Sapaden v. Synchrony Bank ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 FRANCISCO SAPADEN, Case No.: 2:21-cv-00088-KJM-JDP 11 Plaintiff, 12 UNIFORM STIPULATED v. PROTECTIVE ORDER 13 SYNCHRONY BANK; FIRST ECF No. 29 14 NATIONAL BANK OF OMAHA; EXPERIAN INFORMATION 15 SOLUTIONS, INC.; and TRANSUNION, LLC 16 Defendants. 17 18 19 The Court recognizes that at least some of the documents and information 20 (“materials”) being sought through discovery in the above-captioned action are, for 21 competitive reasons, normally kept confidential by the parties. The parties have agreed 22 to be bound by the terms of this Protective Order (“Order”) in this action. 23 The materials to be exchanged throughout the course of the litigation between the 24 parties may contain trade secret or other confidential research, technical, cost, price, 25 marketing or other commercial information, as is contemplated by Federal Rule of Civil 26 Procedure 26(c)(1)(G). The purpose of this Order is to protect the confidentiality of 27 such materials as much as practical during the litigation. THEREFORE: 28 1 DEFINITIONS 2 1. The term “confidential information” will mean and include information 3 contained or disclosed in any materials, including documents, portions of documents, 4 answers to interrogatories, responses to requests for admissions, trial testimony, 5 deposition testimony, and transcripts of trial testimony and depositions, including data, 6 summaries, and compilations derived therefrom that is deemed to be confidential 7 information by any party to which it belongs. 8 2. The term “materials” will include, but is not be limited to: documents; 9 correspondence; memoranda; bulletins; blueprints; specifications; customer lists or 10 other material that identify customers or potential customers; price lists or schedules or 11 other matter identifying pricing; minutes; telegrams; letters; statements; cancelled 12 checks; contracts; invoices; drafts; books of account; worksheets; notes of 13 conversations; desk diaries; appointment books; expense accounts; recordings; 14 photographs; motion pictures; compilations from which information can be obtained 15 and translated into reasonably usable form through detection devices; sketches; 16 drawings; notes (including laboratory notebooks and records); reports; instructions; 17 disclosures; other writings; models and prototypes and other physical objects. 18 3. The term “counsel” will mean outside counsel of record, and other 19 attorneys, paralegals, secretaries, and other support staff employed in the law firms 20 identified below: Reed Smith LLP, McCarthy Law, PLC, and Cory J. Rooney, Esq.. 21 GENERAL RULES 22 4. Each party to this litigation that produces or discloses any materials, 23 answers to interrogatories, responses to requests for admission, trial testimony, 24 deposition testimony, and transcripts of trial testimony and depositions, or information 25 that the producing party believes should be subject to this Protective Order may 26 designate the same as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL 27 ONLY.” 28 a. Designation as “CONFIDENTIAL”: Any party may designate 1 information as “CONFIDENTIAL” only if, in the good faith belief 2 of such party and its counsel, the unrestricted disclosure of such 3 information could be potentially prejudicial to the business or 4 operations of such party. 5 b. Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”: Any 6 party may designate information as “CONFIDENTIAL - FOR 7 COUNSEL ONLY” only if, in the good faith belief of such party 8 and its counsel, the information is among that considered to be most 9 sensitive by the party, including but not limited to trade secret or 10 other confidential research, development, financial or other 11 commercial information. 12 5. In the event the producing party elects to produce materials for inspection, 13 no marking need be made by the producing party in advance of the initial inspection. 14 For purposes of the initial inspection, all materials produced will be considered as 15 “CONFIDENTIAL - FOR COUNSEL ONLY,” and must be treated as such pursuant 16 to the terms of this Order. Thereafter, upon selection of specified materials for copying 17 by the inspecting party, the producing party must, within a reasonable time prior to 18 producing those materials to the inspecting party, mark the copies of those materials 19 that contain confidential information with the appropriate confidentiality marking. 20 6. Whenever a deposition taken on behalf of any party involves a disclosure 21 of confidential information of any party: 22 a. the deposition or portions of the deposition must be designated as 23 containing confidential information subject to the provisions of this 24 Order; such designation must be made on the record whenever 25 possible, but a party may designate portions of depositions as 26 containing confidential information after transcription of the 27 proceedings; [A] party will have until fourteen (14) days after 28 receipt of the deposition transcript to inform the other party or 1 parties to the action of the portions of the transcript to be designated 2 “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL 3 ONLY.” 4 b. the disclosing party will have the right to exclude from attendance 5 at the deposition, during such time as the confidential information is 6 to be disclosed, any person other than the deponent, counsel 7 (including their staff and associates), the court reporter, and the 8 person(s) agreed upon pursuant to paragraph 8 below; and 9 c. the originals of the deposition transcripts and all copies of the 10 deposition must bear the legend “CONFIDENTIAL” or 11 “CONFIDENTIAL - FOR COUNSEL ONLY,” as appropriate, and 12 the original or any copy ultimately presented to a court for filing 13 must not be filed unless it can be accomplished under seal, identified 14 as being subject to this Order, and protected from being opened 15 except by order of this Court. 16 7. All confidential information designated as “CONFIDENTIAL” or 17 “CONFIDENTIAL FOR COUNSEL ONLY” must not be disclosed by the receiving 18 party to anyone other than those persons designated within this order and must be 19 handled in the manner set forth below and, in any event, must not be used for any 20 purpose other than in connection with this litigation, unless and until such designation 21 is removed either by agreement of the parties, or by order of the Court. 22 8. Information designated “CONFIDENTIAL - FOR COUNSEL ONLY” 23 must be viewed only by counsel (as defined in paragraph 3) of the receiving party, and 24 by independent experts under the conditions set forth in this Paragraph. The right of 25 any independent expert to receive any confidential information will be subject to the 26 advance approval of such expert by the producing party or by permission of the Court. 27 The party seeking approval of an independent expert must provide the producing party 28 with the name and curriculum vitae of the proposed independent expert, and an executed 1 copy of the form attached hereto as Exhibit A, in advance of providing any confidential 2 information of the producing party to the expert. Any objection by the producing party 3 to an independent expert receiving confidential information must be made in writing 4 within fourteen (14) days following receipt of the identification of the proposed expert. 5 Confidential information may be disclosed to an independent expert if the fourteen (14) 6 day period has passed and no objection has been made. The approval of independent 7 experts must not be unreasonably withheld. 8 9. Information designated “confidential” must be viewed only by counsel (as 9 defined in paragraph 3) of the receiving party, by independent experts (pursuant to the 10 terms of paragraph 8), by court personnel, and by the additional individuals listed 11 below, provided each such individual has read this Order in advance of disclosure and 12 has agreed in writing to be bound by its terms: 13 a) Executives who are required to participate in policy decisions with 14 reference to this action; 15 b) Technical personnel of the parties with whom Counsel for the 16 parties find it necessary to consult, in the discretion of such counsel, 17 in preparation for trial of this action; and 18 c) Stenographic and clerical employees associated with the individuals 19 identified above. 20 10. With respect to material designated “CONFIDENTIAL” or 21 “CONFIDENTIAL – FOR COUNSEL ONLY,” any person indicated on the face of the 22 document to be its originator, author or a recipient of a copy of the document, may be 23 shown the same. 24 11. All information which has been designated as “CONFIDENTIAL” or 25 “CONFIDENTIAL -FOR COUNSEL ONLY” by the producing or disclosing party, and 26 any and all reproductions of that information, must be retained in the custody of the 27 counsel for the receiving party identified in paragraph 3, except that independent experts 28 authorized to view such information under the terms of this Order may retain custody 1 of copies such as are necessary for their participation in this litigation. 2 12. Before any materials produced in discovery, answers to interrogatories, 3 responses to requests for admissions, deposition transcripts, or other documents which 4 are designated as confidential information are filed with the Court for any purpose, the 5 party seeking to file such material must seek permission of the Court to file the material 6 under seal. 7 13. At any stage of these proceedings, any party may object to a designation 8 of the materials as confidential information. The party objecting to confidentiality must 9 notify, in writing, counsel for the designating party of the objected-to materials and the 10 grounds for the objection. If the dispute is not resolved consensually between the parties 11 within seven (7) days of receipt of such a notice of objections, the objecting party may 12 move the Court for a ruling on the objection. The materials at issue must be treated as 13 confidential information, as designated by the designating party, until the Court has 14 ruled on the objection or the matter has been otherwise resolved. 15 14. All confidential information must be held in confidence by those 16 inspecting or receiving it, and must be used only for purposes of this action. Counsel 17 for each party, and each person receiving confidential information must take reasonable 18 precautions to prevent the unauthorized or inadvertent disclosure of such information. 19 If confidential information is disclosed to any person other than a person authorized by 20 this Order, the party responsible for the unauthorized disclosure must immediately bring 21 all pertinent facts relating to the unauthorized disclosure to the attention of the other 22 parties and, without prejudice to any rights and remedies of the other parties, make 23 every effort to prevent further disclosure by the party and by the person(s) receiving the 24 unauthorized disclosure. 25 15. No party will be responsible to another party for disclosure of confidential 26 information under this Order if the information in question is not labeled or otherwise 27 identified as such in accordance with this Order. 28 16. If a party, through inadvertence, produces any confidential information 1 without labeling or marking or otherwise designating it as such in accordance with this 2 Order, the designating party may give written notice to the receiving party that the 3 document or thing produced is deemed confidential information, and that the document 4 or thing produced should be treated as such in accordance with that designation under 5 this Order. The receiving party must treat the materials as confidential, once the 6 designating party so notifies the receiving party. If the receiving party has disclosed 7 the materials before receiving the designation, the receiving party must notify the 8 designating party in writing of each such disclosure. Counsel for the parties will agree 9 on a mutually acceptable manner of labeling or marking the inadvertently produced 10 materials as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY” - 11 SUBJECT TO PROTECTIVE ORDER. 12 17. Nothing within this order will prejudice the right of any party to object to 13 the production of any discovery material on the grounds that the material is protected 14 as privileged or as attorney work product. 15 18. Nothing in this Order will bar counsel from rendering advice to their 16 clients with respect to this litigation and, in the course thereof, relying upon any 17 information designated as confidential information, provided that the contents of the 18 information must not be disclosed. 19 19. This Order will be without prejudice to the right of any party to oppose 20 production of any information for lack of relevance or any other ground other than the 21 mere presence of confidential information. The existence of this Order must not be 22 used by either party as a basis for discovery that is otherwise improper under the Federal 23 Rules of Civil Procedure. 24 20. Nothing within this order will be construed to prevent disclosure of 25 confidential information if such disclosure is required by law or by order of the Court. 26 21. Upon final termination of this action, including any and all appeals, 27 counsel for each party must, upon request of the producing party, return all confidential 28 information to the party that produced the information, including any copies, excerpts, 1 and summaries of that information, or must destroy same at the option of the receiving 2 party, and must purge all such information from all machine-readable media on which 3 it resides. Notwithstanding the foregoing, counsel for each party may retain all 4 pleadings, briefs, memoranda, motions, and other documents filed with the Court that 5 refer to or incorporate confidential information, and will continue to be bound by this 6 Order with respect to all such retained information. Further, attorney work product 7 materials that contain confidential information need not be destroyed, but, if they are 8 not destroyed, the person in possession of the attorney work product will continue to be 9 bound by this Order with respect to all such retained information. 10 22. The restrictions and obligations set forth within this order will not apply to 11 any information that: (a) the parties agree should not be designated confidential 12 information; (b) the parties agree, or the Court rules, is already public knowledge; (c) 13 the parties agree, or the Court rules, has become public knowledge other than as a result 14 of disclosure by the receiving party, its employees, or its agents in violation of this 15 Order; or (d) has come or will come into the receiving party’s legitimate knowledge 16 independently of the production by the designating party. Prior knowledge must be 17 established by pre-production documentation. 18 23. The restrictions and obligations within this order will not be deemed to 19 prohibit discussions of any confidential information with anyone if that person already 20 has or obtains legitimate possession of that information. 21 24. Transmission by email or some other currently utilized method of 22 transmission is acceptable for all notification purposes within this Order. 23 25. This Order may be modified by agreement of the parties, subject to 24 approval by the Court. 25 26. The Court may modify the terms and conditions of this Order for good 26 cause, or in the interest of justice, or on its own order at any time in these proceedings. 27 The parties prefer that the Court provide them with notice of the Court’s intent to modify 28 the Order and the content of those modifications, prior to entry of such an order. 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 DATED: June 9, 2021 McCARTHY LAW PLC 4 /s/ Garrett F. Charity Garrett F. Charity 5 Email: Garrett.Charity@mccarthylawyer.com 4250 N. Drinkwater Blvd. Suite 320 6 Scottsdale, AZ 85251 Telephone: (602) 456-8900 7 Attorneys for Plaintiff FRANCISCO SAPADEN 8 9 DATED: June 9, 2021 REED SMITH LLP 10 /s/ Steven P. Warner1 Steven P. Warner 11 Email: swarner@reedsmith.com 355 South Grand Avenue, Suite 2900 12 Los Angeles, CA 90071-1514 Telephone: (213) 457-8000 13 Attorneys for Defendant SYNCHRONY BANK 14 15 DATED: June 9, 2021 LAW OFFICE OF CORY J. ROONEY 16 /s/ Cory J. Rooney Cory J. Rooney 17 Email: rooneylaw@outlook.com P.O. Box 382 18 Omaha, NE 68101 Telephone: (402) 933-9865 19 Attorney for Defendant FIRST NATIONAL BANK OF OMAHA 20 21 22 23 24 25 26 27 1 Pursuant to Eastern District Local Rule 131(e), filing counsel attests that all other signatories listed, and on whose behalf this filing is submitted, concur in the filing’s 28 1 ORDER 2 The court has reviewed the parties’ stipulated protective order, ECF No. 29, and finds it comports with the relevant authorities and the court’s applicable local rule. 4|| See L.R. 141.1(c)*; see also Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 5|| F.3d 1206, 1210 (9th Cir. 2002) (requiring a showing of good cause for protective orders). The order lists categories of information to be protected, including trade 7|| secrets, proprietary information, and documents with personal identity information. The court approves the protective order subject to the following clarification. 9 Local Rules state that once this action is closed, “unless otherwise ordered, the 10} court will not retain jurisdiction over enforcement of the terms of any protective order filed in that action.” L.R. 141.1(f). Courts in the district generally do not elect to retain jurisdiction for disputes concerning protective orders after closure of the case. 13|| See, e.g., MD Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., Feb. 14] 03, 2017). In keeping with this practice, the court will not retain jurisdiction in this 15|| case once the case is closed. 16] Ir Is SO ORDERED. 17 / 18|| Dated: _ June 11, 2021 q——— JEREMY D. PETERSON 19 UNITED STATES MAGISTRATE JUDGE 20 21 The Court’s Local Rules instruct the parties, when requesting a protective order, to include in their submission: 3 (1) A description of the types of information eligible for protection under the order, with the description provided in eneral terms sufficient to reveal the nature of the information Sd) customer list, formula for soda, diary of a troubled child); 25 (2) A showing of particularized need for protection as to each 6 category ot information proposed to be covered by the order; an 17 (3) A showing as to why the need for protection should be addressed by a court order, as opposed to a private agreement 28 between or among the parties. Local Rule 141.1(c). -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28