Hiemstra v. Credit One Bank

Filing 13

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Edmund F. Brennan on 5/24/2017. (Zignago, K.)

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CARLSON & MESSER LLP
David J. Kaminski (SBN 128509)
[e-mail]
Stephen A. Watkins (SBN 205175)
[e-mail]
9841 Airport Blvd, #1200
Los Angeles, CA 90045
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant,
CREDIT ONE BANK, N.A., ERRONEOUSLY
SUED AND SERVED AS CREDIT ONE FINANCIAL

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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Rhonda Hiemstra,

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Case No. 2:16-cv-02437-JAM-EFB
Plaintiff,

STIPULATED PROTECTIVE
ORDER

v.

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Credit One Financial, a Nevada
Corporation d/b/a Credit One Bank,
N.A.; DOES 1-10
Defendants.

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Defendant CREDIT ONE BANK, N.A., ERRONEOUSLY SUED AND

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SERVED AS CREDIT ONE FINANCIAL., erroneously sued and served as
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PERFORMANT FINANCIAL CORPORATION ("Defendant") and RHONDA
HIEMSTRA ("Plaintiff"), through their respective counsel, hereby file this

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Stipulated Protective Order as set forth below.

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{00066816;1}

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STIPULATED PROTECTIVE ORDER
:16-cv-02437-JAM-EFB

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve
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production of confidential, proprietary, or private information for which special
protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby
stipulate to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections
on all disclosures or responses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information or items that are

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entitled to confidential treatment under the applicable legal principles. The parties
further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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Protective Order does not entitle them to file confidential information under seal;
Civil Local Rule 141 sets forth the procedures that must be followed and the

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standards that will be applied when a party seeks permission from the court to file
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material under seal.
2.

DEFINITIONS

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2.1

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

designation of information or items under this Order.

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{00066816;1}

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STIPULATED PROTECTIVE ORDER
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2.2

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“CONFIDENTIAL” Information or Items: information (regardless of

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

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protection under Federal Rule of Civil Procedure 26(c).
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2.3

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Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).

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2.4

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

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

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“CONFIDENTIAL.”
2.5

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Disclosure or Discovery Material: all items or information, regardless

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

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(including, among other things, testimony, transcripts, and tangible things), that
are produced or generated in disclosures or responses to discovery in this matter.

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2.6

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Expert: a person with specialized knowledge or experience in a

matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this action.
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2.7

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

House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.8

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

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or other legal entity not named as a Party to this action.
{00066816;1}

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STIPULATED PROTECTIVE ORDER
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2.9

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

party to this action but are retained to represent or advise a party to this action and

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have appeared in this action on behalf of that party or are affiliated with a law firm
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which has appeared on behalf of that party.

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

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

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

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Discovery Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits
or demonstrations, and organizing, storing, or retrieving data in any form or

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medium) and their employees and subcontractors.

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2.13 Protected Material: any Disclosure or Discovery Material that is

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

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Material from a Producing Party.

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3.

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SCOPE

The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or
{00066816;1}

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STIPULATED PROTECTIVE ORDER
:16-cv-02437-JAM-EFB

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extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.
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However, the protections conferred by this Stipulation and Order do not cover the
following information: (a) any information that is in the public domain at the time

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of disclosure to a Receiving Party or becomes part of the public domain after its
disclosure to a Receiving Party as a result of publication not involving a violation

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of this Order, including becoming part of the public record through trial or
otherwise; and (b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a source

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who obtained the information lawfully and under no obligation of confidentiality
to the Designating Party. Any use of Protected Material at trial shall be governed

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by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations
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imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this action,
with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
{00066816;1}

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STIPULATED PROTECTIVE ORDER
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including the time limits for filing any motions or applications for extension of
time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

5.1

Exercise of Restraint and Care in Designating Material for Protection.

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

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this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate

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for protection only those parts of material, documents, items, or oral or written
communications that qualify – so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber or delay the case development process or

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to impose unnecessary expenses and burdens on other parties) expose the
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Designating Party to sanctions.

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

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designated for protection do not qualify for protection, that Designating Party
must promptly notify all other Parties that it is withdrawing the mistaken

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designation.
{00066816;1}

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STIPULATED PROTECTIVE ORDER
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5.2

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Manner and Timing of Designations. Except as otherwise provided in

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

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stipulated or ordered, Disclosure or Discovery Material that qualifies for
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protection under this Order must be clearly so designated before the material is
disclosed or produced.

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Designation in conformity with this Order requires:

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

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documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to
each page that contains protected material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the

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margins).

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A Party or Non-Party that makes original documents or materials available

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for inspection need not designate them for protection until after the inspecting
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Party has indicated which material it would like copied and produced. During the
inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this
{00066816;1}

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STIPULATED PROTECTIVE ORDER
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Order. Then, before producing the specified documents, the Producing Party must
affix the “CONFIDENTIAL” legend to each page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for
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protection, the Producing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings,

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that the Designating Party identify on the record, before the close of the

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deposition, hearing, or other proceeding, all protected testimony.
(c) for information produced in some form other than documentary and for

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

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the exterior of the container or containers in which the information or item is
stored the legend “CONFIDENTIAL.” If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent
practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.
{00066816;1}

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STIPULATED PROTECTIVE ORDER
:16-cv-02437-JAM-EFB

6.

2

CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1

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

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designation of confidentiality at any time. Unless a prompt challenge to a
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Designating Party’s confidentiality designation is necessary to avoid foreseeable,
substantial unfairness, unnecessary economic burdens, or a significant disruption

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or delay of the litigation, a Party does not waive its right to challenge a
confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.
6.2

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Meet and Confer. The Challenging Party shall initiate the dispute

resolution process by providing written notice of each designation it is challenging

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and describing the basis for each challenge. To avoid ambiguity as to whether a
challenge has been made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of the
Protective Order. The parties shall attempt to resolve each challenge in good faith

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and must begin the process by conferring directly (in voice to voice dialogue;
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other forms of communication are not sufficient) within 14 days of the date of
service of notice. In conferring, the Challenging Party must explain the basis for

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its belief that the confidentiality designation was not proper and must give the
Designating Party an opportunity to review the designated material, to reconsider

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the circumstances, and, if no change in designation is offered, to explain the basis
{00066816;1}

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STIPULATED PROTECTIVE ORDER
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for the chosen designation. A Challenging Party may proceed to the next stage of
the challenge process only if it has engaged in this meet and confer process first or

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establishes that the Designating Party is unwilling to participate in the meet and
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confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Designating Party shall file and serve a motion to retain
confidentiality under Civil Local Rule 251 (and in compliance with Civil Local

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Rule 141, if applicable) within 21 days of the initial notice of challenge or within
14 days of the parties agreeing that the meet and confer process will not resolve
their dispute, whichever is earlier. Each such motion must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and
confer requirements imposed in the preceding paragraph. Failure by the

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Designating Party to make such a motion including the required declaration within
21 days (or 14 days, if applicable) shall automatically waive the confidentiality

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designation for each challenged designation. In addition, the Challenging Party
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may file a motion challenging a confidentiality designation at any time if there is
good cause for doing so, including a challenge to the designation of a deposition

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transcript or any portions thereof. Any motion brought pursuant to this provision
must be accompanied by a competent declaration affirming that the movant has

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{00066816;1}

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STIPULATED PROTECTIVE ORDER
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complied with the meet and confer requirements imposed by the preceding
paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the
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Designating Party. Unless the Designating Party has waived the confidentiality
designation by failing to file a motion to retain confidentiality as described above,

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all parties shall continue to afford the material in question the level of protection
to which it is entitled under the Producing Party’s designation until the court rules

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on the challenge.
7.

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ACCESS TO AND USE OF PROTECTED MATERIAL

7.1

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

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disclosed or produced by another Party or by a Non-Party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation. Such

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Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the litigation has been terminated, a

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

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

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location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.

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{00066816;1}

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STIPULATED PROTECTIVE ORDER
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7.2

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Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated
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“CONFIDENTIAL” only to:

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

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as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this litigation and who have signed the

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

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(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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

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disclosure is reasonably necessary for this litigation and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants,

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mock jurors, and Professional Vendors to whom disclosure is reasonably

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{00066816;1}

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STIPULATED PROTECTIVE ORDER
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necessary for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is
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reasonably necessary and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

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ordered by the court. Pages of transcribed deposition testimony or exhibits to
depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this
Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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

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that compels disclosure of any information or items designated in this action as
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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall

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include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the
{00066816;1}

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STIPULATED PROTECTIVE ORDER
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subpoena or order is subject to this Protective Order. Such notification shall
include a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued
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by the Designating Party whose Protected Material may be affected.

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

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with the subpoena or court order shall not produce any information designated in
this action as “CONFIDENTIAL” before a determination by the court from which

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the subpoena or order issued, unless the Party has obtained the Designating
Party’s permission. The Designating Party shall bear the burden and expense of
seeking protection in that court of its confidential material – and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in
this action to disobey a lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a
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Non-Party in this action and designated as “CONFIDENTIAL.” Such information
produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.

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{00066816;1}

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

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

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

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(1) promptly notify in writing the Requesting Party and the Non-Party that

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

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(2) promptly provide the Non-Party with a copy of the Stipulated Protective

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Order in this litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and

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(3) make the information requested available for inspection by the Non-

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Party.

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(c) If the Non-Party fails to object or seek a protective order from this court

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

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Receiving Party may produce the Non-Party’s confidential information responsive
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to the discovery request. If the Non-Party timely seeks a protective order, the
Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a
determination by the court. Absent a court order to the contrary, the Non-Party

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{00066816;1}

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STIPULATED PROTECTIVE ORDER
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shall bear the burden and expense of seeking protection in this court of its
Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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under this Stipulated Protective Order, the Receiving Party must immediately (a)
notify in writing the Designating Party of the unauthorized disclosures, (b) use its

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best efforts to retrieve all unauthorized copies of the Protected Material, (c)
inform the person or persons to whom unauthorized disclosures were made of all
the terms of this Order, and (d) request such person or persons to execute the

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

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11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR

OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain
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inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence
{00066816;1}

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STIPULATED PROTECTIVE ORDER
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502(d) and (e), the parties reach an agreement on the effect of disclosure of a
communication or information covered by the attorney-client privilege or work

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product protection, as follows:
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If a Designating Party inadvertently discloses information in connection with

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the pending litigation to another Party that the Designating Party thereafter claims

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to be privileged or protected by the attorney-client privilege or attorney work
product protection (“Disclosed Protected Information”), the disclosure of the

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Disclosed Protected Information shall not constitute or be deemed a waiver or
forfeiture of any claim of privilege or work product protection that the
Designating Party would otherwise be entitled to assert with respect to the

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Disclosed Protected Information and its subject matter in this proceeding or in any
other federal or state proceeding.

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A Designating Party may assert in writing attorney-client privilege or work

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product protection with respect to Disclosed Protected Information. The

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Receiving Party must—unless it contests the claim of attorney-client privilege or
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work product protection in accordance with sub-paragraph (c)—within five
business days of receipt of that writing, (i) return or destroy all copies of the

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Disclosed Protected Information, and (ii) provide a certification of counsel that all
of the Disclosed Protected Information has been returned or destroyed. Within

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five business days after assertion of attorney-client privilege or work product
{00066816;1}

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STIPULATED PROTECTIVE ORDER
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protection with respect to Disclosed Protected Information, the Designating Party
must produce a privilege log with respect to the Disclosed Protected Information.

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12.

MISCELLANEOUS

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

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person to seek its modification by the court in the future.

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

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

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disclosing or producing any information or item on any ground not addressed in
this Stipulated Protective Order. Similarly, no Party waives any right to object on
any ground to use in evidence of any of the material covered by this Protective

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Order.

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12.3 Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested
persons, a Party may not file in the public record in this action any Protected

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Material. A Party that seeks to file under seal any Protected Material must comply
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with Civil Local Rule 141. Protected Material may only be filed under seal
pursuant to a court order authorizing the sealing of the specific Protected Material

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at issue. If a Receiving Party's request to file Protected Material under seal
pursuant to Civil Local Rule 141 is denied by the court, then the Receiving Party

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{00066816;1}

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STIPULATED PROTECTIVE ORDER
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may file the information in the public record pursuant to Civil Local Rule 141
unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in

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paragraph 4, each Receiving Party must return all Protected Material to the

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Producing Party or destroy such material. As used in this subdivision, “all
Protected Material” includes all copies, abstracts, compilations, summaries, and

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any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must, upon
request, submit a written certification to the Producing Party (and, if not the same

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person or entity, to the Designating Party) by the 60 day deadline that (1)
identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and (2) affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel
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are entitled to retain an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such

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{00066816;1}

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STIPULATED PROTECTIVE ORDER
:16-cv-02437-JAM-EFB

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

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

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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Dated: May 22, 2017

HUSSIN LAW

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/s/ Tammy Hussin1
Attorneys for Plaintiff,
RHONDA HIEMSTRA

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Dated: May 22, 2017

CARLSON & MESSER LLP

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/s/ David J. Kaminski
David J. Kaminski
Stephen A. Watkins
Attorneys for Defendant,
CREDIT ONE BANK, N.A.,
ERRONEOUSLY SUED AND
SERVED AS CREDIT ONE
FINANCIAL

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: May 24, 2017.

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1

Using Tammy Hussin’s name as authorized on May 18, 2017. L.R. 131(d).

{00066816;1}

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STIPULATED PROTECTIVE ORDER
:16-cv-02437-JAM-EFB

EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _____________________________ [print or type full name], of _________________ [print or
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type full address], declare under penalty of perjury that I have read in its entirety and understand
the Stipulated Protective Order that was issued by the United States District Court for the Eastern

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District of California on [date] in the case of Hiemstra v. Credit One Financial, a Nevada

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Corporation d/b/a Credit One Bank, N.A Case No. 3:16-cv-05461-JST. I agree to comply with

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and to be bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment in the

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nature of contempt. I solemnly promise that I will not disclose in any manner any information or

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item that is subject to this Stipulated Protective Order to any person or entity except in strict
compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the

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Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective
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Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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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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{00066816;1}

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STIPULATED PROTECTIVE ORDER
:16-cv-02437-JAM-EFB