Miller v. Wells Fargo & Company et al

Filing 64

AGREED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material..., Motions terminated: 62 JOINT MOTION for Protective Order Joint Motion for Entry of Agreed Protective Order and Order Implementing Federal Rule of Evidence 502(d). filed by Wells Fargo Bank N.A., Wells Fargo & Company. (Signed by Judge Alison J. Nathan on 2/15/2021) (tro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
:
THOMAS LAU, on behalf of himself
:
and similarly situated employees,
:
:
Plaintiff,
:
:
v.
:
:
WELLS FARGO & COMPANY and
:
WELLS FARGO BANK, N.A.,
:
:
Defendant.
:
---------------------------------------------------------------x

2/16/2021

Case No. 1:20-cv-03870-AJN

JOINT MOTION FOR ENTRY OF AGREED PROTECTIVE ORDER AND ORDER
IMPLEMENTING FEDERAL RULE OF EVIDENCE 502(d)
Plaintiff Thomas Lau and Defendants Wells Fargo Bank, N.A. and Wells Fargo &
Company file this joint motion, stating in support as follows:
The parties assert that documents potentially relevant to this litigation could contain or
constitute confidential and/or proprietary information. Accordingly, the parties have conferred
and agreed to the terms of the attached, proposed protective order. Therefore, with good cause
shown, the parties respectfully request that the Court enter the attached, proposed protective
order.
The parties have further conferred, and the parties respectfully request that the Court
enter the attached order implementing Federal Rule of Evidence 502(d).

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Respectfully submitted,

Respectfully submitted,

WILLS LAW FIRM, PLLC

SEYFARTH SHAW LLP

By: s/ Rhonda H. Wills, with permission
Rhonda H. Wills
New York Bar No. 5373295
[e-mail]
1776 Yorktown, Suite 570
Houston, Texas 77056
Telephone: [phone]
Facsimile: [phone]

By: /s Gina Merrill
Timothy M. Watson
(Admitted Pro Hac Vice)
[e-mail]
John P. Phillips
(Admitted Pro Hac Vice)
700 Milam Street, Suite 1400
Houston, TX 77002-2812
Telephone: [phone]
Facsimile: [phone]

ATTORNEY FOR PLAINTIFF

Gina Merrill
[e-mail]
Kaveh Dabashi
[e-mail]
620 Eighth Avenue
New York, NY 10018
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANTS
Dated: February 12, 2021

2

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
:
THOMAS LAU, on behalf of himself
:
and similarly situated employees,
:
:
Plaintiff,
:
:
v.
:
:
WELLS FARGO & COMPANY and
:
WELLS FARGO BANK, N.A.,
:
:
Defendant.
:
---------------------------------------------------------------x

Case No. 1:20-cv-03870-AJN

CERTIFICATE OF SERVICE
I, Gina Merrill, an attorney, do hereby certify that I have caused a true and correct copy of
the foregoing document to be filed using the CM/ECF system, which will automatically send email
notification of such filing to all attorneys of record on February 12, 2021.

/s/

3

Gina Merrill

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
:
THOMAS LAU, on behalf of himself
:
and similarly situated employees,
:
:
Plaintiff,
:
:
v.
:
:
WELLS FARGO & COMPANY and
:
WELLS FARGO BANK, N.A.,
:
:
Defendant.
:
---------------------------------------------------------------x

Case No. 1:20-cv-03870-AJN

AGREED PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following Protective
Order has been entered by Court.
Proceedings and Information Governed.
1.

This Order and any amendments or modifications hereto (“Protective Order”)

shall govern any document, information, or other thing furnished by any party, to any other party,
and includes non-parties who receive a subpoena in connection with this action. The information
protected includes, but is not limited to, answers to interrogatories, answers to requests for
admission, responses to requests for production of documents, deposition transcripts and
videotapes, deposition exhibits, and other writings or things produced, given, or filed in this
action that are designated by a party as “Confidential Information,” in accordance with the terms
of this Order, as well as to any copies, excerpts, abstracts, analyses, summaries, descriptions, or
other forms of recorded information containing, reflecting, or disclosing such information.
Designation and Maintenance of Information.
2.

For purposes of this Protective Order:

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(a)

The “Confidential Information” designation shall mean that the document

is comprised of trade secrets, commercial information, or financial information which is
not publicly known and is of technical or commercial advantage to its possessor, in
accordance with Federal Rule of Civil Procedure 26(c)(1)(G), or other information,
including, but not limited to, non-public business information or personal information,
the public disclosure of which is either required by law or agreement to be kept
confidential or would likely, in the good faith opinion of the producing person, seriously
harm the producing person’s business, commercial, financial, or personal interests or
cause the producing person to violate his, her, or its privacy or confidentiality obligations
to others.
(b)

Confidential Information does not include, and this Protective Order shall

not apply to, information that is already in the knowledge or possession of the party to
whom disclosure is made unless that party is already bound by agreement not to disclose
such information, or information that has been disclosed to the public or third persons in
a manner making such information no longer confidential.
3.

Confidential Information may be designated in the following manner.
(a)

Documents and things produced during the course of this litigation within

the scope of paragraph 2(a) above, may be designated by the producing party as
containing Confidential Information by placing on each page and each thing a legend
substantially as follows: CONFIDENTIAL INFORMATION or CONFIDENTIAL.
(b)

A party may designate information disclosed at a deposition as

Confidential Information by requesting the reporter to so designate the transcript or any
portion thereof at the time of the deposition. If no such designation is made at the time of

2

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the deposition, any party shall have fourteen (14) calendar days after the date of the
deposition to designate, in writing to the other parties and to the court reporter, whether
the transcript is to be designated as Confidential Information. If no such designation is
made at the deposition or within such fourteen (14) calendar day period, the entire
deposition will be considered devoid of Confidential Information. Each party and the
court reporter shall attach a copy of any final and timely written designation notice to the
transcript and each copy thereof in its possession, custody or control, and the portions
designated in such notice shall thereafter be treated in accordance with this Protective
Order.
(c)

It is the responsibility of counsel for each party to maintain materials

containing Confidential Information in a secure manner and appropriately identified so as
to allow access to such information only to such persons and under such terms as is
permitted under this Protective Order.
Inadvertent Failure to Designate.
4.

The inadvertent failure to designate or withhold any information as confidential or

privileged will not be deemed to waive a later claim as to its confidential or privileged nature, or
to stop the producing party from designating such information as confidential at a later date in
writing and with particularity. The information shall be treated by the receiving party as
confidential from the time the receiving party is notified in writing of the change in the
designation.
Challenge to Designations.
5.

A receiving party may challenge a producing party’s designation at any time. Any

receiving party disagreeing with a designation may request in writing that the producing party
change the designation. The producing party shall then have fourteen (14) days after receipt of a
3

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challenge notice to advise the receiving party whether or not it will change the designation. If the
parties are unable to reach agreement after the expiration of this fourteen (14) day time frame, the
receiving party may at any time thereafter seek a Court Order to alter the confidential status of the
designated information. Until any dispute under this paragraph is ruled upon by the Court, the
designation shall remain in full force and effect and the information shall continue to be accorded
the confidential treatment required by this Protective Order.
Disclosure and Use of Confidential Information.
6.

Information designated as Confidential Information may only be used for purposes

of preparation, trial and appeal of this action. Confidential Information may not be used under any
circumstances for prosecuting any patent application, for patent licensing or for any other purpose.
7.

Subject to paragraph 9 below, Confidential Information may be disclosed by the

receiving party only to the following individuals provided that such individuals are informed of
the terms of this Protective Order: (a) employees of the receiving party who are required in good
faith to provide assistance in the conduct of this litigation, including any settlement discussions;
(b) in-house counsel; (c) outside counsel for the receiving party; (d) supporting personnel
employed by (b) and (c), such as paralegals, legal secretaries, data entry clerks and legal clerks;
(e) experts or consultants; (f) any persons requested by counsel to furnish services such as
photocopying, document coding, image scanning, mock trial, jury profiling, translation services,
court reporting services, demonstrative exhibit preparation, or the creation of any computer
database from documents; and (g) the Court and its personnel.
8.

Further, prior to disclosing Confidential Information to a receiving party’s

proposed expert or consultant, the receiving party shall secure a signed Confidentiality Agreement
in the form attached as Exhibit A.

4

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9.

Counsel shall be responsible for the adherence by third-party vendors to the

terms and conditions of this Protective Order. Counsel may fulfill this obligation by obtaining a
signed Confidentiality Agreement in the form attached as Exhibit B.
10.

Confidential Information may be disclosed to a person, not already allowed

access to such information under this Protective Order, if:
(a)

the information was previously received or authored by the person or was

authored or received by a director, officer, employee, or agent of the company for which
the person is testifying as a Rule 30(b)(6) designee;
(b)

the designating party is the person or is a party for whom the person is a

director, officer, employee, consultant or agent; or
(c)

counsel for the party designating the material agrees that the material may

be disclosed to the person.
In the event of disclosure under this paragraph, only the reporter, the person, his or her
counsel, the Court and its personnel, and persons to whom disclosure may be made, and who are
bound by the Protective Order, may be present during the disclosure or discussion of the
Protected Information. Disclosure of material pursuant to this paragraph shall not constitute a
waiver of the confidential status of the material so disclosed.
Non-Party Information.
11.

The existence of this Protective Order shall be disclosed to any person producing

documents, tangible things or testimony in this action who may reasonably be expected to desire
confidential treatment for such documents, tangible things or testimony. Any such person may
designate documents, tangible things, or testimony confidential pursuant to this Protective Order.

5

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Filing Documents With the Court.
12.

In the event that any party wishes to submit Confidential Information to the

Court, such party shall follow the procedures prescribed by the Court, including obtaining leave
of Court prior to filing any documents under seal.
No Prejudice.
13.

Producing or receiving confidential information, or otherwise complying with the

terms of this Protective Order, shall not (a) operate as an admission by any party that any
particular Confidential Information contains or reflects trade secrets or any other type of
confidential or proprietary information; (b) prejudice the rights of a party to object to the
production of information or material that the party does not consider to be within the scope of
discovery; (c) prejudice the rights of a party to seek a determination by the Court that particular
materials be produced; (d) prejudice the rights of a party to apply to the Court for further
protective orders; or (e) prevent the parties from agreeing in writing to alter or waive the
provisions or protections provided for herein with respect to any particular information or
material.
Conclusion of Litigation.
14.

Within sixty (60) calendar days after final judgment in this action, including the

exhaustion of all appeals, or within sixty (60) calendar days after dismissal pursuant to a
settlement agreement, the producing party upon written request may require each party or other
person subject to the terms of this Protective Order to destroy or return to the producing party all
materials and documents containing Confidential Information, and to certify to the producing
party such destruction or return. However, outside counsel for any party shall be entitled to retain
all court papers, trial transcripts, exhibits, and attorney work provided that any such materials are
maintained and protected in accordance with the terms of this Protective Order.
6

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Filed 02/12/21 Page 7 of 10

Other Proceedings.
15.

By entering this Order and limiting the disclosure of information in this case, the

Court does not intend to preclude another court from finding that information may be relevant
and subject to disclosure in another case. Any person or parties subject to this Protective Order
that may be subject to a motion to disclose another party’s information designated as
Confidential Information pursuant to this Protective Order, shall promptly notify that party of the
motion so that it may have an opportunity to appear and be heard on whether that information
should be disclosed.

SO ORDERED.

February 15
Dated: __________, 2021
New York, New York

__________________________________
ALISON J. NATHAN
United States District Judge

7

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Filed 02/12/21 Page 8 of 10

Exhibit A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
:
THOMAS LAU, on behalf of himself
:
and similarly situated employees,
:
:
Plaintiff,
:
:
v.
:
:
WELLS FARGO & COMPANY and
:
WELLS FARGO BANK, N.A.,
:
:
Defendant.
:
---------------------------------------------------------------x

Case No. 1:20-cv-03870-AJN

CONFIDENTIALITY AGREEMENT FOR EXPERT OR CONSULTANT OF ANY
PARTY
I hereby affirm that:
Information, including documents and things, designated as “Confidential Information,”
as defined in the Protective Order entered in the above-captioned action (hereinafter “Protective
Order”), is being provided to me pursuant to the terms and restrictions of the Protective Order.
I have been given a copy of and have read the Protective Order.
I am familiar with the terms of the Protective Order and I agree to comply with and to be
bound by such terms.
I submit to the jurisdiction of this Court for enforcement of the Protective Order.
I agree not to use any Confidential Information disclosed to me pursuant to the Protective
Order except for purposes of the above-captioned litigation and not to disclose any such
information to persons other than those specifically authorized by said Protective Order, without
the express written consent of the party who designated such information as confidential or by
order of this Court. I also agree to notify any stenographic, clerical, or technical personnel who
are required to assist me of the terms of this Protective Order and of its binding effect on them
and me.
I understand that I am to retain all documents or materials designated as or containing
Confidential Information in a secure manner, and that all such documents and materials are to
remain in my personal custody until the completion of my assigned duties in this matter,
whereupon all such documents and materials, including all copies thereof, and any writings

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Filed 02/12/21 Page 9 of 10

prepared by me containing any Confidential Information are to be returned to counsel who
provided me with such documents and materials.
Date: _______________________
Printed Name: _______________________
Signature: _______________________

2

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Exhibit B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
:
THOMAS LAU, on behalf of himself
:
and similarly situated employees,
:
:
Plaintiff,
:
:
v.
:
:
WELLS FARGO & COMPANY and
:
WELLS FARGO BANK, N.A.,
:
:
Defendant.
:
---------------------------------------------------------------x

Case No. 1:20-cv-03870-AJN

CONFIDENTIALITY AGREEMENT FOR THIRD-PARTY VENDORS
I hereby affirm that:
Information, including documents and things, designated as “Confidential Information,”
as defined in the Protective Order entered in the above-captioned action (hereinafter “Protective
Order”), is being provided to me pursuant to the terms and restrictions of the Protective Order.
I have been given a copy of and have read the Protective Order.
I am familiar with the terms of the Protective Order and I agree to comply with and to be
bound by such terms.
I submit to the jurisdiction of this Court for enforcement of the Protective Order.
I agree not to use any Confidential Information disclosed to me pursuant to the Protective
Order except for purposes of the above-captioned litigation and not to disclose any such
information to persons other than those specifically authorized by said Protective Order, without
the express written consent of the party who designated such information as confidential or by
order of this Court.
Date: _______________________
Printed Name: _______________________
Signature: _______________________

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
:
THOMAS LAU, on behalf of himself
:
and similarly situated employees,
:
:
Plaintiff,
:
:
v.
:
:
WELLS FARGO & COMPANY and
:
WELLS FARGO BANK, N.A.,
:
:
Defendant.
:
---------------------------------------------------------------x

Case No. 1:20-cv-03870-AJN

RULE 502(d) ORDER
The production of privileged or work-product protected documents, electronically stored
information (“ESI”) or other information, whether inadvertent or otherwise, is not a waiver of the
privilege or protection from discovery in this case or in any other federal or state proceeding.
This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of
Evidence 502(d).
Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a
review of documents, ESI or other information (including metadata) for relevance,
responsiveness and/or segregation of privileged and/or protected information before production.

SO ORDERED.

Dated: __________ _____, 2021
New York, New York

__________________________________
ALISON J. NATHAN
United States District Judge