Cosper et al v. Veros Credit, LLC

Filing 44

PROTECTIVE ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/13/18. (Kastilahn, A)

1 SCOTT J. HYMAN (State Bar No. 148709)
[e-mail]
2 SEVERSON & WERSON
A Professional Corporation
3 The Atrium
19100 Von Karman Avenue, Suite 700
4 Irvine, California 92612
Telephone: [phone]
5 Facsimile: [phone]
6 REBECCA S. SAELAO (State Bar No. 222731)
[e-mail]
7 SEVERSON & WERSON
A Professional Corporation
8 One Embarcadero Center, Suite 2600
San Francisco, California 94111
9 Telephone: [phone]
Facsimile: [phone]
10
Attorneys for Defendant
11 VEROS CREDIT, LLC
12
UNITED STATES DISTRICT COURT
13

EASTERN DISTRICT OF CALIFORNIA — SACRAMENTO DIVISION

14
15 YOLANDA COSPER, FRED LUMPKIN, and
SEBASTIAN MCGHEE, individually and on
16 behalf of all others similarly situated,

Case No. 2:15-cv-01752 MCE CKD
The Hon. Morrison C. England, Jr.
Ctrm. 7

17

CLASS ACTION

Plaintiffs,

18

vs.

STIPULATED PROTECTIVE ORDER

19 VEROS CREDIT, LLC,
20

Action Filed: August 18, 2015
Trial Date:
None Set

Defendant.

21
22 ////
23
24
25
26
27
28
12554.0002/11055454.1

STIPULATED PROTECTIVE ORDER

1

1.

2

Discovery in this action is likely to involve production of confidential, proprietary, or

PURPOSES AND LIMITATIONS

3 private information for which special protection from public disclosure and from use for any
4 purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby
5 stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties
6 acknowledge that this Order does not confer blanket protections on all disclosures or responses to
7 discovery and that the protection it affords from public disclosure and use extends only to the
8 limited information or items that are entitled to confidential treatment under the applicable legal
9 principles. The parties further acknowledge, as set forth below, that this Stipulated Protective
10 Order does not entitle them to file confidential information under seal; Local Rule 141 sets forth
11 the procedures that must be followed and the standards that will be applied when a party seeks
12 permission from the court to file material under seal.
13

2.

14

This action is likely to involve trade secrets, customer and pricing lists and other valuable

GOOD CAUSE STATEMENT

15 research, development, commercial, financial, technical and/or proprietary information for which
16 special protection from public disclosure and from use for any purpose other than prosecution of
17 this action is warranted. Such confidential and proprietary materials and information consist of,
18 among other things, confidential business or financial information, information regarding
19 confidential business practices, or other confidential research, development, or commercial
20 information (including information implicating privacy rights of third parties), information
21 otherwise generally unavailable to the public, or which may be privileged or otherwise protected
22 from disclosure under state or federal statutes, court rules, case decisions, or common law.
23 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes
24 over confidentiality of discovery materials, to adequately protect information the parties are
25 entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of
26 such material in preparation for and in the conduct of trial, to address their handling at the end of
27 the litigation, and serve the ends of justice, a protective order for such information is justified in
28 this matter. It is the intent of the parties that information will not be designated as confidential for
12554.0002/11055454.1

STIPULATED PROTECTIVE ORDER

1 tactical reasons and that nothing be so designated without a good faith belief that it has been
2 maintained in a confidential, non-public manner, and there is good cause why it should not be part
3 of the public record of this case.
4

3.

5

DEFINITIONS
3.1

Action: the above referenced lawsuit, Cosper et al. v. Veros Credit LLC,

6 currently pending in the Eastern District of California, Case No. 2:15-cv-01752-MCE-CKD.
7

3.2

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

8 information or items under this Order.
9

3.3

“CONFIDENTIAL” Information or Items: information (regardless of how

10 it is generated, stored or maintained) or tangible things that qualify for protection under Federal
11 Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement.
12

3.4

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

3.5

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

13 support staff).
14

15 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
16

3.6

Disclosure or Discovery Material: all items or information, regardless of the

17 medium or manner in which it is generated, stored, or maintained (including, among other things,
18 testimony, transcripts, and tangible things), that are produced or generated in disclosures or
19 responses to discovery in this matter.
20

3.7

Expert: a person with specialized knowledge or experience in a matter

21 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert
22 witness or as a consultant in this Action.
23

3.8

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

24 House Counsel does not include Outside Counsel of Record or any other outside counsel.
25

3.9

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

26 other legal entity not named as a Party to this action.
27

3.10

Outside Counsel of Record: attorneys who are not employees of a party to

28 this Action but are retained to represent or advise a party to this Action and have appeared in this
12554.0002/11055454.1

2
STIPULATED PROTECTIVE ORDER

1 Action on behalf of that party or are affiliated with a law firm which has appeared on behalf of
2 that party, and includes support staff.
3

3.11

Party: any party to this Action, including all of its officers, directors,

4 employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).
5

3.12

Producing Party: a Party or Non-Party that produces Disclosure or

6 Discovery Material in this Action.
7

3.13

Professional Vendors: persons or entities that provide litigation support

8 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
9 organizing, storing, or retrieving data in any form or medium) and their employees and
10 subcontractors.
11

3.14

Protected Material: any Disclosure or Discovery Material that is designated

12 as “CONFIDENTIAL.”
13

3.15

Receiving Party: a Party that receives Disclosure or Discovery Material

14 from a Producing Party.
15

4.

16

The protections conferred by this Stipulation and Order cover not only Protected Material

SCOPE

17 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)
18 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
19 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
20

Any use of Protected Material at trial shall be governed by the orders of the trial judge.

21 This Order does not govern the use of Protected Material at trial.
22

5.

23

Even after final disposition of this litigation, the confidentiality obligations imposed by this

DURATION

24 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
25 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
26 and defenses in this Action, with or without prejudice; and (2) final judgment herein after the
27 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
28
12554.0002/11055454.1

3
STIPULATED PROTECTIVE ORDER

1 including the time limits for filing any motions or applications for extension of time pursuant to
2 applicable law.
3
4

6.

DESIGNATING PROTECTED MATERIAL
6.1

Exercise of Restraint and Care in Designating Material for Protection. Each

5 Party or Non-Party that designates information or items for protection under this Order must take
6 care to limit any such designation to specific material that qualifies under the appropriate
7 standards. The Designating Party must designate for protection only those parts of material,
8 documents, items, or oral or written communications that qualify so that other portions of the
9 material, documents, Items, or communications for which protection is not warranted are not
10 swept unjustifiably within the ambit of this Order.
11

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

12 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
13 unnecessarily encumber the case development process or to impose unnecessary expenses and
14 burdens on other parties) may expose the Designating Party to sanctions.
15

If it comes to a Designating Party’s attention that information or items that it designated

16 for protection do not qualify for protection, that Designating Party must promptly notify all other
17 Parties that it is withdrawing the inapplicable designation.
18

Designation in conformity with this Order requires:

19

(a)

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

20 electronic documents, but excluding transcripts of depositions or other pretrial or trial
21 proceedings), that the Producing Party affix at a minimum, the legend “CONFIDENTIAL”
22 (hereinafter “CONFIDENTIAL legend”), to each page that contains protected material. If only a
23 portion or portions of the material on a page qualifies for protection, the Producing Party also must
24 clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).
25

A Party or Non-Party that makes original documents available for inspection need not

26 designate them for protection until after the inspecting Party has indicated which documents it
27 would like copied and produced. During the inspection and before the designation, all of the
28 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting
12554.0002/11055454.1

4
STIPULATED PROTECTIVE ORDER

1 Party has identified the documents it wants copied and produced, the Producing Party must
2 determine which documents, or portions thereof, qualify for protection under this Order. Then,
3 before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL
4 legend” to each page that contains Protected Material. If only a portion or portions of the material
5 on a page qualifies for protection, the Producing Party also must clearly identify the protected
6 portion(s) (e.g., by making appropriate markings in the margins).
7

(b)

for testimony given in depositions that the Designating Party

8 identify the Disclosure or Discovery Material on the record, before the close of the deposition all
9 protected testimony.
10

(c)

for information produced in some form other than

11 documentary and for any other tangible items, that the Producing Party affix in a prominent place
12 on the exterior of the container or containers in which the information is stored the legend
13 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, the
14 Producing Party, to the extent practicable, shall identify the protected portion(s).
15

6.2

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

16 to designate qualified information or items does not, standing alone, waive the Designating Party’s
17 right to secure protection under this Order for such material. Upon timely correction of a
18 designation, the Receiving Party must make reasonable efforts to assure that the material is treated
19 in accordance with the provisions of this Order.
20

7.

21

CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

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

22 of confidentiality at any time that is consistent with the Court’s Scheduling Order.
23

7.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

7.3

The burden of persuasion in any such challenge proceeding shall be on the

24 process.
25

26 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass
27 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party
28 to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality
12554.0002/11055454.1

5
STIPULATED PROTECTIVE ORDER

1 designation, all parties shall continue to afford the material in question the level of protection to
2 which it is entitled under the Producing Party’s designation until the Court rules on the challenge.
3
4

8.

ACCESS TO AND USE OF PROTECTED MATERIAL
8.1

Basic Principles. A Receiving Party may use Protected Material that is

5 disclosed or produced by another Party or by a Non-Party in connection with this Action only for
6 prosecuting, defending, or attempting to settle this Action. Such Protected Material may be
7 disclosed only to the categories of persons and under the conditions described in this Order. When
8 the Action has been terminated, a Receiving Party must comply with the provisions of section 14
9 below (FINAL DISPOSITION).
10

Protected Material must be stored and maintained by a Receiving Party at a location and in

11 a secure manner that ensures that access is limited to the persons authorized under this Order.
12

8.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

13 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
14 disclose any information or item designated “CONFIDENTIAL” only to:
15

(a)

the Receiving Party’s Outside Counsel of Record in this

16 Action, as well as employees of said Outside Counsel of Record to whom it is reasonably
17 necessary to disclose the information for this Action;
18

(b)

the officers, directors, and employees (including House

19 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action;
20

(c)

Experts (as defined in this Order) of the Receiving Party to

21 whom disclosure is reasonably necessary for this Action and who have signed the
22 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
23

(d)

the court and its personnel;

24

(e)

court reporters and their staff;

25

(f)

professional jury or trial consultants, mock jurors, and

26 Professional Vendors to whom disclosure is reasonably necessary for this Action and who have
27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
28
12554.0002/11055454.1

6
STIPULATED PROTECTIVE ORDER

1

(g)

the author or recipient of a document containing the

2 information or a custodian or other person who otherwise possessed or knew the information;
3

(h)

during their depositions, witnesses, and attorneys for

4 witnesses, in the Action to whom disclosure is reasonably necessary provided: (1) the deposing
5 party requests that the witness sign the form attached as Exhibit A hereto; and (2) they will not be
6 permitted to keep any confidential information unless they sign the “Acknowledgment and
7 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
8 ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that
9 reveal Protected Material may be separately bound by the court reporter and may not be disclosed
10 to anyone except as permitted under this Stipulated Protective Order; and
11

(i)

any mediator or settlement officer, and their supporting

12 personnel, mutually agreed upon by any of the parties engaged in settlement discussions.
13

9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

14 OTHER LITIGATION
15

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

16 disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party
17 must:
18

(a)

promptly notify in writing the Designating Party. Such

19 notification shall include a copy of the subpoena or court order;
20

(b)

promptly notify in writing the party who caused the

21 subpoena or order to issue in the other litigation that some or all of the material covered by the
22 subpoena or order is subject to this Protective Order. Such notification shall include a copy of this
23 Stipulated Protective Order; and
24

(c)

cooperate with respect to all reasonable procedures sought to

25 be pursued by the Designating Party whose Protected Material may be affected.
26

If the Designating Party timely seeks a protective order, the Party served with the subpoena

27 or court order shall not produce any information designated in this action as “CONFIDENTIAL”
28 before a determination by the court from which the subpoena or order issued, unless the Party has
12554.0002/11055454.1

7
STIPULATED PROTECTIVE ORDER

1 obtained the Designating Party’s permission. The Designating Party shall bear the burden and
2 expense of seeking protection in that court of its confidential material and nothing in these
3 provisions should be construed as authorizing or encouraging a Receiving Party in this Action to
4 disobey a lawful directive from another court.
5

10.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

6 PRODUCED IN THIS LITIGATION
7

10.1

The terms of this Order are applicable to information produced by a Non-

8 Party in this Action and designated as “CONFIDENTIAL.” Such information produced by Non9 Parties in connection with this litigation is protected by the remedies and relief provided by this
10 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
11 additional protections.
12

10.2

In the event that a Party is required, by a valid discovery request, to produce

13 a Non-Party’s confidential information in its possession, and the Party is subject to an agreement
14 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
15

(a)

promptly notify in writing the Requesting Party and the Non-

16 Party that some or all of the information requested is subject to a confidentiality agreement with a
17 Non-Party;
18

(b)

promptly provide the Non-Party with a copy of the

19 Stipulated Protective Order in this Action, the relevant discovery request(s), and a reasonably
20 specific description of the information requested; and
21

(c)

make the information requested available for inspection by

22 the Non-Party, if requested.
23

10.3

If the Non-Party fails to seek a protective order from this court within 14

24 days of receiving the notice and accompanying information, the Receiving Party may produce the
25 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
26 seeks a protective order, the Receiving Party shall not produce any information in its possession or
27 control that is subject to the confidentiality agreement with the Non-Party before a determination
28
12554.0002/11055454.1

8
STIPULATED PROTECTIVE ORDER

1 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense
2 of seeking protection in this court of its Protected Material.
3

11.

4

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

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

5 Material to any person or in any circumstance not authorized under this Stipulated Protective
6 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
7 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected
8 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the
9 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and
10 Agreement to Be Bound” that is attached hereto as Exhibit A.
11

12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

12 PROTECTED MATERIAL
13

When a Producing Party gives notice to Receiving Parties that certain inadvertently

14 produced material is subject to a claim of privilege or other protection, the obligations of the
15 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
16 provision is not intended to modify whatever procedure may be established in an e-discovery order
17 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence
18 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
19 communication or information covered by the attorney-client privilege or work product protection,
20 the parties may incorporate their agreement in the stipulated protective order submitted to the
21 court.
22
23

13.

MISCELLANEOUS
13.1

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

24 person to seek its modification by the Court in the future.
25

13.2

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

26 Protective Order no Party waives any right it otherwise would have to object to disclosing or
27 producing any information or item on any ground not addressed in this Stipulated Protective
28
12554.0002/11055454.1

9
STIPULATED PROTECTIVE ORDER

1 Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of
2 the material covered by this Protective Order.
3

13.3

Filing Protected Material. A Party that seeks to file under seal any Protected

4 Material must comply with Local Rule 141. Protected Material may only be filed under seal
5 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a
6 Party's request to file Protected Material under seal is denied by the court, then the Receiving
7 Party may file the information in the public record unless otherwise instructed by the court.
8

14.

9

After the final disposition of this Action, as defined in paragraph 3.1, within 60 days of a

FINAL DISPOSITION

10 written request by the Designating Party, each Receiving Party must return all Protected Material
11 to the Producing Party or destroy such material. As used in this subdivision, “all Protected
12 Material” includes all copies, abstracts, compilations, summaries, and any other format
13 reproducing or capturing any of the Protected Material. Whether the Protected Material is returned
14 or destroyed, the Receiving Party must submit a written certification to the Producing Party (and,
15 if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
16 (by category, where appropriate) all the Protected Material that was returned or destroyed and (2)
17 affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or
18 any other format reproducing or capturing any of the Protected Material. Notwithstanding this
19 provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial,
20 deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial
21 exhibits, expert reports, attorney work product, and consultant and expert work product, even if
22 such materials contain Protected Material. Any such archival copies that contain or constitute
23 Protected Material remain subject to this Protective Order as set forth in Section 5 (DURATION).
24

15.

Any violation of this Order may be punished by any and all appropriate measures

25 including, without limitation, contempt proceedings and/or monetary sanctions.
26

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

27
28
12554.0002/11055454.1

10
STIPULATED PROTECTIVE ORDER

1 DATED: January ___, 2018
2
3

SEVERSON & WERSON
A Professional Corporation
By:

/s/ Rebecca S. Saelao
Scott J. Hyman
Rebecca S. Saelao

4
5

Attorneys for Defendant VEROS CREDIT, LLC

6
7
8 DATED: January ___, 2018

KEMNITZER, BARRON & KRIEG, LLP

9
By:

/s/ Elliott Jason Conn
Bryan Kemnitzer
Kristin Kemnitzer
Elliot Jason Conn

10
11
12

Attorneys for Plaintiffs YOLANDA COSPER, FRED
LUMPKIN, SEBASTIAN McGHEE and the Putative
Class

13
14
15

16 I, Rebecca S. Saelao, am the ECF user whose identification and password are being used to file
17 this Stipulation. I hereby attest that the above signatory has concurred in this filing.
18

By:

/s/ Rebecca S. Saelao

19
20
21
22

For good cause shown, IT IS SO ORDERED.
Dated: April 13, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
28
12554.0002/11055454.1

11
STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, ______________________, of ___________________________________, declare

4 under penalty of perjury that I have read in its entirety and understand the Stipulated Protective
5 Order that was issued by the United States District Court for the Eastern District of California on
6 ____________ in the case of Cosper et al. v. Veros Credit LLC, currently pending in the Eastern
7 District of California, Case No. 2:15-cv-01752-MCE-CKD. I agree to comply with and to be
8 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that
9 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I
10 solemnly promise that I will not disclose in any manner any information or item that is subject to
11 this Stipulated Protective Order to any person or entity except in strict compliance with the
12 provisions of this Order.
13

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

14 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective
15 Order, even if such enforcement proceedings occur after termination of this action. I hereby
16 appoint ________________________________, of
17 __________________________________________________________, as my California agent
18 for service of process in connection with this action or any proceedings related to enforcement of
19 this Stipulated Protective Order.
20
21
22

Date: _____________________________________________
City and State where sworn and signed:__________________________________
Print Name: _____________________________________________

23
24

Signature: _______________________________________________

25
26
27
28
12554.0002/11055454.1

STIPULATED PROTECTIVE ORDER