Weger v. Portfolio Recovery Associates, LLC

Filing 18

PROTECTIVE ORDER signed by Magistrate Judge Edmund F. Brennan on 4/3/18. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Case No. 2:17-cv-01719-JAM-EFB

LESLIE WEGER,

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Plaintiff,

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v.

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ORDER GRANTING JOINT
MOTION FOR PROTECTIVE
ORDER

PORTFOLIO RECOVERY
ASSOCIATES, LLC,

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Complaint Filed: August 18, 2017
Hon. Judge John A. Mendez
Hon. Magistrate Judge Edmund F.
Brennan

Defendant.

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ORDER

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Pursuant to the parties’ Joint Motion for Protective Order, and good cause
appearing, it is hereby ordered that:
The Protective Order agreed to by the Parties, and attached hereto, be ordered
effective by the Court.
IT IS SO ORDERED.
DATED: April 3, 2018.
_____________________________________
Edmund F. Brennan
United States Magistrate Judge

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ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER

2:17-cv-01719-JAM-EFB

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PROTECTIVE ORDER

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff,

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LESLIE WEGER and Defendant, PORTFOLIO RECOVERY ASSOCIATES, LLC,

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by undersigned counsel, hereby jointly agree and stipulate to the following

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provisions with respect to all Parties' confidential documents and information in the

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above-captioned litigation:

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1.

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from

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public disclosure and from use for any purpose other than prosecuting this litigation

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may be warranted. Accordingly, plaintiff LESLIE WEGER and defendant

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PORTFOLIO RECOVERY ASSOCIATES, LLC (“the parties”) hereby stipulate to

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and petition the court to enter the following Stipulated Protective Order. The parties

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acknowledge that this Order does not confer blanket protections on all disclosures or

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responses to discovery and that the protection it affords from public disclosure and

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use extends only to the limited information or items that are entitled to confidential

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treatment under the applicable legal principles. The parties further acknowledge, as

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set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle

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them to file confidential information under seal; Civil Local Rule 141 sets forth the

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procedures that must be followed and the standards that will be applied when a party

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seeks permission from the court to file material under seal.

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2.

DEFINITIONS

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2.1

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

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information or items under this Order.

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2.2

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

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under Federal Rule of Civil Procedure 26(c).

PURPOSES AND LIMITATIONS

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

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ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER

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

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(as well as their support staff).

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2.4

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

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2.5

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medium or manner in which it is generated, stored, or maintained (including, among

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other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.6

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

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

Expert:

a person with specialized knowledge or experience in a matter

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

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an expert witness or as a consultant in this action.

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2.7

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

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2.8

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legal entity not named as a Party to this action.

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

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

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has appeared on behalf of that party.

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2.10 Party:

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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

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Material in this action.

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2.12 Professional Vendors:

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services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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

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

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

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

persons or entities that provide litigation support

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2.13 Protected Material: any Disclosure or Discovery Material that is designated

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as “CONFIDENTIAL.”

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2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from

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a Producing Party.

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3.

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

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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material. However, the protections conferred by

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this Stipulation and Order do not cover the following information: (a) any

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information that is in the public domain at the time of disclosure to a Receiving

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Party or becomes part of the public domain after its disclosure to a Receiving Party

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as a result of publication not involving a violation of this Order, including becoming

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part of the public record through trial or otherwise; and (b) any information known

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to the Receiving Party prior to the disclosure or obtained by the Receiving Party

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after the disclosure from a source who obtained the information lawfully and under

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no obligation of confidentiality to the Designating Party. Any use of Protected

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Material at trial shall be governed by a separate agreement or order.

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4.

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

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by this Order shall remain in effect until a Designating Party agrees otherwise in

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writing or a court order otherwise directs. Final disposition shall be deemed to be

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the later of (1) dismissal of all claims and defenses in this action, with or without

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prejudice; and (2) final judgment herein after the completion and exhaustion of all

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appeals, rehearings, remands, trials, or reviews of this action, including the time

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limits for filing any motions or applications for extension of time pursuant to

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applicable law.

SCOPE

DURATION

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

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

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

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents,

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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 that

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are shown to be clearly unjustified or that have been made for an improper purpose

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(e.g., to unnecessarily encumber or retard the case development process or to

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impose unnecessary expenses and burdens on other parties) expose the Designating

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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

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2

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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 protection

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under this Order must be clearly so designated before the material is disclosed or

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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 documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix the legend “CONFIDENTIAL” to each page that contains

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protected material. If only a portion or portions of the material on a page qualifies

Manner and Timing of Designations. Except as otherwise provided in this

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for protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).

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

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection

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and before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine which

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documents, or portions thereof, qualify for protection under this Order. Then, before

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producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL” legend to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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

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

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hearing, or other proceeding, all protected testimony.

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(c) for information produced in some form other than documentary and for any

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

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL.” If only a portion or portions of the information or item

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warrant protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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5.3

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to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material.

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Upon timely correction of a designation, the Receiving Party must make reasonable

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

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ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

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

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of confidentiality at any time. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation,

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a Party does not waive its right to challenge a confidentiality designation by electing

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not to mount a challenge promptly after the original designation is disclosed.

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6.2

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

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

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describing the basis for each challenge. To avoid ambiguity as to whether a

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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

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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; other

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forms of communication are not sufficient) within 14 days of the date of service of

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notice. In conferring, the Challenging Party must explain the basis for its belief that

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the confidentiality designation was not proper and must give the Designating Party

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an opportunity to review the designated material, to reconsider the circumstances,

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and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge

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process only if it has engaged in this meet and confer process first or establishes that

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the Designating Party is unwilling to participate in the meet and confer process in a

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timely manner.

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6.3

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intervention, the Designating Party shall file and serve a motion to retain

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confidentiality (and in compliance with Eastern District Local Rules 141 and 141.1,

Judicial Intervention. If the Parties cannot resolve a challenge without court

ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER

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if applicable) within 21 days of the initial notice of challenge or within 14 days of

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the parties agreeing that the meet and confer process will not resolve their dispute,

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whichever is earlier. Each such motion must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph. Failure by the Designating Party

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to make such a motion including the required declaration within 21 days (or 14

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days, if applicable) shall automatically waive the confidentiality designation for

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each challenged designation. In addition, the Challenging Party may file a motion

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challenging a confidentiality designation at any time if there is good cause for doing

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so, including a challenge to the designation of a deposition transcript or any portions

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thereof. Any motion brought pursuant to this provision must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and

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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. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has waived

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the confidentiality designation by failing to file a motion to retain confidentiality as

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described above, all parties shall continue to afford the material in question the level

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of protection to which it is entitled under the Producing Party’s designation until the

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court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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

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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

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conditions described in this Order. When the litigation has been terminated, a

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ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER

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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 location

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and in a secure manner that ensures that access is limited to the persons authorized

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under this Order.

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7.2

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

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

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

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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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

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A;

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(b)

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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

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reasonably necessary for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(d) a jury, the court and its personnel;

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

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and Professional Vendors to whom disclosure is reasonably necessary for this

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litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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(f)

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reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered

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by the court. Pages of transcribed deposition testimony or exhibits to depositions

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

during their depositions, witnesses in the action to whom disclosure is

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that reveal Protected Material must be separately bound by the court reporter and

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may not be disclosed to anyone except as permitted under this Stipulated Protective

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Order.

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

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or other person who otherwise possessed or knew the information.

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8.

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IN OTHER LITIGATION

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

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compels disclosure of any information or items designated in this action as

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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“CONFIDENTIAL,” that Party must:

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

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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 issue

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in the other litigation that some or all of the material covered by the subpoena or

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order is subject to this Protective Order. Such notification shall include a copy of

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this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by the

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Designating Party whose Protected Material may be affected.

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

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subpoena or court order shall not produce any information designated in this action

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as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action

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to disobey a lawful directive from another court.

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9.

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PRODUCED IN THIS LITIGATION

A

NON-PARTY’S

PROTECTED

ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER
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MATERIAL

2:17-cv-01719-JAM-EFB

SOUGHT

TO

BE

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

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in this action and designated as “CONFIDENTIAL.” Such information produced by

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Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as

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prohibiting a Non-Party from seeking additional protections.

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

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Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential

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information, then the Party shall:

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

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all of the information requested is subject to a confidentiality agreement with a Non-

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Party;

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

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in this litigation, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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

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

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21 days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery

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request. If the Non-Party timely seeks a protective order, the Receiving Party shall

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not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court.

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Absent a court order to the contrary, the Non-Party shall bear the burden and

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expense of seeking protection in this court of its Protected Material.

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10.

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

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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

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11.

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PROTECTED

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

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produced material is subject to a claim of privilege or other protection, the

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obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without

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prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar

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as the parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order submitted

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to the court.

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Pursuant to Federal Rule of Civil Procedure 26(b)(5)(B), if a Producing Party

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inadvertently discloses information in connection with the pending litigation to the

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Receiving Party that the Producing Party thereafter claims to be privileged or

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protected by the attorney-client privilege or attorney work product protection

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(“Disclosed Protected Information”), the disclosure of the Disclosed Protected

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Information shall not constitute or be deemed a waiver or forfeiture of any claim of

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privilege or work product protection that the Producing Party would otherwise be

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entitled to assert with respect to the Disclosed Protected Information and its subject

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matter in this proceeding or in any other federal or state proceeding.

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In the event a Producing Party makes such an inadvertent disclosure, the Producing

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Party must promptly notify the Receiving Party in writing of the attorney-client

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
MATERIAL

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privilege or work product protection with respect to Disclosed Protected

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Information, and the basis for making that claim. The Receiving Party must—unless

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it contests the claim of attorney-client privilege or work product protection—within

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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

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of the Disclosed Protected Information has been returned or destroyed. Within five

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business days after assertion of attorney-client privilege or work product protection

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with respect to Disclosed Protected Information, the Producing Party must produce a

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privilege log with respect to the Disclosed Protected Information. Should the

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Receiving Party in good faith contest the asserted privilege or protection, the Parties

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agree to promptly present the information to the Court under seal for determination

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of the claim. Pending determination of the claim, the Receiving Party must sequester

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the Disclosed Protected Information and not use the Disclosed Protected

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Information or disclose it to any person other than as required by law. Also, pending

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determination of the claim, the Producing Party must preserve the information until

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the claim is resolved.

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12.

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

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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 Protective

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

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producing any information or item on any ground not addressed in this Stipulated

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Protective Order. Similarly, no Party waives any right to object on any ground to use

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in evidence of any of the material covered by this Protective Order.

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12.3 Filing Protected Material. Nothing shall be filed under seal, and the Court

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shall not be required to take any action, without separate prior order by the Judge

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before whom the hearing or proceeding will take place, after application by the

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affected party with appropriate notice to opposing counsel. The parties shall follow

MISCELLANEOUS

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and abide by applicable law, including Civ. L.R. 141, ECF Administrative Policies

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and Procedures, Section II.j, and the chambers’ rules, with respect to filing

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documents under seal. Confidential material may only be filed under seal pursuant

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to a court order authorizing the sealing of the specific Confidential material at issue.

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Pursuant to Civil Local Rule 141, a sealing order will issue only upon a request

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establishing that the Confidential material at issue is privileged, and/or violates

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privacy or official information interests recognized by law, or is otherwise entitled

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to protection under the law.

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12.4 Modification of Protective Order: The Court may modify the protective order

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in the interests of justice or for public policy reasons.

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13.

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Within 60 days after the final disposition of this action, as defined in paragraph 4,

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each Receiving Party must return all Protected Material to the Producing Party or

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destroy such material. As used in this subdivision, “all Protected Material” includes

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all copies, abstracts, compilations, summaries, and any other format reproducing or

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capturing any of the Protected Material. Whether the Protected Material is returned

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or destroyed, the Receiving Party must submit a written certification to the

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Producing Party (and, if not the same person or entity, to the Designating Party) by

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the 60 day deadline that (1) identifies (by category, where appropriate) all the

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Protected Material that was returned or destroyed and (2) affirms that the Receiving

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Party has not retained any copies, abstracts, compilations, summaries or any other

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format reproducing or capturing any of the Protected Material. Notwithstanding this

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provision, Counsel are entitled to retain an archival copy of all pleadings, motion

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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant

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and expert work product, even if such materials contain Protected Material. Any

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

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

FINAL DISPOSITION

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: March ____, 2018

/s/ Nathan A. Searles
Nathan A. Searles
Attorney for Defendant
Portfolio Recovery Associates, LLC

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PRA Group Inc.

Dated: March ____, 2018

LESLIE WEGER
/s/ Amy L.B. Ginsburg
Amy L.B. Ginsburg
Attorney for Plaintiff LESLIE WEGER 

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ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER
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2:17-cv-01719-JAM-EFB