Legacy v. Wells Fargo Bank et al, No. 3:2016cv00462 - Document 17 (S.D. Cal. 2016)
Court Description: ORDER Granting 15 Joint Motion for Entry of Protective Order. Signed by Magistrate Judge Barbara Lynn Major on 5/12/16. (dlg)
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Legacy v. Wells Fargo Bank et al Doc. 17 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 MARK LEGACY, an individual, Plaintiff, 14 15 Case No. 16-cv-00462-GPC-BLM v. . 16 WELLS FARGO BANK, a National 17 Association; and DOES 1-10, ORDER GRANTING JOINT MOTION FOR ENTRY OF PROTECTIVE ORDER [ECF No. 15] Defendants. 18 19 20 21 22 23 24 25 26 27 28 SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER Dockets.Justia.com 1 STIPULATED PROTECTIVE ORDER 2 A. DEFINITIONS 3 1. As used herein, the term “confidential information” means: (a) 4 information subject to federal or state privacy rights including private financial 5 information; (b) any type of information that has not been made generally available 6 to the public and the disclosure of which the disclosing party contends would cause 7 harm to the disclosing party’s business operations or interests, which could include, 8 but would not be limited to, contracts, customer data, costs of goods or services sold, 9 manufacturing or other costs of doing business, employee personnel information, 10 sales records, inventory sheets, internal policies and procedures, and business 11 strategies; (c) data derived from such confidential information, including any 12 summaries, compilations, quotes, or paraphrases thereof; and (d) any other oral, 13 written, or recorded material that consists of or contains trade secrets (as defined in 14 CALIFORNIA CIVIL CODE § 3426.1(d)) or other confidential research, development, or 15 commercial information and the disclosure of which would result in competitive 16 harm, and for which the designating party has taken reasonable measures to maintain 17 their confidential, non-public status. 18 2. As used herein, the terms “document”, “documents”, “tangible 19 things”, “recordings”, and “photographs” mean documents, writings, tangible things, 20 recordings, and photographs as defined in FED. R. CIV. P. 34(a) and FED. R. EVID. 21 1001, and include, but are not limited to, records, exhibits, reports, samples, 22 transcripts, video or audio recordings, disks, affidavits, briefs, summaries, notes, 23 abstracts, drawings, company records and reports, answers to interrogatories, 24 responses to requests for admissions, and motions, including copies or computer25 stored versions of any of the foregoing. 26 27 B. DESIGNATION OF CONFIDENTIAL INFORMATION 28 1. SMRH:477414696.1 This Protective Order applies to all discovery responses, -116cv462 STIPULATED PROTECTIVE ORDER 1 documents, testimony, and other materials containing confidential information 2 disclosed in this action that are designated by a party or any third party as 3 CONFIDENTIAL, in the manner described below, whether such disclosure is by 4 order of the Court, by response to questions in a deposition, written interrogatories, 5 requests for the production of documents and other tangible things, requests for 6 admission, response to a subpoena, or any other discovery undertaken in this action. 7 2. A party that provides information may designate it as confidential 8 only when such party in good faith believes it contains confidential information. A 9 party designating information as confidential should take reasonable care to designate 10 only that information, documents, items or oral or written communications that the 11 party reasonably believes to qualify for protection. If it 12 comes to a party’s or a non-party’s attention that information or items that it 13 designated for protection do not qualify for protection, that party or non-party should 14 promptly notify all other parties that it is withdrawing the mistaken designation. 15 Any party may protect information it believes constitutes confidential 16 information by designating such information as CONFIDENTIAL prior to or at the 17 time of disclosure of such information. Such designation shall be accomplished by 18 placing the notation CONFIDENTIAL (or some notation essentially equivalent to the 19 phrase CONFIDENTIAL) on every page of each document or portion thereof so 20 designated. In the case of confidential information disclosed in a non-paper medium 21 (e.g., videotape, audiotape, computer disks, etc.), the notation CONFIDENTIAL shall 22 be affixed to the outside of the medium or its container so as to clearly give notice of 23 the designation. Such designation is deemed to apply to the document itself and to 24 the confidential information contained therein. 25 3. Except as set forth in this Protective Order, designated 26 confidential information shall be used solely for the purposes of this litigation and 27 shall not be used for any other purpose, including, without limitation, any business or 28 commercial purpose, or dissemination to the media. Confidential information so -2SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER 1 designated shall not be disclosed to anyone other than those persons permitted by the 2 Protective Order, except as may be ordered by the Court or agreed to in writing by 3 the producing party. If any information designated by a party as CONFIDENTIAL 4 is thereafter used by a party to which it has been produced or disclosed as part of a 5 paper filed or lodged with the Court in this action or in a response to a discovery 6 request in this action, the party using that information shall take all reasonable steps 7 to preserve the continued confidentiality of that designated confidential information. 8 4. The Parties shall use reasonable care to avoid designating any 9 materials as CONFIDENTIAL that are (a) not entitled to such designation, or (b) are 10 generally available to the public. 11 5. The terms of this Protective Order shall not apply to or restrict the 12 disclosure or use by a producing party or its counsel of the producing party’s own 13 confidential information. The voluntary disclosure of confidential information by a 14 producing party, however, may provide grounds for an opposing party to challenge 15 the confidential designation of the same information pursuant to Section E, below. 16 6. A party serving a subpoena or demanding discovery from any 17 third party shall serve a copy of this Protective Order on the third party concurrently 18 with the subpoena or discovery demand. 19 20 C. DISCLOSURE OF DESIGNATED CONFIDENTIAL INFORMATION 21 1. The Parties, counsel for the Parties, and all persons to whom 22 confidential information is disclosed under the terms of this Protective Order shall 23 maintain all designated confidential information in confidence and shall not disclose 24 such information, directly or indirectly, to any person except as provided in this 25 Protective Order. 26 2. Access to information designated as CONFIDENTIAL shall be 27 limited to the following persons: 28 a. SMRH:477414696.1 The attorneys for the Parties (including both outside -316cv462 STIPULATED PROTECTIVE ORDER 1 counsel and in-house counsel) and their support personnel (e.g., legal assistants and 2 copy services); 3 b. Current and former employees of the Parties involved in the 4 prosecution or defense of the litigation, and to whom disclosure of the confidential 5 information is reasonably necessary for the purposes of this litigation; 6 c. The Court and court personnel of any court having 7 jurisdiction over any proceedings involved in this litigation; 8 d. Court reporters, videographers, and their staffs to whom 9 disclosure is reasonably necessary for the purposes of this litigation; 10 e. Consultants and experts, who execute the Declaration 11 Confirming Compliance With Stipulated Protective Order Re Confidential 12 Information (“Compliance Declaration”) attached to this Protective Order; 13 f. Any current employee, director, agent or FED. R. CIV. P. 14 30(b)(6) designee of the producing party; 15 g. Any former employee of a producing party, who executes 16 the Compliance Declaration, that the disclosing party reasonably and in good faith 17 believes authored, received, or became familiar with the confidential information in 18 the ordinary course of his or her employment by the designating party; 19 h. Any author, original source, or prior recipient of the 20 confidential information; 21 i. Deposition witnesses who execute the Compliance 22 Declaration attached to this Protective Order; 23 j. Any other person or entity as to whom the Parties agree in k. Any other person as to whom the Court orders should have 24 writing; and 25 26 access to the confidential information. 27 4. A copy of any Compliance Declaration executed by any person 28 required under this Protective Order shall be maintained by counsel for the party -4SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER 1 making the disclosure of another party’s designated confidential information. 2 3 D. DEPOSITIONS 4 1. With respect to the examination of witnesses upon oral deposition, 5 when designated confidential information is supplied to the deponent, or when the 6 deponent’s testimony contains, reflects, or comments on designated confidential 7 information, the deposition reporter and/or video operator shall be informed of this 8 Protective Order by the party seeking to use or disclose the confidential information. 9 The reporter and/or video operator then shall place on the cover of any deposition 10 transcript or video that contains any designated confidential information the words 11 “CONTAINS CONFIDENTIAL INFORMATION SUBJECT TO A COURT 12 PROTECTIVE ORDER.” Counsel for the Parties then shall take appropriate steps to 13 prevent any portions of any deposition transcript or video designated 14 CONFIDENTIAL from being disclosed to any person, except as provided in this 15 Protective Order. 16 2. All testimony at a deposition shall be presumed to be designated 17 CONFIDENTIAL if this Protective Order is invoked at the deposition for 60 days 18 after the conclusion of the deposition, until the specific pages of the transcript 19 containing designated confidential information are identified and designated 20 CONFIDENTIAL as provided below. For any CONFIDENTIAL designation 21 thereafter, the designating party shall, within sixty (60) days after the completion of 22 the deposition, provide all Parties with a written list of the page(s) of the deposition 23 transcript, and any exhibits attached thereto, that the party has designated 24 CONFIDENTIAL. Only pages containing confidential information shall be so 25 designated. Any party can challenge any portion of the deposition designated as 26 CONFIDENTIAL at any time, but must first meet and confer with the designating 27 party as to the basis for the challenge before seeking Court intervention. 28 3. SMRH:477414696.1 If designated confidential information is to be discussed or -516cv462 STIPULATED PROTECTIVE ORDER 1 disclosed in a deposition, any party claiming such confidentiality may exclude from 2 the room any person who is not entitled to receive such confidential information 3 during that portion of the deposition in which the confidential information is actually 4 discussed or disclosed. 5 6 E. CHALLENGING A DESIGNATION 7 1. The Parties agree that they will actively work to avoid the 8 unnecessary CONFIDENTIAL designation of information produced in discovery in 9 this action. 10 2. In the event that counsel for any party at any time believes that 11 designated confidential information should not be so designated, such counsel shall 12 meet and confer with counsel for the other party in an attempt to resolve the dispute. 13 3. If counsel for the Parties are still unable to resolve the dispute, 14 they shall contact the chambers of Magistrate Judge Barbara L. Major and notify the 15 judge’s staff of the dispute. Unless otherwise instructed by the Court, counsel 16 objecting to the designation of particular information as CONFIDENTIAL may make 17 an application to this Court, to be lodged conditionally under seal, for an Order that 18 the information subject to the dispute be excluded from the protection of the 19 Protective Order. However, unless and until an order of this Court sets aside a 20 designation of information as CONFIDENTIAL, all information so designated shall 21 be treated as CONFIDENTIAL pursuant to the terms of this Protective Order. 22 4. The designating party bears the burden of establishing that the 23 documents designated are entitled to protection. 24 5. No party shall be obliged to challenge the propriety of a 25 CONFIDENTIAL designation, and a failure to do so shall not preclude a subsequent 26 attack on the propriety of such designation. 27 /// 28 -6SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER 1 F. INADVERTENT FAILURE TO DESIGNATE 2 1. The inadvertent failure to designate confidential information as 3 CONFIDENTIAL prior to or at the time of disclosure shall not operate as a waiver 4 of a party’s right to designate such information as CONFIDENTIAL after such 5 disclosure. 6 2. In the event that confidential information is designated as 7 CONFIDENTIAL after disclosure, the receiving party shall employ reasonable efforts 8 to ensure that all previously disclosed information is subsequently treated as 9 CONFIDENTIAL, as appropriate, pursuant to the terms of this Protective Order. 10 3. Should any document or information designated as 11 CONFIDENTIAL be disclosed, through inadvertence or otherwise, to any person or 12 party not authorized to see such materials under this Protective Order, then the 13 disclosing party shall immediately procure the return of the material, and inform 14 counsel for the designating party whose confidential information has thus been 15 disclosed of all relevant information concerning the nature and circumstances of such 16 disclosure. The disclosing party shall also take all reasonable measures promptly to 17 ensure that no further or greater unauthorized disclosure of the Confidential 18 Information occurs. 19 20 G. CUSTODY AND DISPOSITION OF CONFIDENTIAL 21 INFORMATION 22 1. Confidential information designated CONFIDENTIAL shall be 23 maintained in the custody of counsel for the Parties, except for information in the 24 custody of: (a) the Court; (b) any court reporter transcribing testimony given in this 25 action, for the limited purpose of rendering his or her normal transcribing services; 26 and (c) persons to whom the confidential information may be disclosed pursuant to 27 the terms of the Protective Order, including consultants and experts, to the extent 28 necessary for their involvement in the litigation. Except for the Court, a person with -7SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER 1 custody of information designated CONFIDENTIAL shall maintain it in a manner 2 that limits access to it to only those persons entitled under this Protective Order to 3 examine it. 4 2. Unless agreed otherwise in writing, at the conclusion of this 5 litigation, whether by settlement or final decision of the Court of last resort, the 6 Parties, counsel for the Parties, and all persons who executed the Compliance 7 Declaration agree that they will destroy or return to the producing party all copies of 8 any documents, other than attorney work product, containing designated confidential 9 information produced by a party. Notwithstanding the foregoing, counsel of record 10 shall be permitted to retain a file copy of all pre-trial, trial, and post-trial materials, 11 depositions and deposition exhibits, and document databases. Such file copies must 12 be maintained under the conditions of maintaining CONFIDENTIAL documents as 13 set forth above. 14 15 H. MISCELLANEOUS PROVISIONS 16 1. The provisions of this Protective Order apply to all proceedings in 17 this action, including all appeals, arbitrations, mediations, and proceedings upon 18 remand, unless the matter proceeds to trial. The Parties will work with the Court to 19 determine whether evidence proffered at trial should continue to be treated as 20 CONFIDENTIAL and, if so, what protection, if any, may be afforded to such 21 information at trial. 22 2. A designation of confidentiality pursuant to this Protective Order 23 shall be effective and shall be respected by the Parties and all persons in any way 24 involved in these proceedings or to whose attention confidential information shall 25 come unless and until otherwise ordered by the Court or stipulated by the Parties. 26 These obligations of confidentiality and non-disclosure shall survive the conclusion 27 of this action unless and until otherwise ordered by the Court, or until the producing 28 parties stipulate that designated confidential information may be disclosed. -8SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER 1 3. By entering into this Protective Order, no party waives any 2 objections it might have to the production of documents covered by this Protective 3 Order. 4 4. No party to this action, by entering into this Protective Order, by 5 designating certain information as CONFIDENTIAL, or by acquiescing in any other 6 party’s designation, shall be deemed to have admitted or agreed that any such 7 designated information is, in fact, private financial information, proprietary 8 information, a trade secret or other confidential research, development, or commercial 9 information. 10 5. The Court shall retain jurisdiction for one year after the 11 termination of this action to enforce this Protective Order and to make such deletions 12 from or amendments, modifications, and additions to the Protective Order as the Court 13 may from time to time deem appropriate. The Parties, and any producing party, 14 reserve all rights to apply to the Court at any time, before or after termination of this 15 action, for an order modifying this Protective Order or seeking further protection 16 against disclosure or use of claimed confidential information. 17 6. The Court may modify the terms and conditions of the Protective 18 Order for good cause, or in the interest of justice, or on its own order at any time in 19 these proceedings. 20 21 I. FILING OR LODGING UNDER SEAL 22 When a party wishes to include information designated as 23 “CONFIDENTIAL” in any papers filed with the Court, the party submitting the 24 information shall comply with the procedures explained in Section II.j of the 25 Electronic Case Filing Administrative Policies and Procedures Manual for the United 26 States District Court for the Southern District of California, Civil Local Rule 79.2 and 27 the applicable Chambers Rules of the Honorable Barbara L. Major. 28 -9SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER 1 In addition, in accordance with Judge Major’s preferences, a party must 2 file a ‘public’ version of any document that it seeks to file under seal. In the public 3 version, the party may redact only that information that is deemed ‘Confidential.’ The 4 party should file the redacted document(s) simultaneously with a joint motion or ex 5 parte application requesting that the confidential portions of the document(s) be filed 6 under seal and setting forth good cause for the request. 7 8 J. GOOD CAUSE STATEMENT 9 Pursuant to FED. R. CIV. P. 26(c)(7), good cause exists for entry of this 10 Protective Order because the Parties to this action (1) either have sought or might seek 11 the discovery of certain information in this action that the Parties believe is sensitive 12 or confidential, (2) believe that unrestricted disclosure or dissemination of such 13 information could violate their right to financial privacy or cause them business or 14 commercial injury, (3) desire an efficient and practicable means to designate such 15 information as confidential and control its disclosure or dissemination, and (4) have 16 agreed to such means as set forth herein. 17 18 STIPULATED PROTECTIVE ORDER 19 In consideration of the Parties’ Joint Motion, and for good cause 20 appearing, IT IS HEREBY ORDERED that the Protective Order is GRANTED. 21 Dated: 5/ 12/ 2016 22 23 24 25 26 27 28 -10SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER 1 DECLARATION CONFIRMING COMPLIANCE WITH STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 2 I, ___________________________, hereby declare: 3 4 5 1. My address is ________________________________________. My telephone number is (______) ______ - ________. 6 7 8 9 10 11 2. I have read, understand and agree to be bound by the terms of the Stipulated Protective Order Re Confidential Information (“Protective Order”), entered in this action, Mark Legacy v. Wells Fargo Bank, N.A.. Case No. 16-cv00462-GPC-BLM, in the United States District Court, Southern District of California. 12 13 14 15 16 3. I understand that this Protective Order requires me not to disclose any information designated as CONFIDENTIAL, which is provided to me in the course of my involvement in this litigation, to any person not authorized by this Protective Order to receive such information. 17 18 19 20 21 22 4. I agree that I shall return or destroy all documents containing any information designated as CONFIDENTIAL that have been provided to me, together with any work product including such information designated as CONFIDENTIAL, upon demand by the Court or the counsel or party who furnished such information to me. 23 24 25 26 27 28 -11SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER 1 5. I consent to the jurisdiction of the United States District Court 2 for the Southern District of California with respect to any actions of any kind 3 whatsoever relative to the enforcement of the Protective Order. 4 5 I declare under penalty of perjury under the laws of the United States of 6 America that the foregoing is true and correct. 7 8 Executed on _______________________________, 20__ at 9 ____________________________ (city), __________________________(state). 10 11 12 13 Signature 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12SMRH:477414696.1 16cv462 STIPULATED PROTECTIVE ORDER
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