The opinion
1 LYNCH CARPENTER, LLP
Todd D. Carpenter (CA Bar No. 234464)
2 todd@lcllp.com
(Eddie) Jae K. Kim (CA Bar No. 236805)
3 ekim@lcllp.com
James Drimmer (CA Bar No. 196890)
4 jim@lcllp.com
Tiffine E. Malamphy (CA Bar No. 312239)
5 tiffine@lcllp.com
1234 Camino del Mar
6 Del Mar, California 92014
Telephone: (619) 762-1910
7 Facsimile: (619) 756-6991
8 Attorneys for Plaintiff
and the Proposed Class
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12 ANDREA DURKEE, individually on behalf Case No.: 2:23-cv-2537-FMO-KS
of herself and all others similarly situated,
13 STIPULATED PROTECTIVE ORDER
Plaintiffs, AND [PROPOSED] ORDER
14
v.
15 Complaint Filed: April 4, 2023
FCTI, INC., and DOES 1-10, inclusive, Trial Date: TBD
16
Defendants.
17
18
1. A. PURPOSES AND LIMITATIONS
19
Discovery in this action is likely to involve production of confidential, proprietary,
20
or private information for which special protection from public disclosure and from use
21
for any purpose other than prosecuting this litigation may be warranted. Accordingly, the
22
parties hereby stipulate and petition the Court to enter the following Stipulated Protective
23
Order. The parties acknowledge that this Order does not confer blanket protections on all
24
disclosures or responses to discovery and that the protection it affords from public
25
disclosure and use extends only to the limited information or items that are entitled to
26
confidential treatment under the applicable legal principles. The parties further
27
acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order
1 sets forth the procedures that must be followed and the standards that will be applied
2 when a party seeks permission from the court to file material under seal.
3
4 B. GOOD CAUSE STATEMENT
5 This action is likely to involve trade secrets, customer lists, and other valuable
6 research, development, commercial, financial, technical and/or proprietary information
7 concerning ATMs, ATM Networks, ATM software developers, financial institutions, and
8 independent ATM operators for which special protection from public disclosure and from
9 use for any purpose other than prosecution of this action is warranted. Such confidential
10 and proprietary materials and information consist of, among other things, confidential
11 business or financial information, information regarding confidential business practices,
12 or other confidential research, development, or commercial information (including
13 information implicating privacy rights of third parties), information otherwise generally
14 unavailable to the public, or which may be privileged or otherwise protected from
15 disclosure under state or federal statutes, court rules, case decisions, or common law.
16 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of
17 disputes over confidentiality of discovery materials, to adequately protect information the
18 parties are entitled to keep confidential, to ensure that the parties are permitted reasonable
19 necessary uses of such material in preparation for and in the conduct of trial, to address
20 their handling at the end of the litigation, and serve the ends of justice, a protective order
21 for such information is justified in this matter. It is the intent of the parties that
22 information will not be designated as confidential for tactical reasons and that nothing be
23 so designated without a good faith belief that it has been maintained in a confidential,
24 non-public manner, and there is good cause why it should not be part of the public record
25 of this case.
26
27 2. DEFINITIONS
1 2.1 Action: this pending federal lawsuit – Durkee v. FCTI, Inc., No. 2:23-cv-
2 2537-FMO-KS.
3 2.2 Challenging Party: a Party or Non-Party that challenges the designation of
4 information or items under this Order.
5 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how
6 it is generated, stored or maintained) or tangible things that qualify for protection under
7 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
8 Statement.
9 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
10 support staff).
11 2.5 Designating Party: a Party or Non-Party that designates information or items
12 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
13 2.6 Disclosure or Discovery Material: all items or information, regardless of the
14 medium or manner in which it is generated, stored, or maintained (including, among other
15 things, testimony, transcripts, and tangible things), that are produced or generated in
16 disclosures or responses to discovery in this matter.
17 2.7 Expert: a person with specialized knowledge or experience in a matter
18 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
19 expert witness or as a consultant in this Action.
20 2.8 House Counsel: attorneys who are employees of a party to this Action.
21 House Counsel does not include Outside Counsel of Record or any other outside counsel.
22 2.9 Non-Party: any natural person, partnership, corporation, association, or
23 other legal entity not named as a Party to this action.
24 2.10 Outside Counsel of Record: attorneys who are not employees of a party to
25 this Action but are retained to represent or advise a party to this Action and have appeared
26 in this Action on behalf of that party or are affiliated with a law firm which has appeared
27 on behalf of that party and includes support staff.
1 2.11 Party: any party to this Action, including all of its officers, directors,
2 employees, consultants, retained experts, Outside Counsel of Record, and support staff.
3 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
4 Discovery Material in this Action.
5 2.13 Professional Vendors: persons or entities that provide litigation support
6 services (e.g., photocopying, videotaping, translating, preparing exhibits or
7 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
8 their employees and subcontractors.
9 2.14 Protected Material: any Disclosure or Discovery Material that is designated
10 as “CONFIDENTIAL.”
11 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from
12 a Producing Party.
13
14 3. SCOPE
15 The protections conferred by this Stipulation and Order cover not only Protected
16 Material (as defined above), but also (1) any information copied or extracted from
17 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
18 Material; and (3) any testimony, conversations, or presentations by Parties or their
19 Counsel that might reveal Protected Material.
20 Any use of Protected Material at trial shall be governed by the orders of the trial
21 judge. This Order does not govern the use of Protected Material at trial.
22
23 4. DURATION
24 Once a case proceeds to trial, information that was designated as confidential, or
25 maintained pursuant to this protective order, and admitted into evidence is subject to
26 becoming public and will be presumptively available to all members of the public,
27 including the press, unless compelling reasons supported by specific factual findings to
1 City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing
2 “good cause” showing for sealing documents produced in discovery from “compelling
3 reasons” standard when merits-related documents are part of court record). Accordingly,
4 the terms of this protective order do not extend beyond the commencement of the trial.
5
6 5. DESIGNATING PROTECTED MATERIAL
7 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
8 Party or Non-Party that designates information or items for protection under this Order
9 must take care to limit any such designation to specific material that qualifies under the
10 appropriate standards. The Designating Party must designate for protection only those
11 parts of material, documents, items, or oral or written communications that qualify so that
12 other portions of the material, documents, items, or communications for which protection
13 is not warranted are not swept unjustifiably within the ambit of this Order.
14 Mass, indiscriminate, or routinized designations are prohibited. Designations that
15 are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,
16 to unnecessarily encumber the case development process or to impose unnecessary
17 expenses and burdens on other parties) may expose the Designating Party to sanctions.
18 If it comes to a Designating Party’s attention that information or items that it
19 designated for protection do not qualify for protection, that Designating Party must
20 promptly notify all other Parties that it is withdrawing the inapplicable designation.
21 5.2 Manner and Timing of Designations. Except as otherwise provided in this
22 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
23 ordered, Disclosure or Discovery Material that qualifies for protection under this Order
24 must be clearly so designated when the material is disclosed or produced.
25 Designation in conformity with this Order requires:
26 (a) for information in documentary form (e.g., paper or electronic documents,
27 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
1 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
2 portion or portions of the material on a page qualifies for protection, the Producing Party
3 also must clearly identify the protected portion(s) (e.g., by making appropriate markings
4 in the margins).
5 A Party or Non-Party that makes original documents available for inspection
6 need not designate them for protection until after the inspecting Party has indicated which
7 documents it would like copied and produced. During the inspection and before the
8 designation, all of the material made available for inspection shall be deemed
9 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
10 copied and produced, the Producing Party must determine which documents, or portions
11 thereof, qualify for protection under this Order. Then, before producing the specified
12 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
13 that contains Protected Material. If only a portion or portions of the material on a page
14 qualifies for protection, the Producing Party also must clearly identify the protected
15 portion(s) (e.g., by making appropriate markings in the margins).
16 (b) for testimony given in depositions that the Designating Party identify the
17 Disclosure or Discovery Material on the record, before the close of the deposition all
18 protected testimony.
19 (c) for information produced in some form other than documentary and for any
20 other tangible items, that the Producing Party affix in a prominent place on the exterior
21 of the container or containers in which the information is stored the legend
22 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection,
23 the Producing Party, to the extent practicable, shall identify the protected portion(s).
24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
25 to designate qualified information or items does not, standing alone, waive the
26 Designating Party’s right to secure protection under this Order for such material. Upon
27 timely correction of a designation, the Receiving Party must make reasonable efforts to
1
2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
3 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation
4 of confidentiality at any time that is consistent with the Court’s Scheduling Order.
5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
6 process under Local Rule 37.1 et seq.
7 6.3 The burden of persuasion in any such designation-challenge proceeding shall
8 be on the Designating Party. Frivolous challenges, and those made for an improper
9 purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties)
10 may expose the Challenging Party to sanctions. Unless the Designating Party has waived
11 or withdrawn the confidentiality designation, all parties shall continue to afford the
12 material in question the level of protection to which it is entitled under the Producing
13 Party’s designation until the Court rules on the challenge.
14
15 7. ACCESS TO AND USE OF PROTECTED MATERIAL
16 7.1 Basic Principles. A Receiving Party may use Protected Material that is
17 disclosed or produced by another Party or by a Non-Party in connection with this Action
18 only for prosecuting, defending, or attempting to settle this Action. Such Protected
19 Material may be disclosed only to the categories of persons and under the conditions
20 described in this Order. When the Action has been terminated, a Receiving Party must
21 comply with the provisions of section 13 below (FINAL DISPOSITION).
22 Protected Material must be stored and maintained by a Receiving Party at a
23 location and in a secure manner that ensures that access is limited to the persons
24 authorized under this Order.
25 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
26 ordered by the court or permitted in writing by the Designating Party, a Receiving Party
27 may disclose any information or item designated “CONFIDENTIAL” only to:
1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
2 employees of said Outside Counsel of Record to whom it is reasonably necessary to
3 disclose the information for this Action;
4 (b) the officers, directors, and employees (including House Counsel) of the
5 Receiving Party to whom disclosure is reasonably necessary for this Action;
6 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
7 reasonably necessary for this Action and who have signed the “Acknowledgment and
8 Agreement to Be Bound” (Exhibit A);
9 (d) the court and its personnel;
10 (e) court reporters and their staff;
11 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to
12 whom disclosure is reasonably necessary for this Action and who have signed the
13 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
14 (g) the author or recipient of a document containing the information or a custodian
15 or other person who otherwise possessed or knew the information;
16 (h) during their depositions, witnesses ,and attorneys for witnesses, in the Action
17 to whom disclosure is reasonably necessary provided: (1) the deposing party requests that
18 the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted
19 to keep any confidential information unless they sign the “Acknowledgment and
20 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party
21 or ordered by the court. Pages of transcribed deposition testimony or exhibits to
22 depositions that reveal Protected Material may be separately bound by the court reporter
23 and may not be disclosed to anyone except as permitted under this Stipulated Protective
24 Order; and
25 (i) any mediator or settlement officer, and their supporting personnel, mutually
26 agreed upon by any of the parties engaged in settlement discussions.
27
1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
2 OTHER LITIGATION
3 If a Party is served with a subpoena or a court order issued in other litigation that
4 compels disclosure of any information or items designated in this Action as
5 “CONFIDENTIAL,” that Party must:
6 (a) promptly notify in writing the Designating Party. Such notification shall include
7 a copy of the subpoena or court order;
8 (b) promptly notify in writing the party who caused the subpoena or order to issue
9 in the other litigation that some or all of the material covered by the subpoena or order is
10 subject to this Protective Order. Such notification shall include a copy of this Stipulated
11 Protective Order; and
12 (c) cooperate with respect to all reasonable procedures sought to be pursued by the
13 Designating Party whose Protected Material may be affected.
14 If the Designating Party timely seeks a protective order, the Party served with the
15 subpoena or court order shall not produce any information designated in this action as
16 “CONFIDENTIAL” before a determination by the court from which the subpoena or
17 order issued, unless the Party has obtained the Designating Party’s permission. The
18 Designating Party shall bear the burden and expense of seeking protection in that court
19 of its confidential material and nothing in these provisions should be construed as
20 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
21 from another court.
22
23 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
24 IN THIS LITIGATION
25 (a) The terms of this Order are applicable to information produced by a Non-Party
26 in this Action and designated as “CONFIDENTIAL.” Such information produced by
27 Non-Parties in connection with this litigation is protected by the remedies and relief
1 provided by this Order. Nothing in these provisions should be construed as prohibiting a
2 Non-Party from seeking additional protections.
3 (b) In the event that a Party is required, by a valid discovery request, to produce a
4 Non-Party’s confidential information in its possession, and the Party is subject to an
5 agreement with the Non-Party not to produce the Non-Party’s confidential information,
6 then the Party shall:
7 (1) promptly notify in writing the Requesting Party and the Non-Party that some
8 or all of the information requested is subject to a confidentiality agreement with a Non-
9 Party;
10 (2) promptly provide the Non-Party with a copy of the Stipulated Protective
11 Order in this Action, the relevant discovery request(s), and a reasonably specific
12 description of the information requested; and
13 (3) make the information requested available for inspection by the Non-Party,
14 if requested.
15 (c) If the Non-Party fails to seek a protective order from this court within 14 days
16 of receiving the notice and accompanying information, the Receiving Party may produce
17 the Non-Party’s confidential information responsive to the discovery request. If the Non-
18 Party timely seeks a protective order, the Receiving Party shall not produce any
19 information in its possession or control that is subject to the confidentiality agreement
20 with the Non-Party before a determination by the court. Absent a court order to the
21 contrary, the Non-Party shall bear the burden and expense of seeking protection in this
22 court of its Protected Material.
23
24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
25 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
26 Protected Material to any person or in any circumstance not authorized under this
27 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
1 all unauthorized copies of the Protected Material, (c) inform the person or persons to
2 whom unauthorized disclosures were made of all the terms of this Order, and (d) request
3 such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
4 that is attached hereto as Exhibit A.
5
6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
7 PROTECTED MATERIAL
8 When a Producing Party gives notice to Receiving Parties that certain inadvertently
9 produced material is subject to a claim of privilege or other protection, the obligations of
10 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
11 This provision is not intended to modify whatever procedure may be established in an e-
12 discovery order that provides for production without prior privilege review. Pursuant to
13 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the
14 effect of disclosure of a communication or information covered by the attorney-client
15 privilege or work product protection, the parties may incorporate their agreement in the
16 stipulated protective order submitted to the court.
17
18 12. MISCELLANEOUS
19 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
20 person to seek its modification by the Court in the future.
21 12.2 Right to Assert Other Objections. By stipulating to the entry of this
22 Protective Order no Party waives any right it otherwise would have to object to disclosing
23 or producing any information or item on any ground not addressed in this Stipulated
24 Protective Order. Similarly, no Party waives any right to object on any ground to use in
25 evidence of any of the material covered by this Protective Order.
26 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected
27 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
1 Material at issue. If a Party's request to file Protected Material under seal is denied by the
2 court, then the Receiving Party may file the information in the public record unless
3 otherwise instructed by the court.
4
5 13. FINAL DISPOSITION
6 After the final disposition of this Action, as defined in paragraph 4, within 60 days
7 of a written request by the Designating Party, each Receiving Party must return all
8 Protected Material to the Producing Party or destroy such material. As used in this
9 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
10 summaries, and any other format reproducing or capturing any of the Protected Material.
11 Whether the Protected Material is returned or destroyed, the Receiving Party must submit
12 a written certification to the Producing Party (and, if not the same person or entity, to the
13 Designating Party) by the 60 day deadline that (1) identifies (by category, where
14 appropriate) all the Protected Material that was returned or destroyed and (2) affirms that
15 the Receiving Party has not retained any copies, abstracts, compilations, summaries or
16 any other format reproducing or capturing any of the Protected Material. Notwithstanding
17 this provision, Counsel are entitled to retain an archival copy of all pleadings, motion
18 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
19 deposition and trial exhibits, expert reports, attorney work product, and consultant and
20 expert work product, even if such materials contain Protected Material. Any such archival
21 copies that contain or constitute Protected Material remain subject to this Protective Order
22 as set forth in Section 4 (DURATION).
23
24 14. Any violation of this Order may be punished by any and all appropriate measures
25 including, without limitation, contempt proceedings and/or monetary sanctions.
26
27 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
1 || Dated: September 7, 2023 LYNCH CARPENTER, LLP
2 By: _/s/ Todd D. Carpenter
Todd D. Carpenter (CA Bar No. 234464)
3 todd@lcllp.com
(Eddic) Jae K. Kim (CA Bar No. 236805)
4 ekim@lcllp.com
James Drimmer (CA Bar No. 196890)
5 Jim@lcllp-com
Piffine E. Malamphy (CA Bar No. 312239)
6 tiffine@Iclip.com
1234 Camino del Mar
7 Del Mar, California 92014
Telephone: (619) 762-1900
8 Facsimile: (619) 756-6991
9 Attorneys for Plainti
10 and no Bf ovscl Chis
11 | Dated: September 7, 2023 GORDON REES
SCULLY MANSUKHANI LLP
12
By: _/s/ Richard R. Spirra
13 Richard R. Spirra
101 W. Broadway, Suite 2000
14 San Diego, CA
Tel.: (619) 230-7776
15 rspirra@grsm.com
16 Attornevs tor defendant FCTI. Inc.
17
18 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
19
50 DATED: September 7, 2023
21 TS in Rens
22
HON. KAREN L. STEVENSON
23! Chief U.S. Magistrate Judge
24
25
26
27
28
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [print or type full name], of _________________
5 [print or type full address], declare under penalty of perjury that I have read in its entirety
6 and understand the Stipulated Protective Order that was issued by the United States
7 District Court for the Central District of California on [date] in the case of ___________
8 [insert formal name of the case and the number and initials assigned to it by the court]. I
9 agree to comply with and to be bound by all the terms of this Stipulated Protective Order
10 and I understand and acknowledge that failure to so comply could expose me to sanctions
11 and punishment in the nature of contempt. I solemnly promise that I will not disclose in
12 any manner any information or item that is subject to this Stipulated Protective Order to
13 any person or entity except in strict compliance with the provisions of this Order.
14 I further agree to submit to the jurisdiction of the United States District Court for the
15 Central District of California for the purpose of enforcing the terms of this Stipulated
16 Protective Order, even if such enforcement proceedings occur after termination of this
17 action. I hereby appoint __________________________ [print or type full name] of
18 _______________________________________ [print or type full address and telephone
19 number] as my California agent for service of process in connection with this action or
20 any proceedings related to enforcement of this Stipulated Protective Order.
21
22 Date: ______________________________________
23 City and State where sworn and signed: _________________________________
24
25 Printed name: _______________________________
26 Signature: __________________________________
27