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Duarte v. JP Morgan Chase Bank, National Association

United States District Court, C.D. California

March 6, 2014

MACLOVIA DUARTE, individually and on behalf of all others similarly situated, Plaintiff,
v.
J.P. MORGAN CHASE BANK, NATIONAL ASSOCIATION, a National Banking Associationn; and DOES 1 through 50, Inclusive, Defendants.

PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES' STIPULATION

MARGARET A. NAGLE, Magistrate Judge.

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties' Stipulated Protective Order ("Stipulation") filed on February 5, 2014, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action) except to the extent, as set forth below, that those terms have been substantively modified by the Court's amendment of paragraphs 2, 7, 8, and 10 of, and Exhibit 1 to, the Stipulation.

The parties are expressly cautioned that the designation of any information, document, or thing as Confidential, or other designation(s) used by the parties, does not, in and of itself, create any entitlement to file such information, document, or thing, in whole or in part, under seal. Accordingly, reference to this Protective Order or to the parties' designation of any Case 2:13-cv-01105-GHK-MAN Document 51 Filed 03/06/14 Page 2 of 15 Page ID #:652 information, document, or thing as Confidential, or other designation(s) used by the parties, is wholly insufficient to warrant a filing under seal.

There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The Court has stricken their good cause statement, because a specific showing of good cause or compelling reasons (see below) for filing under seal, with proper evidentiary support and legal justification, must be made with respect to each document or item designated as Confidential, or other designation(s) used by the parties, which a party seeks to have filed under seal. The parties' mere designation of any information, document, or thing as Confidential, or other designation(s) used by parties, does not - without the submission of competent evidence, in the form of a declaration or declarations, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable - constitute good cause.

Further, if sealing is requested in connection with a dispositive motion or trial, then compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors Ass'n , 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought to be filed or introduced under seal in connection with a dispositive motion or trial, the party seeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Again, competent evidence supporting the application to file documents under seal must be provided by declaration.

Any document that is not confidential, privileged, or otherwise Case 2:13-cv-01105-GHK-MAN Document 51 Filed 03/06/14 Page 3 of 15 Page ID #:653 protectable in its entirety will not be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible.

Notwithstanding any other provision of this Protective Order, in the event that this case proceeds to trial, all information, documents, and things discussed or introduced into evidence at trial will become public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise.

AGREED TERMS OF PROTECTIVE ORDER AS ADOPTED AND MODIFIED BY THE COURT

1. Definitions

"Confidential Material" means any information that the producing party in good faith believes is properly protected under Fed.R.Civ.P. 26(c) and designates as confidential according to the procedures set forth in this Protective Order. This includes, without limitation, non-public information regarding Defendant's business practices and private information regarding Defendant's current and former customers, including, but not limited to, home addresses, home and personal telephone numbers, their mortgages with Defendant, and credit reporting information.

"Document" has the same meaning it has when used in Fed.R.Civ.P. 26 and shall include, but not be limited to: written, recorded, electronic, or graphic matter; discovery responses; transcripts of and exhibits to depositions taken in this action; and any portion of any court papers filed in this action that Case 2:13-cv-01105-GHK-MAN Document 51 Filed 03/06/14 Page 4 of 15 Page ID #:654 quotes from or summarizes Confidential Material.

2. Designation of "Confidential Material"

The parties agree to take care to limit the designation of "Confidential Material" to specific material that qualifies under the appropriate standards. The designating party shall make a good faith determination that protection is warranted before designating any discovery material as confidential.

With respect to a Document, the producing party shall designate the Document and the information contained therein as confidential by stamping "CONFIDENTIAL" on each page of the Document that contains confidential information; except that any document produced pursuant to the mediation privilege that was not marked "CONFIDENTIAL" shall nevertheless be treated as confidential and may not be used for any non-mediation-related purpose in this litigation without the written agreement of the producing party.

In the case of responses to particular interrogatories, requests for admissions, or requests for production of documents made after the date of this Protective Order, any CONFIDENTIAL material in such responses shall be set forth in a separate document containing a statement to the effect that "THIS RESPONSE CONTAINS CONFIDENTIAL MATERIAL, " and the legend "CONFIDENTIAL, SUBJECT TO COURT ORDER, " shall be placed on each page of any such set of responses.

With respect to deposition testimony, any party (or his or her counsel or counsel for either party) may designate the deposition testimony and information contained therein as confidential by stating orally on the record, before the close of the deposition, that certain testimony is "confidential." When it is impractical to identify separately each portion of deposition testimony that is entitled to protection, and when it appears that substantial portions of the deposition testimony may qualify for protection, any party (or his or her counsel or counsel for either party) may invoke on the record, before Case 2:13-cv-01105-GHK-MAN Document 51 Filed 03/06/14 Page 5 of 15 Page ID #:655 the close of the deposition, the right to have up to thirty (30) days to identify the specific portions of the deposition testimony to be designated confidential. During the pendency of the thirty-day period, and until a final deposition transcript incorporating all specified confidentiality designations is provided by the court reporter, all portions of the deposition testimony shall be treated as "Confidential Material." After the final deposition transcript incorporating all specified confidentiality designations is provided by the court reporter, the parties agree to treat all copies of any interim deposition transcripts containing incomplete confidentiality designations as though they contained the specified confidentiality designations. Transcript pages containing Confidential Material must be separately marked by the court reporter, who must affix to the top of each such page the legend "CONFIDENTIAL, " as instructed by the person providing the deposition testimony (or his or her counsel or counsel for either party).

Any cost charged by the court reporter related to a request to designate as "Confidential Material" a deposition transcript, or any part of a deposition transcript or any attached exhibits, including but not limited to a final deposition transcript, shall be borne by the party making the request for the designation.

With respect to any confidential material, an inadvertent failure to designate the qualified information or items as "CONFIDENTIAL" does not, standing alone, waive the designating party's right to secure protection under this Protective Order for such material. If the producing party notifies the receiving party within fourteen (14) days of the discovery of inadvertent non-designation, and identifies the confidential information inadvertently produced without such designation, the receiving party must make reasonable efforts to ensure that such material is ...


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