Osmena et al v. Lloyds TSB Bank, PLC et al

Filing 87

STIPULATION AND ORDER re 84 STIPULATION WITH PROPOSED ORDER (Stipulated Protective Order) filed by Lloyds TSB Bank, PLC. Signed by Magistrate Judge Nandor J. Vadas on January 22, 2013. (njvlc2, COURT STAFF) (Filed on 1/22/2013)

1
2
3
4

SQUIRE SANDERS (US) LLP
Mark C. Dosker (CA Bar # 114789)
275 Battery Street, Suite 2600
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
e-mail:
[e-mail]

5
6
7
8
9
10

SQUIRE SANDERS (US) LLP
Martha S. Sullivan (pro hac vice)
Amy Cadle Hocevar (pro hac vice)
Bruce A. Khula (pro hac vice)
4900 Key Tower, 127 Public Square
Cleveland, OH 44114
Telephone: [phone]
Facsimile: [phone]
e-mail:
[e-mail]
[e-mail]
[e-mail]

11
12

Attorneys for Defendant
LLOYDS TSB BANK PLC

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15
16

JOHN DUGAN, et al, individually and on
behalf of all others similarly situated,

Class Action

17
18
19
20

Plaintiffs,
STIPULATED PROTECTIVE ORDER
v.
LLOYDS TSB BANK PLC, a bank
organized and existing under the laws of
the United Kingdom,
Defendant.

21
22
23
24
25
26
27
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

Case No. 12-cv-02549 WHA

DAVID T. OSMENA et al, each
individually and on behalf of all others
similarly situated,
Plaintiffs,

Case No. 12-cv-02937 WHA
Class Action
STIPULATED PROTECTIVE ORDER

v.
LLOYDS TSB BANK PLC, a bank
organized and existing under the laws of
the United Kingdom,
Defendant.
STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1
2

1.

3
4
5

PURPOSES AND LIMITATIONS
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.

6
7
8

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

9

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

10

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

11

under the applicable legal principles.

12

The parties further acknowledge that this Stipulated

Protective Order does not entitle them to file confidential information under seal; Civil Local

13
Rule 79-5 and General Order 62 set forth the procedures that must be followed and the standards
14
15
16
17
18
19
20

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

21
of Civil Procedure 26(c) or other applicable law.
22
23
24
25
26
27

2.3

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

well as their support staff).
2.4

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

it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 1-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1
2
3

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

4
responses to discovery in this matter.
5
6

2.6

Expert:

an individual with specialized knowledge or experience in a matter

7

pertinent to the litigation who (1) has been retained by Plaintiffs or their counsel to serve as an

8

Expert witness or as a consultant in this action, (2) is not currently employed by, retained by, or

9

otherwise providing services to Lloyds TSB Bank PLC or to its competitors. (A list of Lloyds

10

TSB Bank PLC’s competitors is attached hereto as Exhibit A.); and (3) at the time of retention, is

11

not anticipated to become employed by, retained by, or otherwise providing services to Lloyds

12
13
14

TSB Bank PLC or to its competitors. Plaintiffs’ counsel shall include in any engagement
agreement with an Expert a requirement that the Expert report to Plaintiffs’ counsel as soon as he

15

or she anticipates becoming employed by, retained by, or otherwise providing services to Lloyds

16

TSB Bank PLC or its competitors. If, at any time after their retention as an Expert, the individual

17

becomes or anticipates becoming employed by, retained by or otherwise providing services to

18

Lloyds TSB Bank PLC or its competitors, Plaintiffs or their counsel shall immediately notify

19
Lloyds TSB Bank PLC of such change in circumstances and cease any further sharing of
20
21
22

materials designated as Confidential or Highly Confidential for 7 business days to allow Lloyds
TSB Bank PLC the opportunity to address the change in circumstances with the Court.

23

The parties expressly agree that in the event that an Expert’s employer, partnership, and/or

24

other entity from which Expert derives a salary, commission, distribution or professional fees (or

25

individuals within expert’s employer, partnership and/or other entity from which Expert derives a

26

salary, commission, distribution or professional fees, other than the Expert retained for this case)

27
is or becomes employed by, retained by or otherwise provide services to Lloyds TSB Bank PLC
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 2-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

or its competitors, as long as the individual Expert is not employed by, retained by or otherwise

2

providing such services, the Expert is still able to receive materials designated as Confidential and

3

Highly Confidential subject to the terms and restrictions set forth in this Order or any terms

4
ordered by the Court. The parties also expressly agree that in the event that an Expert has been
5
6

retained through an organization or with the assistance of an organization (“Retained Expert”),

7

the fact that the organization may also provide referrals or other services to a competitor of

8

Lloyd’s TSB Bank PLC shall not be a basis for precluding any Retained Expert from being

9

provided access subject to the terms of this Protective Order to Confidential or Highly

10
11

Confidential information under this Protective Order.
2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

12
13
14
15
16
17
18

Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
less restrictive means.
2.8

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.
2.9

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

19
entity not named as a Party to this action.
20
21

2.10

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

22

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

23

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

24
25
26

2.11

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

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.12

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

27
Material in this action.
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 3-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1
2
3

2.13

Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees, agents and

4
subcontractors.
5
2.14

6
7

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
2.15

8
9
10

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

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

Producing Party.
3.

11

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

12
13
14

(as defined above), but also (1) any information copied or extracted from Protected Material; (2)
all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

15

conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

16

The protections conferred by this Stipulation and Order do not cover the following information:

17

(a) any information that is in the public domain at the time of disclosure to a Receiving Party or

18

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

19
publication not involving a violation of this Order, including becoming part of the public record
20
21

through trial or otherwise; and (b) any information known to the Receiving Party prior to the

22

disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the

23

information lawfully and under no obligation of confidentiality to the Designating Party. Any use

24

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

25

4.

26

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

27
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 4-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

2

claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

3

the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

4
including the time limits for filing any motions or applications for extension of time pursuant to
5
6
7
8

applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

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

9

or Non-Party that designates information or items for protection under this Order must take care

10

to limit any such designation to specific material that qualifies under the appropriate standards.

11

To the extent it is practical to do so, the Designating Party must designate for protection only

12
13
14
15

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.

16

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

17

for protection do not qualify for protection at all or do not qualify for the level of protection

18

initially asserted, that Designating Party must promptly notify all other parties that it is

19
withdrawing the mistaken designation.
20
21

5.2

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

22

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

23

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

24

designated before the material is disclosed or produced.

25
26

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but

27
excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 5-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

2

EYES ONLY” to each page that contains protected material. If only a portion or portions of the

3

material on a page qualifies for protection, the Producing Party also must clearly identify the

4
protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
5
6

each portion, the level of protection being asserted.

7

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

8

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

9

material it would like copied and produced. During the inspection and before the designation, all

10

of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

11

ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

12
13
14

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

15

Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

16

CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected

17

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

18

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

19
markings in the margins) and must specify, for each portion, the level of protection being
20
21

asserted.

22

(b) for information that qualifies for protection under Hong Kong’s Personal Data

23

(Privacy) Ordinance (Cap. 486) or similar law of the United Kingdom or of another nation, in

24

addition to the steps noted above, data relating directly or indirectly to the defendant’s customers

25

(other than lead plaintiffs) from which the identity of the individual can be ascertained must be

26

redacted from the relevant records and documents to eliminate all such identifiers (e.g. name,

27
telephone number, address, e-mail address, photo, identity card number, passport number) such
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 6-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

that the relevant records and documents are no longer considered to be containing personally

2

identifying data.

3

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

4
the Designating Party identify on the record, before the close of the deposition, hearing, or other
5
6

proceeding, all protected testimony and specify the level of protection being asserted. When it is

7

impractical to identify separately each portion of testimony that is entitled to protection and it

8

appears that substantial portions of the testimony may qualify for protection, the Designating

9

Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded)

10

a right to have up to 21 days to identify the specific portions of the testimony as to which

11

protection is sought and to specify the level of protection being asserted. Only those portions of

12
13
14

the testimony that are appropriately designated for protection within the 21 days shall be covered
by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may

15

specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the

16

entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

17

ATTORNEYS’ EYES ONLY.”

18

Parties shall give the other parties notice if they reasonably expect a deposition, hearing or

19
other proceeding to include Protected Material so that the other parties can ensure that only
20
21

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

22

(Exhibit B) are present at those proceedings. The use of a document as an exhibit at a deposition

23

shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY

24

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

25
26

Transcripts containing Protected Material shall have an obvious legend on the title page
that the transcript contains Protected Material, and the title page shall be followed by a list of all

27
pages (including line numbers as appropriate) that have been designated as Protected Material and
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 7-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

the level of protection being asserted by the Designating Party. The Designating Party shall

2

inform the court reporter of these requirements. Any transcript that is prepared before the

3

expiration of a 21-day period for designation shall be treated during that period as if it had been

4
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
5
6
7

otherwise agreed. After the expiration of that period, the transcript shall be treated only as
actually designated.

8

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

9

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

10

container or containers in which the information or item is stored the legend “CONFIDENTIAL”

11

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions

12
13
14
15

of the information or item warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s) and specify the level of protection being asserted.
5.3

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

16

designate qualified information or items does not, standing alone, waive the Designating Party’s

17

right to secure protection under this Order for such material. Upon timely correction of a

18

designation, the Receiving Party must make reasonable efforts to assure that the material is

19
treated in accordance with the provisions of this Order.
20
21
22

6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS AND DESIGNATIONS
OF COMPETITORS
6.1

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

23
confidentiality or the designation of an entity as a competitor of Lloyds TSB Bank PLC at any
24
25

time. Unless a prompt challenge to a Designating Party’s designation is necessary to avoid

26

foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or

27

delay of the litigation, a Party does not waive its right to challenge a designation by electing not

28

to mount a challenge promptly after the original designation is disclosed.

SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 8-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1
2
3

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

4
notice must recite that the challenge is being made in accordance with this specific paragraph of
5
6

the Protective Order. The parties shall attempt to resolve each challenge in good faith and must

7

begin the process by conferring directly (in voice to voice dialogue; other forms of

8

communication are not sufficient) within 14 days of the date of service of notice. In conferring,

9

the Challenging Party must explain the basis for its belief that the designation was not proper and

10

must give the Designating Party an opportunity to review the designated material or competitor,

11

to reconsider the circumstances, and, if no change in designation is offered, to explain the basis

12
13
14
15
16
17
18

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.
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 or
competitor status under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and

19
General Order 62, if applicable) within 21 days of the initial notice of challenge or within 14 days
20
21

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

22

is earlier. Each such motion must be accompanied by a competent declaration affirming that the

23

movant has complied with the meet and confer requirements imposed in the preceding paragraph.

24

Failure by the Designating Party to make such a motion including the required declaration within

25

21 days (or 14 days, if applicable) shall automatically waive the designation for each challenged

26

designation. In addition, the Challenging Party may file a motion challenging a designation at

27
any time if there is good cause for doing so, including a challenge to the designation of a
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 9-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

deposition transcript or any portions thereof. Any motion brought pursuant to this provision must

2

be accompanied by a competent declaration affirming that the movant has complied with the meet

3

and confer requirements imposed by the preceding paragraph.

4
The burden of persuasion in any such challenge proceeding shall be on the Designating
5
6

Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose

7

unnecessary expenses and burdens on other parties) may expose the Challenging Party to

8

sanctions. Unless the Designating Party has waived the designation by failing to file a motion to

9

retain confidentiality and/or competitor status as described above, all parties shall continue to

10

afford the material in question the level of protection to which it is entitled under the Producing

11

Party’s designation and/or continue to treat the identified entity as a competitor of Lloyds TSB

12
13
14
15

Bank PLC until the court rules on the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

16

or produced by another Party or by a Non-Party in connection with this case only for prosecuting,

17

defending, or attempting to settle this litigation. Such Protected Material may be disclosed only

18

to the categories of persons and under the conditions described in this Order. When the litigation

19
has been terminated, a Receiving Party must comply with the provisions of section 13 below
20
21

(FINAL DISPOSITION).

22

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

23

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

24

The Receiving Party must store any electronic Protected Material in password- protected form.

25
26

7.2

Disclosure of

“CONFIDENTIAL” Information or Items.

Other than

CONFIDENTIAL information that qualifies for protection under Hong Kong’s Personal Data

27
(Privacy) Ordinance (Cap. 486) or similar law of the United Kingdom or of another nation, which
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 10-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

must be redacted pursuant to this Stipulated Protective Order, and unless otherwise ordered by the

2

court or permitted in writing by the Designating Party, a Receiving Party may disclose any

3

information or item designated “CONFIDENTIAL” only to:

4
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
5
6

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

7

information for this litigation and who have signed the “Acknowledgment and Agreement to Be

8

Bound” that is attached hereto as Exhibit B

9

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

10

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

11

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit B);

12
13
14
15

(c) 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 B);

16

(d) the court and its personnel;

17

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

18

Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

19
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit B);
20
21

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

22

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

23

(Exhibit B), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

24

transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be

25

separately bound by the court reporter and may not be disclosed to anyone except as permitted

26

under this Stipulated Protective Order.

27
(g) the author or recipient of a document containing the information or a custodian
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 11-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1
2
3

or other person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items. Unless otherwise ordered by the court or permitted in writing by the

4
Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY
5
6

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

7

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

8

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

9

information for this litigation and who have signed the “Acknowledgment and Agreement to Be

10

Bound” that is attached hereto as Exhibit B;

11

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary

12
13
14
15

for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit B), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been
followed;

16

(c) the court and its personnel;

17

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

18

Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

19
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit B); and
20
(e) the author or recipient of a document containing the information or a custodian

21
22

or other person who otherwise possessed or knew the information.
7.4

23

Procedures for Approving or Objecting to Disclosure of “HIGHLY

24

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Designated House

25

Counsel.

26

(a)(1) Unless otherwise ordered by the court or agreed to in writing by the

27
Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 12-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

2

EYES ONLY” pursuant to paragraph 7.3 first must make a written request to the Designating

3

Party that identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’

4
EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert. .
5
(b) A Party that makes a request and provides the information specified in the

6
7

preceding respective paragraph may disclose the subject Protected Material to the identified

8

Expert unless, within 14 days of delivering the request, the Party receives a written objection

9

from the Designating Party. Any such objection must set forth in detail the grounds on which it is

10
11

based.
(c) A Party that receives a timely written objection must meet and confer with the

12
13
14

Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
agreement within seven days of the written objection. If no agreement is reached, the Party

15

seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7

16

(and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable) seeking

17

permission from the court to do so. Any such motion must describe the circumstances with

18

specificity, set forth in detail the reasons why the disclosure to the Expert is reasonably necessary,

19
assess the risk of harm that the disclosure would entail, and suggest any additional means that
20
21

could be used to reduce that risk. In addition, any such motion must be accompanied by a

22

competent declaration describing the parties’ efforts to resolve the matter by agreement (i.e., the

23

extent and the content of the meet and confer discussions) and setting forth the reasons advanced

24

by the Designating Party for its refusal to approve the disclosure.

25
26

In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden
of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)

27
outweighs the Receiving Party’s need to disclose the Protected Material to the Expert.
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 13-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

8.

2

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels

3
4

disclosure of any information or items designated in this action as “CONFIDENTIAL” or

5

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that Party must:

6
7

(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

8

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

9
10

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

11

to this Protective Order. Such notification shall include a copy of this Stipulated Protective

12

Order; and

13
14

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

15

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

16
subpoena or court order shall not produce any information designated in this action as
17
18

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a

19

determination by the court from which the subpoena or order issued, unless the Party has obtained

20

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

21

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

22

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

23

lawful directive from another court.

24
25
26
27

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” or “HIGHLY CONFIDENTIAL –

28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 14-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with

2

this litigation is protected by the remedies and relief provided by this Order. Nothing in these

3

provisions should be construed as prohibiting a Non-Party from seeking additional protections.

4
(b)

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

5
6

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

7

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

8

Party shall:

9
10
11

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;

12
2.

13
14

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

15

the information requested; and

16

3.

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

17

(c)

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

18

within 14 days of receiving the notice and accompanying information, the Receiving Party may

19
produce the Non-Party’s confidential information responsive to the discovery request. If the
20
21

Non-Party timely seeks a protective order, the Receiving Party shall not produce any information

22

in its possession or control that is subject to the confidentiality agreement with the Non-Party

23

before a determination by the court. Absent a court order to the contrary, the Non-Party shall

24

bear the burden and expense of seeking protection in this court of its Protected Material.

25

10.

26

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

27
Material to any person or in any circumstance not authorized under this Stipulated Protective
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 15-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

2

unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

3

Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

4
made of all the terms of this Order, and (d) request such person or persons to execute the
5
6
7

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit B.
11.

8

INADVERTENT PRODUCTION
PROTECTED MATERIAL

OF

PRIVILEGED

OR

OTHERWISE

If information is produced in discovery that is subject to a claim of privilege or of

9
10

protection, the party making the claim may notify any party that received the information of the

11

claim and the basis for it. After being notified, a party must promptly sequester, return or destroy

12

the specific information and any copies it has, and may not use or disclose the information until

13

the claim is resolved. This provision is not intended to modify whatever procedure may be

14

established in an e-discovery order that provides for production without prior privilege review.

15

Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on

16
the effect of disclosure of a communication or information covered by the attorney-client
17
18

privilege or work product protection, the parties may incorporate their agreement in the stipulated

19

protective order submitted to the court.

20

12.

21
22
23

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

24
25
26

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,

27

no Party waives any right to object on any ground to use in evidence of any of the material

28

covered by this Protective Order.

SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 16-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1
2
3

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 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 and General Order 62. Protected
5
6

Material may only be filed under seal pursuant to a court order authorizing the sealing of the

7

specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a

8

sealing order will issue only upon a request establishing that the Protected Material at issue is

9

privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a

10

Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-

11

5(d) and General Order 62 is denied by the court, then the Receiving Party may file the Protected

12
13
14
15

Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by
the court.
13.

FINAL DISPOSITION

16

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

17

Receiving Party must return all Protected Material to the Producing Party or destroy such

18

material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

19
compilations, summaries, and any other format reproducing or capturing any of the Protected
20
21

Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

22

submit a written certification to the Producing Party (and, if not the same person or entity, to the

23

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

24

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

25

not retained any copies, abstracts, compilations, summaries or any other format reproducing or

26

capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

27
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 17-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

2

product, and consultant and expert work product, even if such materials contain Protected

3

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

4
this Protective Order as set forth in Section 4 (DURATION).
5
6
7

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

8
DATED: ________________________

/s/ Libretta P. Stennes
Attorneys for Plaintiffs John Dugan et al

DATED: ________________________

/s/ Peter J. Bezek
Attorneys for Plaintiffs David T. Osmena et al

DATED: ________________________

/s/ Mark C. Dosker
Attorneys for Defendant Lloyds TSB Bank plc

9
10
11
12
13
14
15
16
17
18

PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED: __

____________________________________________________
United States Magistrate Judge

19
20
21
22
23
24
25
26
27
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 18-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

EXHIBIT A

2

LIST OF COMPETITORS

3
4

UK
HSBC

USA
HSBC

Canada
CIBC

France
Barclays

Spain
Barclays

6

Barclays

Mellon

HSBC

BNP Paribas

RBSI

7

RBSI

Washington
Mutual

Scotiabank

Credit Agricole

Santander

8

Santander

HSBC

Standard
Chartered

5

9

Standard
Chartered

10
11
12
13
14

Australia
ANZ
NAB
St. George Bank
Westpac

Dubai
Barclays
Mashreqbank
NBD
Standard
Chartered

Hong Kong
Hang Seng
HSBC
ICBC
NAB HK

HSBC

15

New Zealand
ANZ
NAB
Westpac
National Bank
of New
Zealand

Standard
Standard
Chartered
Chartered
Bank of China
Bank of
Communications

16
ANZ
17
18
19

Singapore
DBS
HSBC
NAB
UOB

Portugal
HSBC

20
21
22
23
24
25
26
27
28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 19-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1

EXHIBIT B

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of _________________

4
[print or type full address], declare under penalty of perjury that I have read in its entirety and
5
6

understand the Stipulated Protective Order that was issued by the United States District Court for

7

the Northern District of California on [date] in the cases of John Dugan, Aurora Dugan and

8

Matthew Tapscott v. Lloyds TSB Bank plc, United States District Court, Northern District of

9

California, Case No. CV 12-02549 PSG and David T. Osmena and Patricia Hogan-Osmena v.

10

Lloyds TSB Bank plc, United States District Court, Northern District of California, Case No. CV

11

12-02937 WHA. I agree to comply with and to be bound by all the terms of this Stipulated

12
13
14

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

15

any manner any information or item that is subject to this Stipulated Protective Order to any

16

person or entity except in strict compliance with the provisions of this Order.

17
18

I further agree to submit to the jurisdiction of the United States District Court for the
Northern District of California for the purpose of enforcing the terms of this Stipulated Protective

19
Order including this Acknowledgement and Agreement to be Bound, even if such enforcement
20
21

proceedings occur after termination of this action.

22

I hereby appoint __________________________ [print or type full name] of

23

_______________________________________ [print or type full address and telephone

24

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

25

proceedings related to enforcement of this Stipulated Protective Order.

26
27

Date: _________________________________
City and State where sworn and signed: _________________________________

28
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 20-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA

1
2
3

Printed name: _______________________________________________________________
[printed name]
Signature: __________________________________
[signature]

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
SQUIRE SANDERS (US) LLP
275 Battery Street, Suite 2600
San Francisco, California 94111

- 21-

STIPULATED PROTECTIVE ORDER
CASE NOS. 12-CV-2549 WHA and 12-CV-2937 WHA