Smith et al v. Leichtman et al

Filing 109

ORDER GRANTING 108 Stipulated Protective Order. Signed by Judge Jeffrey S. White on 8/9/10. (jjoS, COURT STAFF) (Filed on 8/9/2010)

Smith et al v. Leichtman et al

Doc. 109

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Irv Ackelsberg, PA Bar# 23813, Pro Hac Vice John J. Grogan, PA Bar# 72443, Pro Hac Vice LANGER GROGAN & DIVER, P.C. 1717 Arch Street, Suite 4130 Philadelphia, PA 19103 Tel: [phone] Fax: [phone] [e-mail] (Additional Plaintiffs' Counsel on Signature Page) Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CHRISTINA SMITH, et al. Plaintiffs, v. LEVINE LEICHTMAN CAPITAL PARTNERS, INC., et al. Defendants. 1. PURPOSES AND LIMITATION STIPULATED PROTECTIVE ORDER IN CONFORMITY TO N.D. CALIF. FORM ORDER FOR STANDARD LITIGATION Civ. No. 3:10-cv-0010 JSW CLASS ACTION

Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 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 entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 8, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets for the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal.
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2.

DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order. 2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it

is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c). 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel

(as well as their support staff). 2.4 Designating Party: A Part or Non-Party that designates information or items

that it produces in disclosures or in responses to discovery as "CONFIDENTIAL." 2.5 Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 2.6 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 serve as an expert witness or as a consultant in this action. 2.7 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 counsel. 2.8 Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named a s a Party to this action. 2.9 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 have appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 2.10 Party: any to this action, including all if its officers, directors, 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 Discovery

Material in this action. 2.12 Professional Vendors: persons or entities that provide litigation support

services (e.g. photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving date in any form or medium), and their employees and subcontractors. 2.13 Protected Material: any Disclosure or Discovery material that is designated

as "CONFIDENTIAL." 2.14 a Producing Party. 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Receiving Party: a Party that receives Disclosure or Discovery Material from

13 Material (as defined above), but also (1) any information copied or extracted from Protected 14 Material; (2) all copies, excerpts, summaries, or compilation of Protected Material; and (3) any 15 testimony, conversation, or presentations by Parties of their counsel that might reveal Protected 16 material. However, the protections conferred by this Stipulation and Order do not cover the 17 following information: (a) any information that is in the public domain at the time of disclosure to a 18 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 19 result of publication not involving a violation of this Order, including becoming part of the public 20 record through trial or otherwise; and (b) any information known to the Receiving Party prior to the 21 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 22 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 23 Protected Material at trial shall be governed by a separate agreement or order. 24 25 26 27 28 4. DURATION Even after final disposition of this litigation, the confidentiality obligations 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 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
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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating material for Protection. Each

Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must designate 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 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that are

13 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 14 unnecessarily encumber or retard the case development process or to impose unnecessary expenses 15 and burdens on other parties) may expose the Designating Party to sanctions. 16 If it comes to a Designating party's attention that information or items that it

17 designated for protection do not qualify for protections, that Designating Party must promptly notify 18 all other Parties that it is withdrawing the mistaken designation. 19 20 21 22 23 24 25 26 27 28 5.2 Manner and Timing of Depositions. Except as otherwise provided in this

Order (see, e.g. second paragraph or section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 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 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 margins).
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A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting 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 inspection shall be deemed "CONFIDENTIAL." After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing party must affix the "CONFIDENTIAL" legend to each page that contains Protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party, to the extent practicable, shall identify the protected portion(s) (e.g., by making appropriate markings in the margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, that

the Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding, all protected testimony. (c) for information produced in some form other than documentary and for any

other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend "CONFIDENTIAL." If only a portion of or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s). 5.3 Inadvertent Failures to Designate. If promptly corrected upon discovery, an

inadvertent failure to designate qualified information or items as "Confidential" does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. If material is appropriately designated as "Confidential" after the material was initially produced, the Receiving Party, on timely notification of the designation, must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order. 5.4 Designation by Party other than Producing Party. A Party, other than the

Producing Party, may designate as "CONFIDENTIAL" information or items produced by another Party by giving written notice to all Parties within thirty (30) days of production of the material by
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another Party. Upon timely designation, the Producing Party and Receiving Party will work in good faith with the Designating Party to ensure the "CONFIDENTIAL" Information or Items receive any necessary legends and are treated in accordance with the provisions of this Order. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation

of confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption 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 original designation is disclosed. Mass, indiscriminate, or routinized challenges are prohibited. Challenges that are

12 shown to be clearly unjustified or that have been made for an improper purposes (e.g., to 13 unnecessarily encumber or retard the case development process or to impose unnecessary expenses 14 and burdens on other parties) may expose the Challenging Party to sanctions. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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6.2

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

process by providing written notice of each designation it is challenging 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 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 and must begin the process by conferring directly (in voice to voice dialogue; 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 its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis 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 establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner. When the

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Challenging Party considers the meet and confer process exhausted, the Challenging Party must notify the Designating Party in writing. 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court

intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, 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 competent declaration affirming that the movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a motion including the required declaration within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for each challenged designation. In addition, the Challenging Party 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 transcript or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed by the preceding paragraph. The burden of persuasion in any such challenge proceeding shall be on the Designating

18 party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 19 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 20 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 21 retain confidentiality as described above, all parties shall continue to afford the material in question 22 the level of protection to which it is entitled under the Producing Party's designation until the court 23 rules on the challenge. 24 25 26 27 28 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is

disclosed or produced by another Party or by a Non-Party in connection with the case only for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When
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the litigation has been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITON). Protected Material must be stored and maintained by a Receiving Party at a location

4 and in a secure manner that ensures that access is limited to the persons authorized under this Order. 5 6 7 8 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise

ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "CONFIDENTIAL" only to: (a) the Receiving Party's Outside Counsel of Record in this action, as well as

9 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 10 information for this litigation and who have signed the "Acknowledgment and Agreement to Be 11 Bound" that is attached hereto as Exhibit A; 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) the officers, directors, and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); (c) Co-defendants of the Producing Party and such party's Outside Counsel of

Record, unless the Producing Party clearly indicates that that the Protected Material may not be disclosed to co-defendants or their Outside Counsel. Any such restriction shall be considered a Confidentiality Designation, subject to the procedures in Section 6. (d) Experts (as defined in this Order) of the Receiving Party to whom disclosure

is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), provided that the Expert is not an employee of a competitor of any Party; (e) (f) the court and its personnel; court reporters and their staff, professional jury or trial consultants, mock

jurors and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); (g) during their depositions, witnesses in the action to whom disclosure is

reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound"
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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. (h) the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information. 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITGATION If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as "CONFIDENTIAL," that Party must: (a) promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to

issue in the other litigation that some or all of the material covered by the subpoena is subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served 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 the subpoena or order issued, unless the Party has obtained the designating Party's permission. The Designating Party shall bear the burden and expenses of seeking protection in that court of its confidential material ­ and nothing in these 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. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non-

Party in this action and designated as "CONFIDENTIAL." Such information produced by NonParties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to produce a

Non-Party's confidential information in its possession, and the Party is subject to an agreement with the Non-Party not to produce the non-Party's confidential information, then the Party shall: 1. promptly notify in writing the Requesting Party and the Non-Party

that some or all of the information requested is subject to a confidentiality agreement with a NonParty; 2. promptly provide the Non-Party with a copy of the Stipulated

Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the information requested; and 3. Party. (c) If the Non-Party fails to object or seek a protective from this court within 14 make the information requested available for inspection by the Non-

days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party's confidential information responsive 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 is subject to the confidentiality agreement with the Non-Party before a determination by the court. 1 Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its Protected Material.

The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality
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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its 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 "Acknowledgement and Agreement to Be Bound" that is attached hereto as Exhibit A. 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain 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 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 production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection, the parties may incorporate their agreement in the stipulated protective order submitted to the court. 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this

Protective Order no Party waives any right it otherwise would have to object to 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 the use in evidence of any of the material covered by this Protective Order. 12.3 Filing Protected Material. Without written permission from the Designating

Party or a court order secured after appropriate notice to all interested persons, a Party may not file
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in the public record in this action any Protected material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 13. FINAL DISPOSITION. Within 60 days after the final disposition of this action, as

11 defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing 12 Party or destroy such material. As used in this subdivision, "all Protected Material" includes all 13 copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the 14 Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party 15 must submit a written certification to the Producing Party (and, if not the same person or entity, to 16 the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 17 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not 18 retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing 19 any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 20 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 21 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and 22 consultant and expert work product, even if such materials contain Protected Material. Any such 23 archival copies that contain or constitute Protected Material remain subject to this Protective Order 24 as set forth in Section 4 (DURATION). 25 26 27 28
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TH 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD, this 6 day of August, 2010.

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/s/ Irv Ackelsberg Irv Ackelsberg, PA Bar# 23813 John J. Grogan, PA Bar# 72443 LANGER GROGAN & DIVER, P.C. 1717 Arch Street, Suite 4130 Philadelphia, PA 19103 Tel: [phone] Fax: [phone] [e-mail] Appearing Pro Hac Vice /s/ Ronald Wilcox Ronald Wilcox, State Bar #176601 LAW OFFICE OF RONALD WILCOX 1900 The Alameda, Suite 530 San Jose, CA 95126 Tel: [phone] Fax: [phone] Attorneys for the Plaintiffs

/s/ Paul Arons Paul Arons, State Bar No. 84970 LAW OFFICE OF PAUL ARONS 685 Spring Street, #104 Friday Harbor, WA 98250 Tel: [phone] Fax: [phone] [e-mail]

/s/ Deepak Gupta Deepak Gupta, DC Bar No. 495451 PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, D.C. 20009 Tel: [phone] Fax: [phone] [e-mail] Appearing Pro Hac Vice

/s/ Scott M. Pearson Julia B. Strickland, State Bar No. 83013 Scott M. Pearson, State Bar No. 173880 Brian C. Frontino, State Bar No. 222032 STROOCK & STROOK & LAVAN LLP 2029 Century Park East, 16th Floor Los Angeles, CA 90067-3086 Tel: [phone] Fax: [phone] [e-mail]

/s/ Michael A. Taitelman Michael A. Taitelman, Bar No. 156254 Joshua Blum, Bar No. 249082 FREEDMAN & TAITELMAN, LLP 1901 Avenue of the Stars, Suite 500 Los Angeles, CA 90067 Tel: [phone] Fax: [phone] [e-mail]

Attorneys for Defendants Levine Leichtman Attorneys for Defendants National Corrective Capital Partners, Inc. and Levine Leichtman Group, Inc. Capital Partners III, L.P.

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/s/ Benjamin A. Nix Daniel M. Livingston, Bar No. 105981 Benjamin A. Nix, Bar. No. 138258 PAYNE & FEARS LLP 4 Park Plaza, Suite 1100 Irvine, CA 92614 Tel: [phone] Fax: [phone] [e-mail] Attorneys for Defendants Michael C. Schreck and Brett Stohlton

PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: August 9, 2010 JEFFREY S. WHITE United States District Court

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Signature: Printed name: City and State sworn and signed: Date:

EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, _____________________________[print or type full name], of __________________________ [print or 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 Northern District of California on [date] in the case of [insert formal name of the case and the name and initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or 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 Untied States District Court for the Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint [print or type full name] of

__________________________ [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order.

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