Gina McLeod v. Bank of America, N.A. et al

Filing 28

STIPULATION AND ORDER re 27 (Stipulated Protective Order) filed by Bank of America, N.A. Signed by Judge Edward M. Chen on 3/31/17. (bpf, COURT STAFF) (Filed on 3/31/2017)

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1 2 3 4 5 6 7 8 9 10 APALLA U. CHOPRA (S.B. #163207) O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 ADAM P. KOHSWEENEY (S.B. #229983) SUSANNAH K. HOWARD (S.B. #291326) O’MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, California 94111-3823 Telephone: (415) 984-8912 Facsimile: (415) 984-8701 Attorneys for Defendant Bank of America, N.A. 11 *Additional counsel listed on the following page. 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 16 Gina McLeod, individually and on behalf of all others similarly situated, STIPULATED PROTECTIVE ORDER 17 18 19 20 21 Case No. 3:16-cv-03294-EMC Plaintiff, v. Bank of America, N.A. and DOES 1 through 10, inclusive, Defendant. 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 AARON KAUFMANN, SBN 148580 DAVID POGREL, SBN 203787 ELIZABETH GROPMAN, SBN 294156 LEONARD CARDER, LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Telephone: (510) 272-0169 Facsimile: (510) 272-0174 EDWARD J. WYNNE, SBN 165819 WYNNE LAW FIRM Wood Island 80 E. Sir Francis Drake Boulevard, Suite 3G Larkspur, CA 94939 Telephone: (415) 461-6400 Facsimile: (415) 461-3900 Attorneys for Plaintiff Gina McLeod and the putative class 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff Gina McLeod 2 (“Plaintiff”) and Defendant Bank of America, N.A. (“Defendant”), through their respective 3 undersigned counsel, that, during this action, all documents, information, tangible items, and 4 testimony designated as Confidential by the producing party in the above matter be, and hereby 5 are, subject to the following terms and conditions: 6 1. PURPOSES AND LIMITATIONS 7 Disclosure and discovery activity in this action are likely to involve production of 8 confidential, proprietary, or private information for which special protection from public 9 disclosure and from use for any purpose other than litigating this case would be warranted. 10 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 11 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 12 all disclosures or responses to discovery and that the protection it affords extends only to the 13 limited information or items that are entitled under the applicable legal principles to treatment as 14 confidential. The parties further acknowledge, as set forth in Section 10, below, that this 15 Stipulated Protective Order creates no entitlement to file confidential information under seal; 16 Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards 17 that will be applied when a party seeks permission from the court to file material under seal. 18 2. 19 20 21 DEFINITIONS 2.1. Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff). 2.2. Disclosure or Discovery Material: all items or information, regardless of the 22 medium or manner generated, stored, or maintained (including, among other things, testimony, 23 transcripts, or tangible things) that are produced or generated in disclosures or responses to 24 discovery in this matter. 25 2.3. “Confidential” Information or Items: information (regardless of how generated, 26 stored, or maintained) or tangible things that qualify for protection under standards developed 27 under Fed. R. Civ. P. 26(c). 28 2.4. Receiving Party: a Party that receives Disclosure or Discovery Material from a -3- STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 Producing Party. 2 3 2.5. Material in this action. 4 5 2.6. 2.7. Protected Material: any Disclosure or Discovery Material that is designated as “Confidential.” 8 9 Designating Party: a Party or non-party that designates information or items that it produces in disclosures or in responses to discovery as “Confidential.” 6 7 Producing Party: a Party or non-party that produces Disclosure or Discovery 2.8. Outside Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action. 10 2.9. House Counsel: attorneys who are employees of a Party. 11 2.10. Counsel (without qualifier): Outside Counsel and House Counsel (as well as their 12 support staffs). 13 2.11. Expert: a person with specialized knowledge or experience in a matter pertinent to 14 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 15 consultant in this action and who is not a past or a current employee of a Party or of a competitor 16 of a Party’s and who, at the time of retention, is not anticipated to become an employee of a Party 17 or a competitor to a Party. This definition includes a professional jury or trial consultant retained 18 in connection with this litigation. 19 2.12. Professional Vendors: persons or entities that provide litigation support services 20 (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, 21 storing, retrieving data in any form or medium; etc.) and their employees and subcontractors. 22 3. 23 SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material 24 (as defined above) but also any information copied or extracted therefrom as well as all copies, 25 excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by 26 parties or counsel to or in court or in other settings that might reveal Protected Material. 27 4. 28 DURATION Even after the termination of this litigation, the confidentiality obligations imposed by this -4- STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 2 otherwise directs. 3 5. 4 DESIGNATING PROTECTED MATERIAL 5.1. Exercise of Restraint and Care in Designating Material for Protection. Each Party 5 or non-party that designates information or items for protection under this Order must take care to 6 limit any such designation to specific material that qualifies under the appropriate standards. A 7 Designating Party must take care to designate for protection only those parts of material, 8 documents, items, or oral or written communications that qualify so that other portions of the 9 material, documents, items, or communications for which protection is not warranted are not 10 11 swept unjustifiably within the ambit of this Order. Indiscriminate routinized designations are prohibited. Designations that are shown to be 12 clearly unjustified, or that have been made for an improper purpose (e.g., to unnecessarily 13 encumber or retard the case development process or to impose unnecessary expenses and burdens 14 on other parties), expose the Designating Party to sanctions. 15 If it comes to a Party’s or a non-party’s attention that information or items that it 16 designated for protection do not qualify for protection at all, or do not qualify for the level of 17 protection initially asserted, that Party or non-party must promptly notify all other parties that it is 18 withdrawing the mistaken designation. 19 5.2. Manner and Timing of Designations. Except as otherwise provided in this Order 20 (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, 21 material that qualifies for protection under this Order must be clearly so designated before the 22 material is disclosed or produced. 23 24 Designation in conformity with this Order requires: (a) for information in documentary form (apart from transcripts of depositions 25 or other pretrial or trial proceedings), that the Producing Party affix the legend 26 “CONFIDENTIAL” at the bottom of each page that contains protected material. If only a portion 27 or portions of the material on a page qualifies for protection, the Producing Party also must 28 clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). -5- STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 A Party or non-party that makes original documents or materials available for inspection 2 need not designate them for protection until after the inspecting Party has indicated which 3 material it would like copied and produced. During the inspection and before the designation, all 4 of the material made available for inspection shall be deemed CONFIDENTIAL. After the 5 inspecting Party has identified the documents it wants copied and produced, the Producing Party 6 must determine which documents, or portions thereof, qualify for protection under this Order; 7 then, before producing the specified documents, the Producing Party must affix the legend 8 “CONFIDENTIAL” at the bottom of each page that contains Protected Material. If only a 9 portion or portions of the material on a page qualifies for protection, the Producing Party also 10 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 11 margins). 12 (b) for testimony given in deposition or in other pretrial or trial proceedings, 13 that Counsel for the deponent or witness providing testimony, within twenty (20) days after the 14 final version of the transcript has been received by such Counsel, designate any portions of the 15 transcript which contain testimony concerning CONFIDENTIAL information. Upon request of 16 Counsel on the record (i.e., before the deposition or proceeding is concluded), deposition or other 17 pretrial hearing or trial testimony in its entirety shall be treated as CONFIDENTIAL until 18 expiration of the 20-day designation period. 19 (c) for information produced in some form other than documentary, and for 20 any other tangible items, that the Producing Party affix in a prominent place on the exterior of the 21 container or containers in which the information or item is stored the legend “CONFIDENTIAL.” 22 If only portions of the information or item warrant protection, the Producing Party, to the extent 23 practicable, shall identify the protected portions. 24 5.3. Need for Higher Level of Confidentiality. In the event the Producing Party 25 believes that the material to be produced, or testimony to be given, is deserving of a higher level 26 of confidentiality than the protections currently provided herein for “Confidential” materials, the 27 Producing Party shall contact the party to whom disclosure would otherwise be made to explain 28 the need for and the specifics of the higher level of protection. The Parties shall meet and confer -6- STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 in good faith to come to agreement on the designation and its scope. If the Parties cannot reach 2 agreement, the Producing Party shall submit the matter to the Court for resolution per paragraph 3 6.3 of this Order, and shall not be required to produce the material in question until the Court 4 issues a decision. 5 5.4. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 6 designate qualified information or items as “Confidential” or as some other level of 7 confidentiality, does not, standing alone, waive the Designating Party’s right to secure protection 8 under this Order for such material. If material is appropriately designated as “Confidential” or 9 some other level of confidentiality after the material was initially produced, the Receiving Party, 10 on timely notification of the designation, must make reasonable efforts to assure that the material 11 is treated in accordance with the provisions of this Order. 12 6. 13 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1. Timing of Challenges. Unless a prompt challenge to a Designating Party’s 14 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 15 economic burdens, or a later significant disruption or delay of the litigation, a Party does not 16 waive its right to challenge a confidentiality designation by electing not to mount a challenge 17 promptly after the original designation is disclosed. 18 6.2. Meet and Confer. A Party that elects to initiate a challenge to a Designating 19 Party’s confidentiality designation must do so in good faith and must begin the process by 20 conferring directly (in voice to voice dialogue in person or by telephone; a mere exchange of 21 letters, e-mails, telephone calls, or facsimile transmissions is not sufficient) with counsel for the 22 Designating Party. In conferring, the challenging Party must explain the basis for its belief that 23 the confidentiality designation was not proper and must give the Designating Party an opportunity 24 to review the designated material, to reconsider the circumstances, and, if no change in 25 designation is offered, to explain the basis for the chosen designation. A challenging Party may 26 proceed to the next stage of the challenge process only if it has engaged in this meet and confer 27 process first. 28 6.3. Judicial Intervention. A Party that elects to press a challenge to a confidentiality -7- STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 designation after considering the justification offered by the Designating Party will, along with 2 the Designating Party, prepare a concise joint statement of 5 pages or less explaining the 3 Designating Party’s basis for the chosen designation as well as the challenging Party’s basis for 4 its belief that the confidentiality designation was not proper. The Designating Party and the 5 challenging party may each elect to submit a brief individual statement of 2 pages or less, and the 6 challenging party may file and serve a motion under Civil Local Rule 7 (and in compliance with 7 Civil Local Rule 79-5, if applicable) that identifies the challenged material and sets forth in detail 8 the basis for the challenge. Each such motion must be accompanied by a competent declaration 9 that affirms that the movant has complied with the meet and confer requirements imposed in the 10 preceding paragraph and that sets forth with specificity the justification for the confidentiality 11 designation that was given by the Designating Party in the meet and confer dialogue. 12 The burden of persuasion in any such challenge proceeding shall be on the Designating 13 Party. Until the court rules on the challenge, all parties shall continue to afford the material in 14 question the level of protection to which it is entitled under the Producing Party’s designation. 15 7. 16 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1. Basic Principles. A Receiving Party may use Protected Material that is disclosed 17 or produced by another Party or by a non-party in connection with this case only for prosecuting, 18 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 19 to the categories of persons and under the conditions described in this Order. When the litigation 20 has been terminated, a Receiving Party must comply with the provisions of section 11, below 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 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 25 ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may 26 disclose any information or item designated CONFIDENTIAL only to: 27 28 (a) the Receiving Party and the Receiving Party’s Outside Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably necessary to disclose -8- STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 the information for this litigation and who have signed the “Agreement to be Bound by Protective 2 Order” that is attached hereto as Exhibit A; 3 (b) the officers, directors, and employees (including in-house counsel) of the 4 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 5 signed the “Agreement to be Bound by Protective Order” that is attached hereto as Exhibit A; 6 (c) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this litigation and who have signed the “Agreement to be 8 Bound by Protective Order” that is attached hereto as Exhibit A; 9 (d) the Court and its personnel; 10 (e) court reporters, their staffs, and Professional Vendors to whom disclosure 11 is reasonably necessary for this litigation and who have signed the “Agreement to be Bound by 12 Protective Order” that is attached hereto as Exhibit A; 13 (f) during their depositions, witnesses in the action to whom disclosure is 14 reasonably necessary and who have signed the “Agreement to be Bound by Protective Order” that 15 is attached hereto as Exhibit A; and, 16 (g) 17 information. 18 8. the author of the Protected Material or the original source of the 19 20 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Receiving Party is served with a subpoena or an order issued in other litigation that 21 would compel disclosure of any information or items designated in this action as 22 “CONFIDENTIAL,” the Receiving Party must so notify the Designating Party in writing (by fax 23 or e-mail, if possible) immediately and, in no event, more than three court days after receiving the 24 subpoena or order. Such notification must include a copy of the subpoena or court order. 25 The Receiving Party also must immediately inform in writing the Party who caused the 26 subpoena or order to issue in the other litigation that some or all the material covered by the 27 subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must 28 deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that -9- STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 caused the subpoena or order to issue. 2 The purpose of imposing these duties is to alert the interested parties to the existence of 3 this Protective Order and to afford the Designating Party in this case an opportunity to try to 4 protect its confidentiality interests in the court from which the subpoena or order issued. The 5 Designating Party shall bear the burdens and the expenses of seeking protection in that court of its 6 confidential material – and nothing in these provisions should be construed as authorizing or 7 encouraging a Receiving Party in this action to disobey a lawful directive from another court. 8 9. 9 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 10 Material to any person or in any circumstance not authorized under this Stipulated Protective 11 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 12 unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) 13 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 14 Order, and (d) request such person or persons to execute the “Agreement to be Bound by 15 Protective Order” that is attached hereto as Exhibit A. 16 10. 17 FILING PROTECTED MATERIAL Without written permission from the Designating Party or a court order secured after 18 appropriate notice to all interested persons, a Party may not file in the public record in this action 19 any Protected Material. A Party that seeks to file under seal any Protected Material must comply 20 with Civil Local Rule 79-5. 21 11. 22 FINAL DISPOSITION Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) 23 days after the final termination of this action, each Receiving Party must return all Protected 24 Material to the Producing Party. As used in this subdivision, “all Protected Material” includes all 25 copies, abstracts, compilations, summaries, or any other form of reproducing or capturing any of 26 the Protected Material. The Receiving Party may at its election destroy some or all of the 27 Protected Material instead of returning it. Whether the Protected Material is returned or 28 destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if - 10 - STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 not the same person or entity, to the Designating Party) by the sixty (60) day deadline that 2 identifies (by category, where appropriate) all the Protected Material that was returned or 3 destroyed and that affirms that the Receiving Party has not retained any copies, abstracts, 4 compilations, summaries, or other forms of reproducing or capturing any of the Protected 5 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 6 pleadings, motion papers, transcripts, legal memoranda, correspondence, or attorney work 7 product even if such materials contain Protected Material. Any such archival copies that contain 8 or constitute Protected Material remain subject to this Protective Order as set forth in Section 4 9 (DURATION), above. 10 12. 11 MEDIATION This Order will apply to documents and information disclosed, formally or informally, in 12 connection with any mediation of this matter, regardless of whether or not the information is 13 expressly designated as “CONFIDENTIAL.” Additionally, all documents and information 14 produced in connection with a mediation will be promptly returned to the producing party or 15 destroyed (followed by a letter confirming such destruction) when the mediation process 16 concludes (regardless of whether the process is successful or unsuccessful), pursuant to the terms 17 of Section 11 herein – except to the extent the undersigned parties agree in writing to an alternate 18 process. The undersigned parties expressly understand and agree that the production and/or 19 disclosure of documents or information in connection with mediation will be without prejudice to 20 the producing party’s ability to argue against the disclosure of the same documents or information 21 in connection with litigation. Except to the extent that the terms of this Order provide greater 22 protection, the undersigned parties further expressly recognize and agree that documents and 23 information provided in connection with mediation or settlement will be governed by the 24 provisions of California Evidence Code § 1119 and Local Rule 16-8. 25 13. 26 27 28 MISCELLANEOUS 13.1. Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 13.2. Right to Assert Other Objections. By stipulating to the entry of this Protective - 11 - STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 Order, no Party waives any right it otherwise would have to object to disclosing or producing any 2 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 3 no Party waives any right to object on any ground to use in evidence of any of the material 4 covered by this Protective Order. 5 6 Dated: March 23, 2017 APALLA U. CHOPRA ADAM P. KOHSWEENEY SUSANNAH K. HOWARD O’MELVENY & MYERS LLP 7 8 By: _/s/ Adam P. KohSweeney_ Adam P. KohSweeney Attorneys for Defendant Bank of America, N.A. 9 10 11 12 Dated: March 23, 2017 AARON KAUFMANN DAVID POGREL ELIZABETH GROPMAN LEONARD CARDER, LLP 13 14 By: _/s/ Aaron Kaufman_ _ Aaron Kaufmann Attorneys for Plaintiff Gina McLeod 15 16 17 18 Dated: March 23, 2017 EDWARD J. WYNNE WYNNE LAW FIRM 19 By: /s/ Edward J. Wynne___ Edward J. Wynne Attorney for Plaintiff Gina McLeod 20 21 22 23 24 25 26 27 28 - 12 - STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 2 3 4 ATTESTATION The filing attorney attests that he has obtained concurrence regarding the filing of this document from the signatories to this document. Dated: March 23, 2017 By: _/s/ Adam P. KohSweeney____ Adam P. KohSweeney O’MELVENY & MYERS LLP Two Embarcadero Center, 28th Fl. San Francisco, CA 94111-3823 Telephone: (415) 984-8912 Facsimile: (415) 984-8701 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC 1 PURSUANT TO THE PARTIES’ STIPULATION, THE FOREGOING PROTECTIVE ORDER IS APPROVED, AND IT IS SO ORDERED. 2 10 R NIA FO LI ER n M. Che H 9 RT 8 dward Judge E NO 7 A 6 __________________________________ The Honorable Edward M. Chen RED United States DistrictORDEJudge SO Court IT IS Northern District of California UNIT ED 5 Date: ______________ 3/31/17 S DISTRICT TE C TA RT U O 4 S 3 N D IS T IC T R OF C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC EXHIBIT A 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 SAN FRANCISCO DIVISION Gina McLeod, individually and on behalf of all others similarly situated, Plaintiff, 7 CERTIFICATION OF AGREEMENT TO BE BOUND BY PROTECTIVE ORDER v. 8 9 Case No. 3:16-cv-03294-EMC Bank of America, N.A. and DOES 1 through 10, inclusive, 10 Defendant. 11 12 1. My name is ______________________________________. 13 I live at _________________________________________________. 14 I am employed as (state position) ______________________________________ 15 by (state name and address of employer) ______________________________________. 16 17 2. I have read the Stipulated Protective Order Regarding Confidential Documents and 18 Information that has been entered in this case, and a copy of it has been given to me. I understand 19 the provisions of this Order and agree to comply with and to be bound by its provisions. 20 21 3. I declare under penalty of perjury that the foregoing is true and correct. 22 23 Executed on __________________________ (date) 24 25 by ___________________________________ (signature) 26 27 28 - 15 - STIPULATED PROTECTIVE ORDER 3:16-CV-03294-EMC

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