Lewis et al v. Wells Fargo & Co.

Filing 38

ORDER re 35 granting STIPULATION for Protective Order. Signed by Judge Claudia Wilken on 12/12/08. (scc, COURT STAFF) (Filed on 12/12/2008)

1 Timothy M. Freudenberger, State Bar No. 138257 Alison L. Tsao, State Bar No. 198250 2 Marianne C. Koepf, State Bar No. 191025 CARLTON DiSANTE & FREUDENBERGER LLP 3 601 Montgomery Street Suite 350 4 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] [e-mail] 6 [e-mail] 7 Attorneys for Defendant 8 WELLS FARGO BANK, N.A. 9 10 11 12 MARTIN LEWIS and AARON COOPER, on behalf of themselves and a class of those 13 similarly situated, 14 15 16 17 18 19 1. vs. Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) Case No. CV-08-2670-CW Judge: Hon. Claudia Wilken STIPULATED PROTECTIVE ORDER Action Filed: May 28, 2008 Trial Date: None Set UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

WELLS FARGO & CO., Defendant.

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

20 confidential, proprietary, or private information for which special protection from public disclosure 21 and from use for any purpose other than prosecuting this litigation would be warranted. 22 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 23 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 24 all disclosures or responses to discovery and that the protection it affords extends only to the 25 limited information or items that are entitled under the applicable legal principles to treatment as 26 confidential. The parties further acknowledge, as set forth in Section 10, below, that this Stipulated 27 Protective Order creates no entitlement to file confidential information under seal; Civil Local Rule 28 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied
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1 when a party seeks permission from the court to file material under seal. 2 3 2. DEFINITIONS 2.1 Party: any party to this action, including all of its officers, directors,

4 employees, consultants, retained experts, and outside counsel (and their support staff). 5 2.2 Disclosure or Discovery Material: all items or information, regardless of

6 the medium or manner generated, stored, or maintained (including, among other things, testimony, 7 transcripts, or tangible things) that are produced or generated in disclosures or responses to 8 discovery in this matter. 9 2.3 "Confidential" Information or Items: information (regardless of how

10 generated, stored or maintained) or tangible things that qualify for protection under standards 11 developed under Fed. R. Civ. P. 26(c), the Local Rules of the Northern District of California, and 12 other applicable authority. 13 2.4 "Highly Confidential- Attorneys' Eyes Only" Information or Items:

14 extremely sensitive "Confidential Information or Items" whose disclosure to another Party or 15 nonparty would create a substantial risk of serious injury that could not be avoided by less 16 restrictive means. 17 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material

18 from a Producing Party. 19 2.6 Producing Party: a Party or non-party that produces Disclosure or

20 Discovery Material in this action. 21 2.7. Designating Party: a Party or non-party that designates information or items

22 that it produces in disclosures or in responses to discovery as "Confidential" or "Highly 23 Confidential Attorneys' Eyes Only." 24 2.8 Protected Material: any Disclosure or Discovery Material that is designated

25 as "Confidential" or as "Highly Confidential- Attorneys' Eyes Only." 26 2.9. Outside Counsel: attorneys who are not employees of a Party but who are

27 retained to represent or advise a Party in this action. 28
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House Counsel: attorneys who are employees of a Party. 2
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2.11

Counsel (without qualifier): Outside Counsel and House Counsel (as well

2 as their support staffs). 3 2.12 Expert: a person who has been retained by a Party or its counsel to serve as

4 an expert witness or as a consultant in this action and who is not a past or a current employee of a 5 Party or of a competitor of a Party and who, at the time of retention, is not anticipated to become an 6 employee of a Party or a competitor of a Party. This definition includes a professional jury or trial 7 consultant and a damages consultant retained in connection with this litigation. 8 2.13 Professional Vendors: persons or entities that provide litigation support

9 services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; 10 organizing, storing, retrieving data in any form or medium; etc.) and their employees and 11 subcontractors. 12 13 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected

14 Material (as defined above), but also any information copied or extracted therefrom, as well as all 15 copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or 16 presentations by parties or counsel to or in court or in other settings that might reveal Protected 17 Material. 18 19 4. DURATION Even after the termination of this litigation, the confidentiality obligations imposed

20 by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 21 order otherwise directs. 22 23 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection.

24 Each Party or non-party that designates information or items for protection under this Order must 25 take care to limit any such designation to specific material that qualifies under the appropriate 26 standards. A Designating Party must take care to designate for protection only those parts of 27 material, documents, items, or oral or written communications that qualify - so that other portions 28 of the material, documents, items, or communications for which protection is not warranted are not
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1 swept unjustifiably within the ambit of the designation. 2 If it comes to a Party's or a non-party's attention that information or items that it

3 designated for protection do not qualify for protection at all, or do not qualify for the level of 4 protection initially asserted, that Party or non-party must promptly notify all other parties that it is 5 withdrawing the mistaken designation. 6 5.2 Manner and Timing of Designations. Except as otherwise provided in this

7 Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, 8 material that qualifies for protection under this Order must be clearly so designated before the 9 material is disclosed or produced. 10 11 Designation in conformity with this Order requires: (a) for information in documentary form (apart from transcripts of

12 depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 13 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" upon the 14 Document indicating such in a way that brings the designation to the attention of a reasonable 15 examiner, or otherwise puts the Receiving Party on reasonable notice that it contains Confidential 16 Information. If only a portion or portions of the material on a page qualifies for protection, the 17 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 18 markings in the margins) and must specify, for each portion, the level of protection being asserted 19 (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"). 20 A Party or non-party that makes original documents or materials available

21 for inspection need not designate them for protection until after the inspecting Party has indicated 22 which material it would like copied and produced. During the inspection and before the 23 designation, all of the material made available for inspection shall be deemed "HIGHLY 24 CONFIDENTIAL ATTORNEYS' EYES ONLY." After the inspecting Party has identified the 25 documents it wants copied and produced, the Producing Party must determine which documents, or 26 portions thereof, qualify for protection under this Order, then, before producing the specified 27 documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL" or 28 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY") on each page that contains
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1 Protected Material. If only a portion or portions of the material on a page qualifies for protection, 2 the Producing Party also must clearly identify the protected portions) (e.g., by making appropriate 3 markings in the margins) and must specify, for each portion, the level of protection being asserted 4 (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"). 5 (b) for testimony given in deposition or in other pretrial or trial proceedings,

6 that the Party or non-party offering or sponsoring the testimony identify on the record, before the 7 close of the deposition, hearing, or other proceeding, all protected testimony, with specificity, and 8 further specify any portions of the testimony that qualify as "HIGHLY CONFIDENTIAL 9 ATTORNEYS' EYES ONLY." When it is impractical to identify separately each portion of 10 testimony that is entitled to protection, and when it appears that substantial portions of the 11 testimony may qualify for protection, the Party or non-party that sponsors, offers, or gives the 12 testimony may invoke on the record (before the deposition or proceeding is concluded) a right to 13 have up to 20 days to identify the specific portions of the testimony as to which protection is sought 14 and to specify the level of protection being asserted ("CONFIDENTIAL" or "HIGHLY 15 CONFIDENTIAL - ATTORNEYS' EYES ONLY"). Only those portions of the testimony that are 16 appropriately designated for protection within the 20 days shall be covered by the provisions of this 17 Stipulated Protective Order. 18 Transcript pages containing Protected Material must be separately bound by

19 the court reporter, who must affix to the top of each such page the legend "CONFIDENTIAL" or 20 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," as instructed by the Party or 21 nonparty offering or sponsoring the witness or presenting the testimony. 22 (c) for information produced in some form other than documentary, and for

23 any other tangible items, that the Producing Party affix in a prominent place on the exterior of the 24 container or containers in which the information or item is stored the legend "CONFIDENTIAL" or 25 "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY." If only portions of the information 26 or item warrant protection, the Producing Party, to the extent practicable, shall identify the 27 protected portions, specifying whether they qualify as "CONFIDENTIAL" or as "HIGHLY 28 CONFIDENTIAL- ATTORNEYS' EYES ONLY."
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5.3

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

2 designate qualified information or items as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL 3 ATTORNEYS' EYES ONLY" does not, standing alone, waive the Designating Party's right to 4 secure protection under this Order for such material. If material is appropriately designated as 5 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" after the 6 material was initially produced, the Receiving Party, on timely notification of the designation, must 7 make reasonable efforts to assure that the material is treated in accordance with the provisions of 8 this Order. 9 10 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party's

11 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 12 economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive 13 its right to challenge a confidentiality designation by electing not to mount a challenge promptly 14 after the original designation is disclosed. 15 6.2 Meet and Confer. A Party that elects to initiate a challenge to a

16 Designating Party's confidentiality designation must do so in good faith and must begin the process 17 by meeting and conferring with counsel for the Designating Party as that term is defined in Civil 18 Local Rule 1-5(n). In conferring, the challenging Party must explain the basis for its belief that the 19 confidentiality designation was not proper and must give the Designating Party an opportunity to 20 review the designated material, to reconsider the circumstances, and, if no change in designation is 21 offered, to explain the basis for the chosen designation. A challenging Party may proceed to the 22 next stage of the challenge process only if it has engaged in this meet and confer process first. 23 6.3 Judicial Intervention. A Party that elects to press a challenge to a

24 confidentiality designation after considering the justification offered by the Designating Party may 25 file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 26 applicable) that identifies the challenged material and sets forth in detail the basis for the challenge. 27 Each such motion must be accompanied by a competent declaration that affirms that the movant 28 has complied with the meet and confer requirements imposed in the preceding paragraph and that
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1 sets forth with specificity the justification for the confidentiality designation that was given by the 2 Designating Party in the meet and confer dialogue. 3 The burden of persuasion in any such challenge proceeding shall be on the

4 Designating Party. Until the court rules on the challenge, all parties shall continue to afford the 5 material in question the level of protection to which it is entitled under the Producing Party's 6 designation. 7 8 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is

9 disclosed or produced by another Party or by a non-party in connection with this case only for 10 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 11 disclosed only to the categories of persons and under the conditions described in this Order. When 12 the litigation has been terminated, a Receiving Party must comply with the provisions of section 13 11, below (FINAL DISPOSITION). 14 Protected Material must be stored and maintained by a Receiving Party at a location

15 and in a secure manner that reasonably ensures that access is limited to the persons authorized 16 under this Order. 17 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless

18 otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party 19 may disclose any information or item designated CONFIDENTIAL only to: 20 (a) named parties, their Counsel (in-house and outside), their employees to

21 whom it is reasonably necessary to disclose the information for this litigation, and individuals who 22 opt in to the lawsuit, each of whom must have signed the "Agreement to Be Bound by Protective 23 Order" that is attached hereto as Exhibit A; 24 (b) the officers, directors, and employees (including House Counsel) of the

25 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed 26 the "Agreement to Be Bound by Protective Order" (Exhibit A); 27 (c) Experts of the Receiving Party who are engaged by Counsel to assist in

28 this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A);
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(d) the Court and its personnel (including court reporters, their staffs, and

2 professional vendors to whom disclosure is reasonably necessary for this litigation); 3 (e) fact witnesses in the action to whom disclosure is reasonably necessary

4 and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A). Pages of 5 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 6 separately bound by the court reporter and may not be disclosed to anyone except as permitted 7 under this Stipulated Protective Order. 8 9 7.3 (f) the author of the document or the original source of the information. Disclosure of "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES

10 ONLY" Information or Items. Unless otherwise ordered by the court or permitted in writing by 11 the Designating Party, a Receiving Party may disclose any information or item designated 12 "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY" only to: 13 (a) the Receiving Party's Outside Counsel of record in this action, as well as

14 employees of said Counsel to whom it is reasonably necessary to disclose the information for this 15 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached 16 hereto as Exhibit A; 17 (b) Experts (as defined in this Order) who are engaged by Counsel to assist

18 in this litigation who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); 19 (c) the Court and its personnel (including court reporters, their staffs, and

20 professional vendors to whom disclosure is reasonably necessary for this litigation); and 21 22 7.4 (d) the author of the document or the original source of the information. Procedures for Approving Disclosure of "HIGHLY CONFIDENTIAL

23 ATTORNEYS' EYES ONLY" Information or Items to "Experts" 24 (a) Unless otherwise ordered by the court or agreed in writing by the

25 Designating Party, a Party that seeks to disclose to an "Expert" (as defined in this Order) any 26 information or item that has been designated "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES 27 ONLY" first must make a written request to the Designating Party that (1) identifies the specific 28 HIGHLY CONFIDENTIAL information that the Receiving Party seeks permission to disclose to
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1 the Expert, (2) sets forth the full name of the Expert and the city and state of his or her primary 2 residence, (3) attaches a copy of the Expert's current resume, (4) identifies the Expert's current 3 employer(s), (5) identifies each person or entity from whom the Expert has received compensation 4 for work in his or her areas of expertise or to whom the expert has provided professional services at 5 any time during the preceding five years, and (6) identifies (by name and number of the case, filing 6 date, and location of court) any litigation in connection with which the Expert has provided any 7 professional services during the preceding five years. 8 (b) A Party that makes a request and provides the information specified in

9 the preceding paragraph may disclose the subject Protected Material to the identified Expert unless, 10 within seven court days of delivering the request, the Party receives a written objection from the 11 Designating Party. Any such objection must set forth in detail the grounds on which it is based. 12 (c) A Party that receives a timely written objection must meet and confer

13 with the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 14 agreement. If no agreement is reached, the Party seeking to make the disclosure to the Expert may 15 file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 16 applicable) seeking permission from the court to do so. Any such motion must describe the 17 circumstances with specificity, set forth in detail the reasons for which the disclosure to the Expert 18 is reasonably necessary, assess the risk of harm that the disclosure would entail and suggest any 19 additional means that might be used to reduce that risk. In addition, any such motion must be 20 accompanied by a competent declaration in which the movant describes the parties' efforts to 21 resolve the matter by agreement (i.e., the extent and the content of the meet and confer discussions) 22 and sets forth the reasons advanced by the Designating Party for its refusal to approve the 23 disclosure. 24 In any such proceeding the Party opposing disclosure to the Expert shall bear

25 the burden of proving that the risk of harm that the disclosure would entail (under the safeguards 26 proposed) outweighs the Receiving Party's need to disclose the Protected Material to its Expert. 27 /// 28 ///
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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

2 OTHER LITIGATION. 3 If a Receiving Party is served with a subpoena or an order issued in other litigation

4 that would compel disclosure of any information or items designated in this action as 5 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," the 6 Receiving Party must so notify the Designating Party, in writing (by fax, if possible) immediately 7 and in no event more than three (3) court days after receiving the subpoena or order. Such 8 notification must include a copy of the subpoena or court order. 9 The Receiving Party also must immediately inform in writing the Party that caused

10 the subpoena or order to issue in the other litigation (the "Subpoenaing Party") that some or all the 11 material covered by the subpoena or order is the subject of this Protective Order. In addition, the 12 Receiving Party must deliver a copy of this Stipulated Protective Order promptly to the 13 Subpoenaing Party. 14 The purpose of imposing these duties is to alert the interested parties to the existence

15 of this Protective Order and to afford the Designating Party in this case an opportunity to try to 16 protect its confidentiality interests in the court from which the subpoena or order issued. The 17 Designating Party shall bear the burdens and the expenses of seeking protection in that court of its 18 confidential material - and nothing in these provisions should be construed as authorizing or 19 encouraging a Receiving Party in this action to disobey a lawful directive from another court. 20 21 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

22 Protected Material to any person or in any circumstance not authorized under this Stipulated 23 Protective Order, the Receiving Party must immediately ( a) notify in writing the Designating Party 24 of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected 25 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 26 terms of this Order, and (d) request that such person or persons immediately destroy the 27 inadvertently disclosed Protected Material and execute the "Acknowledgment and Agreement to Be 28 Bound" that is attached hereto as Exhibit A.
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10.

FILING PROTECTED MATERIAL Without written permission from the Designating Party or a court order secured after

3 appropriate notice to all interested persons, a Party may not file in the public record in this action 4 any Protected Material. A Party that seeks to file under seal any Protected Material must comply 5 with Civil Local Rule 79-5. 6 7 11. FINAL DISPOSITION Unless otherwise ordered or agreed in writing by the Producing Party, within sixty

8 (60) days after the final termination of this action, each Receiving Party must return all Protected 9 Material to the Producing Party. As used in this subdivision, "all Protected Material" includes all 10 copies, abstracts, compilations, summaries or any other form of reproducing or capturing any of the 11 Protected Material. With permission in writing from the Designating Party, the Receiving Party 12 may destroy some or all of the Protected Material instead of returning it. Whether the Protected 13 Material is returned or destroyed, the Receiving Party must submit a written certification to the 14 Producing Party (and, if not the same person or entity, to the Designating Party) by the sixty-day 15 deadline that identifies (by category, where appropriate) all the Protected Material that was 16 returned or destroyed and that affirms that the Receiving Party has not retained any copies, 17 abstracts, compilations, summaries or other forms of reproducing or capturing any of the Protected 18 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 19 pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product, 20 even if such materials contain Protected Material. Any such archival copies that contain or 21 constitute Protected Material remain subject to this Protective Order as set forth in Section 4 22 (DURATION), above. 23 24 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

25 person to seek its modification by the Court in the future. 26 12.2 Right to Assert Other Objections. By stipulating to the entry of this

27 Protective Order no Party waives any right it otherwise would have to object to disclosing or 28 producing any information or item on any ground not addressed in this Stipulated Protective Order.
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1 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 2 material covered by this Protective Order. 3 4 apply to (a) 12.3 Right to Dissemination. The restrictions set forth in this Order shall not

information that was, is or becomes public knowledge through its authorized release

5 by a person or entity who rightfully obtained and possesses such information during the normal 6 course of business, and not in violation of this Order; or (b) Defendant with respect to its own 7 information or information received or created during the normal course of its own business. 8 9 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 10 11 12 13 14 15 16 DATED: December 11, 2008 DATED: December 10, 2008 /S/ - Jahan C. Sagafi Jahan C. Sagafi Attorneys for Plaintiffs TED LEWIS and AARON COOPER /S/ - Alison L. Tsao Alison L. Tsao Attorneys for Defendant WELLS FARGO BANK, N.A.

17 PURSUANT TO STIPULATION, IT IS SO ORDERED. 18 19 20 21 22 23 24 25 26 27 28
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12/12/08 DATED: Claudia Wilken UNITED STATES DISTRICT JUDGE

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Exhibit A Agreement Concerning Information Covered By A Protective Order

3 Entered In The United States District Court For The Northern District Of California 4 I, ________________________ [print or type full name], declare under penalty of

5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Northern District of California in Lewis v. Wells 7 Fargo & Co., Case No. 08-2670 CW (N.D. Cal.). I agree to comply with and to be bound by all 8 the terms of this Stipulated Protective Order, and I understand and acknowledge that failure to so 9 comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 10 promise that I will not disclose in any manner any information or item that is subject to this 11 Stipulated Protective Order to any person or entity except in strict compliance with the provisions 12 of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the

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

17 ___________________________ [print or type full address and telephone number] as my 18 California agent for service of process in connection with this action or any proceedings related to 19 enforcement of this Stipulated Protective Order. 20 21 22 23 24 25 26 27 28
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Date:

City and State:

Printed name: [printed name] Signature: [signature] 1
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