Castillo v. Navient Solutions, LLC et al

Filing 23

ORDER Granting 22 Stipulation and Protective Order. Signed by Magistrate Judge Carl W. Hoffman on 9/19/17. (Copies have been distributed pursuant to the NEF - ADR)

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Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 1 of 10 1 2 3 4 5 6 7 8 ARIEL E. STERN, ESQ. Nevada Bar No. 8276 REX D. GARNER, ESQ. Nevada Bar No. 9401 AKERMAN LLP 1160 Town Center Drive, Suite 330 Las Vegas, NV 89144 Telephone: (702) 634-5000 Facsimile: (702) 380-8572 Email: ariel.stern@akerman.com rex.garner@akerman.com Attorneys for Defendant Navient Solutions, LLC UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 AKERMAN LLP 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 11 KEITH CASTILLO, an individual; 12 Case No.: 2-17-cv-01723-RFB-CWH Plaintiff, STIPULATION AND PROTECTIVE ORDER 13 vs. 14 NAVIENT SOLUTIONS, LLC, a foreign limited-liability company; and EQUIFAX, INC., a foreign corporation; TRANS UNION LLC, a foreign limited-liability company; 15 16 Defendants. 17 18 19 Subject to the approval of the Court, Plaintiff Keith Castillo and Defendant Navient Solutions, LLC (NSL) stipulate to the following Protective Order. 20 The Court, being advised in the premises, finds there is a potentially significant number of 21 documents containing the nonpublic personal information of Plaintiff and the confidential and 22 proprietary information of NSL to be exchanged in discovery in this case, such that document-by- 23 document review of discovery materials will be impracticable if the case is to proceed in an orderly, 24 timely, and efficient manner. 25 The Court further finds the Parties' interests in protecting the non-public personal 26 information of Plaintiff, as well as confidential and commercially sensitive information of NSL 27 pertaining to Plaintiff’s account(s) from unnecessary disclosure, and the Parties' desire and the 28 benefit to the Court of an orderly and expeditious resolution of this matter on its merits, outweigh 1 42800961;1 Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 2 of 10 1 any societal interest in disclosure of such materials to non-parties. Thus, after due consideration by 2 the Court and for good cause shown, the Court finds that it is appropriate to expedite the flow of 3 discovery material, promote the prompt resolution of disputes over confidentiality, and to facilitate 4 the preservation of material arguably worthy of protection. Accordingly, it is, 5 ORDERED and ADJUDGED as follows: 6 1. "CONFIDENTIAL" Documents, Materials, and Information. This Order shall govern to discovery, and all communications of any kind made by Plaintiff, Plaintiff's attorneys, consultants, 9 agents, and representatives; Defendant NSL, its attorneys, consultants, agents, employees, and 10 representatives; and other third parties. "CONFIDENTIAL" materials shall be the documents or 11 AKERMAN LLP all documents produced or exchanged, all written answers, deposition answers, and other responses 8 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 7 information respectively designated under this Order and any notes, work papers, or other 12 documents respectively containing "CONFIDENTIAL" materials derived from such items. Plaintiff, 13 NSL or any third party may identify any documents or information, including but not limited to 14 discovery materials produced by that party, initial disclosures, documents and things, answers to 15 interrogatories, responses to requests for production, responses to requests for admission, deposition 16 exhibits, and all or portions of deposition or hearing transcripts, as "CONFIDENTIAL" and 17 designate the documents or information as such by affixing thereto a legend of "CONFIDENTIAL" 18 or by designating through another method set forth in this Order or agreed to by the parties. 19 Plaintiff, NSL or any third party may designate documents or information as 20 "CONFIDENTIAL" to the extent that the party, through counsel, believes "good cause" under 21 Federal Rule of Civil Procedure 26(c) exists to categorize the material as confidential because the 22 material contains or includes: (1) confidential business or technical information; (2) trade secrets; (3) 23 proprietary business methods or practices; (4) any other competitively sensitive confidential 24 information; (5) personal information, including personal financial information about customers or 25 applicants, any party to this lawsuit, or an employee of any party to this lawsuit; (6) information 26 regarding any individual's banking or lending relationships, including, without limitation, 27 information regarding any individual's mortgage or credit history and/or consumer information not 28 otherwise available to the public; and (7) any other categories that are later agreed to in writing by 2 42800961;1 Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 3 of 10 1 2 the parties or ordered by the Court. 2. Designation of "CONFIDENTIAL" Material. Documents shall be designated as not interfere with their legibility. This designation shall only be used in a reasonable fashion and 5 upon a good faith determination by counsel that a particular document contains non-public 6 information and falls within one of the categories enumerated in Paragraph 1. This designation shall 7 ordinarily be made before or at the same time as the production or disclosure of the material. 8 Because materials described in Paragraph 1 shall be covered by this Order, there shall be no waiver 9 of confidentiality if such materials are inadvertently produced without being stamped 10 "CONFIDENTIAL." Materials already produced in discovery in this litigation may be designated as 11 AKERMAN LLP "CONFIDENTIAL" by stamping them with the word "CONFIDENTIAL" in a manner which will 4 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 3 "CONFIDENTIAL" upon written notice (without stamping), within fourteen (14) days of the entry 12 of this Order, from the party asserting the confidentiality designation to all counsel of record to 13 whom such documents have been produced by notifying the other party of the identity of the 14 documents or information to be so designated. Any of the parties to this action can remove at any 15 time its designation of "CONFIDENTIAL" from any of the documents or information it has 16 previously so designated. 17 3. Treatment of "CONFIDENTIAL" Information. Unless otherwise ordered by the 18 Court, "CONFIDENTIAL" material, and any quotes, summaries, charts, or notes made therefrom, 19 and any facts or information contained therein or derived therefrom, shall be held in confidence and 20 used by the parties to whom the documents and information are produced solely for the purpose of 21 this case. The parties agree to take reasonable steps to maintain the confidentiality of the documents, 22 information, and testimony relating thereto. 23 "CONFIDENTIAL" material, including all copies thereof, shall be retained solely in the custody of 24 the parties' attorneys and shall not be placed in the possession of or disclosed to any other person, 25 except as set forth in this Order, as otherwise agreed upon by the parties, or upon leave of Court. 26 Each person to whom "CONFIDENTIAL" material is disclosed pursuant to this Order is hereby 27 prohibited from exploiting in any way such documents or information for his, her or its own benefit, 28 or from using such information for any purpose or in any manner not connected with the prosecution 3 42800961;1 During the pendency of this litigation, Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 4 of 10 1 or defense of this case. 2 4. "Disclosure." As used herein, "disclosure" or to "disclose" shall mean to divulge, 3 reveal, 4 "CONFIDENTIAL" material. 5 describe, 5. summarize, paraphrase, quote, transmit, or otherwise communicate Permissible Disclosure of "CONFIDENTIAL" Material. Except by order of this 6 Court, or otherwise as required by law, material designated as "CONFIDENTIAL" (and any notes or 7 documents that reflect or refer to such documents and information) shall not be disclosed to any 8 person other than: 9 (a) A party hereto; 10 (b) Counsel employed by a party, or an employee of such counsel, to whom it is necessary AKERMAN LLP 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 11 12 that the materials be shown or the information known for purposes of this case; (c) Any employee or agent of a party to whom the "CONFIDENTIAL" materials are 13 shown for the purpose of working directly on or testifying in connection with this 14 litigation at the request of or at the direction of counsel for such party; 15 (d) A person retained to assist in this action, such as an investigator, independent 16 accountant, or other technical expert or consultant, who has signed an 17 acknowledgement in the form of Exhibit A, which signed acknowledgment shall be 18 retained by the party who has retained such person; 19 (e) 20 21 action; (f) 22 23 Any person(s) designated by the Court in the interest of justice, upon such terms as the Court may deem proper; (g) 24 25 This Court (or its employees or agents) pursuant to a court filing in connection with this Members of the jury at a public trial of this matter, subject to the requirements of Paragraph 11 below; or (h) A person who is deposed or who testifies at the hearing in this matter who has signed 26 an acknowledgement in the form of Exhibit A hereto, which signed acknowledgment 27 shall be retained by the party who has compelled such person to testify at a deposition 28 or trial. If the witness refuses to sign such form, the party compelling such testimony 4 42800961;1 Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 5 of 10 1 shall immediately notify opposing counsel and permit them seven (7) days to seek 2 redress with the Court. 3 6. Review of Own "CONFIDENTIAL" Materials. The restrictions of this Order shall 4 not apply to parties, and their employees, attorneys, experts or other authorized agents, when 5 reviewing their own "CONFIDENTIAL" materials. 6 7. Deposition Transcripts. Deposition testimony and deposition exhibits containing matter, Plaintiff, NSL or any third party, on the record, may designate as "CONFIDENTIAL" 9 portions of the deposition testimony or deposition exhibits. Alternatively, Plaintiff, NSL or any third 10 party may, by written notice to opposing counsel and the court reporter not later than fourteen (14) 11 AKERMAN LLP "CONFIDENTIAL" material shall be covered by this Order. During a deposition taken in this 8 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 7 business days after receipt of the final deposition transcript, designate as "CONFIDENTIAL" any 12 portions of the deposition testimony or deposition exhibits. Until expiration of the above fourteen 13 (14) day period, all deposition transcripts will be treated as "CONFIDENTIAL" material unless 14 otherwise agreed to in writing by the parties. 15 8. Objections to "CONFIDENTIAL" Designations. To the extent that any party contests 16 a designation under this Order, such party shall object to such designation in writing not later than 17 fourteen (14) business days after receipt of materials designated as "CONFIDENTIAL." The parties 18 shall first try to resolve the disagreement in good faith on an informal basis, such as the production 19 of redacted copies. If the parties are unable to reach an agreement regarding the designation, then 20 the party objecting to such designation shall file an appropriate motion with the Court for a ruling 21 that the documents or other information shall not be accorded such status and treatment. In the event 22 that such a challenge is made, the party asserting the confidentiality designation shall have the 23 burden of establishing good cause exists under Federal Rule of Civil Procedure 26(c) to maintain the 24 designation. 25 information, such document or information shall continue to be protected as provided by this Order. 26 Should the Court rule in favor of the party objecting to the confidentiality designation, the party 27 asserting the designation shall produce a copy of the document(s) without the "CONFIDENTIAL" 28 designation. Until this Court enters an order changing the designation of such documents or 5 42800961;1 Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 6 of 10 1 9. Disclosing "CONFIDENTIAL" Material. If any party wishes to disclose any 2 "CONFIDENTIAL" material beyond the terms of Paragraphs 5-6 of this Order, that party shall 3 provide all other parties with reasonable notice in writing of the request to disclose the materials, 4 unless otherwise required by law. If the parties cannot resolve their disagreement with respect to the 5 disclosure of any designated information, then a party may petition the Court for a determination of 6 these issues. In the event that such a challenge is made, the party asserting the confidentiality 7 designation shall have the burden of establishing that the designation is proper. 8 "CONFIDENTIAL" material shall remain "CONFIDENTIAL" as stipulated by this Order until the 9 Court rules on the party's specific petition. 10 10. Such Pleadings and Other Court Submissions. Each party agrees that when filing with AKERMAN LLP 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 11 Court any papers (including, without limitation, affidavits, memoranda, interrogatory answers, or 12 depositions) that disclose directly or indirectly any "CONFIDENTIAL" material, such papers shall 13 be filed under seal in accordance with the Court's local rules and requirements for filing documents 14 under seal. 15 If a party filing a non-dispositive motion seeks to file documents under seal, the filing party 16 must show that good cause exists as defined by Federal Rule of Civil Procedure 26(c). If a party 17 filing a dispositive motion seeks to file documents under seal, the filing party must show 18 "compelling reasons supported by specific factual findings outweigh the general history of access 19 and the public policies favoring disclosure." Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 677-679 20 (9th Cir. 2010) (internal quotations and citations omitted). 21 The parties further recognize the possible need to use documents marked 22 "CONFIDENTIAL" during the trial of this matter. However, the parties agree to take reasonable 23 steps to protect the confidentiality of any trial exhibits so designated to include asking the Court to 24 ensure that any such documents referred to or offered into evidence at trial are filed with the Court 25 under seal. 26 11. Document Retention. After the conclusion of this matter (including the expiration of 27 all appeals), all originals and reproductions of the "CONFIDENTIAL" materials shall be returned to 28 the producing party within thirty (30) days of such conclusion or be destroyed (in which case 6 42800961;1 Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 7 of 10 1 counsel for the party destroying said documents shall certify in writing to the producing party within 2 thirty (30) days of such conclusion that destruction of the "CONFIDENTIAL" materials has taken 3 place). Insofar as the provisions of this Order restrict the use of the documents produced hereunder, 4 the Order shall continue to be binding throughout and after the conclusion of this case, including all 5 appeals, except as set forth in Paragraph 13. 6 12. Admissibility. Nothing in this Order shall be construed to limit any party from Evidence, "CONFIDENTIAL" materials and other confidential information may be offered in 9 evidence at trial or any court hearing. Any party may move the court for an Order that the evidence 10 be received in camera or under other conditions to prevent unnecessary disclosure of any 11 AKERMAN LLP producing or introducing any document into evidence at public hearing. Subject to the Rules of 8 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 7 "CONFIDENTIAL" material. The Court will then determine whether the proffered evidence should 12 continue to be treated as "CONFIDENTIAL" and, if so, what protection, if any, may be afforded to 13 such information at the trial or hearing. 14 13. Scope of Discovery. Nothing in this Order shall preclude any party from opposing 15 production of any documents or information, or from seeking further or different relief should future 16 pretrial activities indicate such a need. 17 14. Client Consultation. Nothing in this Order shall bar or otherwise restrict any attorney 18 herein from rendering advice to his or her client with respect to this case or from doing anything 19 necessary to prosecute or defend this case and further the interests of his client, provided, however, 20 that the attorney shall not disclose any material designated for protection hereunder where such 21 disclosure would be contrary to the terms of this Order. 22 15. Discretion of the Court. Nothing in this Order shall apply to, bind, or limit the Court 23 or its employees in the performance of their duties. Notwithstanding any foregoing suggestion to the 24 contrary, the Court shall retain final and complete authority to re-designate any material previously 25 designated as "CONFIDENTIAL" as a public document. 26 16. Notice of Breach. It shall be the obligation of counsel, upon hearing of any breach or 27 threatened breach of this Order by any person, promptly to notify counsel for the opposing and 28 producing parties of such breach or threatened breach. The parties shall make every reasonable 7 42800961;1 Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 8 of 10 1 effort to mark all discovery containing "CONFIDENTIAL" materials, but the mistaken or 2 inadvertent failure to mark the discovery material, where notice has otherwise been given that it 3 contains "CONFIDENTIAL" materials, shall not exempt it from the provisions of this Order. 4 17. Litigation Use Only. All "CONFIDENTIAL" materials produced in this litigation, 5 whether by a party or nonparty, and whether pursuant to the civil rules of procedure, subpoena, 6 agreement or otherwise, and all information contained therein or derived therefrom, shall be used 7 solely for the preparation and trial of this action (including any appeals and retrials), and may not be 8 used for any other purpose, including business, governmental or commercial, or any other 9 administrative or judicial proceedings or actions. 10 18. Subpoena by Other Court or Agencies. If another court or an administrative agency AKERMAN LLP 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 11 subpoenas or orders production of "CONFIDENTIAL" materials that a party obtained under the 12 terms of this Order, the party receiving the subpoena shall promptly notify the party or other person 13 who designated the "CONFIDENTIAL" materials of the pendency of such subpoena or order. 14 19. Inadvertent Disclosure Protection. Review of the "CONFIDENTIAL" materials 15 labeled "CONFIDENTIAL" by counsel, experts, or consultants in the litigation shall not waive the 16 "CONFIDENTIAL" designation or any objections to production. "CONFIDENTIAL" materials 17 inadvertently produced by any party or nonparty through discovery in this action without having 18 been designated as "CONFIDENTIAL" shall be subject to the provisions of this Order to the same 19 extent as if the inadvertent disclosure had not occurred so long as there is reasonable notice to the 20 other party of the inadvertent disclosure. If a producing party inadvertently discloses to a receiving 21 party information that is privileged or otherwise immune from discovery, said producing party shall 22 promptly, upon discovery of such disclosure, so advise the receiving party in writing and request that 23 the item or items of information be returned. No party to this action shall thereafter assert that such 24 disclosure waived any privilege or immunity. It is further agreed that the receiving party will return 25 such inadvertently produced item or items of information and all copies thereof within fourteen (14) 26 business days of receiving a written request for the return of such item or items of information from 27 the producing party. 28 20. Non-Parties. Non-parties who are required to produce "CONFIDENTIAL" material 8 42800961;1 Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 9 of 10 1 in response to a subpoena, and who in good faith believe that such material contains confidential 2 information, may rely on this Order and apply it to their production. 3 21. Responsibility of Attorneys. The attorneys of record are responsible for employing 4 reasonable measures to control, consistent with this Order, the duplication of, access to, and 5 distribution of copies of materials labeled "CONFIDENTIAL." Parties shall not duplicate any such 6 materials except for working copies and for filing in court under seal. The attorneys of record 7 further are responsible for employing reasonable measures to control, consistent with this Order, the 8 dissemination or revelation of confidential information. 9 STIPULATED AND AGREED: AKERMAN LLP Dated this 14th day of September, 2017. Dated this 15th day of September, 2017. 11 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 10 LAW OFFICES OF KEVIN L. HERNANDEZ AKERMAN LLP 15 /s/ Kevin L. Hernandez KEVIN L. HERNANDEZ Nevada Bar No. 12594 2510 Wigwam Parkway, Suite 206 Henderson, Nevada 89074 16 Attorneys for Plaintiff Keith Castillo /s/ Rex D. Garner ARIEL E. STERN Nevada Bar No. 8276 REX D. GARNER Nevada Bar No. 9401 1160 Town Center Drive, Suite 330 Las Vegas, Nevada 89144 12 13 14 17 Attorneys for Defendant Navient Solutions, LLC 18 19 ORDER IT IS SO ORDERED. 20 ______________________________________ UNITED STATES DISTRICT JUDGE MAGISTRATE JUDGE 21 22 September 19, 2017 DATED:_______________________________ 23 24 25 26 27 28 9 42800961;1 Case 2:17-cv-01723-RFB-CWH Document 22 Filed 09/15/17 Page 10 of 10 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND type full address], declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the District of 6 Nevada on [date] in the case of Keith Castillo v. Navient Solutions, LLC, Case No. 2:17-cv-01723- 7 RFB-CWH. I agree to comply with and to be bound by all the terms of this Stipulated Protective 8 Order and I understand and acknowledge that failure to so comply could expose me to sanctions and 9 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any 10 information or item that is subject to this Stipulated Protective Order to any person or entity except in 11 AKERMAN LLP I, _____________________ [print or type full name], of _____________________ [print or 4 1160 TOWN CENTER DRIVE, SUITE 330 LAS VEGAS, NEVADA 89144 TEL.: (702) 634-5000 – FAX: (702) 380-8572 3 strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the 12 United States District Court for the District of Nevada for the purpose of enforcing the terms of this 13 Stipulated Protective Order, even if such enforcement proceedings occur after termination of this 14 action. I hereby appoint _____________________ [print or type full name] of 15 _____________________ [print or type full address and telephone number] as my Nevada agent for 16 service of process in connection with this action or any proceedings related to enforcement of this 17 Stipulated Protective Order. 18 Date: _____________________ 19 City and State where sworn and signed: _____________________ 20 Printed Name: _____________________ 21 Signature: _____________________ 22 23 24 25 26 27 28 10 42800961;1

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