Bertelsen v. Citimortgage, Inc. et al

Filing 75

PROTECTIVE ORDER. Signed by Magistrate Judge Jeremiah C. Lynch on 3/20/2017. (Attachments: # 1 Exhibit A - Confidentiality Agreement) (APP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

FILED
MAR 2 0 2017
Clefk, Us .
District ~~trict Court

Missou1~ntana

JONATHAN CHARLES BERTELSEN,

CV 16-2-BU-JCL

Plaintiff,
ORDER

vs.
CITIMORTGAGE, INC., and JOHN
DOES 1-10,
Defendants.

This matter comes before the Court upon stipulation of counsel for Plaintiff
and Defendant for an order protecting the confidentiality of certain confidential
and proprietary documents, the Plaintiff and Defendant (collectively, "Parties")
hereby state as follows:

The parties are expressly advised that any party wishing to file any
document under seal, or close court proceedings pursuant to paragraphs 11
and 12 of this Order, respectively, shall seek leave of Court in accordance
with the pertinent provisions of Local Rule 5.1, making the appropriate
showing of good cause or compelling reasons as delineated in Kamakana v.

City and County ofHonolulu, 447 F.3d 1172 (9th Cir. 2006) and Pintos v.
Pacific Creditors Assn., 605 F.3d 665 (9th Cir. 2010).

WHEREAS the Parties will engage in discovery in connection with the
above-captioned action (the "Litigation"); and
WHEREAS certain documents and information to be produced in response
to that discovery may involve the disclosure of confidential business, financial,
proprietary and trade secret information;
The Court hereby orders as follows:
1.

For the purpose of this Protective Order, "Discovery Material" shall

mean any portion of a document, interrogatory answer, discovery request or
response, deposition testimony, or other tangible thing or information obtained
through any means of pretrial disclosures, discovery, or subpoena, or any portion,
summary, or extract thereof, served upon or filed by any Party to the Litigation or
any subpoenaed non-Party in connection with formal or informal discovery,
hearing, or trial proceeding, or in any pleading, motion, affidavit, declaration,
brief, or other document submitted to the Court.
2.

For the purposes of this Protective Order, a "Designating Party" is a

Party or non-Party that designates Discovery Material as "CONFIDENTIAL"
pursuant to this Protective Order. Discovery Material designated as
"CONFIDENTIAL" pursuant to the provisions of this Order constitutes
"Confidential Discovery Material" under this Order. All Confidential Discovery
Material, and any summaries or other descriptions of such Confidential Discovery

Material, shall be subject to the applicable restrictions of this Protective Order. A
"Producing Party" is a Party or non-Party that produces Discovery Material in this
Litigation and a "Receiving Party" is a Party that receives Discovery Material
from a Producing Party.
3.

"Confidential Discovery Material" is Discovery Material that is

entitled to confidential treatment under Fed. R. Civ. P. 26(c)
4.

Discovery Material may be designated as "CONFIDENTIAL" by the

Producing Party if the Producing Party reasonably and in good faith determines
such Discovery Material constitutes material that is kept confidential and out of
the public domain and is a trade secret or confidential research, development, or
commercial or financial information entitled to confidential treatment under Fed.
R. Civ. P. 26(c). Nothing shall be regarded as "Confidential" ifit is in the public
domain at the time of disclosure or becomes part of the public domain through no
fault of the Requesting Party. Furthermore, nothing shall be regarded as
"Confidential" if the Requesting Party can show that the information was in its
rightful and lawful possession at the time of disclosure and was not otherwise
subject to restriction as to disclosure; or the Requesting Party lawfully receives
such information at a later date from a third party without restriction as to
disclosure provided such third party has the right to make the disclosure to the
Requesting Party. No Confidential Discovery Material or any copy, excerpt, or

summary thereof, or the information contained therein, shall be delivered or
disclosed to any person except as provided herein.
5.

A Producing Party may designate Discovery Material as confidential

by marking the Discovery Material "CONFIDENTIAL" in a readily visible and
noticeable manner. In the case of documents, interrogatory responses, and
responses to requests for admission, Confidential Discovery Material shall be
designated by a stamp or designation on each such document or response prior to
production or service, except that where a Party produces documents for
inspection pursuant to Fed. R. Civ. P. 34, the Party may designate any
Confidential Discovery Material within 30 days of the date on which the
Producing Party is notified by the Requesting Party of the specified documents
that are requested to be copied. Any Party photocopying or otherwise duplicating
Confidential Discovery Material shall ensure that the "CONFIDENTIAL"
designation appears clearly on any such copies or duplicates. With respect to
electronic data, videotapes, or other Discovery Material where it is difficult to
affix a stamp or label on the Discovery Material itself, the notation
"CONFIDENTIAL" may be plainly marked on a label affixed to the disk, tape, or
other medium on which the Discovery Material is stored rather than affixed to the
Discovery Material itself. The Producing Party must take care to designate for
protection only those parts of the Discovery Materials that qualify for protection.

6.

If any non-Party receives a request or subpoena seeking documents or

tangible things and the requested documents or tangible things contain
Confidential Discovery Materials, then the non-Party may designate such material
as confidential in accordance with Paragraph 5. Non-Party Confidential Discovery
Materials designated as such, or any copy, excerpt, or summary thereof, or the
information contained therein, shall be subject to all of the conditions and
limitations set forth in this Protective Order. Any non-Party that desires to protect
its claim of confidentiality by adhering to these procedures submits to the
jurisdiction of this Court with regard to any proceedings related to the non-Party's
claim of confidentiality and bears the burden of establishing its claim to
confidentiality in such proceedings.
All other Discovery Material produced by a non-Party shall be treated in a
manner consistent with a designation of "CONFIDENTIAL" under Paragraph 5
until 28 days from receipt by the Parties. During that time, any Party may
designate Discovery Material provided by the non-Party as "CONFIDENTIAL" by
written notification to counsel for the other Parties. The Designating Party shall
thereafter provide the other Parties with an exact copy of the Discovery Materials
marked "CONFIDENTIAL" at no cost to the other Parties and such materials shall
be fully subject to this Protective Order as if they had been initially so designated.
7.

Discovery Material designated as "CONFIDENTIAL" may be

disclosed only to the following persons, except upon the prior written consent of
the Designating Party or non-Party:
a)

the Court (including appellate courts and any ancillary judicial

body in connection with the Litigation) and its personnel, including magistrate
judges, mediators and jurors;
b)

"outside" and "in-house" counsel to any of the Parties, their

legal assistants and clerical and other support staff;
c)

officers, directors and employees (current or former) of any of

the Parties who are assisting counsel in the prosecution or defense of the
Litigation or whom counsel must advise concerning the status of the Litigation;
d)

outside experts and consultants, and any employees or persons

retained by any such experts or consultants to assist them in their role as experts or
consultants, employed or retained by any of the Parties or their counsel who are
participating in the prosecution or defense of the Litigation;
e)

deponents noticed by the Parties, to the extent necessary for the

conduct of this Litigation;
f)

court or deposition stenographers and videographers, and their

g)

outside vendors, including their employees, retained by outside

staffs;

or in-house counsel for any Party to provide copying, data entry, data processing,

or computer imaging, and similar clerical support services.
8.

Before any disclosure of Confidential Discovery Materials is made to

any individual described in paragraphs 7(d), (e), (g), such individual must be
provided a copy of this Protective Order and must agree to be bound thereto and
execute a certification in the form of Exhibit A attached hereto. Counsel must
retain copies of the signed certifications. Documents may be handled by clerical
personnel in the employ of any Party or non-Party that has executed the agreement
who are performing purely clerical duties, such as mail handling, copying, bates
stamping, filing, etc. without such personnel signing the agreement.
9.

Confidential Discovery Material may be used solely for the

prosecution, defense, or settlement of this Litigation (including appeals), and for
no other purpose, absent further order of the Court. Under no circumstances shall
any Confidential Discovery Material be copied, disclosed, transmitted, or used for
any other purposes.
10.

All Parties, their Counsel, and all persons designated in Paragraph 7,

above, who obtain Confidential Discovery Materials shall take all necessary and
appropriate measures to maintain the confidentiality of the Confidential Discovery
Materials, shall disclose such information only to persons authorized to receive it
under this Protective Order, and shall retain such information in a secure manner
that ensures that access is limited to the persons authorized under this Order.

11.

Whenever Confidential Discovery Material is referred to or disclosed

in a deposition, any Party may exclude from the room during such testimony any
person who is not authorized to receive Confidential Discovery Materials under
this Protective Order. Additionally, any Party or any non-Party deponent may in
good faith designate portions of a deposition transcript containing Confidential
Discovery Material by (a) within the earlier of fourteen (14) days from the date the
final transcript is first available for review by the witness or from the date that the
preliminary transcript is received by counsel, provide a redacted version that
redacts the portions that are confidential; and (b) provides a list of each redaction
and the specific basis for claiming confidentiality (with the understanding that the
default justification for redaction is that the material redacted is a "trade secret or
other confidential research, development, or commercial information.").
12.

Whenever Confidential Discovery Material is to be referred to or

disclosed in a hearing or trial proceeding, any Party or non-Party may move in
accordance with the Federal Rules of Civil Procedure, the Federal Rules of
Evidence, and/or this Protective Order that the Court exclude from the room those
persons who are not authorized to receive Confidential Discovery Materials under
this Protective Order. In addition, any Party or non-Party may move the Court to
designate any testimony given in such hearing or trial proceeding as
CONFIDENTIAL, and to require the reporter to separately transcribe those

portions of the testimony, mark the face of the transcript with the word
CONFIDENTIAL, and seal it in a separate envelope. Whenever any document
designated as CONFIDENTIAL is identified as an exhibit in connection with
testimony given in any hearing or trial proceeding in this Litigation, any Party or
non-Party may move that it be so marked if it has not previously been marked and
appropriately sealed. Where the Court rules that such material is entitled to
protection from disclosure under this Protective Order and the Federal Rules of
Civil Procedure, Federal Rules of Evidence, or other applicable law, only persons
who have executed the agreement attached hereto as Exhibit A and those persons
designated in clauses a, b, and f of Paragraph 7, shall be entitled to obtain copies
of that portion of the transcript and/or exhibit. A copy of this Protective Order
shall be identified and marked as an exhibit to any such transcript, and all persons
who have actual notice of this Protective Order shall be bound by its terms.
13.

All Confidential Discovery Material, and any pleading, motion or

other paper filed with the Court containing or disclosing Confidential Discovery
Material, that any Party or non-Party seeks to file with the Court shall be filed
under seal in accordance with Rule 5 .1 of the Local Rules of Procedure for the
United States District Court for the District of Montana ("LR"). Before any
Confidential Discovery Material is filed under seal in this Litigation, the Party or
non-Party seeking to file the Confidential Discovery Material shall meet with the

Producing Party to confer in good faith to the extent reasonably practicable to
limit the Discovery Material that must be filed under seal in order to minimize the
burdens of the Court, including the possibility that the Discovery Material might
be redacted so that filing under seal would be unnecessary.
14.

Unless a prompt challenge to a confidentiality designation is

necessary to avoid foreseeable substantial unfairness, unnecessary economic
burdens, or a later significant disruption or delay of the 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. A Party that elects
to initiate a challenge to a confidentiality designation must do so in good faith and
must begin the process by conferring directly with counsel for the Designating
Party. In conferring, the challenging Party and the Designating Party shall attempt
to resolve any challenge in good faith on an expedited and informal basis. If the
challenge cannot be expeditiously and informally resolved, either the Designating
Party or the challenging Party may apply for an appropriate ruling from the Court.
In any such application for a ruling, the Designating Party shall have the burden of
proof to establish that the designated material is in fact confidential and is entitled
to confidential treatment. The information at issue shall continue to be treated as
Confidential Discovery Information pursuant to this Protective Order until the
Parties agree or the Court rules otherwise.

15.

The inadvertent disclosure of Discovery Material without a

designation of "CONFIDENTIAL" shall not be a waiver in whole or in part of a
Party's or non-Party's claim or confidentiality with respect to information so
disclosed. A Party or other person making such inadvertent disclosure must give
prompt notification, in writing, to the Parties when such inadvertent disclosure is
discovered. Upon receiving notice that Confidential Discovery Material has been
inadvertently produced, the Receiving Party shall thereafter treat such material
consistent with a designation of"CONFIDENTIAL" under Paragraph 5, and such
Discovery Material shall be subject to all of the conditions and limitations set forth
in this Protective Order. The Designating Party shall thereafter provide the other
Parties with an exact copy of the Discovery Materials marked "CONFIDENTIAL"
at no cost to the other Parties and such materials shall be fully subject to this
Protective Order as if they had been initially so designated. Following receipt of
the properly marked Discovery Materials, the Receiving Party shall destroy any
inadvertently produced information and all copies thereof. Disclosure by a Party of
the document or information prior to receipt of written notice that Confidential
Discovery Material has been inadvertently produced by the designator shall not be
deemed a violation of the provisions of this Protective Order, but all reasonable
steps shall be taken by the Parties to protect such inadvertently disclosed
information after notification is received from the designator in accordance with

this Protective Order.
16.

If a Receiving Party learns that, by inadvertence or otherwise, it has

disclosed Confidential Information 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 copies of the Confidential
Information, (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.
17.

Nothing in this Protective Order shall limit or affect the right of a

Designator to disclose, to authorize disclosure of, or to use in any way, its own
Confidential Discovery Material.
18.

Within sixty (60) days after the final termination of this Litigation,

including any appeals thereof: (a) all original and identical copies of Confidential
Discovery Material shall promptly be returned to the Party or non-Party who
provided such Confidential Discovery Material or, upon that Party' s or nonParty' s written consent, shall be destroyed; and (b) any and all notes, abstracts,
summaries, and excerpts prepared from Confidential Discovery Material shall be
destroyed. Counsel for the Party receiving Confidential Discovery Material shall

provide a certification in writing within ten (10) days of such destruction, to
counsel for all other Parties that such materials have been destroyed. A non-Party
may request that all Parties return all Confidential Discovery Material at no cost to
said non-Party. Notwithstanding the foregoing, each Party shall be permitted to
keep and maintain an index of all documents produced by Parties and non-Parties
in the Litigation and may retain an archival copy of all pleadings, motion papers,
transcripts, legal memoranda, correspondence or attorney work product, even if
such materials contain Confidential Discovery Material. Any such archival copies
that contain or constitute Confidential Discovery Information remain subject to
this Protective Order as set forth in Paragraph 25.
19.

If a Receiving Party is served with a lawful subpoena, an order of a

regulatory or judicial body or other legal process that would compel disclosure of
any information or items designated in this Litigation as Confidential, the
Receiving Party must so notify the Designating Party, in writing (and by e-mail, if
possible) immediately and in no event more than three court days after receiving
the subpoena, order or other legal process. Such notification must include a copy
of the subpoena, order or legal process. The Receiving Party also must
immediately inform in writing the party who caused the subpoena, order or other
legal process to issue that some or all of the material covered by the subpoena,
order or other legal process is the subject of this Protective Order, and shall

promptly deliver a copy of this Protective Order to such party.
The purpose of imposing these duties is to alert the interested parties to the
existence of this Protective Order and to afford the Designating Party in this
Litigation an opportunity to seek judicial protection or take such other measures as
it may deem necessary to prevent such Confidential Discovery Material from
being produced or otherwise becoming part of the public domain. The Designating
Party shall bear the burdens and expenses of seeking protection of its confidential
material. If such judicial protection or other measure is not obtained and all
appeals of any adverse decision are unsuccessful or if the Designating Party
waives compliance by the Receiving Party with the provisions of this Protective
Order, the Receiving Party shall disclose only that portion of the Confidential
Discovery Material in question which the Receiving Party's counsel advises is
legally required to be released.
20.

In the event that any additional persons or entities become parties to

the Litigation, neither they nor their counsel shall have access to Confidential
Discovery Material produced by the Parties or any non-Parties until the newlyjoined Party, by its counsel, and the existing Parties to this action have so agreed
in a supplemental protective order executed by all parties.
21.

This Protective Order shall not be deemed to prevent any Party from

seeking, for good cause shown, a further protective order, either more or less

restrictive, as to any document, tangible thing, material, testimony or information.
The Party seeking the further protective order bears the burden of establishing
good cause for any change from the terms of this Protective Order.
22.

This Protective Order shall not be deemed a waiver of:
a)

any Party's right to seek an order compelling discovery with

respect to any discovery requests;
b)

any Party's right to object to any discovery or the production of

any information or documents;
c)

any Party's right to object to the admission of any evidence on

any grounds in any proceeding herein; or
d)

any Party's right to use and disclose its own Confidential

Discovery Material with complete discretion.
23.

This Protective Order may be modified by further order of the Court,

or by agreement of counsel for the Parties, subject to the approval of the Court and
provided that any such agreement shall be in the form of a written stipulation filed
with the Clerk of the Court and made a part of the record in this case.
24.

The Court expressly retains jurisdiction over the enforcement of this

Protective Order after the dismissal or entering of judgment in this matter.
25.

All provisions of this Protective Order shall survive the conclusion of

the Litigation, and shall continue to be binding after the conclusion of the

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Litigation unless subsequently modified by agreement among the Parties or further
order of the Court. "Conclusion of the Litigation" shall mean all appeals have been
concluded, all appellate periods have expired and any settlement or judgment has
become final.
26.

Prior to the date that the Court enters or rejects this Protective Order

and for a period of thirty (30) days thereafter, all Confidential Discovery Material
produced in the Litigation by any Party or non-Party shall be treated as if this
Protective Order had been entered by the Court.
27.

The purpose of this Protective Order is to: (1) facilitate discovery and

production of documents in this Litigation that a Party or non-Party considers
Confidential Discovery Material; and (2) restrict use of Confidential Discovery
Material to those uses necessary for the defense and prosecution of this Litigation.
Nothing in this Order shall prejudice in any way the right of any Party to seek a
court determination of whether particular Discovery Material should remain
subject to the terms of this Protective Order. Any Party may request that the Court
modify or otherwise grant relief from any provision of this Order.
IT IS SO ORDERED.

r miah C. Lynch
nited States Magistrate Judge