Suckut v. AllTran Financial, LP ( 2022 )

1 James K. Schultz, Esq. (SBN 309945) 2 SESSIONS ISRAEL & SHARTLE, L.L.P. 1550 Hotel Circle North, Suite 260 3 San Diego, CA 92108-3426 4 Tel: 619/758-1891 Fax: 877/334-0661 5 jschultz@sessions.legal 6 Attorney for Alltran Financial, LP 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS SUCKUT, ) Case No.: 1:22-CV-00695-BAM ) 12 ) Plaintiff, ) 13 vs. ) [PROPOSED] STIPULATED ) 14 ) PROTECTIVE ORDER ALLTRAN FINANCIAL, LP ) 15 c/o CT CORPORATION SYSTEM ) ) 16 7700 E Arapahoe Rd., Suite 220 ) ) Centennial, CO 80112 17 ) ) 18 Defendant. ) ) 19 ) ) 20 21 1. PURPOSES AND LIMITATIONS 22 Disclosure and discovery activity in this action are likely to involve 23 production of confidential, proprietary, or private information for which special 24 protection from public disclosure and from use for any purpose other than 25 prosecuting this litigation may be warranted. Such information consists of, among 26 other things, personal consumer information, confidential business or financial 27 information, information regarding confidential business practices, or other 28 1 commercially sensitive information that is otherwise generally unavailable to the 2 public, or which may be privileged or otherwise protected from disclosure under 3 state or federal statutes, court rules, case decisions, or common law. Accordingly, 4 the parties hereby stipulate to and petition the court to enter the following Stipulated 5 Protective Order. The parties acknowledge that this Order does not confer blanket 6 protections on all disclosures or responses to discovery and that the protection it 7 affords from public disclosure and use extends only to the limited information or 8 items that are entitled to confidential treatment under the applicable legal principles. 9 The parties further acknowledge, as set forth in Section 12.3, below, that this 10 Stipulated Protective Order does not entitle them to file confidential information 11 under seal; Civil Local Rule 141 sets forth the procedures that must be followed and 12 the standards that will be applied when a party seeks permission from the court to 13 file material under seal. 14 15 2. DEFINITIONS 16 2.1 Challenging Party: a Party or Non-Party that challenges the designation 17 of information or items under this Order. 18 2.2 “CONFIDENTIAL” Information or Items: information (regardless of 19 how it is generated, stored or maintained) or tangible things that qualify for 20 protection under Federal Rule of Civil Procedure 26(c). 21 2.3 Counsel (without qualifier): Outside Counsel of Record and House 22 Counsel (as well as their support staff). 23 2.4 Designating Party: a Party or Non-Party that designates information or 24 items that it produces in disclosures or in responses to discovery as 25 “CONFIDENTIAL.” 26 2.5 Disclosure or Discovery Material: all items or information, regardless of 27 the medium or manner in which it is generated, stored, or maintained (including, 28 1 among other things, testimony, transcripts, and tangible things), that are produced or 2 generated in disclosures or responses to discovery in this matter. 3 2.6 Expert: a person with specialized knowledge or experience in a matter 4 pertinent to the litigation who has been retained by a Party or its counsel to serve as 5 an expert witness or as a consultant in this action. 6 2.7 House Counsel: attorneys who are employees of a party to this action. 7 House Counsel does not include Outside Counsel of Record or any other outside 8 counsel. 9 2.8 Non-Party: any natural person, partnership, corporation, association, or 10 other legal entity not named as a Party to this action. 11 2.9 Outside Counsel of Record: attorneys who are not employees of a party 12 to this action but are retained to represent or advise a party to this action and have 13 appeared in this action on behalf of that party or are affiliated with a law firm which 14 15 has appeared on behalf of that party. 16 2.10 Party: any party to this action, including all of its officers, directors, 17 employees, consultants, retained experts, and Outside Counsel of Record (and their 18 support staffs). 19 2.11 Producing Party: a Party or Non-Party that produces Disclosure or 20 Discovery Material in this action. 21 2.12 Professional Vendors: persons or entities that provide litigation support 22 services (e.g., photocopying, videotaping, translating, preparing exhibits or 23 demonstrations, and organizing, storing, or retrieving data in any form or medium) 24 and their employees and subcontractors. 25 2.13 Protected Material: any Disclosure or Discovery Material that is 26 designated as “CONFIDENTIAL.” 27 28 1 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material 2 from a Producing Party. 3 3. SCOPE 4 The protections conferred by this Stipulation and Order cover not only 5 Protected Material (as defined above), but also (1) any information copied or 6 extracted from Protected Material; (2) all copies, excerpts, summaries, or 7 compilations of Protected Material; and (3) any testimony, conversations, or 8 presentations by Parties or their Counsel that might reveal Protected Material. 9 However, the protections conferred by this Stipulation and Order do not cover the 10 following information: (a) any information that is in the public domain at the time of 11 disclosure to a Receiving Party or becomes part of the public domain after its 12 disclosure to a Receiving Party as a result of publication not involving a violation of 13 this Order, including becoming part of the public record through trial or otherwise; 14 15 and (b) any information known to the Receiving Party prior to the disclosure or 16 obtained by the Receiving Party after the disclosure from a source who obtained the 17 information lawfully and under no obligation of confidentiality to the Designating 18 Party. Any use of Protected Material at trial shall be governed by a separate 19 agreement or order. 20 4. DURATION 21 Even after final disposition of this litigation, the confidentiality obligations 22 imposed by this Order shall remain in effect until a Designating Party agrees 23 otherwise in writing or a court order otherwise directs. Final disposition shall be 24 deemed to be the later of (1) dismissal of all claims and defenses in this action, with 25 or without prejudice; and (2) final judgment herein after the completion and 26 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 27 28 1 including the time limits for filing any motions or applications for extension of time 2 pursuant to applicable law. 3 5. DESIGNATING PROTECTED MATERIAL 4 5.1 Exercise of Restraint and Care in Designating Material for Protection. 5 Each Party or Non-Party that designates information or items for protection under 6 this Order must take care to limit any such designation to specific material that 7 qualifies under the appropriate standards. The Designating Party must designate for 8 protection only those parts of material, documents, items, or oral or written 9 communications that qualify – so that other portions of the material, documents, 10 items, or communications for which protection is not warranted are not swept 11 unjustifiably within the ambit of this Order. 12 Mass, indiscriminate, or routinized designations are prohibited. Designations 13 that are shown to be clearly unjustified or that have been made for an improper 14 15 purpose (e.g., to unnecessarily encumber or retard the case development process or 16 to impose unnecessary expenses and burdens on other parties) expose the 17 Designating Party to sanctions. 18 If it comes to a Designating Party’s attention that information or items that it 19 designated for protection do not qualify for protection, that Designating Party must 20 promptly notify all other Parties that it is withdrawing the mistaken designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in 22 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 23 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 24 under this Order must be clearly so designated before the material is disclosed or 25 produced. 26 Designation in conformity with this Order requires: 27 28 1 (a) For information in documentary form (e.g., paper or electronic documents, 2 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 3 Producing Party affix the legend “CONFIDENTIAL” to each page that contains 4 protected material. If only a portion or portions of the material on a page qualifies for 5 protection, the Producing Party also must clearly identify the protected portion(s) 6 (e.g., by making appropriate markings in the margins). 7 A Party or Non-Party that makes original documents or materials available for 8 inspection need not designate them for protection until after the inspecting Party has 9 indicated which material it would like copied and produced. During the inspection 10 and before the designation, all of the material made available for inspection shall be 11 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 12 it wants copied and produced, the Producing Party must determine which documents, 13 or portions thereof, qualify for protection under this Order. Then, before producing 14 15 the specified documents, the Producing Party must affix the “CONFIDENTIAL” 16 legend to each page that contains Protected Material. If only a portion or portions of 17 the material on a page qualifies for protection, the Producing Party also must clearly 18 identify the protected portion(s) (e.g., by making appropriate markings in the 19 margins). 20 (b) for testimony given in deposition or in other pretrial or trial proceedings, 21 that the Designating Party identify on the record, before the close of the deposition, 22 hearing, or other proceeding, all protected testimony. 23 (c) for information produced in some form other than documentary and for any 24 other tangible items, that the Producing Party affix in a prominent place on the 25 exterior of the container or containers in which the information or item is stored the 26 legend “CONFIDENTIAL.” If only a portion or portions of the information or item 27 28 1 warrant protection, the Producing Party, to the extent practicable, shall identify the 2 protected portion(s). 3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 4 failure to designate qualified information or items does not, standing alone, waive 5 the Designating Party’s right to secure protection under this Order for such material. 6 Upon timely correction of a designation, the Receiving Party must make reasonable 7 efforts to assure that the material is treated in accordance with the provisions of this 8 Order. 9 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 10 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 11 designation of confidentiality at any time. Unless a prompt challenge to a 12 Designating Party’s confidentiality designation is necessary to avoid foreseeable, 13 substantial unfairness, unnecessary economic burdens, or a significant disruption or 14 15 delay of the litigation, a Party does not waive its right to challenge a confidentiality 16 designation by electing not to mount a challenge promptly after the original 17 designation is disclosed. 18 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 19 resolution process by providing written notice of each designation it is challenging 20 and describing the basis for each challenge. To avoid ambiguity as to whether a 21 challenge has been made, the written notice must recite that the challenge to 22 confidentiality is being made in accordance with this specific paragraph of the 23 Protective Order. The parties shall attempt to resolve each challenge in good faith 24 and must begin the process by conferring directly (in voice to voice dialogue; other 25 forms of communication are not sufficient) within 14 days of the date of service of 26 notice. In conferring, the Challenging Party must explain the basis for its belief that 27 the confidentiality designation was not proper and must give the Designating Party 28 1 an opportunity to review the designated material, to reconsider the circumstances, 2 and, if no change in designation is offered, to explain the basis for the chosen 3 designation. A Challenging Party may proceed to the next stage of the challenge 4 process only if it has engaged in this meet and confer process first or establishes that 5 the Designating Party is unwilling to participate in the meet and confer process in a 6 timely manner. 7 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without 8 court intervention, the Designating Party shall file and serve a motion to retain 9 confidentiality under Civil Local Rule 230 (and in compliance with Civil Local Rule 10 141, if applicable) within 21 days of the initial notice of challenge or within 14 days 11 of the parties agreeing that the meet and confer process will not resolve their dispute, 12 whichever is earlier. Each such motion must be accompanied by a competent 13 declaration affirming that the movant has complied with the meet and confer 14 15 requirements imposed in the preceding paragraph. Failure by the Designating Party 16 to make such a motion including the required declaration within 21 days (or 14 days, 17 if applicable) shall automatically waive the confidentiality designation for each 18 challenged designation. In addition, the Challenging Party may file a motion 19 challenging a confidentiality designation at any time if there is good cause for doing 20 so, including a challenge to the designation of a deposition transcript or any portions 21 thereof. Any motion brought pursuant to this provision must be accompanied by a 22 competent declaration affirming that the movant has complied with the meet and 23 confer requirements imposed by the preceding paragraph. 24 The burden of persuasion in any such challenge proceeding shall be on the 25 Designating Party. Frivolous challenges, and those made for an improper purpose 26 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 27 expose the Challenging Party to sanctions. Unless the Designating Party has waived 28 1 the confidentiality designation by failing to file a motion to retain confidentiality as 2 described above, all parties shall continue to afford the material in question the level 3 of protection to which it is entitled under the Producing Party’s designation until the 4 court rules on the challenge. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is 7 disclosed or produced by another Party or by a Non-Party in connection with this 8 case only for prosecuting, defending, or attempting to settle this litigation. Such 9 Protected Material may be disclosed only to the categories of persons and under the 10 conditions described in this Order. When the litigation has been terminated, a 11 Receiving Party must comply with the provisions of section 13 below (FINAL 12 DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a 14 15 location and in a secure manner that ensures that access is limited to the persons 16 authorized under this Order. 17 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 18 otherwise ordered by the court or permitted in writing by the Designating Party, a 19 Receiving Party may disclose any information or item designated 20 “CONFIDENTIAL” only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 22 employees of said Outside Counsel of Record to whom it is reasonably necessary to 23 disclose the information for this litigation and who have signed the 24 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 25 A; 26 27 28 1 (b) the officers, directors, and employees (including House Counsel) of the 2 Receiving Party to whom disclosure is reasonably necessary for this litigation and 3 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (c) Experts (as defined in this Order) of the Receiving Party to whom 5 disclosure is reasonably necessary for this litigation and who have signed the 6 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 (d) the court and its personnel; 8 (e) court reporters and their staff, professional jury or trial consultants, mock 9 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this 10 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” 11 (Exhibit A); 12 (f) during their depositions, witnesses in the action to whom disclosure is 13 reasonably necessary and who have signed the “Acknowledgment and Agreement to 14 15 Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered 16 by the court. Pages of transcribed deposition testimony or exhibits to depositions that 17 reveal Protected Material must be separately bound by the court reporter and may not 18 be disclosed to anyone except as permitted under this Stipulated Protective Order. 19 (g) the author or recipient of a document containing the information or a 20 custodian or other person who otherwise possessed or knew the information. 21 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 22 OTHER LITIGATION 23 If a Party is served with a subpoena or a court order issued in other litigation 24 that compels disclosure of any information or items designated in this action as 25 “CONFIDENTIAL,” that Party must: 26 (a) promptly notify in writing the Designating Party. Such notification shall 27 include a copy of the subpoena or court order; 28 1 (b) promptly notify in writing the party who caused the subpoena or order to 2 issue in the other litigation that some or all of the material covered by the subpoena 3 or order is subject to this Protective Order. Such notification shall include a copy of 4 this Stipulated Protective Order; and 5 (c) cooperate with respect to all reasonable procedures sought to be pursued by 6 the Designating Party whose Protected Material may be affected. 7 If the Designating Party timely seeks a protective order, the Party served with 8 the subpoena or court order shall not produce any information designated in this 9 action as “CONFIDENTIAL” before a determination by the court from which the 10 subpoena or order issued, unless the Party has obtained the Designating Party’s 11 permission. The Designating Party shall bear the burden and expense of seeking 12 protection in that court of its confidential material – and nothing in these provisions 13 should be construed as authorizing or encouraging a Receiving Party in this action to 14 15 disobey a lawful directive from another court. 16 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 17 PRODUCED IN THIS LITIGATION 18 (a) The terms of this Order are applicable to information produced by a Non- 19 Party in this action and designated as “CONFIDENTIAL.” Such information 20 produced by Non-Parties in connection with this litigation is protected by the 21 remedies and relief provided by this Order. Nothing in these provisions should be 22 construed as prohibiting a Non-Party from seeking additional protections. 23 (b) In the event that a Party is required, by a valid discovery request, to 24 produce a Non-Party’s confidential information in its possession, and the Party is 25 subject to an agreement with the Non-Party not to produce the Non-Party’s 26 confidential information, then the Party shall: 27 28 1 (1) promptly notify in writing the Requesting Party and the Non-Party that 2 some or all of the information requested is subject to a confidentiality agreement 3 with a Non-Party; 4 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 5 Order in this litigation, the relevant discovery request(s), and a reasonably specific 6 description of the information requested; and 7 (3) make the information requested available for inspection by the Non-Party. 8 (c) If the Non-Party fails to object or seek a protective order from this court 9 within 14 days of receiving the notice and accompanying information, the Receiving 10 Party may produce the Non-Party’s confidential information responsive to the 11 discovery request. If the Non-Party timely seeks a protective order, the Receiving 12 Party shall not produce any information in its possession or control that is subject to 13 the confidentiality agreement with the Non-Party before a determination by the 14 15 court. Absent a court order to the contrary, the Non-Party shall bear the burden and 16 expense of seeking protection in this court of its Protected Material. 17 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 19 Protected Material to any person or in any circumstance not authorized under this 20 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 21 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 22 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 23 persons to whom unauthorized disclosures were made of all the terms of this Order, 24 and (d) request such person or persons to execute the “Acknowledgment and 25 Agreement to Be Bound” that is attached hereto as Exhibit A. 26 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 27 PROTECTED MATERIAL 28 1 When a Producing Party gives notice to Receiving Parties that certain 2 inadvertently produced material is subject to a claim of privilege or other protection, 3 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 4 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 5 may be established in an e-discovery order that provides for production without prior 6 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 7 parties reach an agreement on the effect of disclosure of a communication or 8 information covered by the attorney-client privilege or work product protection, the 9 parties may incorporate their agreement in the stipulated protective order submitted 10 to the court. 11 12. MISCELLANEOUS 12 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 13 person to seek its modification by the court in the future. 14 15 12.2 Right to Assert Other Objections. By stipulating to the entry of this 16 Protective Order no Party waives any right it otherwise would have to object to 17 disclosing or producing any information or item on any ground not addressed in this 18 Stipulated Protective Order. Similarly, no Party waives any right to object on any 19 ground to use in evidence of any of the material covered by this Protective Order. 20 12.3 Filing Protected Material. Without written permission from the 21 Designating Party or a court order secured after appropriate notice to all interested 22 persons, a Party may not file in the public record in this action any Protected 23 Material. A Party that seeks to file under seal any Protected Material must comply 24 with Civil Local Rule 141. Protected Material may only be filed under seal pursuant 25 to a court order authorizing the sealing of the specific Protected Material at issue. 26 Pursuant to Civil Local Rule 141, a sealing order will issue only upon a request 27 establishing that the Protected Material at issue is privileged, protectable as a trade 28 1 secret, or otherwise entitled to protection under the law. If a Receiving Party's 2 request to file Protected Material under seal pursuant to Civil Local Rule 141 is 3 denied by the court, then the Receiving Party may file the information in the public 4 record pursuant to Civil Local Rule 141 unless otherwise instructed by the court. 5 13. FINAL DISPOSITION 6 Within 60 days after the final disposition of this action, as defined in 7 paragraph 4, each Receiving Party must return all Protected Material to the 8 Producing Party or destroy such material. As used in this subdivision, “all Protected 9 Material” includes all copies, abstracts, compilations, summaries, and any other 10 format reproducing or capturing any of the Protected Material. Whether the 11 Protected Material is returned or destroyed, the Receiving Party must submit a 12 written certification to the Producing Party (and, if not the same person or entity, to 13 the Designating Party) by the 60 day deadline that (1) identifies (by category, where 14 15 appropriate) all the Protected Material that was returned or destroyed and (2) affirms 16 that the Receiving Party has not retained any copies, abstracts, compilations, 17 summaries or any other format reproducing or capturing any of the Protected 18 Material. Notwithstanding this provision, Counsel are entitled to retain an archival 19 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 20 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 21 work product, and consultant and expert work product, even if such materials contain 22 Protected Material. Any such archival copies that contain or constitute Protected 23 Material remain subject to this Protective Order as set forth in Section 4 24 (DURATION). 25 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 26 27 /// 28 1 Dated: 10/13/2022 Litigation Practice Group 2 /s/Richard J. Meier 3 Richard J. Meier 4 Attorney for Plaintiff Dennis Suckut 5 6 Dated: 10/13/2022 SESSIONS, ISRAEL & SHARTLE, L.L.P. 7 /s/James K. Schultz 8 James K. Schultz 9 Attorney for Defendant Alltran Financial, LP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 EXHIBIT A 3 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 4 I, _____________________________ [print or type full name], of _________________ 5 [print or type full address], declare under penalty of perjury that I have read in its entirety 6 and understand the Stipulated Protective Order that was issued by the United States District 7 Court for the Eastern District of California on [date] in the case of ___________ [insert 8 formal name of the case and the number and initials assigned to it by the court]. I 9 agree to comply with and to be bound by all the terms of this Stipulated Protective Order 10 and I understand and acknowledge that failure to so comply could expose me to sanctions 11 and punishment in the nature of contempt. I solemnly promise that I will not disclose in any 12 manner any information or item that is subject to this Stipulated Protective Order to any 13 person or entity except in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Eastern District of California for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this 17 action. 18 I hereby appoint __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and telephone 20 number] as my California agent for service of process in connection with this action or any 21 22 proceedings related to enforcement of this Stipulated Protective Order. 23 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: __________________________ 27 Signature: __________________________________ 28 1 ORDER 2 3 4 Having considered the foregoing, the Court adopts the stipulated protective order. 5 (Doc. 14.) The parties are advised that pursuant to the Local Rules of the United States 6 District Court, Eastern District of California, any documents subject to the protective 7 order to be filed under seal must be accompanied by a written request which complies 8 with Local Rule 141 prior to sealing. The party making a request to file documents under 9 seal shall be required to show good cause for documents attached to a non-dispositive 10 motion or compelling reasons for documents attached to a dispositive motion. Pintos v. 11 Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). Within five (5) days of 12 any approved document filed under seal, the party shall file a redacted copy of the sealed 13 document. The redactions shall be narrowly tailored to protect only the information that 14 is confidential or was deemed confidential. 15 Additionally, the parties shall consider resolving any dispute arising under the 16 stipulated protective order according to the Court’s informal discovery dispute procedure. 17 18 IT IS SO ORDERED. 19 20 Dated: October 18, 2022 /s/ Barbara A. McAuliffe _ 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28