Petrou v. Navient Corporation et al

Filing 37

ORDER: (1) Granting Joint Motion; and (2) Entering Amended Stipulation for Protective Order (ECF No. 35 ). Signed by Magistrate Judge Jill L. Burkhardt on 3/12/2018. (mxn)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 9 JOHN G. PETROU, an individual, Case No. 3:17-cv-02033-BTM-JLB Plaintiff, ORDER: (1) GRANTING JOINT MOTION; AND (2) ENTERING AMENDED STIPULATION FOR PROTECTIVE ORDER 10 11 12 13 14 15 16 v. NAVIENT CORPORATION, a Delaware corporation; SALLIE MAE CORPORATION, a Delaware corporation; SELAINA A. PETROU an individual; and Does 1 through 50, inclusive, Defendants. [ECF No. 35] 17 18 19 The Court hereby GRANTS the joint motion for entry of a protective order (ECF 20 No. 35) by Defendant Navient Solutions, LLC f/k/a Navient Solutions, Inc. erroneously 21 named as "Navient Corporation" and "Sallie Mae Corporation" (NSL), Plaintiff John 22 G. Petrou (Plaintiff), and Defendant Selaina A. Petrou (Co-Defendant). The parties 23 jointly move for entry of this protective order: 24 The Parties stipulate that a potentially significant number of documents to be 25 produced in this case containing nonpublic personal information of Plaintiff and Co- 26 Defendant, and confidential and proprietary information of NSL, such that document- 27 by-document review of these materials will be impracticable if the case is to proceed in 28 an orderly, timely, and efficient manner. 1 1 The Parties further stipulate that their interests in protecting non-public personal 2 information of Plaintiff and Co-Defendant, as well as confidential and commercially 3 sensitive information of NSL pertaining to Plaintiff’s and Co-Defendant’s account(s) 4 from unnecessary disclosure, and the Parties' desire and the benefit to the Court of an 5 orderly and expeditious resolution of this matter, outweigh societal interest in disclosure 6 of these materials to non-parties. In light of the foregoing, the Parties believe it is 7 appropriate to expedite the flow of discovery material, promote the prompt resolution 8 of disputes over confidentiality, and facilitate the preservation of material worthy of 9 protection. 10 Accordingly, it is, ORDERED and ADJUDGED as follows: 11 1. "CONFIDENTIAL" Documents, Materials, and Information. This Order 12 shall govern all documents produced by any Party or non-party subject to this Order 13 and all written answers, deposition answers, other responses to discovery, and all 14 communications of any kind made by any Party or non-party subject to this Order, their 15 respective attorneys, consultants, agents, employees, and representatives, and other 16 third parties. "CONFIDENTIAL" materials shall be the documents or information 17 designated by any Party or non-party under this Order and any notes, work papers, or 18 other documents respectively containing "CONFIDENTIAL" materials derived from 19 such items. Any Party or non-party subject to this Order may identify any documents 20 or information, including but not limited to discovery materials produced by other 21 parties and initial disclosures, documents and things, answers to interrogatories, 22 responses to requests for production, responses to requests for admission, deposition 23 exhibits, and all or portions of deposition or hearing transcripts of others, as 24 "CONFIDENTIAL" and designate the documents or information as such by affixing 25 thereto a legend of "CONFIDENTIAL" or by designating through another method set 26 forth in this Order. 27 Any Party or non-party subject to this Order may designate documents or 28 information as "CONFIDENTIAL" to the extent the designating party, through counsel, 2 1 believes "good cause" under Federal Rule of Civil Procedure 26(c) exists to categorize 2 the material as confidential because the material contains or includes: (1) confidential 3 business or technical information; (2) trade secrets; (3) proprietary business methods or 4 practices; (4) any other competitively sensitive confidential information; (5) personal 5 information, including personal financial information about customers or applicants, 6 any party to this lawsuit, or an employee of any party to this lawsuit; (6) information 7 regarding any individual's banking or lending relationships, including, without 8 limitation, information regarding any individual's mortgage or credit history and/or 9 consumer information not otherwise available to the public; and (7) any other categories 10 that are later agreed to in writing by the parties or ordered by the Court. 11 2. Designation of "CONFIDENTIAL" Material. Any Party or non-party 12 subject to this Order shall designate materials as "CONFIDENTIAL" by stamping them 13 with the word "CONFIDENTIAL" in a manner which will not interfere with their 14 legibility. This designation shall only be used in a reasonable fashion and upon a good 15 faith determination by counsel that a particular document contains non-public 16 information and falls within one of the categories enumerated in Paragraph 1. This 17 designation shall ordinarily be made before or at the same time as the production or 18 disclosure of the material. Because materials described in Paragraph 1 shall be covered 19 by this Order, there shall be no waiver of confidentiality if such materials are 20 inadvertently produced without being stamped "CONFIDENTIAL." Materials already 21 produced in discovery in this litigation may be designated as "CONFIDENTIAL" upon 22 written notice (without stamping), within fourteen (14) days of the entry of this Order, 23 by any Party or non-party subject to this Order to all counsel of record to whom such 24 documents have been produced by notifying the other party of the identity of the 25 documents or information to be so designated. Any Party or non-party subject to this 26 Order can remove at any time its/his/her designation of "CONFIDENTIAL" from any 27 of the documents or information it previously so designated. 28 /// 3 1 3. Treatment of "CONFIDENTIAL" Information. Unless otherwise ordered 2 by the Court, "CONFIDENTIAL" material, and any quotes, summaries, charts, or notes 3 made therefrom, and any facts or information contained therein or derived therefrom, 4 shall be held in confidence and used by the parties to whom the documents and 5 information are produced solely for the purpose of this case. The parties agree to take 6 reasonable steps to maintain the confidentiality of the documents, information, and 7 testimony relating thereto. During the pendency of this litigation, "CONFIDENTIAL" 8 material, including all copies thereof, shall be retained solely in the custody of the 9 parties' attorneys and shall not be placed in the possession of or disclosed to any other 10 person, except as set forth in this Order, as otherwise agreed upon by the parties, or 11 upon leave of Court. Each person to whom "CONFIDENTIAL" material is disclosed 12 pursuant to this Order is hereby prohibited from exploiting in any way such documents 13 or information for his, her, or its own benefit, or from using such information for any 14 purpose or in any manner not connected with the prosecution or defense of this case. 15 4. "Disclosure." As used herein, "disclosure" or to "disclose" shall mean to 16 divulge, reveal, describe, summarize, paraphrase, quote, transmit, or otherwise 17 communicate "CONFIDENTIAL" material. 18 5. Permissible Disclosure of "CONFIDENTIAL" Material. Except by order 19 of this Court, or otherwise as required by law, material designated as 20 "CONFIDENTIAL" (and any notes or documents that reflect or refer to such documents 21 and information) shall not be disclosed to any person other than: 22 (a) A party hereto; 23 (b) Counsel employed by a party, or an employee of such counsel, to whom it 24 is necessary that the materials be shown or the information known for 25 purposes of this case; 26 (c) Any employee or agent of a party to whom the "CONFIDENTIAL" 27 28 materials are shown for the purpose of working directly on or testifying in /// 4 1 connection with this litigation at the request of or at the direction of counsel 2 for such party; 3 (d) A person retained to assist in this action, such as an investigator, independent 4 accountant, or other technical expert or consultant, who has signed an 5 acknowledgement in the form of Exhibit A, which signed acknowledgment 6 shall be retained by the party who has retained such person; 7 (e) This Court (or its employees or agents) pursuant to a court filing in 8 9 connection with this action; (f) Any person(s) designated by the Court in the interest of justice, upon such 10 11 terms as the Court may deem proper; (g) Members of the jury at a public trial of this matter, subject to the 12 requirements of Paragraph 11 below; or 13 (h) A person who is deposed or who testifies at the hearing in this matter who 14 has signed an acknowledgement in the form of Exhibit A hereto, which 15 signed acknowledgment shall be retained by the party who has compelled 16 such person to testify at a deposition or trial. If the witness refuses to sign 17 such form, the party compelling such testimony shall immediately notify 18 opposing counsel and permit them seven (7) days to seek redress with the 19 Court. 20 6. Review of Own "CONFIDENTIAL" Materials. The restrictions of this 21 Order shall not apply to the designating party, its/his/her respective employees, 22 attorneys, experts, or other authorized agents, when reviewing its/his/her own 23 "CONFIDENTIAL" materials. 24 7. Deposition Transcripts. Deposition testimony and deposition exhibits 25 containing "CONFIDENTIAL" material shall be covered by this Order. During a 26 deposition taken in this matter, any Party or non-party subject to this Order, on the 27 record, may designate as "CONFIDENTIAL" portions of the deposition testimony or 28 deposition exhibits. Alternatively, the designating party may, by written notice to 5 1 opposing counsel and the court reporter not later than fourteen (14) business days after 2 receipt of the final deposition transcript, designate as "CONFIDENTIAL" any portions 3 of the deposition testimony or deposition exhibits. Until expiration of the above 4 fourteen (14) day period, all deposition transcripts of NSL will be treated as 5 "CONFIDENTIAL" material unless otherwise agreed to in writing by the parties. 6 8. Objections to "CONFIDENTIAL" Designations. To the extent that any 7 Party contests a designation under this Order, such Party shall object to such designation 8 in writing not later than fourteen (14) business days after receipt of materials designated 9 as "CONFIDENTIAL." The Parties shall first try to resolve the disagreement in good 10 faith on an informal basis, such as the production of redacted copies. If the Parties are 11 unable to reach an agreement regarding the designation, then the Party objecting to such 12 designation shall file an appropriate motion with the Court—subject to and consistent 13 with the Honorable Jill L. Burkhardt's Civil Chamber Rules— for a ruling that the 14 documents or other information shall not be accorded such status and treatment. In the 15 event that such a challenge is made, the designating party asserting the confidentiality 16 designation shall have the burden of establishing good cause exists under Federal Rule 17 of Civil Procedure 26(c) to maintain the designation. Until this Court enters an order 18 changing the designation of such documents or information, such document or 19 information shall continue to be protected as provided by this Order. Should the Court 20 rule in favor of the Party objecting to the confidentiality designation, the Party or non- 21 party asserting the designation shall produce a copy of the document(s) without the 22 "CONFIDENTIAL" designation. 23 9. Disclosing "CONFIDENTIAL" Material. If any Party or non-party subject 24 to this Order wishes to disclose any "CONFIDENTIAL" material beyond the terms of 25 Paragraphs 5-6 of this Order, it/he/she shall provide all other parties with reasonable 26 notice in writing of the request to disclose the materials, unless otherwise required by 27 law. If the Parties cannot resolve their disagreement with respect to the disclosure of 28 any designated information, then any Party may petition the Court—subject to and 6 1 consistent with the Honorable Jill L. Burkhardt's Civil Chamber Rules—for a 2 determination of these issues. In the event that such a challenge is made, the designating 3 party asserting the confidentiality designation shall have the burden of establishing that 4 the designation is proper. 5 "CONFIDENTIAL" as stipulated by this Order until the Court rules on the Party's 6 specific petition. 7 10. Such "CONFIDENTIAL" material shall remain Filing Documents under Seal. Each Party and non-party subject to this 8 Order agrees that when filing with Court any papers (including, without limitation, 9 affidavits, memoranda, interrogatory answers, or depositions) that disclose directly or 10 indirectly any "CONFIDENTIAL" material, such papers shall be filed under seal in 11 accordance with the Court's Local Rules and the Honorable Jill L. Burkhardt's Civil 12 Chamber Rules, Paragraph V.5: 13 14 15 16 17 18 19 "No document shall be filed under seal unless counsel secures a court order allowing the filing of a document under seal. An application to file a document under seal shall be served on opposing counsel, and on the person or entity that has custody and control of the document, if different from opposing counsel. If the application to file under seal a document designated as confidential is being made by the non-designating party, then, upon request, the designating party must promptly provide the applicant with a legal basis for the confidential designation to include within the application. If opposing counsel, or the person or entity that has custody and control of the document, wishes to oppose the application, he/she must contact the chambers of the judge who will rule on the application, to notify the judge’s staff that an opposition to the application will be filed." 20 If a party filing a non-dispositive motion seeks to file documents under seal, the 21 filing party must show that good cause exists as defined by Federal Rule of Civil 22 Procedure 26(c). If a party filing a dispositive motion seeks to file documents under 23 seal, the filing party must show "compelling reasons supported by specific factual 24 findings outweigh the general history of access and the public policies favoring 25 disclosure." Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 677-679 (9th Cir. 2010) 26 (internal quotations and citations omitted). 27 The Parties further recognize the possible need to use documents marked 28 "CONFIDENTIAL" during the trial of this matter. However, the Parties agree to take 7 1 reasonable steps to protect the confidentiality of any trial exhibits so designated to 2 include asking the Court to ensure that any such documents referred to or offered into 3 evidence at trial are filed with the Court under seal. 4 11. Document Retention. After the conclusion of this matter (including the 5 expiration of all appeals), all originals and reproductions of the "CONFIDENTIAL" 6 materials shall be returned to the producing party within thirty (30) days of such 7 conclusion or be destroyed. Upon request, the Party destroying said documents shall 8 certify in writing to the producing party within ten (10) days of such request that 9 destruction of the "CONFIDENTIAL" materials has taken place. Insofar as the 10 provisions of this Order restrict the use of the documents produced hereunder, the Order 11 shall continue to be binding throughout and after the conclusion of this case, including 12 all appeals, except as set forth in Paragraph 13. 13 12. Admissibility. Nothing in this Order shall be construed to limit any Party 14 from producing or introducing any document into evidence at public hearing. Subject 15 to the Rules of Evidence, "CONFIDENTIAL" materials and other confidential 16 information may be offered in evidence at trial or any court hearing. Any Party may 17 move the court for an Order that the evidence be received in camera or under other 18 conditions to prevent unnecessary disclosure of any "CONFIDENTIAL" material. The 19 Court will then determine whether the proffered evidence should continue to be treated 20 as "CONFIDENTIAL" and, if so, what protection, if any, may be afforded to such 21 information at the trial or hearing. 22 13. Scope of Discovery. Nothing in this Order shall preclude any Party from 23 opposing production of any documents or information, or from seeking further or 24 different relief should future pretrial activities indicate such a need. 25 14. Client Consultation. Nothing in this Order shall bar or otherwise restrict 26 any attorney herein from rendering advice to its/his/her client with respect to this case 27 or from doing anything necessary to prosecute or defend this case and further the 28 interests of its/his/her client, provided, however, that the attorney shall not disclose any 8 1 material designated for protection hereunder where such disclosure would be contrary 2 to the terms of this Order. 3 15. Discretion of the Court. Nothing in this Order shall apply to, bind, or limit 4 the Court or its employees in the performance of their duties. Absent an ex parte motion 5 made within 10 calendar days of the termination of the case, the Parties understand that 6 the Court will destroy any documents designated as "CONFIDENTIAL"in its 7 possession. 8 16. Notice of Breach. It shall be the obligation of counsel, upon hearing of 9 any breach or threatened breach of this Order by any person, promptly to notify counsel 10 for the opposing and producing parties of such breach or threatened breach. The parties 11 shall 12 "CONFIDENTIAL" materials, but the mistaken or inadvertent failure to mark the 13 discovery material, where notice has otherwise been given that it contains 14 "CONFIDENTIAL" materials, shall not exempt it from the provisions of this Order. 15 make 17. every reasonable effort to mark all discovery containing Litigation Use Only. All "CONFIDENTIAL" materials produced in this 16 litigation, whether by a party or nonparty, and whether pursuant to the civil rules of 17 procedure, subpoena, agreement or otherwise, and all information contained therein or 18 derived therefrom, shall be used solely for the preparation and trial of this action 19 (including any appeals and retrials), and may not be used for any other purpose, 20 including business, governmental or commercial, or any other administrative or judicial 21 proceedings or actions. 22 18. Subpoena by Other Court or Agencies. If another court or an 23 administrative agency subpoenas or orders production of "CONFIDENTIAL" materials 24 that a Party obtained under the terms of this Order, the Party receiving the subpoena 25 shall promptly notify the designating party of the pendency of such subpoena or order. 26 19. Inadvertent Disclosure Protection. Review of the "CONFIDENTIAL" 27 materials labeled "CONFIDENTIAL" by counsel, experts, or consultants in the 28 litigation shall not waive the "CONFIDENTIAL" designation or any objections to 9 1 production. "CONFIDENTIAL" materials inadvertently produced by any Party or non- 2 party subject to this Order through discovery in this action without having been 3 designated as "CONFIDENTIAL" shall be subject to the provisions of this Order to the 4 same extent as if the inadvertent disclosure had not occurred so long as there is 5 reasonable notice to the other party of the inadvertent disclosure. If any Party or non- 6 party subject to this Order inadvertently discloses information that is privileged or 7 otherwise immune from discovery, the producing party shall promptly, upon discovery 8 of such disclosure, so advise the receiving party in writing and request that the item or 9 items of information be returned. No party to this action shall thereafter assert that such 10 disclosure waived any privilege or immunity. It is further agreed that the receiving 11 party will return such inadvertently produced item or items of information and all copies 12 thereof to the producing party within fourteen (14) business days of receiving a written 13 request for the return of such item or items of information from the producing party. 14 20. Non-Parties. Non-parties who are required to produce 15 "CONFIDENTIAL" material in response to a subpoena, and who in good faith believe 16 that such material contains confidential information, may rely on this Order and apply 17 it to their production. 18 21. Responsibility of Attorneys. The attorneys of record are responsible for 19 employing reasonable measures to control, consistent with this Order, the duplication 20 of, access to, and distribution of copies of materials labeled "CONFIDENTIAL." 21 Parties shall not duplicate any such materials except for working copies and for filing 22 in court under seal. The attorneys of record further are responsible for employing 23 reasonable measures to control, consistent with this Order, the dissemination or 24 revelation of confidential information. 25 22. Plaintiff’s Personal Information. Plaintiff authorizes and consents for NSL 26 to produce and disclose information and documentation containing Plaintiff’s non- 27 public personal information to any Party and non-party subject to this Order provided 28 that such information and documentation have been designated “CONFIDENTIAL” in 10 1 accordance with this Order. Plaintiff agrees, accepts, and acknowledges that NSL’s 2 production and disclosure of Plaintiff’s non-public personal information shall not 3 constitute a violation of any disclosure law(s) that may apply or violate Plaintiff’s 4 privacy rights. 5 23. Co-Defendant’s Personal Information. Co-Defendant authorizes and 6 consents for NSL to produce and disclose information and documentation containing 7 Co-Defendant’s non-public personal information to any Party and non-party subject to 8 this Order provided that such information and documentation have been designated 9 “CONFIDENTIAL” in accordance with this Order. Co-Defendant agrees, accepts, and 10 acknowledges that NSL’s production and disclosure of Co-Defendant’s non-public 11 personal information shall not constitute a violation of any disclosure law(s) that may 12 apply or violate Plaintiff’s privacy rights. 13 24. Modification of the Order by the Court. Pursuant to Judge Burkhardt’s 14 Civil Chamber Rules, Paragraph V.3, the Court may modify the terms and conditions of 15 the Order for good cause, or in the interest of justice, or on its own order at any time in 16 these proceedings. 17 18 IT IS SO STIPULATED. Dated: March 12, 2018 AKERMAN LLP 19 By: /s/ Robert R. Yap Justin D. Balser Robert R. Yap Attorneys for Defendant NAVIENT SOLUTIONS, LLC f/k/a NAVIENT SOLUTIONS, INC. erroneously named as "Navient Corporation" and "Sallie Mae Corporation 20 21 22 23 24 25 Dated: March 12, 2018 HAMILTON & ASSOCIATES, APC 26 By: /s/ Ben-Thomas Hamilton Ben-Thomas Hamilton Attorneys for Plaintiff JOHN G. PETROU 27 28 11 1 Dated: March 12, 2018 SMALL & SCHENA LLP 2 By: /s/ William F. Small William F. Small Attorneys for Defendant SELAINA A. PETROU 3 4 5 ORDER 6 7 8 9 10 11 12 The Court APPROVES the joint motion and stipulation for protective order between Defendant Navient Solutions, LLC f/k/a Navient Solutions, Inc. erroneously named as "Navient Corporation" and "Sallie Mae Corporation", Plaintiff John G. Petrou, and Defendant Selaina A. Petrou. IT IS SO ORDERED. Dated: March 12, 2018 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________ [print or type full name], of _____________________ 5 [print or type full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Amended Joint Motion and Stipulation for Protective Order issued by the 7 United States District Court for the Southern District of California on [date] in the case of John 8 G. Petrou v. Navient Corporation et al., Case No. 3:17-cv-02033-BTM-JLB. I agree to comply 9 with and to be bound by all the terms of the Amended Joint Motion and Stipulation for 10 Protective Order, and I understand and acknowledge that failure to so comply could expose me 11 to sanctions and punishment in the nature of contempt. I solemnly promise that I will not 12 disclose in any manner any information or item that is subject to this Amended Joint Motion 13 and Stipulation for Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. I further agree to submit to the jurisdiction of the United States 15 District Court for the Southern District of California for the purpose of enforcing the terms of 16 this Amended Joint Motion and Stipulation for Protective Order, even if such enforcement 17 proceedings occur after termination of this action. I hereby appoint _____________________ 18 [print or type full name] of _____________________ [print or type full address and 19 telephone number] as my California agent for service of process in connection with this action 20 or any proceedings related to enforcement of this Amended Joint Motion and Stipulation for 21 Protective Order. 22 Date: _____________________ 23 24 City and State where sworn and signed: _____________________ 25 26 Printed Name: _____________________ 27 28 Signature: _____________________ 13

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