Duran v. Portfolio Recovery Associates, LLC ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSUE DURAN, Case No. 1:22-cv-01605-JLT-SAB 12 Plaintiff, ORDER ENTERING STIPULATED PROTECTIVE ORDER 13 v. (ECF No. 17) 14 PORTFOLIO RECOVERY ASSOCIATES, LLC, 15 Defendant. 16 17 18 19 20 STIPULATED PROTECTIVE ORDER 21 1. PURPOSES AND LIMITATIONS 22 Disclosure and discovery activity in this action are likely to involve production of 23 confidential, proprietary, or private information for which special protection from public 24 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 25 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 26 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 27 all disclosures or responses to discovery and that the protection it affords from public disclosure 28 and use extends only to the limited information or items that are entitled to confidential treatment 1 under the applicable legal principles. The parties further acknowledge, as set forth in Section 2 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 3 information under seal; Local Rule 141 sets forth the procedures that must be followed and the 4 standards that will be applied when a party seeks permission from the court to file material under 5 seal. 6 2. DEFINITIONS 7 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 8 information or items under this Order. 9 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 10 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 11 of Civil Procedure 26(c). 12 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 13 well as their support staff). 14 2.4 Designating Party: a Party or Non-Party that designates information or items that it 15 produces in disclosures or in responses to discovery as “CONFIDENTIAL”. 16 2.5 Disclosure or Discovery Material: all items or information, regardless of the 17 medium or manner in which it is generated, stored, or maintained (including, among other things, 18 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 19 responses to discovery in this matter. 20 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 21 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 22 consultant in this action. 23 2.7 House Counsel: attorneys who are employees of a party to this action. House 24 Counsel does not include Outside Counsel of Record or any other outside counsel. 25 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 26 entity not named as a Party to this action. 27 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 28 action but are retained to represent or advise a party to this action and have appeared in this action 1 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 2 2.10 Party: any party to this action, including all of its officers, directors, employees, 3 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 4 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 5 Material in this action. 6 2.12 Professional Vendors: persons or entities that provide litigation support services 7 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 8 organizing, storing, or retrieving data in any form or medium) and their employees and 9 subcontractors. 10 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 11 “CONFIDENTIAL”. 12 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 13 Producing Party. 14 3. SCOPE 15 The protections conferred by this Stipulation and Order cover not only Protected Material 16 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 17 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 18 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 19 However, the protections conferred by this Stipulation and Order do not cover the following 20 information: (a) any information that is in the public domain at the time of disclosure to a 21 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 22 a result of publication not involving a violation of this Order, including becoming part of the 23 public record through trial or otherwise; and (b) any information known to the Receiving Party 24 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 25 obtained the information lawfully and under no obligation of confidentiality to the Designating 26 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 27 4. DURATION 28 Even after final disposition of this litigation, the confidentiality obligations imposed by 1 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 2 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 3 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 4 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 5 including the time limits for filing any motions or applications for extension of time pursuant to 6 applicable law. 7 5. DESIGNATING PROTECTED MATERIAL 8 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 9 or Non-Party that designates information or items for protection under this Order must take care 10 to limit any such designation to specific material that qualifies under the appropriate standards. 11 The Designating Party must designate for protection only those parts of material, documents, 12 items, or oral or written communications that qualify – so that other portions of the material, 13 documents, items, or communications for which protection is not warranted are not swept 14 unjustifiably within the ambit of this Order. 15 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 16 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 17 unnecessarily encumber or retard the case development process or to impose unnecessary 18 expenses and burdens on other parties) expose the Designating Party to sanctions. 19 If it comes to a Designating Party’s attention that information or items that it designated 20 for protection do not qualify for protection, that Designating Party must promptly notify all other 21 Parties that it is withdrawing the mistaken designation. 22 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 23 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 24 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 25 designated before the material is disclosed or produced. 26 Designation in conformity with this Order requires: 27 (a) For information in documentary form (e.g., paper or electronic documents, but excluding 28 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the 1 legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or 2 portions of the material on a page qualifies for protection, the Producing Party also must clearly 3 identify the protected portion(s) (e.g., by making appropriate markings in the margins). A Party or 4 Non-Party that makes original documents or materials available for inspection need not designate 5 them for protection until after the inspecting Party has indicated which material it would like 6 copied and produced. During the inspection and before the designation, all of the material made 7 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 8 identified the documents it wants copied and produced, the Producing Party must determine 9 which documents, or portions thereof, qualify for protection under this Order. Then, before 10 producing the specified documents, the Producing Party must affix the “CONFIDENTIAL” 11 legend to each page that contains Protected Material. If only a portion or portions of the material 12 on a page qualifies for protection, the Producing Party also must clearly identify the protected 13 portion(s) (e.g., by making appropriate markings in the margins). 14 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 15 Designating Party identify on the record, before the close of the deposition, hearing, or other 16 proceeding, all protected testimony. 17 (c) for information produced in some form other than documentary and for any other 18 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 19 or containers in which the information or item is stored the legend “CONFIDENTIAL”. If only a 20 portion or portions of the information or item warrant protection, the Producing Party, to the 21 extent practicable, shall identify the protected portion(s). 22 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 23 designate qualified information or items does not, standing alone, waive the Designating Party’s 24 right to secure protection under this Order for such material. Upon timely correction of a 25 designation, the Receiving Party must make reasonable efforts to assure that the material is 26 treated in accordance with the provisions of this Order. 27 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 28 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 1 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 2 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 3 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 4 challenge a confidentiality designation by electing not to mount a challenge promptly after the 5 original designation is disclosed. 6 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 7 process by providing written notice of each designation it is challenging and describing the basis 8 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 9 notice must recite that the challenge to confidentiality is being made in accordance with this 10 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 11 good faith and must begin the process by conferring directly (in voice-to-voice dialogue; other 12 forms of communication are not sufficient) within 14 days of the date of service of notice. In 13 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 14 designation was not proper and must give the Designating Party an opportunity to review the 15 designated material, to reconsider the circumstances, and, if no change in designation is offered, 16 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 17 stage of the challenge process only if it has engaged in this meet and confer process first or 18 establishes that the Designating Party is unwilling to participate in the meet and confer process in 19 a timely manner. 20 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 21 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 22 Local Rule 141.1 (and in compliance with Local Rule 141, if applicable) within 21 days of the 23 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer 24 process will not resolve their dispute, whichever is earlier. Each such motion must be 25 accompanied by a competent declaration affirming that the movant has complied with the meet 26 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 27 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 28 shall automatically waive the confidentiality designation for each challenged designation. In 1 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 2 time if there is good cause for doing so, including a challenge to the designation of a deposition 3 transcript or any portions thereof. Any motion brought pursuant to this provision must be 4 accompanied by a competent declaration affirming that the movant has complied with the meet 5 and confer requirements imposed by the preceding paragraph. 6 The burden of persuasion in any such challenge proceeding shall be on the Designating 7 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 8 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 9 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 10 file a motion to retain confidentiality as described above, all parties shall continue to afford the 11 material in question the level of protection to which it is entitled under the Producing Party’s 12 designation until the court rules on the challenge. 13 7. ACCESS TO AND USE OF PROTECTED MATERIAL 14 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 15 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 16 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 17 the categories of persons and under the conditions described in this Order. When the litigation has 18 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 19 DISPOSITION). 20 Protected Material must be stored and maintained by a Receiving Party at a location and 21 in a secure manner that ensures that access is limited to the persons authorized under this Order. 22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 23 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 24 information or item designated “CONFIDENTIAL” only to: 25 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of said 26 Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this 27 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 28 attached hereto as Exhibit A; 1 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to 2 whom disclosure is reasonably necessary for this litigation and who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably 5 necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be 6 Bound” (Exhibit A); 7 (d) the court and its personnel; 8 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 9 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 10 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary 12 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 13 otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 14 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 15 bound by the court reporter and may not be disclosed to anyone except as permitted under this 16 Stipulated Protective Order. 17 (g) the author or recipient of a document containing the information or a custodian or other 18 person who otherwise possessed or knew the information. 19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 20 LITIGATION 21 If a Party is served with a subpoena or a court order issued in other litigation that compels 22 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 23 must: 24 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the 25 subpoena or court order; 26 (b) promptly notify in writing the party who caused the subpoena or order to issue in the other 27 litigation that some or all of the material covered by the subpoena or order is subject to this 28 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 1 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating 2 Party whose Protected Material may be affected. 3 If the Designating Party timely seeks a protective order, the Party served with the 4 subpoena or court order shall not produce any information designated in this action as 5 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 6 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 7 shall bear the burden and expense of seeking protection in that court of its confidential material – 8 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 9 Party in this action to disobey a lawful directive from another court. 10 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 11 LITIGATION 12 (a) The terms of this Order are applicable to information produced by a Non-Party in this action 13 and designated as “CONFIDENTIAL”. Such information produced by Non-Parties in connection 14 with this litigation is protected by the remedies and relief provided by this Order. 15 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 16 additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s 18 confidential information in its possession, and the Party is subject to an agreement with the Non- 19 Party not to produce the Non-Party’s confidential information, then the Party shall: 20 (1) promptly notify in writing the Requesting Party and the Non-Party that 21 some or all of the information requested is subject to a confidentiality agreement with a Non- 22 Party; 23 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 24 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of 25 the information requested; and 26 (3) make the information requested available for inspection by the Non-Party. 27 (c) If the Non-Party fails to object or seek a protective order from this court within 14 days of 28 receiving the notice and accompanying information, the Receiving Party may produce the Non- 1 Party’s confidential information responsive to the discovery request. If the Non-Party timely 2 seeks a protective order, the Receiving Party shall not produce any information in its possession 3 or control that is subject to the confidentiality agreement with the Non-Party before a 4 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 5 burden and expense of seeking protection in this court of its Protected Material. 6 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 7 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 8 Material to any person or in any circumstance not authorized under this Stipulated Protective 9 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 10 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 11 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 12 made of all the terms of this Order, and (d) request such person or persons to execute the 13 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 14 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 15 MATERIAL 16 When a Producing Party gives notice to Receiving Parties that certain inadvertently 17 produced material is subject to a claim of privilege or other protection, the obligations of the 18 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 19 provision is not intended to modify whatever procedure may be established in an e-discovery 20 order that provides for production without prior privilege review. Pursuant to Federal Rule of 21 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 22 communication or information covered by the attorney-client privilege or work product 23 protection, the parties may incorporate their agreement in the stipulated protective order 24 submitted to the court. 25 12. MISCELLANEOUS 26 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 27 seek its modification by the court in the future. 28 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 1 Order no Party waives any right it otherwise would have to object to disclosing or producing any 2 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 3 Party waives any right to object on any ground to use in evidence of any of the material covered 4 by this Protective Order. 5 12.3 Filing Protected Material. Without written permission from the Designating Party 6 or a court order secured after appropriate notice to all interested persons, a Party may not file in 7 the public record in this action any Protected Material. A Party that seeks to file under seal any 8 Protected Material must comply with Local Rule 141. Protected Material may only be filed under 9 seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. 10 Pursuant to Local Rule 141, a sealing order will issue only upon a request establishing that the 11 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 12 protection under the law. If a Receiving Party's request to file Protected Material under seal 13 pursuant to Local Rule 141 is denied by the court, then the Receiving Party may file the 14 information in the public record pursuant to Local Rule 141 unless otherwise instructed by the 15 court. 16 13. FINAL DISPOSITION 17 Within 60 days after the final disposition of this action, as defined in Section 4 18 (DURATION), each Receiving Party must return all Protected Material to the Producing Party or 19 destroy such material. As used in this subdivision, “all Protected Material” includes all copies, 20 abstracts, compilations, summaries, and any other format reproducing or capturing any of the 21 Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party 22 must submit a written certification to the Producing Party (and, if not the same person or entity, to 23 the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) 24 all the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party 25 has not retained any copies, abstracts, compilations, summaries or any other format reproducing 26 or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 27 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 28 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 1 product, and consultant and expert work product, even if such materials contain Protected 2 Material. Any such archival copies that contain or constitute Protected Material remain subject to 3 this Protective Order as set forth in Section 4 (DURATION). 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 EXHIBIT A 2 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 and 6 understand the Stipulated Protective Order that was issued by the United States District Court for 7 the Eastern District of California on [date] in the case of Josue Duran v. Portfolio Recovery 8 Associates, LLC, 1:22-cv-01605-JLT-SAB. I agree to comply with and to be bound by all the 9 terms of this Stipulated Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 11 promise that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the provisions 13 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 Protective 16 Order, even if such enforcement proceedings occur after termination of this action. 17 I hereby appoint __________________________ [print or type full name] of 18 _______________________________________ [print or type full address and telephone 19 number] as my California agent for service of process in connection with this action or any 20 proceedings related to enforcement of this Stipulated Protective Order. 21 Date: ______________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: _______________________________ 24 Signature: __________________________________ 25 /// 26 /// 27 /// 28 /// 1 COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY 3 | ORDERED that: 4 1. The above stipulated protective order is ENTERED; 5 2. The provisions of the parties’ stipulation and this protective order shall remain in 6 effect until further order of the Court; 7 3. The parties are advised that pursuant to the Local Rules of the United States 8 District Court, Eastern District of California, any documents which are to be filed 9 under seal will require a written request which complies with Local Rule 141; 10 4. The party making a request to file documents under seal shall be required to show 11 either good cause or compelling reasons to seal the documents, depending on the 12 type of filing, Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 13 2009); Ctr. for Auto Safety v. Chrysler Grp... LLC, 809 F.3d 1092, 1101 (9th Cir. 14 2016); and 15 5. If a party’s request to file Protected Material under seal is denied by the Court, 16 then the previously filed material shall be immediately accepted by the court and 17 become information in the public record and the information will be deemed filed 18 as of the date that the request to file the Protected Information under seal was 19 made. 20 IT IS SO ORDERED. DAM Le 22 | Dated: _May 24, 2023 _ Of 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1A