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Patricia Arreola, Alfredo Parra, Lillian A. Ramirez, Javier A. Galindo, Pascual v. Bank of America

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


September 19, 2012

PATRICIA ARREOLA, ALFREDO PARRA, LILLIAN A. RAMIREZ, JAVIER A. GALINDO, PASCUAL CHAVEZ-RAMIREZ, JOSE RENTERIA, JESSE MORENO, MARIA PLIEGO, RENE PLIEGO, AND JOSE GARCIA, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
BANK OF AMERICA, NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION; PABLO ARAQUE, AN INDIVIDUAL; AND DOES 1 THROUGH 100, INCLUSIVE; DEFENDANTS.

The opinion of the court was delivered by: Date Honorable Paul L. Abrams United States Magistrate Judge

Mary J. Hackett (appearing pro hac vice)mhackett@reedsmith.com Sharon L. Rusnak (appearing pro hac vice) srusnak@reedsmith.com REED SMITH LLP 225 Fifth Avenue Pittsburgh, PA 15222 Telephone: (412) 288-3131 Facsimile: (412) 288-3063 Michael A. Garabed (State Bar No. 223511) E-mail: mgarabed@reedsmith.com REED SMITH LLP 355 South Grand Ave, Suite 2900 Los Angeles, CA 90071 Telephone: 213.457.8000 Facsimile: 213.457.8080 Attorneys for Defendant Bank of America, N.A.

AMENDED PROTECTIVE ORDER STATEMENT OF GOOD CAUSE FOR ORDER FOR THE PROTECTION OF CONFIDENTIAL INFORMATION

This matter is before the Court pursuant to Rule 26(c) of the Federal Rules of Civil Procedure for entry of a Protective Order, for good cause and with the consent and agreement of the parties, governi ng the disclosure and protection of confide ntial and proprietary business information that may be sought during discovery in this case. Discovery of this case will involve the exch ange of highly sensitive business and/or personal information, including non-public pe rsonal and financial information which the named plaintiffs as well as absent pu tative class members submitted to Financial Plus and its related entities; additional financial information such as can celled checks and statements which contain personal and bank account information of non-parties; non-public information related to internal banking opera tions including personnel information; and other inform ation that is not available to the public. In order to safeguard privacy interests an d confidential commercial information but to disclose this information for purposes of discove ry, good cause exists for entry of a Protective Order:

WHEREAS, in connection with the a bove-captioned matter, good cause exists in order to disclose inform ation containing confidential personal, business and commercial information within the m eaning of Rule 26(c)(1) of the Federal Rules of Civil Procedure, by the parties and/or nonpar ties voluntarily and/or in response to discovery demands;

WHEREAS, the part ies acknowledge that this Order does not confer blanket protections on all disclosures or response s to di scovery and that the protection it affords from public disclosu re and use extends only to t he limited information or items that are entitled to confidential treatment under the applicable legal principles;

WHEREAS, it would serve the interests of the parties to conduct discovery in this action under a Protective Order pursuant to Rule 26 (c)(1) of the Federal Rules of Civil Procedure; and

WHEREAS, the parties have agreed to be bound by the terms of thi s Order and have presented the same for entry as an Order of Court;

IT IS HEREBY ORDERED:

In order to facilitate discovery while preserving and m aintaining the confidentiality of certain documents or te stimony that may be sought by the parties, and in the interests of justice and having determined that good cause exists, it is hereby ORDERED by the Court that:

1. This Confidentiality and Protective Order (this "Protective Order") shall govern the use and dissem ination of all inform ation, documents or m aterials that are produced in this action and designated as "Confidential" or "C onfidential Attorney Eyes Only." Any Party may, in good fa ith, designate as "C onfidential" or "Confidential Attorney Eyes Only" any docum ents, interrogatory answers, responses to requests for adm ission, deposition tran scripts, information or other written, recorded, or graphic material produced or disclosed in this litigation that the Party considers to be subject to this Protective Order.

2. Exercise of Restraint and Care in Designating Material for Protection: Each party or Non-Party that designates info rmation or items for protection under this Order must take care to lim it any such desi gnation to specific mat erial that qualifies under the appropria te standards. The Desi gnating Party shoul d make an effort to designate for protection only those part s of material, documents, item s or oral or written communications that qualify -- so that other portions of the material, documents, items or communications for wh ich protection i s not warranted are not swept unjustifiably within the ambit of th is Order. If a De signating Party later determines that information or items that it designated for protection do not qualify for protection, that Designating Party m ust notify all other Parties th at it is withdrawing the mistaken designation(s).

3. The term "Confidential Information," as used in this Protective Order, shall mean: (a) inform ation not in th e public domain t hat reflects confidential financial or commercial info rmation, or inform ation otherwise entitled to protection under Fed. R. Civ. P. 26, (b) matters that constitute or contain trade secrets pursuant to applicable law, and (c) non-public personal information.

4. The term "Confidential Attorney Eyes Only Information," as used in this Protective Order, shall m ean information not i n the publ ic domain that is so proprietary or competitively sensitive that its disclosure may cause competitive injury. Such information may include, but is no t limited to, highly se nsitive financial and trade secret information. The parties recognize that the type of information which can properly be considered "Conf idential Attorney Eyes On ly" is the refore limited; accordingly, the parties expect to use this designation sparingly.

5. Nothing in this Protective Order sh all limit the right of a Party to use documents or information that (a) was lawfu lly in its possession prior to the initiation of this action; (b) w as, is, or beco mes public knowledge, not i n violation of t his Protective Order; (c) is acquired by the non-producing Party from a third part y who breached no legal obligation in providing the document(s) to the non-producing Party; or (d) becom es declassified under t he Protective Order. The Parties shall not designate information as "Confidential" or "Confidential Attorneys Eyes Only" for the purpose of interfering with the rights of the receiving Party to conduct discovery.

Confidential and Confidential Attorney Eyes Only Information

6. Any Party to this action or other person or entity, including any third party, who produces or supplies information, documents or other materials used in this action (hereinafter the "Designating Party" or the "Producing Pa rty") may designate as "Confidential" or "Confidential Attorn ey Eyes Only" any such inform ation, document or m aterial that it reasonably and in good faith believes constit utes or contains Confidential Information or Conf idential Attorney Ey es Only Inform ation under the terms of this Protective Order. The designation "C onfidential" or "Confidential Attorney Eyes Only" shall be mad e by affixing on the document or material containing such information, and upon each page so designated if practicable, a legend that in substance states:

"CONFIDENTIAL" or "CONFI DENTIAL ATTORNEY EYES ONLY"

7. Depositions may be designated "Confidential" or "Confidential Attorney Eyes Only" by indicating that fact on the record at the deposition or by provi ding written notice to the other Party within thirty (30) days of re ceipt of the hard cop y transcript. If a Designating Party has advi sed the court reporter that Confidential Information or Confidential Attorney Eyes Only Inform ation has been disclosed during a deposition, the court reporter sha ll include on the cover page the following indication:

"DEPOSITION CONTAINS [CON FIDENTIAL INFORMATION/ CONFIDENTIAL ATTORNEY EYES O NLY] OF [NAME OF DESIGNATING PARTY] - SUBJECT TO PROTECTIVE ORDER."

Within thirty (30) business days of r eceipt of the initial deposition transcript, the Designating Party shall advise opposing counsel of t he specific pages and lines in which Confidential Inform ation or Confid ential Attorney Eyes Only Inform ation appears. Until expiration of the thirty da y period, all informa tion disclosed at a deposition shall be treated as "Confidenti al Attorney Eyes Only" information, subject to this Protective Order and protected from disclosure.

8. Confidential Information used in this litigation may be disclosed only to:

a. This Court and i ts personnel; court reporters and videographers engaged by counsel of record to transcribe testimony in connection with this action.

b. The Parties' counsel and em ployees of such counsel assigned to and necessary to assist such counsel in this action.

c. The named Parties, including a ny past, present or future officer, director, or representative of the Parties, but only for use in the prosecution, defense, or settlement of this action.

d. Any consultant, investigator or expert (collectively, "Expert") who is assisting in the preparation and trial of this litigation, but only to the extent reasonably necessary to enable such Expert to render such assistance in this action.

e. A deponent or witness, prior to or in t he course of testim ony, provided that such persons may be shown copies of designated material only during the course of preparation for his or her testimony, or in the actual course of his or her testi mony, and may not retain any designate d material and m ust be inform ed of the confidential nature of the materials.

f. An outside photocopy vendor reta ined by counsel who is assisting in the preparation and trial of this litigation by making photocopies of documents, but only t o the extent necessary to enable th e photocopy vendor to render such assistance in this action.

g. The author or recipient of a do cument containing the information or a custodian who possessed the information.

9. Confidential Attorney Eyes Only Information used in this litigation may be disclosed only to:

a. This Court and i ts personnel; court reporters and videographers engaged by counsel of record to transcribe testimony in connection with this case.

b. Outside counsel of record and in -house counsel i n this litigation (including staff persons employed by such counsel).

c. Any consultant, investigator or expert (collectively, "Expert") who is assisting in the preparation and trial of this litigation, but only to the extent reasonably necessary to enable such Expert to render such assistance.

d. A deponent, prior to or in the course of a deposition, provided that such persons m ay be shown copi es of designated material only during the course of preparation fo r his or her testi mony, or in the actual course of deposition, may not retain any designated material and must be informed of the confidential nature of the materials.

e. An outside photocopy vendor reta ined by counsel who is assisting in the preparation and trial of this litigation by making photocopies of documents, but only t o the extent necessary to enable th e photocopy vendor to render such assistance.

f. The author or recipient of a do cument containing the information or a custodian who possessed the information.

10. If a Party wishes to disclose C onfidential Information or Confidential Attorney Eyes Only Information to any person not described in Paragraphs 8 and 9 of this Protective Order, permission to so disclose m ust be requested from the Designating Party i n writing. If withi n seven (7) business da ys of request for permission, the Designating Party objects to the proposed disclosure, such disclosure shall not be made unless, upon m otion by the Party requesting such permission, this Court orders otherwise.

11. Prior to obtaining a ccess to Confid ential Information or Confidential Attorney Eyes Only Information, any pe rson to whom such information may be disclosed pursuant to Paragraphs 8, 9, and 10 hereof, except as in Paragraphs 8(a) and 9(a), shall be shown and sha ll read a copy of this Protec tive Order and shall agree in writing to be bound by its term s by si gning a copy of the Confidentiality Acknowledgment attached hereto as Exhi bit A ("Confidentiality Acknowledgment").

Counsel for the Party obtaining a person's si gnature on the Confidentiali ty Acknowledgment shall retain the origina l signed acknowledgment, and, if requested by the Designating Party, sh all provide a copy of the signed acknowledgment to counsel for the Designating Party, with the exception that the Designating Party is not entitled to see an acknowledgem ent signed by any expert who has not yet been disclosed as a testifying expert. Rather, counsel shall certify that all such experts have acknowledged the confidentiality agreement.

12. Where any Confidential Information, or Confidential Attorney Eyes Only Information, is included in any Court fili ng, such papers shall be acco mpanied by an application to file t he papers under seal. The application must show good cause for the seal filing and fil ed pursuant to Local Rule 79-5 and the Cour t's practices related to filing under seal. The application shall be directed to the judge to whom the papers are directed. Pending the ruling on the app lication, the papers or portions thereof subject to the sealing application shall be lodged under seal.

General Provisions

13. Except to the extent expressly au thorized in this Protective Order, Confidential Information and Confidential Attorney Eyes Only Inform ation shall not be used or disclosed for any purpose other than the preparation and trial of this case, and/or any appeal therefrom, subject to the provisions of this Protective Order. Use or disclosure of Confidential Inform ation and Confidential Attorney Eyes Only Information in any other litigation or for any other purposes is expressly prohibited.

14. Any summary, com pilation, notes, c opy, electronic image or database containing Confidential Information and/ or Confidential Attorney Eyes Only Information shall be subject to the terms of this Protective Order to the same extent as the material or information from which such summary, com pilation, notes, copy, electronic image or database is made or derived.

15. The parties shall meet and con fer in good faith to attem pt to resolve any dispute over the designation of materials under the Protectiv e Order. Local Rule 37 controls. If the parties want to file the Joint Stipulation re quired by Local Rule 37 under seal, the parties m ay file a stipulation to that effect or a party may file an ex parte application making t he appropriate re quest. The parties m ust set forth good cause in the stipulation or exparte appli cation as to why t he Joint Stipulation or portions thereof should be filed under seal.

16. Inadvertent failure to designate any inform ation pursuant to t his Protective Order shall not constitute a wa iver of any otherwise valid claim for protection, so long a s such claim is asserted within ninety (90) days of t he discovery of the inadvertent failure. At such time, a rrangements shall be made for the return to the Designating Party of all copies of the inadvertently misdesignated documents and for the substitution, where ap propriate, of properly labeled copies. If m ore than 90 days has elapsed, the same may be de signated as Confidential Inform ation and Confidential Attorney Eyes Only by agre ement between the Parties or by filing a motion with the Court.

17. Nothing in this Protective Order sh all be deemed to restrict in any manner the use by any Designating Party of any information in its own documents and materials.

18. It shall not be deemed a violation of any of the term s of this Protective Order for a Party to produce inform ation in response to a subpoe na or order of any court or governm ental agency that require s production of Confident ial Information and/or Confidential Attorney Eyes Only In formation that a Party has obtained under the terms of this Pr otective Order provided that: (a) such Party shall promptly notify the Party who origi nally designated as "Confidential" or "Confidential -- Attorneys' Eyes Only" the information requested; (b) said notification shall be m ade in a timely manner, in writing, and at least seven (7) business days prior to the due date of compliance pursuant to the sub poena or Order in order to afford the producing Party an opportunity to object to the subpoena or seek relief from the Order; and (c) the Party receiving such subpoena or Order sha ll employ its good faith efforts to secure Confidential treatment, whether by prote ctive order or otherwise and under term s as restrictive as this Order, for any such in formation eventually produced in compliance with the subpoena or order.

19. This Protective Order is without prejudi ce to the right of any Party to seek modification of it from the Court. It shall remain in effect until such time as it is modified, amended, or rescin ded by the Court. This Prot ective Order does not affect any Party's rights to object to discovery on any grounds other than an objection based solely on the ground that the information sought is confidential in nature.

20. This Protective Order is a pre-trial protective order and is not intended to govern the use of Confidenti al Information or Confidenti al Attorney Eyes Only Information at any trial of this action.

21. Nothing in this Protective Order sha ll be deemed to be a waiver of any Party's right to oppose production or adm issibility of any inform ation or documents on any ground, including without limitation, lack of timeliness of the request, lack of relevance, lack of materia lity, as a privileged communication, as work product of counsel, or as not calculated to lead to the discovery of adm issible evidence. Moreover, nothing in this Prot ective Order shall preclude a P arty from seeking such additional protection with regard to c onfidentiality as that Party may deem appropriate.

22. Nothing in this Protective Order shall require any Party to produce Confidential Information or documents c ontaining Confidential Information, and nothing in this Prot ective Order shall re sult in t he waiver by any Party of any objection to any discovery request or the production of Confidential Inform ation or any document containing Confid ential Information. The pr oduction subject to t his Protective Order of Confidential Informa tion or documents containing Confidential Information shall not be deemed a waiver of any objection to the admissibility of such documents or their contents that may exist under any applicable Rules of Evidence. It is the intent of the Parties an d the Cou rt hereto that any such objections m ay be asserted prior to and at trial.

23. This Protective Order shall not preclude any Party from seeking and obtaining from the Court additional prot section with respect to the issues addressed in the Protective Order. The Par ties agree that this Protective Order is without prejudice to any position the Parties may take in any other cases.

24. The inadvertent production of any document or in formation protected by the attorney-client privilege, work produc t doctrine, and/or a ny other applicable privilege shall not constitute a waiver of a ny such privilege or doctrine. Upon receipt of notice of such inadvertent production fro m the producing party, the receiving party shall, within seven (7) busi ness days of such notice, return all copies of such document(s) to the producing party othe r than copies containing attorney's note s or other attorney work product that m ay have been placed thereon by counsel for the receiving party and shall destroy all copies of such documen ts that contain such notes or other attorney w ork product. A part y returning such documents may then, if appropriate, pursue production of the documents pursuant to Local Rule 37, provided that the returning party may not challenge the privilege, protection or immunity claims by arguing that the disclosure waived th e privilege, protection or imm unity and may not use the documents, testimony or i nformation for any other purpose whatsoever until the Court has determined that the document is not privileged. If the parties want to file the Joint Stipulation required by Local Rule 37 under seal, the parties may file a stipulation to that effect or a party ma y file an ex parte application m aking the appropriate request. The parties must set forth good cause in the stipulation or exparte application as to w hy the Joint Stipulation or portions thereof should be filed under seal.

25. This Court shall have continuing jurisdiction to modify, enforce, interpret or rescind this Protective Order, notwithstanding the termination of this action.

26. Within sixty (60) days after the c onclusion of this action, including the exhaustion of all appeals, couns el for all parties shall em ploy best efforts to locate all Confidential Information and Confidential Attorney Eyes Only Inform ation produced in this litigation (other than exhibits at the official court of record) to return to the Designating Party or destroy such informati on. Counsel for any Party or third party receiving Confidential Inform ation and/or Confidential Attorney Eyes Only Information shall make written certification of using their best efforts to co mply with this provision and shall deliv er the same to counsel for each Designating Party within one hundred twenty (120) days after the c onclusion of this action, including the exhaustion of all appeals. Should any Party or third part y subsequently discover that, despite the use of best effo rts, any Confidential Inform ation and/or Confidenti al Attorney Eyes Only Information inadvertently was not returned or destroyed, in either electronic or hard copy form ats, such Party must immediately take steps to return or destroy such information as outlined above.

The foregoing is hereby approved by the Court as a Protective Order pursuant to Federal Rule of Civil Procedure 26(c)(1).

The terms and form of this and Protective Order are hereby consented to:

SO ORDERED:

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

No. 11-CV-06237 DDP (PLAx)

PATRICIA ARREOLA, ALFREDO PARRA, LILLIAN A. RAMIREZ, JAVIER A. GALINDO, PASCUAL CHAVEZ-RAMIREZ, JOSE RENTERIA, JESSE MORENO, MARIA PLIEGO, RENE PLIEGO, AND JOSE GARCIA, On Their Own Behalf and on Behalf of All Others Similarly Situated, Plaintiffs, v. BANK OF AMERICA, NATIONAL ASSOCIATION, a National Banking Association; PABLO ARAQUE, an individual, and DOES 1 through 100, inclusive, Defendants.

EXHIBIT A TO PROTECTIVE ORDER

I, __________________________________, being duly sworn on oath, state the following:

1. I have read and understand the Pro tective Order ("Protective Order") to which this Acknowledgement is attached and I attest to my understanding that access to information designated "Confidential" a nd/or "Confidential Attorney Eyes Only" may be provided to me and that such acce ss is pursuant to the term s and conditions and restrictions of t he Protective Order. I agree to be bound by the terms of the Protective Order. I hereby subm it to the juri sdiction of this Cour t for the purpose of enforcement of this Acknowledgment of the Protective Order.

2. I shall not use or disclose to others, except in accordance with the Protective Order, an y Confidential Informa tion or Confidential Attorney Eyes Only Information. I also shall return all Co nfidential Information and any Confidential Attorney Eyes Only Inform ation provided to me in this litigation to counsel for the Party I represent within sixty (60) days afte r the conclusion of this action, including the exhaustion of all appeals. If I fail to abide by the terms of the Protective Order, I understand that I may be subject to sanctions under the contempt power of this Court, which includes the power to im pose compensatory damages to remedy contemptuous conduct.

Dated:

Signature

Printed Name

Address

Individual or Entity Represented

This the day of , 2012

20120919

© 1992-2012 VersusLaw Inc.



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