Case 2:22-cv-00407-FLA-AFM Document 41 Filed 07/06/22 Page 1 of 17 Page ID #:208

1 Elliot G. Johnson (State Bar No. 317303) johnsoneg@ballardspahr.com Elanor A. Mulhern (State Bar No. 279103) 2 mulherne@ballardspahr.com

BALLARD SPAHR LLP

3 2029 Century Park East, Suite 1400 Los Angeles, CA 90067-2915 4 Telephone: 424.204.4400 Facsimile: 424.204.4350 5 Attorneys for Defendant Capital One, N.A. d/b/a Capital One Auto 6 Finance

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 JASMIN NUNEZ; AND, Case No. 2:22-cv-00407-FLA-AFM

ISABEL ALVAREZ,

11 STIPULATED PROTECTIVE Plaintiffs, ORDER1 13 CAPITAL ONE BANK (USA) N.A.;

EQUIFAX INFORMATION

14 SERVICES, LLC; AND

TRANS UNION LLC,

15 Defendants.

16

17

I. PURPOSES AND LIMITATIONS

18 Discovery in this action is likely to involve production of confidential, 19 proprietary, or private information for which special protection from public disclosure 20 and from use for any purpose other than prosecuting this litigation may be warranted. 21 22

23 1 This Stipulated Protective Order is based substantially on the model protective 24 order provided under Magistrate Judge Alexander F. MacKinnon’s Procedures. 1 Case 2:22-cv-00407-FLA-AFM Document 41 Filed 07/06/22 Page 2 of 17 Page ID #:209

1 Accordingly, the parties hereby stipulate to and petition the Court to enter the following 2 Stipulated Protective Order. The parties acknowledge that this Order does not confer 3 blanket protections on all disclosures or responses to discovery and that the protection 4 it affords from public disclosure and use extends only to the limited information or 5 items that are entitled to confidential treatment under the applicable legal principles. 6 II. GOOD CAUSE STATEMENT 7 This action is likely to involve trade secrets, commercial, financial, technical

8 and/or proprietary information for which special protection from public disclosure and 9 from use for any purpose other than prosecution of this action is warranted. Such 10 confidential and proprietary materials and information consist of, among other things, 11 information regarding confidential business practices, or other confidential proprietary 12 commercial information (including information implicating privacy rights of third 13 parties), information otherwise generally unavailable to the public, or which may be 14 privileged or otherwise protected from disclosure under state or federal statutes, court 15 rules, case decisions, or common law. Accordingly, to expedite the flow of information, 16 to facilitate the prompt resolution of disputes over confidentiality of discovery 17 materials, to adequately protect information the parties are entitled to keep 18 confidential, to ensure that the parties are permitted reasonable necessary uses of such

19 material in preparation for and in the conduct of trial, to address their handling at the 20 end of the litigation, and serve the ends of justice, a protective order for such 21 information is justified in this matter. It is the intent of the parties that information 22 will not be designated as confidential for tactical reasons and that nothing be so 23 designated without a good faith belief that it has been maintained in a confidential, 24

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1 non-public manner, and there is good cause why it should not be part of the public 2 record of this case. 3 III. ACKNOWLEDGEMENT OF PROCEDURE FOR FILING UNDER SEAL 4 The parties further acknowledge, as set forth in Section XIV C., below, that this 5 Stipulated Protective Order does not entitle them to file confidential information under 6 seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and the 7 standards that will be applied when a party seeks permission from the court to file

8 material under seal. There is a strong presumption that the public has a right of access 9 to judicial proceedings and records in civil cases. In connection with non-dispositive 10 motions, good cause must be shown to support a filing under seal. See Kamakana v. 11 City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. 12 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony 13 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 14 require good cause showing), and a specific showing of good cause or compelling 15 reasons with proper evidentiary support and legal justification, must be made with 16 respect to Protected Material that a party seeks to file under seal. The parties’ mere 17 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— without 18 the submission of competent evidence by declaration, establishing that the material

19 sought to be filed under seal qualifies as confidential, privileged, or otherwise 20 protectable—constitute good cause. Further, if a party requests sealing related to a 21 dispositive motion or trial, then compelling reasons, not only good cause, for the 22 sealing must be shown, and the relief sought shall be narrowly tailored to serve the 23 specific interest to be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 24 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought

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1 to be filed or introduced under seal in connection with a dispositive motion or trial, the 2 party seeking protection must articulate compelling reasons, supported by specific facts 3 and legal justification, for the requested sealing order. Again, competent evidence 4 supporting the application to file documents under seal must be provided by 5 declaration. 6 Any document that is not confidential, privileged, or otherwise protectable in its 7 entirety will not be filed under seal if the confidential portions can be redacted. If

8 documents can be redacted, then a redacted version for public viewing, omitting only 9 the confidential, privileged, or otherwise protectable portions of the document, shall be 10 filed. Any application that seeks to file documents under seal in their entirety should 11 include an explanation of why redaction is not feasible. 12 IV. DEFINITIONS 13 A. Action: This pending federal law suit. 14 B. Challenging Party: A Party or Non-Party that challenges the designation 15 of information or items under this Order. 16 C. “CONFIDENTIAL” Information or Items: Information (regardless of how 17 it is generated, stored or maintained) or tangible things that qualify for 18 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

19 the Good Cause Statement. 20 D. Counsel: Outside Counsel of Record and House Counsel (as well as their 21 support staff). 22 E. Designating Party: A Party or Non-Party that designates information or 23 items that it produces in disclosures or in responses to discovery as 24 “CONFIDENTIAL.”

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1 F. Disclosure or Discovery Material: All items or information, regardless of 2 the medium or manner in which it is generated, stored, or maintained 3 (including, among other things, testimony, transcripts, and tangible things), that 4 are produced or generated in disclosures or responses to discovery in this 5 matter. 6 G. Expert: A person with specialized knowledge or experience in a matter 7 pertinent to the litigation who has been retained by a Party or its counsel to

8 serve as an expert witness or as a consultant in this Action. 9 H. House Counsel: Attorneys who are employees of a party to this Action. 10 House Counsel does not include Outside Counsel of Record or any other outside 11 counsel. 12 I. Non-Party: Any natural person, partnership, corporation, association, or 13 other legal entity not named as a Party to this action. 14 J. Outside Counsel of Record: Attorneys who are not employees of a party 15 to this Action but are retained to represent or advise a party to this Action and 16 have appeared in this Action on behalf of that party or are affiliated with a law 17 firm which has appeared on behalf of that party, and includes support staff. 18 K. Party: Any party to this Action, including all of its officers, directors,

19 employees, consultants, retained experts, and Outside Counsel of Record (and 20 their support staffs). 21 L. Producing Party: A Party or Non-Party that produces Disclosure or 22 Discovery Material in this Action. 23 M. Professional Vendors: Persons or entities that provide litigation support 24 services (e.g., photocopying, videotaping, translating, preparing exhibits or

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1 demonstrations, and organizing, storing, or retrieving data in any form or 2 medium) and their employees and subcontractors. 3 N. Protected Material: Any Disclosure or Discovery Material that is 4 designated as “CONFIDENTIAL.” 5 O. Receiving Party: A Party that receives Disclosure or Discovery Material 6 from a Producing Party. 7 V. SCOPE

8 The protections conferred by this Stipulation and Order cover not only Protected 9 Material (as defined above), but also (1) any information copied or extracted from 10 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 11 Material; and (3) any testimony, conversations, or presentations by Parties or their 12 Counsel that might reveal Protected Material. 13 Any use of Protected Material at trial shall be governed by the orders of the 14 trial judge. This Order does not govern the use of Protected Material at trial. 15 VI. DURATION 16 Once a case proceeds to trial, information that was designated as 17 CONFIDENTIAL or maintained pursuant to this protective order used or introduced as 18 an exhibit at trial becomes public and will be presumptively available to all members of

19 the public, including the press, unless compelling reasons supported by specific factual 20 findings to proceed otherwise are made to the trial judge in advance of the trial. See 21 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing 22 documents produced in discovery from “compelling reasons” standard when merits- 23 related documents are part of court record). Accordingly, the terms of this protective 24

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1 order do not extend beyond the commencement of the trial. 2 VII. DESIGNATING PROTECTED MATERIAL 3 A. Exercise of Restraint and Care in Designating Material for Protection. 4 Each Party or Non-Party that designates information or items for protection 5 under this Order must take care to limit any such designation to specific material that 6 qualifies under the appropriate standards. The Designating Party must designate for 7 protection only those parts of material, documents, items, or oral or written

8 communications that qualify so that other portions of the material, documents, items, 9 or communications for which protection is not warranted are not swept unjustifiably 10 within the ambit of this Order. 11 Mass, indiscriminate, or routinized designations are prohibited. Designations 12 that are shown to be clearly unjustified or that have been made for an improper 13 purpose (e.g., to unnecessarily encumber the case development process or to impose 14 unnecessary expenses and burdens on other parties) may expose the Designating Party 15 to sanctions. 16 If it comes to a Designating Party’s attention that information or items that it 17 designated for protection do not qualify for protection, that Designating Party must 18 promptly notify all other Parties that it is withdrawing the inapplicable designation.

19 B. Manner and Timing of Designations 20 Except as otherwise provided in this Order (see, e.g., Section B(2)(b) below), or 21 as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for 22 protection under this Order must be clearly so designated before the material is 23 disclosed or produced. 24 Designation in conformity with this Order requires:

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1 (a) For information in documentary form (e.g., paper or electronic 2 documents, but excluding transcripts of depositions or other pretrial or trial 3 proceedings), that the Producing Party affix at a minimum, the legend 4 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that contains 5 protected material. If only a portion or portions of the material on a page qualifies for 6 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 7 by making appropriate markings in the margins).

8 A Party or Non-Party that makes original documents available for inspection 9 need not designate them for protection until after the inspecting Party has indicated 10 which documents it would like copied and produced. During the inspection and before 11 the designation, all of the material made available for inspection shall be deemed 12 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 13 copied and produced, the Producing Party must determine which documents, or 14 portions thereof, qualify for protection under this Order. Then, before producing the 15 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to 16 each page that contains Protected Material. If only a portion or portions of the material 17 on a page qualifies for protection, the Producing Party also must clearly identify the 18 protected portion(s) (e.g., by making appropriate markings in the margins).

19 (b) For testimony given in depositions, that the Designating Party identify 20 the Disclosure or Discovery Material on the record, before the close of the deposition all 21 protected testimony. 22 (c) For information produced in form other than document and for any other 23 tangible items, that the Producing Party affix in a prominent place on the exterior of the 24 container or containers in which the information is stored the legend

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1 “CONFIDENTIAL.” If only a portion or portions of the information warrants 2 protection, the Producing Party, to the extent practicable, shall identify the protected 3 portion(s). 4 C. Inadvertent Failure to Designate 5 If timely corrected, an inadvertent failure to designate qualified information or 6 items does not, standing alone, waive the Designating Party’s right to secure protection 7 under this Order for such material. Upon timely correction of a designation, the

8 Receiving Party must make reasonable efforts to assure that the material is treated in 9 accordance with the provisions of this Order. 10 VIII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 11 A. Timing of Challenges 12 Any party or Non-Party may challenge a designation of confidentiality at any 13 time that is consistent with the Court’s Scheduling Order. 14 B. Meet and Confer 15 The Challenging Party shall initiate the dispute resolution process under Local 16 Rule 37.1 et seq. 17 C. Joint Stipulation 18 Any challenge submitted to the Court shall be via a joint stipulation pursuant to

19 Local Rule 37-2. 20 The burden of persuasion in any such challenge proceeding shall be on the 21 Designating Party. Frivolous challenges, and those made for an improper purpose 22 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 23 expose the Challenging Party to sanctions. Unless the Designating Party has waived or 24 withdrawn the confidentiality designation, all parties shall continue to afford the

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1 material in question the level of protection to which it is entitled under the Producing 2 Party’s designation until the Court rules on the challenge. 3 // 4 IX. ACCESS TO AND USE OF PROTECTED MATERIAL 5 A. Basic Principles 6 A Receiving Party may use Protected Material that is disclosed or produced by 7 another Party or by a Non-Party in connection with this Action only for prosecuting,

8 defending, or attempting to settle this Action. Such Protected Material may be 9 disclosed only to the categories of persons and under the conditions described in this 10 Order. When the Action has been terminated, a Receiving Party must comply with the 11 provisions of Section XV below. 12 Protected Material must be stored and maintained by a Receiving Party at a 13 location and in a secure manner that ensures that access is limited to the persons 14 authorized under this Order. 15 B. Disclosure of “CONFIDENTIAL” Information or Items 16 Unless otherwise ordered by the Court or permitted in writing by the 17 Designating Party, a Receiving Party may disclose any information or item designated 18 “CONFIDENTIAL” only to:

19 (a) The Receiving Party’s Outside Counsel of Record in this Action, as well as 20 employees of said Outside Counsel of Record to whom it is reasonably necessary to 21 disclose the information for this Action; 22 (b) The officers, directors, and employees (including House Counsel) of the 23 Receiving Party to whom disclosure is reasonably necessary for this Action; 24

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1 (c) Experts (as defined in this Order) of the Receiving Party to whom 2 disclosure is reasonably necessary for this Action and who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (d) The Court and its personnel; 5 (e) Court reporters and their staff; 6 (f) Professional jury or trial consultants, mock jurors, and Professional 7 Vendors to whom disclosure is reasonably necessary or this Action and who have

8 signed the “Acknowledgment and Agreement to be Bound” attached as Exhibit A 9 hereto; 10 (g) The author or recipient of a document containing the information or a 11 custodian or other person who otherwise possessed or knew the information; 12 (h) During their depositions, witnesses, and attorneys for witnesses, in the 13 Action to whom disclosure is reasonably necessary provided: (i) the deposing party 14 requests that the witness sign the “Acknowledgment and Agreement to Be Bound;” and 15 (ii) they will not be permitted to keep any confidential information unless they sign the 16 “Acknowledgment and Agreement to Be Bound,” unless otherwise agreed by the 17 Designating Party or ordered by the Court. Pages of transcribed deposition testimony 18 or exhibits to depositions that reveal Protected Material may be separately bound by

19 the court reporter and may not be disclosed to anyone except as permitted under this 20 Stipulated Protective Order; and 21 (i) Any mediator or settlement officer, and their supporting personnel, 22 mutually agreed upon by any of the parties engaged in settlement discussions. 23 X. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 24 IN OTHER LITIGATION

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1 If a Party is served with a subpoena or a court order issued in other litigation 2 that compels disclosure of any information or items designated in this Action as 3 “CONFIDENTIAL,” that Party must: 4 (a) Promptly notify in writing the Designating Party. Such notification shall 5 include a copy of the subpoena or court order; 6 (b) Promptly notify in writing the party who caused the subpoena or order to 7 issue in the other litigation that some or all of the material covered by the subpoena or

8 order is subject to this Protective Order. Such notification shall include a copy of this 9 Stipulated Protective Order; and 10 (c) Cooperate with respect to all reasonable procedures sought to be pursued 11 by the Designating Party whose Protected Material may be affected. 12 If the Designating Party timely seeks a protective order, the Party served with 13 the subpoena or court order shall not produce any information designated in this action 14 as “CONFIDENTIAL” before a determination by the Court from which the subpoena or 15 order issued, unless the Party has obtained the Designating Party’s permission. The 16 Designating Party shall bear the burden and expense of seeking protection in that court 17 of its confidential material and nothing in these provisions should be construed as 18 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive

19 from another court. 20 XI. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 21 PRODUCED IN THIS LITIGATION 22 (a) The terms of this Order are applicable to information produced by a Non- 23 Party in this Action and designated as “CONFIDENTIAL.” Such information produced 24 by Non-Parties in connection with this litigation is protected by the remedies and relief

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1 provided by this Order. Nothing in these provisions should be construed as prohibiting 2 a Non-Party from seeking additional protections. 3 (b) In the event that a Party is required, by a valid discovery request, to 4 produce a Non-Party’s confidential information in its possession, and the Party is 5 subject to an agreement with the Non-Party not to produce the Non-Party’s 6 confidential information, then the Party shall: 7 (1) Promptly notify in writing the Requesting Party and the Non-Party

8 that some or all of the information requested is subject to a confidentiality agreement 9 with a Non-Party; 10 (2) Promptly provide the Non-Party with a copy of the Stipulated 11 Protective Order in this Action, the relevant discovery request(s), and a reasonably 12 specific description of the information requested; and 13 (3) Make the information requested available for inspection by the 14 Non-Party, if requested. 15 (c) If the Non-Party fails to seek a protective order from this court within 14 16 days of receiving the notice and accompanying information, the Receiving Party may 17 produce the Non-Party’s confidential information responsive to the discovery request. 18 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce

19 any information in its possession or control that is subject to the confidentiality 20 agreement with the Non-Party before a determination by the court. Absent a court 21 order to the contrary, the Non-Party shall bear the burden and expense of seeking 22 protection in this court of its Protected Material. 23 XII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24

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1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 2 Protected Material to any person or in any circumstance not authorized under this 3 Stipulated Protective Order, the Receiving Party must immediately (1) notify in writing 4 the Designating Party of the unauthorized disclosures, (2) use its best efforts to retrieve 5 all unauthorized copies of the Protected Material, (3) inform the person or persons to 6 whom unauthorized disclosures were made of all the terms of this Order, and (4) 7 request such person or persons to execute the “Acknowledgment and Agreement to be

8 Bound” that is attached hereto as Exhibit A. 9 XIII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 10 PROTECTED MATERIAL 11 When a Producing Party gives notice to Receiving Parties that certain 12 inadvertently produced material is subject to a claim of privilege or other protection, 13 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 14 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 15 may be established in an e-discovery order that provides for production without prior 16 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 17 parties reach an agreement on the effect of disclosure of a communication or 18 information covered by the attorney-client privilege or work product protection, the

19 parties may incorporate their agreement in the Stipulated Protective Order submitted 20 to the Court. 21 XIV. MISCELLANEOUS 22 A. Right to Further Relief 23 1. Nothing in this Order abridges the right of any person to seek its 24 modification by the Court in the future.

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1 B. Right to Assert Other Objections 2 1. By stipulating to the entry of this Protective Order, no Party waives 3 any right it otherwise would have to object to disclosing or producing any 4 information or item on any ground not addressed in this Stipulated 5 Protective Order. Similarly, no Party waives any right to object on any 6 ground to use in evidence of any of the material covered by this Protective 7 Order.

8 C. Filing Protected Material 9 1. A Party that seeks to file under seal any Protected Material must 10 comply with Civil Local Rule 79-5. Protected Material may only be filed 11 under seal pursuant to a court order authorizing the sealing of the specific 12 Protected Material at issue. If a Party's request to file Protected Material 13 under seal is denied by the Court, then the Receiving Party may file the 14 information in the public record unless otherwise instructed by the Court. 15 XV. FINAL DISPOSITION 16 After the final disposition of this Action, as defined in Section VI, within sixty 17 (60) days of a written request by the Designating Party, each Receiving Party must 18 return all Protected Material to the Producing Party or destroy such material. As used

19 in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected 21 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 22 must submit a written certification to the Producing Party (and, if not the same person 23 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 24 category, where appropriate) all the Protected Material that was returned or destroyed

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1 || and (2) affirms that the Receiving Party has not retained any copies, abstracts, 2 || compilations, summaries or any other format reproducing or capturing any of the 3 || Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 4 || archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 5 || legal memoranda, correspondence, deposition and trial exhibits, expert reports, 6 || attorney work product, and consultant and expert work product, even if such materials 7 contain Protected Material. Any such archival copies that contain or constitute 8 || Protected Material remain subject to this Protective Order as set forth in Section VI. 9 ||XV. VIOLATION 10 Any violation of this Order may be punished by any and all appropriate 11 || measures including, without limitation, contempt proceedings and/or monetary 12 sanctions. 13 14 || IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 15 Dated: July 5, 2022 /s/ Matthew L. Locker 16 (as authorized on June 30, 2022) Attorneys for Plaintiffs 17 Dated: July 5, 2022 /s/ Elanor A. Mulhern 18 Attorneys for Defendant Capital One 19 20 |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 21 . Dated: 7/6/2022 ———— 22 HONORABLE ALEXANDER F, MacKINNON 23 United States Magistrate Judge 24

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1 EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2

3 I, [print or type full name], of 4 [print or type full address], declare under penalty of perjury that I 5 have read in its entirety and understand the Stipulated Protective Order that was issue 6 by the United States District Court for the Central District of California on [DATE] in 7 the case of Nunez v. Capital One et al., Case No. 2:22-cv-00407-FLA-AFM. I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I 9 understand and acknowledge that failure to so comply could expose me to sanctions 10 and punishment in the nature of contempt. I solemnly promise that I will not disclose 11 in any manner any information or item that is subject to this Stipulated Protective 12 Order to any person or entity except in strict compliance with the provisions of this 13 Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint [print or 18 type full name] of [print or type full address and 19 telephone number] as my California agent for service of process in connection with this 20 action or any proceedings related to enforcement of this Stipulated Protective Order. 21 Date: 22 City and State where sworn and signed: 23 Printed Name: 24 Signature:

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