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Olney v. Job.Com

United States District Court, E.D. California

September 15, 2014

PETER OLNEY, et al., Plaintiffs,
JOB.COM, Defendant/Third Party Plaintiff,
RESUMEDIRECTOR.COM, et al., Third Party Defendants.


SHEILA K. OBERTO, Magistrate Judge.


On July 7, 2014, the parties filed a "Joint Statement re Discovery Disagreement." (Doc.152.) Plaintiff Peter Olney ("Plaintiff") seeks to "de-designate" a CD-ROM produced during discovery that Defendants, Inc. ("") and Windy City Call Center, LLC ("Windy City") (collectively "Defendants") designated as confidential pursuant to a stipulated entered into by the parties. The parties appeared for a hearing on this matter on July 30, 2014. They filed a "Joint Supplemental Statement re Discovery Disagreement" on August 5, 2014. (Doc. 167.) For the reasons set forth below, the CD-ROM at issue shall no longer be designated confidential pursuant to the parties' confidentiality stipulation.


A. Factual Background[1]

On August 12, 2012, Plaintiff registered his resume with a website called "Resume-Now" as part of his efforts to seek new employment. Resume-Now is owned and operated by LiveCareer, Inc. ("LiveCareer"). Registration with Resume-Now generally consists of three steps. First, the registrant is prompted to create or upload a new resume. Second, the registrant is asked for information regarding the job he or she seeks. Third, the registrant is asked to enter and confirm his or her email address. According to, at this point the registrant also (1) is given an opportunity to review Resume-Now's terms of use and privacy policy; (2) is asked to acknowledge that he or she has read and agrees to the terms of use and privacy policy; and (3) is allowed to uncheck a box that reads: "[R]eceive... free information on managing my career."

On August 13, 2012, Plaintiff used the Resume-Now's resume posting service, a service that is offered only to subscribing members. To initiate the resume posting service, Plaintiff clicked a button labeled: "Post Resume. Instantly post your resume to 90 job boards." Plaintiff was then directed to the resume posting "splash page, " where Plaintiff was given the option to choose from various categories of job-search websites on which he wished his resume to be posted. Plaintiff chose to post his resume on "General Sites." Upon choosing "General Sites, " Plaintiff was directed to a pop-up page displaying a list of additional job sites where his resume would be sent. "" was one of the websites listed in the pop-up page.

As part of this process, Plaintiff was required to provide additional contact information. The website reads: "Enter your mailing address and current phone [number] so that recruiters and potential employers can contact you." Plaintiff entered his cell phone number on this page. Plaintiff was then given another chance to review Resume-Now's terms of use and privacy policy. Plaintiff reviewed the policy and completed the resume posting process by clicking "Post."

On August 17, 2012, Plaintiff registered an account with via Resume-Now's website. The registration process consisted of populating fields on five pages, one of which was the "Profile" page. On the Profile page, Plaintiff's cell phone number was entered in the "Home Phone" field. asserts that Plaintiff also left a box unchecked that read "[B]y keeping the box above checked, I'd like to be contacted by phone to discuss educational opportunities to help prepare me for my dream career." Although the box was checked by default, a registrant may uncheck the box if he or she wishes to opt out of the service. Plaintiff claims that he never visited, never saw the opt-out box, and therefore could not have checked it or left it unchecked. forwarded Plaintiff's profile, including his phone number, to a third party, Windy City Call Center, LLC ("Windy City"). Windy City operates the Windy City Call Center, which is used to provide "education leads" to higher learning institutions., through Windy City, placed multiple calls a day to Plaintiff on August 17, 2012, through September 4, 2012, for the purpose of selling and Windy City's or a third party's services.

B. Procedural Background

1. Involved Parties and Pleadings

Plaintiff filed this suit on October 19, 2012, on behalf of himself and all other similarly situated individuals. According to the currently operative Second Amended Complaint ("SAC"), Plaintiff seeks statutory damages and injunctive relief against and Windy City for negligent willful violations of the Telephone Consumer Protection Act ("TCPA") in making allegedly improper automatic telephone calls to Plaintiff's cellular telephone.

On March 22, 2013, filed a third-party complaint ("TP Complaint") against, North America Livecareer, Inc., and Livecareer, LTD ("TP Defendants"). (Doc. 24.)[2] The TP Defendants filed an answer to's complaint on May 21, 2013. (Doc. 33.) On November 15, 2013, Plaintiff filed a First Amended Complaint ("FAC"), which named Bird Dog Media, LLC, as a new defendant. (Doc. 76.) On December 6, 2013, the parties stipulated that Plaintiff be permitted to file a Second Amended Complaint ("SAC") naming Windy City as a defendant in place of Bird Dog Media, LLC. (Doc. 80.) The SAC was filed on December 10, 2014, naming Windy City as a defendant, and Plaintiff filed a notice of voluntary dismissal of Bird Dog Media, LLC, on December 19, 2013. (Doc. 83.)

On February 18, 2014, Windy City filed an Answer to Plaintiff's SAC, and filed a Cross-Claim against Defendants LiveCareer, Ltd., North America Livecareer, Inc., and (Doc. 106.) On March 10, 2014, Defendants LiveCareer, Ltd., North America Livecareer, Inc., and filed a motion to dismiss Windy City's Cross-Claim against them. (Doc. 112.) On April 1, 2014, Windy City filed a notice of voluntary dismissal of its Cross-Claim. (Doc. 114.)

2. The Parties' Discovery Stipulation

After discovery commenced regarding Plaintiff's individual claims, the parties drafted a written stipulation that would limit or preclude the use of information marked "confidential" and produced during the course of discovery. The parties filed their stipulation and requested the Court issue it as a protective order regarding confidential discovery documents. On September 19, 2013, the Court denied without prejudice the parties' request because the stipulation failed to comply with the Court's Local Rule 141.1. (Doc. 65.) Rather than re-filing a revised stipulation, the parties elected to enter into a private confidentiality agreement between themselves on September 26, 2013, entitled "Stipulation of Confidentiality, " which was intended to govern the use of confidential information produced during the course of discovery (the "Stipulation"). The Stipulation was executed by counsel for Plaintiffs,, and the TP Defendants. Windy City did not sign the Stipulation until after December 10, 2013, when it was added to the lawsuit pursuant to the SAC. (Doc. 152-1, Kazerounian Decl., ¶ 7.)

The Stipulation permitted the parties to designate as "confidential" those "materials, or portions of materials being produced, disclosed, or otherwise submitted to the other party containing proprietary information or information that would invade their right to privacy including but not limited to the protection of sensitive personal or financial information, information constituting trade secrets, or such similar protected information needing confidential designation." (Doc. 152-2, p. 2-3, ¶ 2.) Materials produced during discovery, but designated confidential, were to be used solely for preparation, trial, and appeal of this case, and were not to be used by any person for any other purpose, including in any other litigation. (Doc. 152-2, p. 3, ¶ 4.)

On September 3, 2013, in response to written discovery propounded by Plaintiff, served on Plaintiff three audio recordings on a CD that was marked "confidential" under the parties' Stipulation. Although the parties' Stipulation was not executed until September 26, 2013, there is no dispute that the CD was produced and marked confidential pursuant to the Stipulation.

On October 4, 2013, Plaintiff was deposed and testified regarding a telephone conversation he had with ...

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