United States District Court, S.D. California
ORDER ON MOTION FOR ENTRY OF PROTECTIVE ORDER [ECF
NITA L. STORMES, UNITED STATES MAGISTRATE JUDGE.
the Court is the Defendants' motion for entry of a
protective order. ECF No. 34. The parties jointly requested
the motion be heard on shortened time to facilitate a
scheduled deposition. ECF No. 36. The Court granted that
request. ECF No. 42. Plaintiffs filed their opposition and
Defendants filed their reply consistent with the agreement of
the parties. ECF Nos. 40, 43.
reasons discussed herein, the Court GRANTS
Defendants' motion for entry of a protective order, and
DENIES Plaintiffs' request for
case arises from a home loan modification and alleges breach
of contract and violations of the Fair Credit Reporting Act,
Fair Debt Collection Act, and state equivalent statutes. ECF
No. 1. In the course of discovery, Plaintiffs served Requests
for Production of Documents (“RFP”) seeking,
inter alia, servicing notes on the subject loan. ECF
No. 34-1 at 1. Defendants' responses to the RFP included
objections and stated that documents would be produced
following agreement on a protective order. Id. at 2.
parties began the meet and confer process and Defendants
provided a standard stipulated protective order for
consideration. Id. Following meet and confer
conferences, supplemental responses, and the initial
production of documents, Defendants reiterated that servicing
notes would be produced under a protective order.
Id. at 2-3. Plaintiffs did not agree to stipulate to
a protective order during this process. Id.
acknowledge that Defendants requested, on many
occasions, that Plaintiffs stipulate to a protective order.
ECF No. 40 at 2-4. Plaintiffs argue that each request was
untimely and/or waived because it was not requested prior to
the time that Defendants responded to discovery. Id.
at 3 (lines 6-9). Plaintiffs responded to each of
Defendants' requests that the Plaintiffs stipulate to a
protective order by pointing out the untimely nature of the
request. Id. at 3-4.
to move for entry of protective order, Defendants filed the
instant motion and were provided the first available hearing
date consistent with the Local Rules 28-day hearing calendar
requirements, April 26, 2018. The parties jointly stipulated
for this motion to be heard on shortened time in light of a
deposition of Defendant Ocwen scheduled for April 12, 2018
and submitted briefing accordingly so that documents may be
produced subject to the protective order in advance of and
for use in the deposition.
26(c), setting forth grounds for protective orders, was
enacted as a safeguard for the protection of parties and
witnesses in view of the broad discovery rights authorized in
Rule 26(b).” United States v. Columbia Broad. Sys.,
Inc., 666 F.2d 364, 368-69 (9th Cir. 1982).
“Generally, the public can gain access to litigation
documents and information produced during discovery unless
the party opposing disclosure shows ‘good cause'
why a protective order is necessary.” Phillips ex
rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d
1206, 1210 (9th Cir. 2002). In order to satisfy the good
cause standard, the party seeking the protective order must
explain what specific prejudice or harm will result without
protection. Id. at 1211. “Rule 26(c) confers
broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection
is required . . . [because the] trial court is in the best
position to weigh fairly the competing needs and interests of
parties affected by discovery.” Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 36 (1984).
protective orders are routinely approved for use in civil
cases and consistent with the mandate that courts provide
“just, speedy, and inexpensive” resolution in
every action and proceeding. Van v. Wal-Mart Stores,
Inc., C 08-5296 PSG, 2011 WL 62499, at *2 (N.D. Cal.
Jan. 7, 2011) (“Blanket protective orders serve the
interests of a ‘just, speedy, and inexpensive'
determination of cases by avoiding the undue cost and delay
that would ensue if courts had to make a good cause
determination on a document-by-document basis for all
documents exchanged in discovery that a party wished to
protect.”). The Ninth Circuit implicitly acknowledged
that the use of blanket protective orders conserves judicial
resources-and taxpayer money-by eliminating the requirement
that a party move for a protective order every time that
party produces documents they contend are confidential.
See Foltz v. State Farm Mut. Auto. Ins. Co., 331
F.3d 1122, 1131 (9th Cir. 2003) (noting that use of a blanket
protective order was “understandable for the unfiled
documents given the onerous burden document review
blanket protective orders are usually based on a joint
request of the parties-and courts generally expect
such cooperation among litigants-the agreement of
all parties is not required so long as certain conditions are
met.” Van v. Wal-Mart, 2011 WL 62499, at *2
(emphasis added) (citing Parkway Gallery Furniture, Inc.
v. Kittinger/Pennsylvania House Group, Inc., 121 F.R.D.
264, 268 (M.D. N.C. 1988)). Specifically, the party
requesting the protective order must “make some
threshold showing of good cause to believe that discovery
will involve confidential or protected information, ”
which “may be done on a generalized as opposed to
document-by- document basis.” Id.
Additionally, the parties “must agree to only invoke
the designation in good faith.” Id. Finally,
the party receiving documents must have the right to
challenge the confidentiality designations assigned to
Timeliness of the Motion for Protective Order
argue that Defendants' motion is untimely, and that
Defendants have “waived” the ability to seek a
protective order by not requesting one prior to the deadline
to respond to the RFPs. ECF No. 40 at 3, 5-8.
26(c), addressing protective orders, provides no time
constraints for a request, and presumes that a request will
not arise until discovery is pending. Fed.R.Civ.P. 26(c)
(“A party or any person from whom discovery is sought
may move for a protective order in the court where the action
cites to an unpublished Ninth Circuit opinion, Seminara
v. City of Long Beach, 68 F.3d 481 (9th Cir. 1995), for
the proposition that a request for protective order is timely
if made prior to date set for the discovery. Not only is this
opinion clearly identified as unpublished, it does not meet
any of the requirements that otherwise allow for citation of
unpublished authority. See Fed. R. App. P. 32.1,
Ninth Circuit Rule, 36-3. The subsequent cites are also dated
prior to 2007 and inapplicable, or out of circuit authority
that is not binding.
so, Plaintiffs reliance on each case cited is misplaced: In
Seminara, the Ninth Circuit concluded there was no
abuse of discretion where the court sua sponte
issued a protective order in circumstances where discovery
responses had already been issued. Likewise, in Brittain
v. Stroh Brewery Co., 136 F.R.D. 408, 414 (M.D. N.C.
1991), the court held that a protective order was appropriate
and “seasonable” where, as here, “defendant
(1) noted its objections in the response to the written
discovery, (2) submitted a proposed protective order prior to
plaintiffs' motion to compel discovery, and (3) moved for
a protective order….” These are exactly the
facts before this Court and, as in Brittain, a
protective order is appropriate and “seasonable.”
Finally, in Berry v. Baca, CV01-02069 DDP (SHX),
2002 WL 1777412, at *1 (C.D. Cal. July 29, 2002), the court
addressed a protective order specific to a depositions and
fee shifting request, not a protective order governing
documents. This case is wholly inapplicable.
ideally, parties will promptly move for a protective order at
the outset of a case, this Court is aware of no case law, and
Plaintiffs cite to none, where failure to request a
protective order prior to issuing responses constitutes a
waiver of the ability to seek a protective order. And where,
as here, the first set of responses to discovery included
that production of documents would occur subject to a
protective order, there is no basis to argue waiver.
Likewise, in cases involving financial information,
protective orders are routinely used and often stipulated to
by counsel. In this case, Defendants had no reason to think
that a protective order would be objectionable and began the
negotiations for one concurrently with the responses
regarding the documents that would subject to the protective
order. The Court finds Defendants' request was made
within a reasonable time and is timely. Fed.R.Civ.P. 26(c).
Good Cause for Protective Order
assert good cause exists for entry of a protective order
because the “confidential servicing notes contain
proprietary trade secrets.” ECF No. 34-1 at 4. In
addition to being proprietary, Defendants argue the servicing
notes are “not publically [sic] available, and deserve
protection from unfettered dissemination by the parties to
this litigation.” Id. at 5. Defendants
articulate that the servicing notes are “integral to
ensuring its financial security and preventing the occurrence
of fraud on its business, employees and customers. Public
dissemination of its servicing notes provides valuable
information to competitors, potential fraudsters, identity
thieves, and criminals by needlessly providing those
individuals with information they may creatively use to scam,
trick, and swindle Defendants and their customers.”
Id. The Court finds this presents good cause and
adequately “explain[s] what specific prejudice or harm
will result without protection.” Phillips ex rel.
Estates of Byrd v. Gen. Motors Corp., 307 F.3d at 1211.
opposition, Plaintiffs argue that “Defendants actions
toward their own customers (Plaintiffs) deserves to be fully
within the realm of public disclosure to warn customers
… of extreme unfairness that Defendants have thrust
upon Plaintiffs.” ECF No. 40 at 1. Plaintiffs rely on
Performance Credit Corporation v. EMC Mortgage
Corporation, SACV 07-383 DOC RNBX, 2009 WL 10673235, at
*1 (C.D. Cal. June 23, 2009) for the proposition that
servicing notes should be produced without a protective
order. ECF No. 40 at 10.
Court reviewed the docket associated with Performance
Credit via PACER and finds that a Stipulated Protective
Order was entered in this case prior to the discovery dispute
that is the subject of the cited order. Performance
Credit Corporation v. EMC Mortgage Corporation, SACV
07-383 DOC RNBX, (Stipulated Protective Order, ECF No. 21,
Dec. 21, 2007; Citation Order, ECF No. 84, June 23, 2009).
Performance Credit does not support Plaintiff's
position. There, the defendants requested a protective order
in response to a motion to compel production. The
Performance Credit court did not opine on the
ability of the parties to make servicing notes available to
the public at large, only that they were relevant to the
litigation and must be produced to the plaintiff. 2009 WL
10673235, at *3. In this case, there is no dispute that the
documents will be produced, rendering any reliance on
Performance Credit inapposite.
the interests of the parties, a protective order is
appropriate. Defendants have demonstrated good cause, and
Plaintiffs do not point to any prejudice that would result
from the issuance of a protective order as this issue will be
decided prior to the deposition scheduled for April 12, 2018
and the Servicing Notes at issue will be produced to
Plaintiff for use and reference in this matter, under a
protective order. A protective order permits discovery of the
relevant documents to Plaintiffs while protecting financial
and proprietary data that is not otherwise publicly