Varnado v. Midland Funding LLC et al

Filing 38

Order by Magistrate Judge Donna M. Ryu granting 37 Stipulation.(dmrlc2, COURT STAFF) (Filed on 4/30/2014)

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1 TOMIO B. NARITA (SBN 156576)

[e-mail]

2 JEFFREY A. TOPOR

[e-mail]

3 SARAH H. SCHEINHORN (SBN 294759)

[e-mail]

4 SIMMONDS & NARITA LLP

44 Montgomery Street, Suite 3010

5 San Francisco, CA 94104-4816

Telephone: [phone]

6 Facsimile: [phone]
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Attorneys for Defendants

8 Midland Funding, LLC and Midland

Credit Management, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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KAREN D. VARNADO,
Plaintiff,
vs.
MIDLAND FUNDING, LLC., a
Delaware Limited Liability
Corporation Authorized to do
Business in California; MIDLAND
CREDIT MANAGEMENT, INC., a
Kansas Corporation MR. SAMUEL
SHEPPY, individually and in his
official capacity; and DOES 1 -21,
Defendants.

) CASE NO.: 4:13-cv-05705-DMR
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) [PROPOSED] PROTECTIVE ORDER
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PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production

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

2.1

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

information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how

it is generated, stored or maintained) or tangible things that qualify for protection
under Federal Rule of Civil Procedure 26(c).
2.3

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

Counsel (as well as their support staff).
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Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
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Disclosure or Discovery Material: all items or information, regardless of

the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this matter.
2.6

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

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

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

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

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

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

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

this action but are retained to represent or advise a party to this action and have
appeared in this action on behalf of that party or are affiliated with a law firm which
has appeared on behalf of that party.
2.10 Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium) and
their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.

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

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

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

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under this
Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for protection
only those parts of material, documents, items, or oral or written communications that
qualify – so that other portions of the material, documents, items, or communications
for which protection is not warranted are not swept unjustifiably within the ambit of
this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper purpose
(e.g., to unnecessarily encumber or retard the case development process or to impose
unnecessary expenses and burdens on other parties) expose the Designating Party to
sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the mistaken designation.
5.2

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

Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
or ordered, Disclosure or Discovery Material that qualifies for protection under this
Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each
page that contains protected material. If only a portion or portions of the material on a
page qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available for
inspection need not designate them for protection until after the inspecting Party has
indicated which material it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it
wants copied and produced, the Producing Party must determine which documents, or
portions thereof, qualify for protection under this Order. Then, before producing the
specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to
each page that contains Protected Material. If only a portion or portions of the material
on a page qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings,
that the Designating Party identify on the record, before the close of the deposition,
hearing, or other proceeding, all protected testimony.

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(c) for information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on the
exterior of the container or containers in which the information or item is stored the
legend “CONFIDENTIAL.” If only a portion or portions of the information or item
warrant protection, the Producing Party, to the extent practicable, shall identify the
protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

designation of confidentiality at any time. Unless a prompt challenge to a Designating
Party’s confidentiality designation is necessary to avoid foreseeable, substantial
unfairness, unnecessary economic burdens, or a significant disruption or delay of the

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litigation, a Party does not waive its right to challenge a confidentiality designation by
electing not to mount a challenge promptly after the original designation is disclosed.
6.2

Meet and Confer. The parties shall not file formal discovery motions.

Instead, as required by the federal and local rules, the parties shall first meet and confer
to try to resolve their disagreements. The meet and confer session must be in person or
by telephone, and may not be conducted by letter, e-mail, or fax. In conferring, the
Challenging Party may explain the basis for its belief that the confidentiality
designation was not proper and may give the Designating Party an opportunity to
review the designated material, to reconsider the circumstances, and, if no change in
designation is offered, to explain the basis for the chosen designation. If disagreements
remain, the parties shall file a joint letter no later than five business days after the meet
and confer session, unless otherwise directed by the court. Lead trial counsel for both
parties must sign the letter, which shall include an attestation that the parties met and
conferred in person or by telephone regarding all issues prior to filing the letter. Going
issue-by-issue, the joint letter shall describe each unresolved issue, summarize each
party’s position with appropriate legal authority; and provide each party’s final
proposed compromise before moving to the next issue. The joint letter shall not exceed
ten pages without leave of court. Parties are expected to plan for and cooperate in
preparing the joint letter so that each side has adequate time to address the
arguments.
6.3

Judicial Intervention. In the rare instance that a joint letter

is not possible, each side may submit a letter not to exceed four pages, which shall
include an explanation of why a joint letter was not possible. The parties shall submit
one exhibit to the letter that only sets forth each designation that is being challenged,
followed immediately by the objections and/or responses thereto. No other information
shall be included in any such exhibit. No other exhibits shall be submitted without
prior approval by the court. The court will review the submission(s) and determine

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whether formal briefing or proceedings are necessary. Discovery letter briefs must be
e-filed under the Civil Events category of Motions and Related Filings > Motions General > "Discovery Letter Brief."

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In the event that a challenge proceeding is ordered, the court has found that it is
often efficient and beneficial for counsel to appear in person. This provides the
opportunity, where appropriate, to engage counsel in resolving aspects of the
confidentiality designation challenge while remaining available to rule on any disputes
that counsel are not able to resolve. For this reason, the court expects counsel to
appear in person. Permission for a party to attend by telephone may be granted, in the
court’s discretion, upon written request made at least one week in advance of the
proceeding if the court determines that good cause exists to excuse personal
attendance, and that personal attendance is not needed in order to have an effective
challenge proceeding. The facts establishing good cause must be set forth in the
request.

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The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges, and those made for an improper purpose
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
expose the Challenging Party to sanctions. All parties shall continue to afford the
material in question the level of protection to which it is entitled under the Producing
Party’s designation until the court rules on the challenge.

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6.4

Emergencies During Discovery Events. In emergencies during discovery

events (such as depositions), any party may, after exhausting good faith attempts to
resolve disputed issues, seek judicial intervention pursuant to Civil L.R. 37-1(b) by
contacting the court through the courtroom deputy. If the court is unavailable, the
discovery event shall proceed with objections noted for the record.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

ordered by the court or permitted in writing by the Designating Party, a Receiving
Party may disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock
jurors, and Professional Vendors to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A);
(f) 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 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered
by the court. Pages of transcribed deposition testimony or exhibits to depositions that
reveal Protected Material must be separately bound by the court reporter and may not
be disclosed to anyone except as permitted under this Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that
compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena or
order is subject to this Protective Order. Such notification shall include a copy of this
Stipulated Protective Order; and
(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 seeks a protective order, the Party served with
the subpoena or court order shall not produce any information designated in this action
as “CONFIDENTIAL” before a determination by the court from which the subpoena or
order issued, unless the Party has obtained the Designating Party’s permission. The
Designating Party shall bear the burden and expense of seeking protection in that court
of its confidential material – and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this action to disobey a lawful

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directive from another court.
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IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a NonParty in this action and designated as “CONFIDENTIAL.” Such information produced
by Non-Parties in connection with this litigation is protected by the remedies and relief
provided by this Order. Nothing in these provisions should be construed as prohibiting
a Non-Party from seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party
that some or all of the information requested is subject to a confidentiality agreement
with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a reasonably
specific description of the information requested; and

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

(3) make the information requested available for inspection by the NonParty.
(c) If the Non-Party fails to object or seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the Receiving
Party may produce the Non-Party’s confidential information responsive to the
discovery request. If the Non-Party timely seeks a protective order, the Receiving Party
shall not produce any information in its possession or control that is subject to the
confidentiality agreement with the Non-Party before a determination by the court.
Absent a court order to the contrary, the Non-Party shall bear the burden and expense

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of seeking protection in this court of its Protected Material.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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

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11.

PROTECTED

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
MATERIAL

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

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.

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12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this Protective Order.

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12.3 Filing Protected Material. Without written permission from the
Designating Party or a court order secured after appropriate notice to all interested
persons, a Party may not file in the public record in this action any Protected Material.
A Party that seeks to file under seal any Protected Material must comply with Civil
Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court
order authorizing the sealing of the specific Protected Material at issue. Pursuant to
Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that
the Protected Material at issue is privileged, protectable as a trade secret, or otherwise
entitled to protection under the law. If a Receiving Party's request to file Protected
Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then
the Receiving Party may file the information in the public record pursuant to Civil
Local Rule 79-5(e) unless otherwise instructed by the court.
13.

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

4, each Receiving Party must return all Protected Material to the Producing Party or
destroy such material. As used in this subdivision, “all Protected Material” includes all
copies, abstracts, compilations, summaries, and any other format reproducing or
capturing any of the Protected Material. Whether the Protected Material is returned or
destroyed, the Receiving Party must submit a written certification to the Producing
Party (and, if not the same person or entity, to the Designating Party) by the 60 day
deadline that (1) identifies (by category, where appropriate) all the Protected Material
that was returned or destroyed and (2) affirms that the Receiving Party has not retained

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of
_________________ [print or type full address], declare under penalty of perjury that I
have read in its entirety and understand the Stipulated Protective Order that was issued
by the United States District Court for the Northern District of California on [date] in
the case of Varnado v. Midland Funding, LLC, et. al., (Case No.: 4:13-CV-05705DMR). I agree to comply with and to be bound by all the terms of this Stipulated
Protective Order and I understand and acknowledge that failure to so comply could
expose me to sanctions and punishment in the nature of contempt. I solemnly promise
that I will not disclose in any manner any information or item that is subject to this
Stipulated Protective Order to any person or entity except in strict compliance with the
provisions of this Order. I further agree to submit to the jurisdiction of the United
States District Court for the Northern District of California for the purpose of
enforcing the terms of this Stipulated Protective Order, even if such enforcement
proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________________ [print or type full address
and telephone number] as my California agent for service of process in connection
with this action or any proceedings related to enforcement of this Stipulated Protective
Order.
Date: ______________________________________
City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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VARNADO V. MIDLAND FUNDING, LLC., ET AL. (CASE NO.: 4:13-CV-05705-DMR)
[PROPOSED] PROTECTIVE ORDER

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