UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA -- SAN FRANCISCO DIVISION
July 3, 2008
HARRY DONALD FISHER PLAINTIFF,
DOWNEY SAVINGS AND LOAN ASSOCIATION, A CALIFORNIA CORPORATION, EQUITY ONE FINANCIAL CORP., A CALIFORNIA CORPORATION, ERIK MEYERS, INDIVIDUALLY, FCI LENDER SERVICES, INC., A CALIFORNIA CORPORATION, AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.
[PROPOSED] STIPULATED PROTECTIVE ORDER
confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential.
1. PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of The parties further acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied when a party seeks permission from the court to file material under seal.
employees, consultants, retained experts, and outside counsel (and their support staff).
of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery in this matter.
2.3 "Confidential" Information or Items: information (regardless of how
2.1 Party: any party to this action, including all of its officers, directors,
2.2 Disclosure or Discovery Material: all items or information, regardless generated, stored or maintained) or tangible things that qualify for protection under standards developed under F.R.Civ.P. 26(c). from a Producing Party.
Discovery Material in this action.
items that it produces in disclosures or in responses to discovery as "Confidential."
2.4 Receiving Party: a Party that receives Disclosure or Discovery Material
2.5 Producing Party: a Party or non-party that produces Disclosure or
2.6 Designating Party: a Party or non-party that designates information or
2.7 Protected Material: any Disclosure or Discovery Material that is designated as "Confidential."
well as their support staffs).
2.8 Counsel (without qualifier): Outside Counsel and House Counsel (as
2.9 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action and who is not a past or a current employee of a Party or of a competitor of a Party's and who, at the time of retention, is not anticipated to become an employee of a Party or a competitor of a Party's. This definition includes a 8 professional jury or trial consultant retained in connection with this litigation.
2.10 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.
(as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Material.
Even after the termination of this litigation, the confidentiality obligations imposed by this
The protections conferred by this Stipulation and Order cover not only Protected Material Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. The Court will retain jurisdiction to enforce the terms of the order for 6 months after final termination of the action.
Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. A Designating Party must take care to designate for protection only those parts of material, documents, items, or oral or written communications that qualify -
5. DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection.
so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order.
If it comes to a Party's or a non-party's attention that information or items that it designated for protection do not qualify for protection at all, or do not qualify for the level of protection initially asserted, that Party or non-party must promptly notify all other parties that it is withdrawing the mistaken designation.
Mass, indiscriminate, or routinized designations are prohibited.
5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced.
depositions or other pretrial or trial proceedings), that the Producing Party affix the legend
"CONFIDENTIAL" on each page that contains protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., "CONFIDENTIAL").
available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed Designation in conformity with this Order requires:
(a) for information in documentary form (apart from transcripts of A Party or non-party that makes original documents or materials
"CONFIDENTIAL." After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order, then, before producing the specified documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL") at the top of each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion ("CONFIDENTIAL")
proceedings, In the case of depositions, designation of the portion of the transcript statement to such effect on the record in the course of the deposition or, upon review of such transcript, by counsel for the Person to whose "CONFIDENTIAL" material the deponent has had access, said counsel shall designate within thirty days after counsel's receipt of the transcript. Counsel shall list on a separate piece of paper the numbers of the pages of the transcript containing any "CONFIDENTIAL" information, inserting the list at the end of the transcript, and mailing copies of the list to counsel for all Parties so that it may be affixed to the face of the transcript and each copy thereof. Pending such designation by counsel, the entire deposition transcript, including exhibits, shall be deemed "CONFIDENTIAL." If no designation is made within thirty days after receipt of the transcript, the transcript shall be considered not to contain any "CONFIDENTIAL" material.
(b) for testimony given in deposition or in other pretrial or trial (including exhibits) which contains "CONFIDENTIAL" information shall be made by a
(c) for information produced in some form other than documentary, and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend Producing Party, to the extent practicable, shall identify the protected portions, specifying whether they qualify as "CONFIDENTIAL."
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items as "CONFIDENTIAL" does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. If material is appropriately designated as "CONFIDENTIAL" after the material was initially produced, the Receiving Party, on timely notification of the designation, must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order.
Party's confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary economic burdens, or a later significant disruption or delay of the litigation, a
"CONFIDENTIAL." If only portions of the information or item warrant protection, the
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed.
Designating Party's confidentiality designation must do so in good faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) with counsel for the Designating Party. In conferring, the challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first.
6.2 Meet and Confer. A Party that elects to initiate a challenge to a
6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality designation after considering the justification offered by the Designating Local Rule 79-5, if applicable) that identifies the challenged material and sets forth in detail 5 the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms that the movant has complied with the meet and confer requirements imposed in the preceding paragraph and that sets forth with specificity the justification for the confidentiality designation that was given by the Designating Party in the meet and confer dialogue.
Until the court rules on the challenge, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing
7. ACCESS TO AND USE OF PROTECTED MATERIAL
Party may file and serve a motion under Civil Local Rule 7 (and in compliance with Civil The burden of persuasion in any such challenge proceeding shall be on the Party's designation.
disclosed or produced by another Party or by a non-party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this
7.1 Basic Principles. A Receiving Party may use Protected Material that is Order. When the litigation has been terminated, a Receiving Party must comply with the provisions of section 11, below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in a 3 secure manner that ensures that access is limited to the persons authorized under this Order.
7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated CONFIDENTIAL only to:
(a) the Receiving Party's Outside Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably necessary to disclose the information for this litigation and who have signed the "Agreement to Be Bound by
(b) the officers, directors, and employees (including House Counsel)
Protective Order" that is attached hereto as Exhibit A; of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); whom disclosure is reasonably necessary for this litigation and who have signed the
(d) the Court and its personnel;
(e) court reporters, their staffs, and professional vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A);
(f) during their depositions, witnesses in the action to whom
(c) experts (as defined in this Order) of the Receiving Party to
"Agreement to Be Bound by Protective Order" (Exhibit A); disclosure is reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective
(g) the author of the document or the original source of the information.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
"CONFIDENTIAL" material receives a subpoena or other process or order to produce such information in another, unrelated legal proceeding, from a non-party to this action, such Receiving Party shall immediately notify counsel for the Designating Party of the subpoena or other process or order, furnish counsel for the Designating Party with a copy of said subpoena or other process or order in sufficient time within which the Designating Party may take the necessary steps to quash or otherwise object to the subpoena, and cooperate with respect to all reasonable procedures sought. The Designating Party shall have the burden of defending against such subpoena, process, or order. The Receiving Party shall be 9 entitled to comply with it except to the extent the Designating Party has promptly notified the Receiving Party of its intent to take immediate legal action to quash the subpoena, in which case the Receiving Party shall not produce such documents while such legal proceedings are pending or if the Designating Party is successful in obtaining an order modifying or quashing the subpoena or other process or order.
In the event any Receiving Party having possession, custody or control of any The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect is confidentially interest in the court from which the subpoena or order issued. court of its confidential material -- nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court.
The Designating Party shall bear the burdens and the expenses of seeking protection in that
9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.
Material to any person or in any circumstance not authorized under this Stipulated Protective appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5.
11. FINAL DISPOSITION
10. FILING PROTECTED MATERIAL
Without written permission from the Designating Party or a court order secured after days after the final termination of this action, each Receiving Party must return all Protected Unless otherwise ordered or agreed in writing by the Producing Party, within sixty Material to the Producing Party. As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries or any other form of reproducing or capturing any of the Protected Material. With permission in writing from the Designating Party, the Receiving Party may destroy some or all of the Protected Material instead of returning it. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the sixty day deadline that identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and that affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section
12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future.
Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Stipulated Protective
12.2 Right to Assert Other Objections. By stipulating to the entry of this Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: July 2, 2008 ATTORNEY AT LAW By: /s/ James Marley Barrett James Marley Barrett, Attorneys for Plaintiff, Harry Donald Fisher
DATED: July 2, 2008 NIELSEN, HALEY & ABBOTT, LLP By: /s/ Stephen Walter Cusick Stephen Walter Cusick, Attorneys for Defendant, Equity One Financial Corp., a California corporation
DATED: July 2, 2008 OFFICE OF THE GENERAL COUNSEL By: /s/ Christine M. Humphries Christine M. Humphries Attorneys for Defendants, Downey Savings and Loan Association, F.A. and FCI Lender Services, Inc.
PURSUANT TO STIPULATION, IT IS SO ORDERED.
Elizabeth D. Laporte Judge
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, [print or type full name], of
[print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Northern District of California on [date] in the case of Harry Donald Fisher v. Downey Savings and Loan Association, et al, Case No. C08-02144 EDL. agree to comply 9 with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order.
Northern District of California for the purpose of enforcing the terms of this Stipulated I further agree to submit to the jurisdiction of the United States District Court for the Protective Order, even if such enforcement proceedings occur after termination of this 17 action.
I hereby appoint [print or type full name] of [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order.
City and State where sworn and signed: ____________________________
© 1992-2008 VersusLaw Inc.