Barnett v. Navient Solutions, Inc. et al

Filing 35

STIPULATED PROTECTIVE ORDER signed by Senior Judge Stephen M. McNamee on 06/20/2017. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Jeffery Barnett,
Plaintiff,

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v.

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Navient Solutions, Inc., et al.,
Defendants.

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No. CV 1:16-1115-SMM

STIPULATED PROTECTIVE ORDER

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Pending before the Court is the parties’, Plaintiff Jeffrey Barnett and Defendant

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Navient Solutions, Inc. (“NSL”), Stipulation for Protective Order. (Doc. 33.) In support and

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pursuant to Local Rule 141(b)(1) and (c), the parties state that there is a potentially

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significant number of documents to be produced by NSL containing the nonpublic personal

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information of Plaintiff (student loan and various financial documents) and the confidential

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and proprietary information of NSL, such that document-by-document review of these

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materials will be impracticable if the case is to proceed in an orderly, timely, and efficient

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manner. (Id.) Further, the parties state their interest in protecting the confidential personal

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information of Plaintiff, as well as confidential and commercially sensitive information of

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NSL pertaining to Plaintiff’s account(s) from unnecessary disclosure, and the parties’ desire

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and the benefit to the Court of an orderly and expeditious resolution of this matter on its

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merits, outweigh any societal interest in disclosure of such materials on the public record.

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(Id.)

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The good cause standard applies when parties seek to protect from public view certain

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documents obtained during discovery. For good cause to exist under Federal Rule of Civil

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Procedure 26(c), “the party seeking protection bears the burden of showing specific prejudice

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or harm will result if no protective order is granted.” Phillips v. G.M. Corp., 307 F.3d 1206,

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1210-11 (9th Cir. 2002). “Broad allegations of harm, unsubstantiated by specific examples

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or articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman Indus., Inc. v.

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International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (further citation omitted). Rather,

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the party seeking protection must make a “particularized showing of good cause with respect

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to [each] individual document.” San Jose Mercury News Inc. v. U.S. Dist. Ct., 187 F.3d

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1096, 1102 (9th Cir. 1999).

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The Court finds that the parties’ have established good cause for entering this

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Stipulated Protective Order.

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Accordingly,

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IT IS HEREBY ORDERED granting the parties’, Plaintiff Jeffrey Barnett and

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Defendant Navient Solutions, Inc., Stipulation for Protective Order. (Doc. 33.)

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IT IS FURTHER ORDERED as follows:

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“CONFIDENTIAL” Documents, Materials, and Information. This Order shall

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govern all documents produced by NSL and all written answers, deposition answers, other

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responses to discovery, and all communications of any kind made by Defendant NSL, its

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attorneys, consultants, agents, employees, and representatives; and other third parties.

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“CONFIDENTIAL” materials shall be the documents or information NSL designates under

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this Order and any notes, work papers, or other documents respectively containing

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“CONFIDENTIAL” materials derived from such items. NSL may identify any documents

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or information, including but not limited to discovery materials produced by other parties and

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initial disclosures, documents and things, answers to interrogatories, responses to requests

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for production, responses to requests for admission, deposition exhibits, and all or portions

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of deposition or hearing transcripts of others, as “CONFIDENTIAL” and designate the

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documents or information as such by affixing thereto a legend of “CONFIDENTIAL” or by

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designating through another method set forth in this Order or agreed to by the parties.

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NSL may designate documents or information as “CONFIDENTIAL” to the extent

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NSL, through counsel, believes “good cause” under Federal Rule of Civil Procedure 26(c)

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exists to categorize the material as confidential because the material contains or includes: (1)

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confidential business or technical information; (2) trade secrets; (3) proprietary business

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methods or practices; (4) any other competitively sensitive confidential information; (5)

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personal information, including personal financial information about customers or applicants,

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any party to this lawsuit, or an employee of any party to this lawsuit; (6) information

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regarding any individual’s banking or lending relationships, including, without limitation,

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information regarding any individual’s mortgage or credit history and/or consumer

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information not otherwise available to the public; and (7) any other categories that are later

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agreed to in writing by the parties or ordered by the Court.

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2.

Designation of “CONFIDENTIAL” Material. NSL shall designate materials

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as “CONFIDENTIAL” by stamping them with the word “CONFIDENTIAL” in a manner

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which will not interfere with their legibility. This designation shall only be used in a

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reasonable fashion and upon a good faith determination by counsel that a particular document

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contains non-public information and falls within one of the categories enumerated in

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Paragraph 1. This designation shall ordinarily be made before or at the same time as the

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production or disclosure of the material. Because materials described in Paragraph 1 shall

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be covered by this Order, there shall be no waiver of confidentiality if such materials are

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inadvertently produced without being stamped “CONFIDENTIAL.” Materials already

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produced in discovery in this litigation may be designated as “CONFIDENTIAL” upon

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written notice (without stamping), within fourteen (14) days of the entry of this Order, by

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NSL to all counsel of record to whom such documents have been produced by notifying the

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other party of the identity of the documents or information to be so designated. NSL can

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remove at any time its designation of “CONFIDENTIAL” from any of the documents or

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information it previously so designated.

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3.

Treatment of “CONFIDENTIAL” Information. Unless otherwise ordered by

the Court, “CONFIDENTIAL” material, and any quotes, summaries, charts, or notes made

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therefrom, and any facts or information contained therein or derived therefrom, shall be held

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in confidence and used by the parties to whom the documents and information are produced

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solely for the purpose of this case. The parties agree to take reasonable steps to maintain the

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confidentiality of the documents, information, and testimony relating thereto. During the

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pendency of this litigation, “CONFIDENTIAL” material, including all copies thereof, shall

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be retained solely in the custody of the parties’ attorneys and shall not be placed in the

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possession of or disclosed to any other person, except as set forth in this Order, as otherwise

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agreed upon by the parties, or upon leave of Court.

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“CONFIDENTIAL” material is disclosed pursuant to this Order is hereby prohibited from

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exploiting in any way such documents or information for his, her, or its own benefit, or from

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using such information for any purpose or in any manner not connected with the prosecution

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or defense of this case.

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4.

Each person to whom

“Disclosure.” As used herein, “disclosure” or to “disclose” shall mean to

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divulge, reveal, describe, summarize, paraphrase, quote, transmit, or otherwise communicate

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“CONFIDENTIAL” material.

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5.

Permissible Disclosure of “CONFIDENTIAL” Material. Except by order of

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this Court, or otherwise as required by law, material designated as “CONFIDENTIAL” (and

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any notes or documents that reflect or refer to such documents and information) shall not be

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disclosed to any person other than:

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(a)

A party hereto;

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(b)

Counsel employed by a party, or an employee of such counsel, to whom it is

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necessary that the materials be shown or the information known for purposes

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of this case;

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(c)

Any employee or agent of a party to whom the “CONFIDENTIAL” materials

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are shown for the purpose of working directly on or testifying in connection

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with this litigation at the request of or at the direction of counsel for such

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party;

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(d)

A person retained to assist in this action, such as an investigator, independent

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accountant, or other technical expert or consultant, who has signed an

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acknowledgement in the form of Exhibit A, which signed acknowledgment

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shall be retained by the party who has retained such person;

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(e)

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with this action;
(f)

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Any person(s) designated by the Court in the interest of justice, upon such
terms as the Court may deem proper;

(g)

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This Court (or its employees or agents) pursuant to a court filing in connection

Members of the jury at a public trial of this matter, subject to the requirements
of Paragraph 11 below; or

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A person who is deposed or who testifies at the hearing in this matter who has

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signed an acknowledgement in the form of Exhibit A hereto, which signed

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acknowledgment shall be retained by the party who has compelled such person

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to testify at a deposition or trial. If the witness refuses to sign such form, the

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party compelling such testimony shall immediately notify opposing counsel

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and permit them seven (7) days to seek redress with the Court.

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6.

Review of Own “CONFIDENTIAL” Materials. The restrictions of this Order

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shall not apply to NSL, and its employees, attorneys, experts, or other authorized agents,

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when reviewing NSL’s own “CONFIDENTIAL” materials.

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Deposition Transcripts.

Deposition testimony and deposition exhibits

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containing “CONFIDENTIAL” material shall be covered by this Order. During a deposition

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taken in this matter, NSL, on the record, may designate as “CONFIDENTIAL” portions of

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the deposition testimony or deposition exhibits. Alternatively, NSL may, by written notice

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to opposing counsel and the court reporter not later than fourteen (14) business days after

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receipt of the final deposition transcript, designate as “CONFIDENTIAL” any portions of

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the NSL’s deposition testimony or deposition exhibits. Until expiration of the above fourteen

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(14) day period, all deposition transcripts of NSL will be treated as “CONFIDENTIAL”

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material unless otherwise agreed to in writing by the parties.

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8.

Objections to “CONFIDENTIAL” Designations. To the extent that any party

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contests a designation under this Order, such party shall object to such designation in writing

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not later than fourteen (14) business days after receipt of materials designated as

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“CONFIDENTIAL.” The parties shall first try to resolve the disagreement in good faith on

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an informal basis, such as the production of redacted copies. If the parties are unable to reach

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an agreement regarding the designation, then the party objecting to such designation shall file

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an appropriate motion with the Court for a ruling that the documents or other information

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shall not be accorded such status and treatment. In the event that such a challenge is made,

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the party asserting the confidentiality designation shall have the burden of establishing good

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cause exists under Federal Rule of Civil Procedure 26(c) to maintain the designation. Until

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this Court enters an order changing the designation of such documents or information, such

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document or information shall continue to be protected as provided by this Order. Should

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the Court rule in favor of the party objecting to the confidentiality designation, the party

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asserting the designation shall produce a copy of the document(s) without the

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“CONFIDENTIAL” designation.

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Disclosing “CONFIDENTIAL” Material. If NSL wishes to disclose any

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“CONFIDENTIAL” material beyond the terms of Paragraphs 5-6 of this Order, NSL shall

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provide all other parties with reasonable notice in writing of the request to disclose the

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materials, unless otherwise required by law. If the parties cannot resolve their disagreement

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with respect to the disclosure of any designated information, then a party may petition the

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Court for a determination of these issues. In the event that such a challenge is made, the

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party asserting the confidentiality designation shall have the burden of establishing that the

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designation is proper. Such “CONFIDENTIAL” material shall remain “CONFIDENTIAL”

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as stipulated by this Order until the Court rules on the party’s specific petition.

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10.

Pleadings and Other Court Submissions. Each party agrees that when filing

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with Court any papers (including, without limitation, affidavits, memoranda, interrogatory

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answers, or depositions) that disclose directly or indirectly any “CONFIDENTIAL” material,

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such papers shall be filed under seal in accordance with the Court’s local rules and

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requirements for filing documents under seal.

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If a party filing a non-dispositive motion seeks to file documents under seal, the filing

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party must show that good cause exists as defined by Federal Rule of Civil Procedure 26(c).

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If a party filing a dispositive motion seeks to file documents under seal, the filing party must

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show “compelling reasons supported by specific factual findings outweigh the general history

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of access and the public policies favoring disclosure.” Pintos v. Pac. Creditors Ass’n, 605

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F.3d 665, 677-679 (9th Cir. 2010) (internal quotations and citations omitted).

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The parties further recognize the possible need to use documents marked

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“CONFIDENTIAL” during the trial of this matter. However, the parties agree to take

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reasonable steps to protect the confidentiality of any trial exhibits so designated to include

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asking the Court to ensure that any such documents referred to or offered into evidence at

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trial are filed with the Court under seal.

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Document Retention. After the conclusion of this matter (including the

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expiration of all appeals), all originals and reproductions of the “CONFIDENTIAL”

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materials shall be returned to the producing party within thirty (30) days of such conclusion

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or be destroyed. Upon request, the party destroying said documents shall certify in writing

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to the producing party within ten (10) days of such request that destruction of the

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“CONFIDENTIAL” materials has taken place. Insofar as the provisions of this Order restrict

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the use of the documents produced hereunder, the Order shall continue to be binding

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throughout and after the conclusion of this case, including all appeals, except as set forth in

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Paragraph 13.

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Admissibility. Nothing in this Order shall be construed to limit any party from

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producing or introducing any document into evidence at public hearing. Subject to the Rules

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of Evidence, “CONFIDENTIAL” materials and other confidential information may be

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offered in evidence at trial or any court hearing. Any party may move the court for an Order

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that the evidence be received in camera or under other conditions to prevent unnecessary

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disclosure of any “CONFIDENTIAL” material. The Court will then determine whether the

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proffered evidence should continue to be treated as “CONFIDENTIAL” and, if so, what

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protection, if any, may be afforded to such information at the trial or hearing.

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Scope of Discovery. Nothing in this Order shall preclude any party from

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opposing production of any documents or information, or from seeking further or different

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relief should future pretrial activities indicate such a need.

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Client Consultation. Nothing in this Order shall bar or otherwise restrict any

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attorney herein from rendering advice to his or her client with respect to this case or from

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doing anything necessary to prosecute or defend this case and further the interests of his

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client, provided, however, that the attorney shall not disclose any material designated for

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protection hereunder where such disclosure would be contrary to the terms of this Order.

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Discretion of the Court. Nothing in this Order shall apply to, bind, or limit the

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Court or its employees in the performance of their duties. Notwithstanding any foregoing

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suggestion to the contrary, the Court shall retain final and complete authority to re-designate

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any material previously designated as “CONFIDENTIAL” as a public document.

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Notice of Breach. It shall be the obligation of counsel, upon hearing of any

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breach or threatened breach of this Order by any person, promptly to notify counsel for the

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opposing and producing parties of such breach or threatened breach. The parties shall make

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every reasonable effort to mark all discovery containing “CONFIDENTIAL” materials, but

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the mistaken or inadvertent failure to mark the discovery material, where notice has

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otherwise been given that it contains “CONFIDENTIAL” materials, shall not exempt it from

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the provisions of this Order.

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17.

Litigation Use Only. All “CONFIDENTIAL” materials produced in this

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litigation, whether by a party or nonparty, and whether pursuant to the civil rules of

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procedure, subpoena, agreement or otherwise, and all information contained therein or

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derived therefrom, shall be used solely for the preparation and trial of this action (including

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any appeals and retrials), and may not be used for any other purpose, including business,

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governmental or commercial, or any other administrative or judicial proceedings or actions.

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Subpoena by Other Court or Agencies. If another court or an administrative

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agency subpoenas or orders production of “CONFIDENTIAL” materials that a party

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obtained under the terms of this Order, the party receiving the subpoena shall promptly notify

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NSL of the pendency of such subpoena or order.
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Inadvertent Disclosure Protection.

Review of the “CONFIDENTIAL”

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materials labeled “CONFIDENTIAL” by counsel, experts, or consultants in the litigation

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shall not waive the “CONFIDENTIAL” designation or any objections to production.

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“CONFIDENTIAL” materials inadvertently produced by any party or nonparty through

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discovery in this action without having been designated as “CONFIDENTIAL” shall be

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subject to the provisions of this Order to the same extent as if the inadvertent disclosure had

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not occurred so long as there is reasonable notice to the other party of the inadvertent

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disclosure. If NSL inadvertently discloses information that is privileged or otherwise

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immune from discovery, NSL shall promptly, upon discovery of such disclosure, so advise

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the receiving party in writing and request that the item or items of information be returned.

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No party to this action shall thereafter assert that such disclosure waived any privilege or

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immunity. It is further agreed that the receiving party will return such inadvertently

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produced item or items of information and all copies thereof to NSL within fourteen (14)

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business days of receiving a written request for the return of such item or items of

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information from NSL.

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Non-Parties. Non-parties who are required to produce “CONFIDENTIAL”

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material in response to a subpoena, and who in good faith believe that such material contains

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confidential information, may rely on this Order and apply it to their production.

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Responsibility of Attorneys. The attorneys of record are responsible for

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employing reasonable measures to control, consistent with this Order, the duplication of,

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access to, and distribution of copies of materials labeled “CONFIDENTIAL.” Parties shall

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not duplicate any such materials except for working copies and for filing in court under seal.

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The attorneys of record further are responsible for employing reasonable measures to control,

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consistent with this Order, the dissemination or revelation of confidential information.

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DATED this 20th day of June, 2017.

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulation and Protective Order issued by the United States District Court

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for the Eastern District of California on [date] in the case of Jeffery Barnett v. Navient

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Solutions, Inc., Case No. 1:16-cv-01115. I agree to comply with and to be bound by all the

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terms of the Stipulation and Protective Order, and I understand and acknowledge that failure

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to so comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item that is

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subject to this Stipulated Protective Order to any person or entity except in strict compliance

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with the provisions of this Order. I further agree to submit to the jurisdiction of the United

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States District Court for the Eastern District of California for the purpose of enforcing the

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terms of this Stipulation and Protective Order, even if such enforcement proceedings occur

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after termination of this action.

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I

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_____________________ [print or type full address and telephone number] as my California

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agent for service of process in connection with this action or any proceedings related to

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enforcement of this Stipulated Protective Order.

hereby

appoint

_____________________

[print

or

type

full

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Date: _____________________

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City and State where sworn and signed: _____________________

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Printed Name: _____________________

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Signature: _____________________

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name]

of