Terrance D Rutherford v. FIA Card Services, N.A. et al
Filing
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PROTECTIVE ORDER COVERING AFFINITY CARD AGREEMENT 44 by Judge Dean D. Pregerson (lc)
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ROBERT S. STERN (CA SBN 68240)
RStern@mofo.com
TRITIA M. MURATA (CA SBN 234344)
TMurata@mofo.com
MEGAN T. LOW (CA SBN 265497)
MLow@mofo.com
MORRISON & FOERSTER LLP
555 West Fifth Street, Suite 3500
Los Angeles, California 90013-1024
Telephone: (213) 892-5200
Facsimile: (213) 892-5454
Attorneys for Defendant
FIA CARD SERVICES, N.A.
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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TERRANCE D. RUTHERFORD,
individually and on behalf of other
similarly situated individuals,
Plaintiff,
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v.
FIA CARD SERVICES, N.A. (Bank of
America), ALASKA AIRLINES, INC.
and HORIZON AIR INDUSTRIES,
INC.,
Defendants.
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[Proposed] Stipulated Protective Order
la- 1171058
Case No. CV 11-04433 DDP (MANx)
PROTECTIVE ORDER
COVERING AFFINITY CARD
AGREEMENT
Judge: Hon. Dean D. Pregerson
Courtroom: 3 (Spring)
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1.
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Plaintiff has identified in his First Amended Complaint (“FAC”) an
PURPOSES AND LIMITATIONS
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agreement between Defendants FIA Card Services, N.A. and Alaska Airlines, Inc.
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(See, e.g., FAC ¶¶ 12-23, referring to it as the “Underlying Agreement.”) Plaintiff
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has not previously had access to this agreement, which is titled the “Second
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Amended And Restated Alaska Airlines Affinity Card Agreement” and is dated
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January 1, 2009. Defendants will file motions to dismiss on May 25, 2012, and
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would like to attach this agreement. They represent that the agreement contains
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confidential, proprietary, and competitively sensitive information for which special
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protection from public disclosure, and from use for any purpose other than
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prosecuting or settling this litigation, is warranted. Accordingly, the parties hereby
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stipulate to and petition the Court to enter the following Stipulated Protective Order
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Covering Affinity Card Agreement.
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2.
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The protections conferred by this Stipulation and Order cover not only the
SCOPE
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Second Amended And Restated Alaska Airlines Affinity Card Agreement, but also
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any information copied or extracted therefrom, as well as all copies, excerpts,
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summaries, or compilations thereof, plus testimony, conversations, or presentations
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by parties or counsel to or in court or in other settings that might reveal any portion
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of that Agreement. All such information, together or in part, are referred to herein
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as the “Affinity Card Agreement.”
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3.
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Even after the termination of this litigation, the confidentiality obligations
DURATION
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imposed by this Order shall remain in effect until the parties agree otherwise in
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writing or a court order otherwise directs.
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4.
ACCESS TO AND USE OF PROTECTED MATERIAL
4.1
Basic Principles. Plaintiff’s counsel may use the Affinity Card
Agreement only for prosecuting or attempting to settle this litigation. Such
[Proposed] Stipulated Protective Order
la- 1171058
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Agreement may be disclosed only to the categories of persons and under the
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conditions described in this Order, and specifically may not be disclosed to
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Plaintiff. When the litigation has been terminated, Plaintiff’s counsel must comply
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with the provisions of section 7 below (FINAL DISPOSITION). Nothing in this
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Order affects the right of Defendants to use or disclose the Affinity Card
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Agreement in the ordinary course of business. Such use or disclosure will not
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waive the protections of this Order, and shall not entitle Plaintiff’s counsel to use or
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disclose such Affinity Card Agreement in violation of this Order. Persons
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receiving the Affinity Card Agreement must not reveal or discuss that information
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to or with any person who is not entitled to receive it, except as set forth in this
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Order.
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4.2
Disclosure of Affinity Card Agreement – “Counsel Eyes Only”.
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Unless otherwise ordered by the Court or permitted in writing by the Defendants,
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the Affinity Card Agreement may only be disclosed to:
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(a)
Plaintiff’s counsel of record in this action, as well as
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employees of said counsel to whom it is reasonably necessary to disclose the
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information for this litigation;
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(b)
experts retained by Plaintiff’s counsel related to this
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(c)
the Court and its personnel;
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(d)
court reporters, their staffs, and professional vendors to
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litigation;
whom disclosure is reasonably necessary for this litigation; and
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(e)
any person who received or was sent the document in the
ordinary course of business.
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5.
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If Plaintiff’s counsel learns that, by inadvertence or otherwise, it has
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disclosed the Affinity Card Agreement to any person or in any circumstance not
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authorized under this Stipulated Protective Order, Plaintiff’s counsel must
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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immediately (a) notify the Defendants in writing of the unauthorized disclosures,
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(b) use its best efforts to retrieve all copies of the Affinity Card Agreement,
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(c) inform the person or persons to whom unauthorized disclosures were made of
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all the terms of this Order, and (d) request that such person or persons execute the
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“Agreement to Be Bound” that is attached hereto as Appendix A.
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6.
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Without written permission from Defendants or a court order secured after
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appropriate notice to all interested persons, a party may not file the Affinity Card
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Agreement in the public record in this action. A party that seeks to file the Affinity
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FILING PROTECTED MATERIAL
Card Agreement under seal must comply with Civil Local Rule 79-5.
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7.
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Unless otherwise ordered or agreed in writing by Defendants, within sixty
FINAL DISPOSITION
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days after the final termination of this action, Plaintiff’s counsel must return or
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destroy the Affinity Card Agreement. Thereafter, if requested by Defendants,
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Plaintiff must submit a written certification to the Defendants that affirms that
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Plaintiff has not retained any of the Affinity Card Agreement material.
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Notwithstanding this provision, counsel are entitled to retain an archival copy of all
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pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney
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work product, even if such materials contain the Affinity Card Agreement. Any
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such archival copies that contain or constitute the Affinity Card Agreement remain
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subject to this Protective Order as set forth in Section 3 (DURATION) above.
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8.
MISCELLANEOUS
8.1
Right to Further Relief. Nothing in this Order abridges the right
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of any person to seek its modification by the Court in the future, nor does the Order
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prevent any party from seeking additional or different protections from the Court
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with respect to the Affinity Card Agreement in this case.
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8.2
Right to Assert Other Objections. By stipulating to the entry of
this Protective Order, no party waives any right it otherwise would have to object to
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disclosing or producing any information or item on any ground not addressed in
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this Stipulated Protective Order. Similarly, no party waives any right to object on
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any ground to use of the Affinity Card Agreement in evidence in this case.
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8.3
No waiver. By submitting this stipulation, the parties do not
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waive the right to seek a broader protective order covering other documents and
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information, nor to oppose such an order.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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IT IS SO ORDERED.
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Dated: May 24, 2012
_______________________
Hon. Dean D. Pregerson
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APPENDIX A
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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
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Name and Company/Firm Affiliation:
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Address:
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I declare under penalty of perjury that I have read the attached Stipulated
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Protective Order (“Order”) entered in the above referenced action and agree to be
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bound by its terms. I will employ reasonable measures to control duplication of,
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access to, and distribution of the Affinity Card Agreement, as defined in the Order,
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and I will not reveal such information to or discuss it with, any person who is not
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entitled to receive it.
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I further agree to submit to the jurisdiction of the United States District Court
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for the Central District of California for the purpose of enforcing the terms of the
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Order, and I consent to the personal jurisdiction of that Court in an action to enforce
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the terms of the Order.
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Dated:
(Signature)
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Name:
Address:
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