Brennan et al v. Wells Fargo Bank NA et al

Filing 11

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Laurel Beeler on 5/29/2012. (ls, COURT STAFF) (Filed on 5/29/2012)

1 BALDWIN J. LEE (BAR NO. 187413)
ALEXANDER NESTOR (BAR NO. 202795)
2 AMY MORGENSTERN (BAR NO. 267412)
ALLEN MATKINS LECK GAMBLE
MALLORY & NATSIS LLP
3
Three Embarcadero Center, 12th Floor
4 San Francisco, CA 94111-4074
Phone: [phone]
5 Fax: [phone]
E-Mail: [e-mail]
[e-mail]
6
[e-mail]
7
Attorneys for Defendants
8 WELLS FARGO BANK, NATIONAL ASSOCIATION
and ASHOO VAID
9
MICHAEL F. HARDIMAN (BAR NO. 104508)
10 WENDY M. SCHENK (BAR NO. 177397)
HARDIMAN & CARROLL
11 450 Sansome Street, Suite 700
San Francisco, CA 94111
12 Phone: [phone]
Fax: [phone]
13
STEPHEN V. WICKERSHAM, ESQ. (BAR NO. 95585)
14 7901 Stoneridge Drive, Suite 202
Pleasanton, CA 94588
15
Attorneys for Plaintiffs
16 CHRISTINE BRENNAN, SARAH HSUEH, and
BOTHAINA RASHEED
17
18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA - SAN FRANCISCO DIVISION

20 CHRISTINE BRENNAN, SARAH HSUEH,
and BOTHAINA RASHEED,
21
Plaintiffs,
22
vs.
23
WELLS FARGO BANK NA, ASHOO VAID,
24 and DOES 1 to 100, inclusive,,

Case No. C 12-00512 LB
STIPULATED [PROPOSED] PROTECTIVE
ORDER

Defendants.

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Allen Matkins Leck Gamble
Mallory & Natsis LLP

STIPULATED PROTECTIVE ORDER
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1 1.

PURPOSES AND LIMITATIONS

2

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

3 confidential, proprietary, or private information for which special protection from public
4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
5 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated
6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on
7 all disclosures or responses to discovery and that the protection it affords from public disclosure
8 and use extends only to the limited information or items that are entitled to confidential treatment
9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3,
10 below, that this Stipulated Protective Order does not entitle them to file confidential information
11 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards
12 that will be applied when a party seeks permission from the court to file material under seal.
13
2.

DEFINITIONS

14
2.1.

15
16

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

information or items under this Order.
2.2.

17

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

18

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

19

of Civil Procedure 26(c).
2.3.

20
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(as well as their support staff).
2.4.

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

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

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5.

24

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

25

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

26

testimony, transcripts, and tangible things), that are produced or generated in disclosures or

27

responses to discovery in this matter.

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2.6.

1

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

2 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert
3 witness or as a consultant in this action.
2.7.

4

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

5 House Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8.

6

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

7 other legal entity not named as a Party to this action.
2.9.

8

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

9 this action but are retained to represent or advise a party to this action and have appeared in this
10 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that
11 party.
2.10.

12

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

13 employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11.

14

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

15 Discovery Material in this action.
2.12.

16

Professional Vendors: persons or entities that provide litigation support

17 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
18 organizing, storing, or retrieving data in any form or medium) and their employees and
19 subcontractors.
2.13.

20

Protected Material: any Disclosure or Discovery Material that is designated

21 as “CONFIDENTIAL.”
2.14.

22

Receiving Party: a Party that receives Disclosure or Discovery Material

23 from a Producing Party.
24 3.

SCOPE

25

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

26 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)
27 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
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1 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
2 However, the protections conferred by this Stipulation and Order do not cover the following
3 information: (a) any information that is in the public domain at the time of disclosure to a
4 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a
5 result of publication not involving a violation of this Order, including becoming part of the public
6 record through trial or otherwise; and (b) any information known to the Receiving Party prior to
7 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained
8 the information lawfully and under no obligation of confidentiality to the Designating Party. Any
9 use of Protected Material at trial shall be governed by a separate agreement or order.
10 4.

DURATION

11

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

12 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
13 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
14 and defenses in this action, with or without prejudice; and (2) final judgment herein after the
15 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
16 including the time limits for filing any motions or applications for extension of time pursuant to
17 applicable law.
18 5.

DESIGNATING PROTECTED MATERIAL

19
5.1.

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

20
Party or Non-Party that designates information or items for protection under this Order must take
21
care to limit any such designation to specific material that qualifies under the appropriate
22
standards. The Designating Party must designate for protection only those parts of material,
23
documents, items, or oral or written communications that qualify – so that other portions of the
24
material, documents, items, or communications for which protection is not warranted are not
25
swept unjustifiably within the ambit of this Order.
26
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
27
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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1 unnecessarily encumber or retard the case development process or to impose unnecessary
2 expenses and burdens on other parties) expose the Designating Party to sanctions.
3

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

4 for protection do not qualify for protection, that Designating Party must promptly notify all other
5 Parties that it is withdrawing the mistaken designation.
5.2.

6

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

7 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
8 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
9 designated before the material is disclosed or produced.
10

Designation in conformity with this Order requires:
(a)

11

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

12

but 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 protected

14

material. If only a portion or portions of the material on a page qualifies for protection, the

15

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

16

appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available for

17
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inspection need not designate them for protection until after the inspecting Party has

19

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

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

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

23

thereof, qualify for protection under this Order. Then, before producing the specified

24

documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page

25

that contains Protected Material. If only a portion or portions of the material on a page

26

qualifies for protection, the Producing Party also must clearly identify the protected

27

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

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(b)

1

for testimony given in deposition or in other pretrial or trial proceedings,

2

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

3

hearing, or other proceeding, all protected testimony.
(c)

4

for information produced in some form other than documentary and for any

5

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

6

the container or containers in which the information or item is stored the legend

7

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

8

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

9

portion(s).

10

5.3.

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

11 to designate qualified information or items does not, standing alone, waive the Designating Party’s
12 right to secure protection under this Order for such material. Upon timely correction of a
13 designation, the Receiving Party must make reasonable efforts to assure that the material is treated
14 in accordance with the provisions of this Order.
15 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

16

6.1.

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

17 designation of confidentiality at any time. Unless a prompt challenge to a Designating Party’s
18 confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary
19 economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its
20 right to challenge a confidentiality designation by electing not to mount a challenge promptly after
21 the original designation is disclosed.
22

6.2.

Meet and Confer. The Challenging Party shall initiate the dispute

23 resolution process by providing written notice of each designation it is challenging and describing
24 the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the
25 written notice must recite that the challenge to confidentiality is being made in accordance with
26 this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge
27 in good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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1 forms of communication are not sufficient) within 14 days of the date of service of notice. In
2 conferring, the Challenging Party must explain the basis for its belief that the confidentiality
3 designation was not proper and must give the Designating Party an opportunity to review the
4 designated material, to reconsider the circumstances, and, if no change in designation is offered, to
5 explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of
6 the challenge process only if it has engaged in this meet and confer process first or establishes that
7 the Designating Party is unwilling to participate in the meet and confer process in a timely
8 manner.
6.3.

9

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

10 intervention, the Designating Party shall file and serve a motion to retain confidentiality under
11 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of
12 the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
13 process will not resolve their dispute, whichever is earlier. Each such motion must be
14 accompanied by a competent declaration affirming that the movant has complied with the meet
15 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to
16 make such a motion including the required declaration within 21 days (or 14 days, if applicable)
17 shall automatically waive the confidentiality designation for each challenged designation. In
18 addition, the Challenging Party may file a motion challenging a confidentiality designation at any
19 time if there is good cause for doing so, including a challenge to the designation of a deposition
20 transcript or any portions thereof. Any motion brought pursuant to this provision must be
21 accompanied by a competent declaration affirming that the movant has complied with the meet
22 and confer requirements imposed by the preceding paragraph.
23

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

24 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
25 unnecessary expenses and burdens on other parties) may expose the Challenging Party to
26 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
27 file a motion to retain confidentiality as described above, all parties shall continue to afford the
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1 material in question the level of protection to which it is entitled under the Producing Party’s
2 designation until the court rules on the challenge.
3 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

4

7.1.

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

5 disclosed or produced by another Party or by a Non-Party in connection with this case only for
6 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
7 disclosed only to the categories of persons and under the conditions described in this Order. When
8 the litigation has been terminated, a Receiving Party must comply with the provisions of section
9 13 below (FINAL DISPOSITION).
10

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

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

7.2.

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

(a)

the Receiving Party’s Outside Counsel of Record in this action, as

16 well as employees of said Outside Counsel of Record to whom it is reasonably necessary to
17 disclose the information for this litigation and who have signed the “Acknowledgment and
18 Agreement to Be Bound” that is attached hereto as Exhibit A;
19

(b)

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

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

(c)

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

23 disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment
24 and Agreement to Be Bound” (Exhibit A);
25

(d)

the court and its personnel;

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(e)

1

court reporters and their staff, professional jury or trial consultants,

2 mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this
3 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f)

4

during their depositions, witnesses in the action to whom disclosure

5 is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
6 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of
7 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
8 separately bound by the court reporter and may not be disclosed to anyone except as permitted
9 under this Stipulated Protective Order.
(g)

10

the author or recipient of a document containing the information or a

11 custodian or other person who otherwise possessed or knew the information.
12 8.
13

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

14

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

15 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
16 must:
(a)

17

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

18 copy of the subpoena or court order;
(b)

19

promptly notify in writing the party who caused the subpoena or order to issue in

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

(c)

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

24 Designating Party whose Protected Material may be affected.
25

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

26 or court order shall not produce any information designated in this action as “CONFIDENTIAL”
27 before a determination by the court from which the subpoena or order issued, unless the Party has
28 obtained the Designating Party’s permission. The Designating Party shall bear the burden and
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1 expense of seeking protection in that court of its confidential material – and nothing in these
2 provisions should be construed as authorizing or encouraging a Receiving Party in this action to
3 disobey a lawful directive from another court.
4 9.
5

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION

6

(a)

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

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

(b)

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

12 Party’s confidential information in its possession, and the Party is subject to an agreement with the
13 Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
1.

14

promptly notify in writing the Requesting Party and the Non-Party that

15

some or all of the information requested is subject to a confidentiality agreement with a

16

Non- Party;
2.

17

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

18

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

19

description of the information requested; and
3.

20
21

(c)

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

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

22 days of receiving the notice and accompanying information, the Receiving Party may produce the
23 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
24 seeks a protective order, the Receiving Party shall not produce any information in its possession or
25 control that is subject to the confidentiality agreement with the Non-Party before a determination
26 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and
27 expense of seeking protection in this court of its Protected Material.
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1 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

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

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

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

11

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

12 produced material is subject to a claim of privilege or other protection, the obligations of the
13 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
14 provision is not intended to modify whatever procedure may be established in an e-discovery order
15 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence
16 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
17 communication or information covered by the attorney-client privilege or work product protection,
18 the parties may incorporate their agreement in the stipulated protective order submitted to the
19 court.
20 12.

MISCELLANEOUS

21
12.1.

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

22
person to seek its modification by the court in the future.
23
12.2.

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

24
Protective Order no Party waives any right it otherwise would have to object to disclosing or
25
producing any information or item on any ground not addressed in this Stipulated Protective
26
Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of
27
the material covered by this Protective Order.
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12.3.

1

Filing Protected Material. Without written permission from the Designating

2 Party or a court order secured after appropriate notice to all interested persons, a Party may not file
3 in the public record in this action any Protected Material. A Party that seeks to file under seal any
4 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
5 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at
6 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request
7 establishing that the Protected Material at issue is privileged, protectable as a trade secret, or
8 otherwise entitled to protection under the law. If a Receiving Party's request to file Protected
9 Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving
10 Party may file the information in the public record pursuant to Civil Local Rule 79- 5(e) unless
11 otherwise instructed by the court. However, no Party shall file any Protected Material that contains
12 confidential information of Defendant Wells Fargo Bank, N.A.'s customers, including without
13 limitation customers' social security numbers, driver's license numbers, dates of birth, account
14 numbers or information, addresses, phone numbers or e-mail addresses, without first completely
15 redacting such confidential information.
16 13.

FINAL DISPOSITION

17
Within 60 days after the final disposition of this action, as defined in paragraph 4, each
18
Receiving Party must return all Protected Material to the Producing Party or destroy such material.
19
As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
20
summaries, and any other format reproducing or capturing any of the Protected Material. Whether
21
the Protected Material is returned or destroyed, the Receiving Party must submit a written
22
certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
23
by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected
24
Material that was returned or destroyed and (2)affirms that the Receiving Party has not retained
25
any copies, abstracts, compilations, summaries or any other format reproducing or capturing any
26
of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival
27
copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
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ORDER

1
2

3 Pursuant to the parties' stipulation, and good cause appearing therefor, IT IS SO ORDERED.
4
5
May 29, 2012
6 DATED: ________________________

7

____________________________________
HONORABLE LAUREL BEELER
MAGISTRATE JUDGE

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1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

3

____________________________

[print

or

type

full

name],

of

4 ____________________________________ [print or type full address], declare under penalty of
5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was
6 issued by the United States District Court for the Northern District of California on __________
7 [date] in the case of CHRISTINE BRENNAN, SARAH HSUEH, and BOTHAINA RASHEED v.
8 WELLS FARGO BANK NA, ASHOO VAID, et al., Case No. C 12-00512 LB. I agree to comply
9 with and to be bound by all the terms of this Stipulated Protective Order and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and punishment in the nature
11 of contempt. I solemnly promise that I will not disclose in any manner any information or item
12 that is subject to this Stipulated Protective Order to any person or entity except in strict
13 compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for

14

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

17

18 __________________________ [print or type full address and telephone number] as my
19 California agent for service of process in connection with this action or any proceedings related to
20 enforcement of this Stipulated Protective Order.
21 Date: _______________________
22 City and State where sworn and signed:

_________________________

23 Printed name: _______________________________
[printed name]
24
25
26 Signature:

_______________________________
[signature]

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Allen Matkins Leck Gamble
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