.

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5.

The inadvertent production by any of the undersigned Parties or non-

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Parties to the Proceedings of any Document, Testimony or Information during

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discovery in this Proceeding without a "Confidential" designation, shall be without

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prejudice to any claim that such item is "Confidential" and such Party shall not be

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held to have waived any rights by such inadvertent production. In the event that

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any Document, Testimony or Information that is subject to a "Confidential"

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designation is inadvertently produced without such designation, the Party that

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inadvertently produced the document shall give written notice of such inadvertent

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production within twenty (20) days of discovery of the inadvertent production,

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together with a further copy of the subject Document, Testimony or Information

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designated as "Confidential" (the "Inadvertent Production Notice"). Upon receipt

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of such Inadvertent Production Notice, the Party that received the inadvertently

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produced Document, Testimony or Information shall promptly destroy the

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inadvertently produced Document, Testimony or Information and all copies

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thereof, or, at the expense of the producing Party, return such together with all

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copies of such Document, Testimony or Information to counsel for the producing

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Party and shall retain only the "Confidential" designated Materials. Should the

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receiving Party choose to destroy such inadvertently produced Document,

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Testimony or Information, the receiving Party shall notify the producing Party in
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writing of such destruction within ten (10) days of receipt of written notice of the

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inadvertent production. This provision is not intended to apply to any inadvertent

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production of any Information protected by attorney-client or work product

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privileges.

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regarding waiver of confidentiality through the inadvertent production of

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Documents, Testimony or Information, such law shall govern.

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6.

In the event that this provision conflicts with any applicable law

In the event that counsel for a Party receiving Documents, Testimony

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or Information in discovery designated as "Confidential" objects to such

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designation with respect to any or all of such items, said counsel shall advise

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counsel for the Designating Party, in writing, of such objections, the specific

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Documents, Testimony or Information to which each objection pertains, and the

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specific reasons and support for such objections (the "Designation Objections").

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Counsel for the Designating Party shall have thirty (30) days from receipt of the

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written Designation Objections to either (a) agree in writing to de-designate

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Documents, Testimony or Information pursuant to any or all of the Designation

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Objections and/or (b) file a motion with the Court seeking to uphold any or all

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designations on Documents, Testimony or Information addressed by the

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Designation Objections (the "Designation Motion"). Pending a resolution of the

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Designation Motion by the Court, any and all existing designations on the

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Documents, Testimony or Information at issue in such Motion shall remain in

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place. The Designating Party shall have the burden on any Designation Motion of

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establishing the applicability of its "Confidential" designation. In the event that the

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Designation Objections are neither timely agreed to nor timely addressed in the

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Designation Motion, then such Documents, Testimony or Information shall be de-

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designated in accordance with the Designation Objection applicable to such

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material.

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Access to and/or Disclosure of Confidential Materials designated as

"Confidential" shall be permitted only to the following persons:

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a.

the Court;

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b.

(1) Attorneys of record in the Proceeding and their affiliated

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attorneys, paralegals, clerical and secretarial staff employed by such attorneys who

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are actively involved in the Proceedings and are not employees of any Party. (2)

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In-house counsel to the undersigned Parties and the paralegal, clerical and

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secretarial staff employed by such counsel. Provided, however, that each non-

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lawyer given access to Confidential Materials shall be advised that such Materials

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are being Disclosed pursuant to, and are subject to, the terms of this Stipulation

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and Protective Order and that they may not be Disclosed other than pursuant to its

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terms. (3) Parties to the Proceeding;

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c.

those officers, directors, partners, members, employees and

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agents of all non-designating Parties that counsel for such Parties deems necessary

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to aid counsel in the prosecution and defense of this Proceeding; provided,

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however, that prior to the Disclosure of Confidential Materials to any such officer,

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director, partner, member, employee or agent, counsel for the Party making the

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Disclosure shall deliver a copy of this Stipulation and Protective Order to such

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person, shall explain that such person is bound to follow the terms of such Order,

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and shall secure the signature of such person on a statement in the form attached

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hereto as Exhibit A;

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d.

court reporters in this Proceeding (whether at depositions,

hearings, or any other proceeding);
e.

any deposition, trial or hearing witness in the Proceeding who

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previously has had access to the Confidential Materials, or who is currently or was

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previously an officer, director, partner, member, employee or agent of an entity

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that has had access to the Confidential Materials;

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f.

any deposition or non-trial hearing witness in the Proceeding
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who previously did not have access to the Confidential Materials; provided,

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however, that each such witness given access to Confidential Materials shall be

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advised that such Materials are being Disclosed pursuant to, and are subject to, the

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terms of this Stipulation and Protective Order and that they may not be Disclosed

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other than pursuant to its terms;

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g.

mock jury participants, provided, however, that prior to the

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Disclosure of Confidential Materials to any such mock jury participant, counsel for

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the Party making the Disclosure shall deliver a copy of this Stipulation and

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Protective Order to such person, shall explain that such person is bound to follow

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the terms of such Order, and shall secure the signature of such person on a

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statement in the form attached hereto as Exhibit A.

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h.

outside experts or expert consultants consulted by the

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undersigned Parties or their counsel in connection with the Proceeding, whether or

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not retained to testify at any oral hearing; provided, however, that prior to the

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Disclosure of Confidential Materials to any such expert or expert consultant,

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counsel for the Party making the Disclosure shall deliver a copy of this Stipulation

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and Protective Order to such person, shall explain its terms to such person, and

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shall secure the signature of such person on a statement in the form attached hereto

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as Exhibit A. It shall be the obligation of counsel, upon learning of any breach or

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threatened breach of this Stipulation and Protective Order by any such expert or

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expert consultant, to promptly notify counsel for the Designating Party of such

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breach or threatened breach; and

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i.
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any other person that the Designating Party agrees to in writing.

Confidential Materials shall be used by the persons receiving them

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only for the purposes of preparing for, conducting, participating in the conduct of,

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and/or prosecuting and/or defending the Proceeding, and not for any business or

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other purpose whatsoever.

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9.

Any Party to the Proceeding (or other person subject to the terms of

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this Stipulation and Protective Order) may ask the Court, after appropriate notice to

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the other Parties to the Proceeding, to modify or grant relief from any provision of

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this Stipulation and Protective Order.

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10.

Entering into, agreeing to, and/or complying with the terms of this

Stipulation and Protective Order shall not:

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a.

operate as an admission by any person that any particular

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Document, Testimony or Information marked "Confidential" contains or reflects

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trade secrets, proprietary, confidential or competitively sensitive business,

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commercial, financial or personal information; or

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b.

prejudice in any way the right of any Party (or any other person

subject to the terms of this Stipulation and Protective Order):

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i.

to seek a determination by the Court of whether any

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particular

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Confidential

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"Confidential" under the terms of this Stipulation and Protective

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Order; or

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ii.

Material

should

be

subject

to

protection

as

to seek relief from the Court on appropriate notice to all

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other Parties to the Proceeding from any provision(s) of this

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Stipulation and Protective Order, either generally or as to any

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particular Document, Material or Information.

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11.

Any Party to the Proceeding who has not executed this Stipulation and

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Protective Order as of the time it is presented to the Court for signature may

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thereafter become a Party to this Stipulation and Protective Order by its counsel's

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signing and dating a copy thereof and filing the same with the Court, and serving

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copies of such signed and dated copy upon the other Parties to this Stipulation and

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Protective Order.

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12.

Any Information that may be produced by a non-Party witness in

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discovery in the Proceeding pursuant to subpoena or otherwise may be designated

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by such non-Party as "Confidential" under the terms of this Stipulation and

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Protective Order, and any such designation by a non-Party shall have the same

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force and effect, and create the same duties and obligations, as if made by one of

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the undersigned Parties hereto. Any such designation shall also function as a

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consent by such producing Party to the authority of the Court in the Proceeding to

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resolve and conclusively determine any motion or other application made by any

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person or Party with respect to such designation, or any other matter otherwise

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arising under this Stipulation and Protective Order.
13.

If any person subject to this Stipulation and Protective Order who has

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custody of any Confidential Materials receives a subpoena or other process

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("Subpoena") from any government or other person or entity demanding

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production of Confidential Materials, the recipient of the Subpoena shall promptly

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give notice of the same by electronic mail transmission, followed by either express

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mail or overnight delivery to counsel of record for the Designating Party, and shall

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furnish such counsel with a copy of the Subpoena. Upon receipt of this notice, the

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Designating Party may, in its sole discretion and at its own cost, move to quash or

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limit the Subpoena, otherwise oppose production of the Confidential Materials,

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and/or seek to obtain confidential treatment of such Confidential Materials from

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the subpoenaing person or entity to the fullest extent available under law. The

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recipient of the Subpoena may not produce any Documents, Testimony or

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Information pursuant to the Subpoena prior to the date specified for production on

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the Subpoena.

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14.

Nothing in this Stipulation and Protective Order shall be construed to

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preclude either Party from asserting in good faith that certain Confidential

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Materials require additional protection. The Parties shall meet and confer to agree

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upon the terms of such additional protection.
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15.

If, after execution of this Stipulation and Protective Order, any

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Confidential Materials submitted by a Designating Party under the terms of this

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Stipulation and Protective Order is Disclosed by a non-Designating Party to any

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person other than in the manner authorized by this Stipulation and Protective

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Order, the non-Designating Party responsible for the Disclosure shall bring all

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pertinent facts relating to the Disclosure of such Confidential Materials to the

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immediate attention of the Designating Party.

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This Stipulation and Protective Order is entered into without prejudice

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to the right of any Party to knowingly waive the applicability of this Stipulation

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and Protective Order to any Confidential Materials designated by that Party. If the

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Designating Party uses Confidential Materials in a non-Confidential manner, then

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the Designating Party shall advise that the designation no longer applies.

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17.

Where any Confidential Materials, or Information derived from

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Confidential Materials, is included in any motion or other proceeding governed by

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the Local Rules of the Eastern District Court, Rule 141, the party shall follow those

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rules. With respect to discovery motions or other proceedings not governed by the

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Local Rules of the Eastern District Court, Rule 141, the following shall apply: If

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Confidential Materials or Information derived from Confidential Materials are

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submitted to or otherwise disclosed to the Court in connection with discovery

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motions and proceedings, the same shall be separately filed under seal with the

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clerk of the Court in an envelope marked: "CONFIDENTIAL — FILED UNDER

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SEAL PURSUANT TO PROTECTIVE ORDER AND WITHOUT ANY

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FURTHER SEALING ORDER REQUIRED."

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18.

The Parties shall meet and confer regarding the procedures for use of

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Confidential Materials at trial and shall move the Court for entry of an appropriate

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order.

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19.

Nothing in this Stipulation and Protective Order shall affect the

admissibility into evidence of Confidential Materials, or abridge the rights of any
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person to seek judicial review or to pursue other appropriate judicial action with

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respect to any ruling made by the Court concerning the issue of the status of

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Protected Material.

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20.

This Stipulation and Protective Order shall continue to be binding

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after the conclusion of this Proceeding and all subsequent proceedings arising from

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this Proceeding, except that a Party may seek the written permission of the

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Designating Party or may move the Court for relief from the provisions of this

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Stipulation and Protective Order. To the extent permitted by law, the Court shall

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retain jurisdiction to enforce, modify, or reconsider this Stipulation and Protective

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Order, even after the Proceeding is terminated.
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Upon written request made within thirty (30) days after the settlement

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or other termination of the Proceeding, the undersigned Parties shall have thirty

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(30) days to either (a) promptly return to counsel for each Designating Party all

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Confidential Materials and all copies thereof (except that counsel for each Party

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may maintain in its files, in continuing compliance with the terms of this

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Stipulation and Protective Order, all work product, and one copy of each pleading

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filed with the Court [and one copy of each deposition together with the exhibits

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marked at the deposition)]*, (b) agree with counsel for the Designating Party upon

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appropriate methods and certification of destruction or other disposition of such

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Confidential Materials, or (c) as to any Documents, Testimony or other

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Information not addressed by sub-paragraphs (a) and (b), file a motion seeking a

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Court order regarding proper preservation of such Materials.

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permitted by law the Court shall retain continuing jurisdiction to review and rule

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upon the motion referred to in sub-paragraph (c) herein. *[The bracketed portion

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of this provision shall be subject to agreement between counsel for the Parties in

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each case.]

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22.

To the extent

After this Stipulation and Protective Order has been signed by counsel

for all Parties, it shall be presented to the Court for entry. Counsel agree to be
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bound by the terms set forth herein with regard to any Confidential Materials that

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have been produced before the Court signs this Stipulation and Protective Order.

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The Parties and all signatories to the Certification attached hereto as

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Exhibit A agree to be bound by this Stipulation and Protective Order pending its

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approval and entry by the Court.

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Stipulation and Protective Order, or in the event that the Court enters a different

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Protective Order, the Parties agree to be bound by this Stipulation and Protective

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Order until such time as the Court may enter such a different Order. It is the

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Parties' intent to be bound by the terms of this Stipulation and Protective Order

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pending its entry so as to allow for immediate production of Confidential Materials

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under the terms herein.

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In the event that the Court modifies this

This Stipulation and Protective Order may be executed in counterparts.

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Dated: ___________, 2013

By:

_________________________

By:

Stephen R. Cornwell, Esq.
CORNWELL & SAMPLE, LLP
Attorneys for Plaintiff Troy Jacques
_________________________

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Dated: ___________, 2013

William N. Le, Esq.
EDWARDS WILDMAN PALMER, LLP
Attorneys for Defendant Bank of America,
N.A.

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Dated: ___________, 2013

By:

_________________________
Craig Bertschi, Esq.
KILPATRICK TOWNSEND &
STOCKTON, LLP
Attorneys for Early Warning Services, LLC

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ORDER

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Pursuant to the stipulation of the parties, the protective order is approved with the

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following exception: All documents requested to be filed under seal in this Court shall be done in

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accordance with Eastern District of California Local Rule 141.

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IT IS SO ORDERED.

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Dated:

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May 23, 2014
UNITED STATES MAGISTRATE JUDGE

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