Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 1 of 15 Page ID #:211

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 COREY ROCHE, ) Case No. 8:21-cv-00985-CJC-JDE ) 11 ) Plaintiff, ) STIPULATION AND 12 ) PROPOSED PROTECTIVE 13 vs. ) ) ORDER ) 14 SLM CORPORATION D/B/A SALLIE )

MAE BANK, EXPERIAN )

15 )

INFORMATION SOLUTIONS, INC., )

16 AND EQUIFAX INFORMATION )

SERVICES, LLC, )

17 ) ) 18 Defendants. ) 19 Based on the parties’ Stipulation (Dkt. 37) and for good cause shown, 20 the Court finds and orders as follows. 21 1. PURPOSES AND LIMITATIONS 22 Discovery in this action is likely to involve production of confidential, 23 proprietary or private information for which special protection from public 24 disclosure and from use for any purpose other than pursuing this litigation may 25 26 be warranted. Accordingly, the parties hereby stipulate to and petition the Court 27 to enter the following Stipulated Protective Order. The parties acknowledge that 28 this Order does not confer blanket protections on all disclosures or responses to Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 2 of 15 Page ID #:212

1 discovery and that the protection it affords from public disclosure and use 2 extends only to the limited information or items that are entitled to confidential 3 treatment under the applicable legal principles. 4 2. GOOD CAUSE STATEMENT 5 This action is likely to involve trade secrets, customer and pricing lists and 6 other valuable research, development, commercial, financial, technical and/or 7 proprietary information for which special protection from public disclosure and 8 from use for any purpose other than prosecution of this action is warranted. Such 9 confidential and proprietary materials and information consist of, among other 10 things, confidential business or financial information, information regarding 11 confidential business practices, or other confidential research, development, or 12 commercial information (including information implicating privacy rights of 13 third parties), information otherwise generally unavailable to the public, or 14 which may be privileged or otherwise protected from disclosure under state or 15 federal statutes, court rules, case decisions, or common law. Accordingly, to 16 expedite the flow of information, to facilitate the prompt resolution of disputes 17 over confidentiality of discovery materials, to adequately protect information 18 19 the parties are entitled to keep confidential, to ensure that the parties are 20 permitted reasonable necessary uses of such material in preparation for and in 21 the conduct of trial, to address their handling at the end of the litigation, and 22 serve the ends of justice, a protective order for such information is justified in 23 this matter. It is the intent of the parties that information will not be designated 24 as confidential for tactical reasons and that nothing be so designated without a 25 good faith belief that it has been maintained in a confidential, non-public 26 manner, and there is good cause why it should not be part of the public record 27 of this case. 28 / / / 2 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 3 of 15 Page ID #:213

1 3. ACKNOWLEDGMENT OF UNDER SEAL FILING 2

PROCEDURE

3 The parties further acknowledge, as set forth in Section 14.3, below, that 4 this Stipulated Protective Order does not entitle them to file confidential 5 information under seal; Local Civil Rule 79-5 sets forth the procedures that must 6 be followed and the standards that will be applied when a party seeks permission 7 from the court to file material under seal. There is a strong presumption that the 8 public has a right of access to judicial proceedings and records in civil cases. In 9 connection with non-dispositive motions, good cause must be shown to support 10 a filing under seal. See Kamakana v. City and County of Honolulu, 447 F.3d 11 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210- 12 11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 13 (E.D. Wis. 1999) (even stipulated protective orders require good cause 14 showing), and a specific showing of good cause or compelling reasons with 15 proper evidentiary support and legal justification, must be made with respect to 16 Protected Material that a party seeks to file under seal. The parties’ mere 17 designation of Disclosure or Discovery Material as CONFIDENTIAL does 18 19 not— without the submission of competent evidence by declaration, establishing 20 that the material sought to be filed under seal qualifies as confidential, 21 privileged, or otherwise protectable—constitute good cause. 22 Further, if a party requests sealing related to a dispositive motion or trial, 23 then compelling reasons, not only good cause, for the sealing must be shown, 24 and the relief sought shall be narrowly tailored to serve the specific interest to be 25 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 26 2010). For each item or type of information, document, or thing sought to be 27 filed or introduced under seal, the party seeking protection must articulate 28 compelling reasons, supported by specific facts and legal justification, for the 3 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 4 of 15 Page ID #:214

1 requested sealing order. Again, competent evidence supporting the application 2 to file documents under seal must be provided by declaration. 3 Any document that is not confidential, privileged, or otherwise 4 protectable in its entirety will not be filed under seal if the confidential portions 5 can be redacted. If documents can be redacted, then a redacted version for public 6 viewing, omitting only the confidential, privileged, or otherwise protectable 7 portions of the document, shall be filed. Any application that seeks to file 8 documents under seal in their entirety should include an explanation of why 9 redaction is not feasible. 10 4. DEFINITIONS 11 4.1 Action: Roche v. Sallie Mae Bank, Experian Information Solutions, Inc., 12 and Equifax Information Services, LLC; case number 8:21-00985-CJC-JDE 13 4.2 Challenging Party: a Party or Non-Party that challenges the 14 designation of information or items under this Order. 15 4.3 “CONFIDENTIAL” Information or Items: information (regardless 16 of how it is generated, stored or maintained) or tangible things that qualify for 17 protection under Federal Rule of Civil Procedure 26(c), and as specified above 18 19 in the Good Cause Statement. 20 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as 21 their support staff). 22 4.5 Designating Party: a Party or Non-Party that designates 23 information or items that it produces in disclosures or in responses to discovery 24 as “CONFIDENTIAL.” 25 4.6 Disclosure or Discovery Material: all items or information, 26 regardless of the medium or manner in which it is generated, stored, or 27 maintained (including, among other things, testimony, transcripts, and tangible 28 things), that are produced or generated in disclosures or responses to discovery. 4 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 5 of 15 Page ID #:215

1 4.7 Expert: a person with specialized knowledge or experience in a 2 matter pertinent to the litigation who has been retained by a Party or its counsel 3 to serve as an expert witness or as a consultant in this Action. 4 4.8 House Counsel: attorneys who are employees of a party to this 5 Action. House Counsel does not include Outside Counsel of Record or any 6 other outside counsel. 7 4.9 Non-Party: any natural person, partnership, corporation, 8 association or other legal entity not named as a Party to this action. 9 4.10 Outside Counsel of Record: attorneys who are not employees of a 10 party to this Action but are retained to represent a party to this Action and have 11 appeared in this Action on behalf of that party or are affiliated with a law firm 12 that has appeared on behalf of that party, and includes support staff. 13 4.11 Party: any party to this Action, including all of its officers, directors, 14 employees, consultants, retained experts, and Outside Counsel of Record (and 15 their support staffs). 16 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 17 Discovery Material in this Action. 18 19 4.13 Professional Vendors: persons or entities that provide litigation 20 support services (e.g., photocopying, videotaping, translating, preparing exhibits 21 or demonstrations, and organizing, storing, or retrieving data in any form or 22 medium) and their employees and subcontractors. 23 4.14 Protected Material: any Disclosure or Discovery Material that is 24 designated as “CONFIDENTIAL.” 25 4.15 Receiving Party: a Party that receives Disclosure or Discovery 26 Material from a Producing Party. 27 28 5 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 6 of 15 Page ID #:216

1 5. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of 8 the trial judge and other applicable authorities. This Order does not govern the 9 use of Protected Material at trial. 10 6. DURATION 11 Once a case proceeds to trial, information that was designated as 12 CONFIDENTIAL or maintained pursuant to this protective order used or 13 introduced as an exhibit at trial becomes public and will be presumptively 14 available to all members of the public, including the press, unless compelling 15 reasons supported by specific factual findings to proceed otherwise are made to 16 the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 17 (distinguishing “good cause” showing for sealing documents produced in 18 19 discovery from “compelling reasons” standard when merits-related documents 20 are part of court record). Accordingly, the terms of this protective order do not 21 extend beyond the commencement of the trial. 22 7. DESIGNATING PROTECTED MATERIAL 23 7.1 Exercise of Restraint and Care in Designating Material for 24 Protection. Each Party or Non-Party that designates information or 25 items for protection under this Order must take care to limit any such 26 designation to specific material that qualifies under the appropriate standards. 27 The Designating Party must designate for protection only those parts of 28 material, documents, items or oral or written communications that qualify so 6 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 7 of 15 Page ID #:217

1 that other portions of the material, documents, items or communications for 2 which protection is not warranted are not swept unjustifiably within the ambit 3 of this Order. 4 Mass, indiscriminate or routinized designations are prohibited. 5 Designations that are shown to be clearly unjustified or that have been made for 6 an improper purpose (e.g., to unnecessarily encumber the case development 7 process or to impose unnecessary expenses and burdens on other parties) may 8 expose the Designating Party to sanctions. 9 If it comes to a Designating Party’s attention that information or items 10 that it designated for protection do not qualify for protection, that Designating 11 Party must promptly notify all other Parties that it is withdrawing the 12 inapplicable designation. 13 7.2 Manner and Timing of Designations. Except as otherwise provided 14 in this Order, or as otherwise stipulated or ordered, Disclosure of Discovery 15 Material that qualifies for protection under this Order must be clearly so 16 designated before the material is disclosed or produced. 17 Designation in conformity with this Order requires: 18 19 (a) for information in documentary form (e.g., paper or electronic 20 documents, but excluding transcripts of depositions or other pretrial or trial 21 proceedings), that the Producing Party affix at a minimum, the legend 22 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page 23 that contains protected material. If only a portion of the material on a page 24 qualifies for protection, the Producing Party also must clearly identify the 25 protected portion(s) (e.g., by making appropriate markings in the margins). 26 A Party or Non-Party that makes original documents available for 27 inspection need not designate them for protection until after the inspecting Party 28 has indicated which documents it would like copied and produced. During the 7 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 8 of 15 Page ID #:218

1 inspection and before the designation, all of the material made available for 2 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 3 identified the documents it wants copied and produced, the Producing Party 4 must determine which documents, or portions thereof, qualify for protection 5 under this Order. Then, before producing the specified documents, the 6 Producing Party must affix the “CONFIDENTIAL legend” to each page that 7 contains Protected Material. If only a portion of the material on a page qualifies 8 for protection, the Producing Party also must clearly identify the protected 9 portion(s) (e.g., by making appropriate markings in the margins). 10 (b) for testimony given in depositions that the Designating Party 11 identifies the Disclosure or Discovery Material on the record, before the close of 12 the deposition all protected testimony. 13 (c) for information produced in some form other than documentary 14 and for any other tangible items, that the Producing Party affix in a prominent 15 place on the exterior of the container or containers in which the information is 16 stored the legend “CONFIDENTIAL.” If only a portion or portions of the 17 information warrants protection, the Producing Party, to the extent practicable, 18 19 shall identify the protected portion(s). 20 7.3 Inadvertent Failures to Designate. If timely corrected, an 21 inadvertent failure to designate qualified information or items does not, standing 22 alone, waive the Designating Party’s right to secure protection under this Order 23 for such material. Upon timely correction of a designation, the Receiving Party 24 must make reasonable efforts to assure that the material is treated in accordance 25 with the provisions of this Order. 26 27 28 8 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 9 of 15 Page ID #:219

1 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 2 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 3 designation of confidentiality at any time that is consistent with the Court’s 4 Scheduling Order. 5 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 6 resolution process under Local Rule 37-1 et seq. 7 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 8 joint stipulation pursuant to Local Rule 37-2. 9 8.4 The burden of persuasion in any such challenge proceeding shall be 10 on the Designating Party. Frivolous challenges, and those made for an improper 11 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 12 parties) may expose the Challenging Party to sanctions. Unless the Designating 13 Party has waived or withdrawn the confidentiality designation, all parties shall 14 continue to afford the material in question the level of protection to which it is 15 entitled under the Producing Party’s designation until the Court rules on the 16 challenge. 17 9. ACCESS TO AND USE OF PROTECTED MATERIAL 18 19 9.1 Basic Principles. A Receiving Party may use Protected Material that 20 is disclosed or produced by another Party or by a Non-Party in connection with 21 this Action only for prosecuting, defending or attempting to settle this Action. 22 Such Protected Material may be disclosed only to the categories of persons and 23 under the conditions described in this Order. When the Action has been 24 terminated, a Receiving Party must comply with the provisions of section 15 25 below (FINAL DISPOSITION). 26 Protected Material must be stored and maintained by a Receiving Party at 27 a location and in a secure manner that ensures that access is limited to the 28 persons authorized under this Order. 9 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 10 of 15 Page ID #:220

1 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 2 otherwise ordered by the court or permitted in writing by the Designating Party, 3 a Receiving Party may disclose any information or item designated 4 “CONFIDENTIAL” only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this Action, 6 as well as employees of said Outside Counsel of Record to whom it is reasonably 7 necessary to disclose the information for this Action; 8 (b) the officers, directors, and employees (including House Counsel) 9 of the Receiving Party to whom disclosure is reasonably necessary for this 10 Action; 11 (c) Experts (as defined in this Order) of the Receiving Party to whom 12 disclosure is reasonably necessary for this Action and who have signed the 13 “Acknowledgment and Agreement to Be Bound” (Dkt. 38, “Exhibit A”); 14 (d) the court and its personnel; 15 (e) court reporters and their staff; 16 (f) professional jury or trial consultants, mock jurors, and 17 Professional Vendors to whom disclosure is reasonably necessary for this Action 18 19 and who have signed the “Acknowledgment and Agreement to Be Bound” 20 (Exhibit A); 21 (g) the author or recipient of a document containing the information 22 or a custodian or other person who otherwise possessed or knew the 23 information; 24 (h) during their depositions, witnesses, and attorneys for witnesses, 25 in the Action to whom disclosure is reasonably necessary provided: (1) the 26 deposing party requests that the witness sign the form attached as Exhibit A 27 hereto; and (2) they will not be permitted to keep any confidential information 28 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit 10 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 11 of 15 Page ID #:221

1 A), unless otherwise agreed by the Designating Party or ordered by the court. 2 Pages of transcribed deposition testimony or exhibits to depositions that reveal 3 Protected Material may be separately bound by the court reporter and may not 4 be disclosed to anyone except as permitted under this Stipulated Protective 5 Order; and 6 (i) any mediators or settlement officers and their supporting 7 personnel, mutually agreed upon by any of the parties engaged in settlement 8 discussions. 9 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 10

PRODUCED IN OTHER LITIGATION

11 If a Party is served with a subpoena or a court order issued in other 12 litigation that compels disclosure of any information or items designated in this 13 Action as “CONFIDENTIAL,” that Party must: 14 (a) promptly notify in writing the Designating Party. Such 15 notification shall include a copy of the subpoena or court order; 16 (b) promptly notify in writing the party who caused the subpoena or 17 order to issue in the other litigation that some or all of the material covered by 18 19 the subpoena or order is subject to this Protective Order. Such notification shall 20 include a copy of this Stipulated Protective Order; and 21 (c) cooperate with respect to all reasonable procedures sought to be 22 pursued by the Designating Party whose Protected Material may be affected. If 23 the Designating Party timely seeks a protective order, the Party served with the 24 subpoena or court order shall not produce any information designated in this 25 action as “CONFIDENTIAL” before a determination by the court from which 26 the subpoena or order issued, unless the Party has obtained the Designating 27 Party’s permission. The Designating Party shall bear the burden and expense of 28 seeking protection in that court of its confidential material and nothing in these 11 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 12 of 15 Page ID #:222

1 provisions should be construed as authorizing or encouraging a Receiving Party 2 in this Action to disobey a lawful directive from another court. 3 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 4

BE PRODUCED IN THIS LITIGATION

5 (a) The terms of this Order are applicable to information produced 6 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such 7 information produced by Non-Parties in connection with this litigation is 8 protected by the remedies and relief provided by this Order. Nothing in these 9 provisions should be construed as prohibiting a Non-Party from seeking 10 additional protections. 11 (b) In the event that a Party is required, by a valid discovery request, 12 to produce a Non-Party’s confidential information in its possession, and the 13 Party is subject to an agreement with the Non-Party not to produce the Non- 14 Party’s confidential information, then the Party shall: 15 (1) promptly notify in writing the Requesting Party and the Non- 16 Party that some or all of the information requested is subject to a confidentiality 17 agreement with a Non-Party; 18 19 (2) promptly provide the Non-Party with a copy of the Stipulated 20 Protective Order in this Action, the relevant discovery request(s), and a 21 reasonably specific description of the information requested; and 22 (3) make the information requested available for inspection by the 23 Non-Party, if requested. 24 (c) If the Non-Party fails to seek a protective order from this court 25 within 14 days of receiving the notice and accompanying information, the 26 Receiving Party may produce the Non-Party’s confidential information 27 responsive to the discovery request. If the Non-Party timely seeks a protective 28 order, the Receiving Party shall not produce any information in its possession 12 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 13 of 15 Page ID #:223

1 or control that is subject to the confidentiality agreement with the Non-Party 2 before a determination by the court. Absent a court order to the contrary, the 3 Non-Party shall bear the burden and expense of seeking protection in this court 4 of its Protected Material. 5 12. UNAUTHORIZED DISCLOSURE OF PROTECTED 6

MATERIAL

7 If a Receiving Party learns that, by inadvertence or otherwise, it has 8 disclosed Protected Material to any person or in any circumstance not 9 authorized under this Stipulated Protective Order, the Receiving Party must 10 immediately (a) notify in writing the Designating Party of the unauthorized 11 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 12 Protected Material, (c) inform the person or persons to whom unauthorized 13 disclosures were made of all the terms of this Order, and (d) request such person 14 or persons to execute the “Acknowledgment an Agreement to Be Bound” 15 attached hereto as Exhibit A. 16 13. INADVERTENT PRODUCTION OF PRIVILEGED OR 17

OTHERWISE PROTECTED MATERIAL

18 19 When a Producing Party gives notice to Receiving Parties that certain 20 inadvertently produced material is subject to a claim of privilege or other 21 protection, the obligations of the Receiving Parties are those set forth in Federal 22 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 23 whatever procedure may be established in an e-discovery order that provides for 24 production without prior privilege review. Pursuant to Federal Rule of Evidence 25 502(d) and (e), insofar as the parties reach an agreement on the effect of 26 disclosure of a communication or information covered by the attorney-client 27 privilege or work product protection, the parties may incorporate their 28 agreement in the stipulated protective order submitted to the court. 13 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 14 of 15 Page ID #:224

1 14. MISCELLANEOUS 2 14.1 Right to Further Relief. Nothing in this Order abridges the right of 3 any person to seek its modification by the Court in the future. 4 14.2 Right to Assert Other Objections. By stipulating to the entry of this 5 Protective Order, no Party waives any right it otherwise would have to object to 6 disclosing or producing any information or item on any ground not addressed 7 in this Stipulated Protective Order. Similarly, no Party waives any right to object 8 on any ground to use in evidence of any of the material covered by this 9 Protective Order. 10 14.3 Filing Protected Material. A Party that seeks to file under seal any 11 Protected Material must comply with Local Civil Rule 79-5. Protected Material 12 may only be filed under seal pursuant to a court order authorizing the sealing of 13 the specific Protected Material. If a Party’s request to file Protected Material 14 under seal is denied by the court, then the Receiving Party may file the 15 information in the public record unless otherwise instructed by the court. 16 15. FINAL DISPOSITION 17 After the final disposition of this Action, as defined in paragraph 6, within 18 19 60 days of a written request by the Designating Party, each Receiving Party must 20 return all Protected Material to the Producing Party or destroy such material. 21 As used in this subdivision, “all Protected Material” includes all copies, 22 abstracts, compilations, summaries, and any other format reproducing or 23 capturing any of the Protected Material. Whether the Protected Material is 24 returned or destroyed, the Receiving Party must submit a written certification to 25 the Producing Party (and, if not the same person or entity, to the Designating 26 Party) by the 60-day deadline that (1) identifies (by category, where appropriate) 27 all the Protected Material that was returned or destroyed and (2) affirms that the 28 Receiving Party has not retained any copies, abstracts, compilations, summaries 14 Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page15o0f15 Page ID #:245

I or any other format reproducing or capturing any of the Protected Material. 2 Notwithstanding this provision, Counsel are entitled to retain an archival copy ° of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal ‘ memoranda, correspondence, deposition and trial exhibits, expert reports, ° attorney work product, and consultant and expert 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

9 in Section 6 (DURATION). 10 16. VIOLATION Any violation of this Order may be punished by appropriate measures D including, without limitation, contempt proceedings and/or monetary 13 || Sanctions. 14 Is FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

16 17 || DATED: March 14, 2022 18 je de 19 20 jon D. EARLY : 1 nited States Magistrate Judge

22 23 24 25 26 27 28 15