Swamy v. Title Source, Incorporated

Filing 86

PROTECTIVE ORDER by Judge William Alsup granting 84 Stipulation.(whalc1, COURT STAFF) (Filed on 10/29/2017)

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James M. Nelson (SBN 116442)
Michelle L. DuCharme (SBN 285572)
GREENBERG TRAURIG, LLP
1201 K Street, Suite 1100
Sacramento, California 95814-3938
Telephone: (916) 442-llll
Facsimile: (916) 448-17 09
[e-mail]

[e-mail]
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Peter S. Wahby (Admitted Pro Hac Vice)

GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 95201
Telephone: [phone]
Facsimile : (21 4) 665 -3 60 |

wat$[e-mail]

Adil M. Khan (SBN 254039)
GREENBERG TRAURIG, LLP
I 840 Century Park East, Suite 1900
Los Angeles, Californi a 90067 -2121
Telephone: (3 I 0) 586-7700
Facsimile: (3 10) 586-7800
Emai I : lúanad@gllaw. com

Jeffrey Morganroth (Admitted Pro Hac Vice)
MORGANROTH AND MORGANROTH PLLC
344 N. Old Woodward Avenue, Suite 200
Birmingham, MI48009
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendant
TITLE SOURCE,INC.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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SOM SWAMY, on Behalf of Himself and on
Behalf of All Others Similarly Situated,

CASE

NO.

3: 17-cv-01

175-WHA

CLASS AND COLLECTIVE ACTION

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Plaintiff,

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v.

STIPULATED PROTECTIVE ORDER
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TITLE SOURCE,INC.,
Defendant.

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Case No. 3: l7-cv-01

STIPULATED PROTECTIVE ORDER

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75-WHA

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I.

PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely

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to involve production of

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

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the court

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Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection

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public disclosure and use extends only to the limited information or items that are entitled to

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

to enter the following
it affords from

as

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set forth

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confìdential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

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followed and the standards that will be applied when a party seeks pennission frorn the court to

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file material under

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2.

seal.

DEFINITIONS

2.1

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in Section 12.3, below, that this Stipulated Protective Order does not entitle them to fìle

Challenging

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

information or items under this Order.

2.2

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"CONFIDENTIAL" Information or ltems: information (regardless of how it is

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

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of Civil Procedure 26(c).

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,,'
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well

as

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

their support staffl.

2.4

Designating

Party: aParty

or Non-Party that designates information or items that

it produces in disclosures or in responses to discovery as "CONFIDENTIAL."

2,5

Disclosure or Discoverv Material:

all items or information,

regardless

of

the

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

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

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responses to discovery in this matter.

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Case

STIPULATED PROTECTIVE ORDER

No.

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l7-cv-01 175-WHA

2,6

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

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to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as

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a consultant in this action.

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

2.8

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

Non-Part)¡: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.

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2.9

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

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

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

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thatpafiy,

2.10

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

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

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2.11

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Material in this action.

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2.12

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

Professional Vendors: persons or entities that provide litigation support services

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

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organizing, storing,

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or

subcontractors.

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2.13

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demonstrations, and

or retrieving data in any form or medium) and their employees

and

..CONFIDENTIAL.''

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Protected

Material: any Disclosure or Discovery Material that is designated

2.14 Receiving Party: aParty that receives

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3.

Disclosure or Discovery Material from a

Producing Party.

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as

SCOPE

,,<

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

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(as defìned above), but also (1) any information copied or extracted from Protected Material;

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(2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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

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STIPULATED PROTECTIVE ORDER

Case

No. 3:17 -cv-01175-WHA

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However, the protections conferred by this Stipulation and Order do not cover the following

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

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

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

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

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

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obtained the information lawfully and under no obligation of confidentiality to the Designating

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Party. Any use of Protected Material at trial shall be governed by a separate agrsement or order.

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4.

a

as

DURATION

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Even after frnal disposition of this litigation, the confrdentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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

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

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

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action, including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5,

DESIGNATING PROTECTED MATERIAL

5.1

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

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

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

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The Designating Party must designate for protection only those parts of material, documents,

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items, or oral or written communications that qualify

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documents, items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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so that other portions of the material,

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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

purpose (e.g., to

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shown

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unnecessarily encumber or retard the case development process

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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STIPULATED PROTECTIVE ORDER

or to impose

Case

No.

3 :17

unnecessary

-cv-01175-WHA

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If it comes to a Designating Party's

attention that information or items that it designated

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for protection do not qualify for protection, that Designating Party must promptly notify all other

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Parties that

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it is withdrawing the mistaken designation.

5.2

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

of section 5.2(a) below), or as otherwise stipulated or ordered,

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(see, e.g., second paragraph

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

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

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

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

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Party affix the legend "CONFIDENTIAL" to each page that contains protected material.

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a portion or portions of the material on a page qualifres for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.9., by making appropriate markings in the

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margins).

If only

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

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

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

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of the material made available for inspection shall be deemed "CONFIDENTIAL." After

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inspecting Party has identified the documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix

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"CONFIDENTIAL" legend to each page that contains Protected Material. If only a portion or

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

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identify the protected portion(s) (e.9., by making appropriate markings in the margins).

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(b)

the

the

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

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

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proceeding, all protected testimony.

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STIPULATED PROTECTIVE ORDER

Case

No.

3: 17-cv-01

175-WHA

(c)

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

)

tangible items, that the Producing Party affix

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container

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"CONFIDENTIAL." If only a portion or portions of the information or item warrant protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s).

or

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containers

in a prominent place on the exterior of

in which the information or item is

Inadvertent Failures to Designate.

If timely

stored

the

the

legend

corrected, an inadvertent failure to

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

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

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

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treated in accordance with the provisions of this Order.

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a

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6.1

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

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

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designation

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

is necessary to avoid foreseeable, substantial unfairness,

unnecessary economic

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

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process by providing written notice of each designation

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

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good faith and must begin the process by conferring directly (in voice to voice dialogue; other

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

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conferring, the Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and,

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to explain the basis for the chosen designation. A Challenging Party may proceed to the next

it is challenging and describing the basis

if no change in designation is offered,

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STIPULATED PROTECTIVE ORDER

Case

No.

3: 17-cv-01

175-WHA

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stage

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

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a

of the challenge process only

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

timely manner.

6.3

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Judicial Intervention.

If

the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall flrle and serve a motion to retain confidentiality under

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within

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of the initial notice of challenge or within 14 days of the parties agreeing that the meet and

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confer process

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

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

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to make such a motion including the required declaration within

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applicable) shall automatically waive the confidentiality designation

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

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designation

at any time if there is good cause for doing so, including a challenge to

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designation

of a deposition transcript or any portions thereof. Any motion brought pursuant to

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this provision must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed by the preceding paragraph.

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days

will not resolve their dispute, whichever is earlier. Each such motion must

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days

be

(or 14 days, if

for each challenged

the

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

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

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unnecessary expenses and burdens

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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flrle a motion to retain confidentiality as described above,

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material in question the level of protection to which

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designation until the couft rules on the challenge.

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7,

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on other parties) may expose the Challenging Party to

all parties shall continue to afford the

it is entitled under the Producing

Party's

ACCESS TO AND USE OF PROTECTED MATERIAL

7.1

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

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

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

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STIPULATED PROTECTIVE ORDER

Case No.

3

:

l7-cv-0 I 175-WHA

I

disclosed only to the categories of persons and under the conditions described in this Order.

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When the litigation has been terminated, a Receiving Party must comply with the provisions of

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section l3 below (FINAL DISPOSITION).

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6

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

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

7.2

Disclosure

of

"CONFIDENTIAL" Information or

ltems. Unless

otherwise

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

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disclose any information or item designated "CONFIDENTIAL" only to:

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(a)

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

it is reasonably

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employees of said Outside Counsel of Record to whom

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

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Bound" that is attached hereto as Exhibit A;

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(b)

necessary to disclose the

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

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

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signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(c)

Experts (as defined

in this Order) of the Receiving Party to

whom

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disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment

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and Agreement to Be Bound" (Exhibit A);

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(d)
(e)

the court and its personnel;

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

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jurors, and Professional Vendors to rvhom disclosure is reasonably necessary for this litigation

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

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(Ð

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

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reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Boundo'

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

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

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

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under this Stipulated Protective Order.

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STIPULATED PROTECTIVE ORDER

Case

No. 3:17-cv-01 175-WHA

(g)

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the author or recipient of a document containing the information or

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

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a

8.

LITIGATION

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5

If a Party is served with

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disclosure

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a subpoena or a couft order issued

in other litigation that compels

Party must:

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of any information or items designated in this action as "CONFIDENTIAL," that

(a)
a copy

ofthe subpoena or court order;

(b)

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

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

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

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

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and

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(c)

cooperate with respect

to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected.

If the Designating Party timely

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seeks a protective order, the Party served with the

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subpoena

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"CONFIDENTIAL" before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party's permission. The Designating Party

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shall bear the burden and expense of seeking protection in that court of its confidential material

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and nothing in these provisions should be construed as authorizing or encouraging a Receiving

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

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Party in this action to disobey a lawful directive from another court.

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

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(a)

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

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this action and designated as "CONFIDENTIAL." Such information produced by Non-Parties in

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connection with this litigation is protected by the remedies and relief provided by this Order.

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STIPULATED PROTECTIVE ORDER

Case

No.

3: 17-cv-01

175-WHA

I

Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

(b)

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

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

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with the Non-Party not to produce the Non-Party's confidential inforrnation, then the Party shall:

(l)

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some or

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

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

Party;

(2)

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

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11

of

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

(3)

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(c)

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If

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

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

within

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days

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the Non-Party's confidential information responsive to the discovery request.

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timely seeks a protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the Non-Party before a

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

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

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IO.

of receiving the notice and accompanying information, the Receiving Party may produce

LINAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving

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If the Non-Party

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

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Material to any person or in any circumstance not authorized under this Stipulated Protective

23

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

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unauthorized disclosures, (b) use its best efforts

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

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made

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"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.

to retrieve all unauthorized copies of

of all the terms of this Order, and (d) request

the

such person or persons to execute the

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STIPULATED PROTECTIVE ORDER

Case

No. 3:17-cv-01 175-WHA

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11

1

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

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

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

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5XB). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

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communication

or

information covered

by the attorney-client privilege or work

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protection, the parties may incorporate their agreement

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submitted to the court.

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12,

in the stipulated

product

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15

protective order

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

t6

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

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly,

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

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covered by this Protective Order.

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12.3

Filing Protected Material. Without written permission from the Designating Party

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or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material.

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be

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fîled under seal pursuant to a court order authorizing the sealing of the specific

25

Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order

26

request establishing that the Protected Material at issue is privileged, protectable as a trade

27

secret, or otherwise entitled to protection under the

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Protected Material under seal pursuant to

A Party that seeks to file under

will

seal any

Protected

issue only upon a

law. If a Receiving Party's

request to file

Civil Local Rule 79-5(d) is denied by the court, then

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STIPULATED PROTECTIVE ORDER

Case

No.

3: 17-cv-01

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1

the Receiving Party may file the information in the public record pursuant to Civil Local Rule

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79-5(e) unless otherwise instructed by the court.

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13.

4

FINAL DISPOSITION

13.1

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

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

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material. As used in this subdivision, "all Protected Material" includes all copies,

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

8

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

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

(l)

abstracts,

identifies (by categor/, where appropriate) all

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Designating Party) by the 60 day deadline that

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

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

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

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

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

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product, and consultant and expert work product, even

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

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

if such materials contain Protected

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[continued on following page]

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STIPULATED PROTECTIVE ORDER

Case

No. 3:17-cv-01l7 5-WHA

I
)

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD

DArED: 1012412017

K

3

Y

ES, LLP

B

FOTY
GALVIN I(ENNEDY
Attomeys for Plaintiff
SOM SWAMY

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5
6

DATED
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GREENBERG

I

RAURIG, LLP

B

Attorneys for Defendant
TITLE SOURCE, INC.

9

t

K.

trlnc^.,".

t0
11

PURSUANT TO STIPULATION, IT IS SO ORDERED

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DATED: October 29, 2017.

United States District/Magistrate Judge

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STIPULATED PROTECTIVE ORDER

Casc No. 3:17-cv-01 175-WI-IA

I

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOTIND
[print or type full name], of

I,

3
4

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

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

6

theNorthernDistrictofCaliforniaon[date]inthecaseof-[insertformalnameof

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the case and the number and initials assigned to it by the court]. I agree to comply with and to be

8

bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of contempt. I

10

solemnly promise that I will not disclose in any manner any information or item that is subject to

11

this Stipulated Protective Order to any person or entity except in strict compliance with the

12

provisions of this Order.

I

13

further agree to submit to the jurisdiction of the United States District Court for the

of

California for the purpose

of

of this

t4

Northem District

15

Protective Order, even if such enforcement proceedings occur after termination of this action.

I

t6

enforcing the terms

Stipulated

fprint or type full name] of

hereby appoint

[print or type full address and

t7

telephone

18

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

t9

proceedings related to enforcement of this Stipulated Protective Order.

20

Date:

2t

City and State where sworn and signed:

22
23

Printed name:

24
25

Signature:

26
27

28

13

STIPUI,ATED PROTECTIVE ORDER

Case

No.

3 :17

-cv-0 I

17

5-WHA