Lopez v. TS Banking Group

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Case 1:19-cv-00166-DMT-CRH Document 19 Filed 06/29/20 Page 1 of 10

Monique Lopez,

vs.

TS Banking Group, d/b/a The Bank of

Tioga,

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA

Plaintiff, Civil No.1:19-cv-00166-CRH

Protective Order

Defendant.

Upon consideration of the parties’ joint request for entry of a Protective Order,

the Court enters the following Protective Order governing the disclosure of

confidential Discovery Material by a Producing Party to a Receiving Party in this

Action.

1)

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Definitions. As used in this Order:

a. Action refers to the above-captioned litigation.

b. Discovery Material includes all information exchanged between the

Cc.

parties, whether gathered through informal requests or communications
between the parties or their counsel, or gathered through formal
discovery conducted pursuant to Rules 30 through 36, and Rule 45.
Discovery Material includes information within documents, depositions,
deposition exhibits, and other written, recorded, computerized,
electronic or graphic matter, copies, and excerpts or summaries of
documents disclosed as required under Rule 26(a).

A Producing Party is a party to this litigation, or a non-party either
acting on a party’s behalf or responding to discovery pursuant to a Rule
45 subpoena, that produces Discovery Material in this Action.

d. A Receiving Party is a party to this litigation that receives Discovery

Material from a Producing Party in this Action.

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a. 	Commercial information relating to any party’s business including, but
not limited to, tax data, financial information, financial or business
plans or projections, proposed strategic transactions or other business
combinations, internal audit practices, procedures, and outcomes, trade
secrets 	or 	other 	commercially 	sensitive 	business 	or 	technical
information, proprietary business and marketing plans and strategies,
studies or analyses by internal or outside experts, competitive analyses,
customer or prospective customer lists and information, profit/loss
information, 	product 	or 	service 	pricing 	or 	billing 	agreements 	or
guidelines, and/or confidential project-related information;
b. 	Personnel data of the parties or their employees, including but not
limited to employment application information; the identity of and
information received from employment references; wage and income
information; 	benefits 	information; 	employee 	evaluations; 	medical
evaluation and treatment information and records; counseling or mental
health 	records; 	educational 	records; 	and 	employment 	counseling,
discipline, or performance improvement documentation;
c. 	Information concerning settlement discussions and mediation, including
demands or offers, arising from a dispute between a party and a non-
party;
d. 	Medical or mental health information;
e. 	Records restricted or prohibited from disclosure by statute; and
f. 	Any information copied or extracted from the previously described
materials, including all excerpts, summaries, or compilations of this
information 	or 	testimony, 	and 	documentation 	of 	questioning,
statements, 	conversations, 	or 	presentations 	that 	might 	reveal 	the
information contained within the underlying confidential Discovery
Material.
2) Confidential Discovery Material. This Protective Order applies to all
confidential Discovery Material produced or obtained in this case. For the purposes
of this Protective Order, confidential Discovery Material shall include:
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a. 	As to documentary information (defined to include paper or electronic
documents, but not transcripts of depositions or other pretrial or trial
proceedings), 	the 	Producing 	Party 	must 	affix 	the 	legend
“CONFIDENTIAL” to each page that contains protected material.
b. 	If only a portion or portions of the information on a document page
qualifies for protection, the Producing Party must clearly identify the
protected 	portion(s) 	(e.g., 	by 	using 	highlighting, 	underlining, 	or
appropriate markings in the margins).
c. 	If 	it 	is 	not 	feasible 	to 	label 	confidential 	Discovery 	Material 	as
“CONFIDENTIAL,” the Producing Party shall indicate via cover letter
or otherwise at the time of production that the material being produced
is CONFIDENTIAL.
4) 	Timing of Confidential Designation.
a. 	Except as otherwise stipulated or ordered, or where discovery is made
available 	for 	inspection 	before 	it 	is 	formally 	disclosed, 	Discovery
Material that qualifies for protection under this Order must be clearly
so designated before the material is disclosed or produced.
b. 	If the Producing Party responds to discovery by making Discovery
Material available for inspection, the Producing Party need not affix
confidential designations until after the Receiving Party has selected
the material it wants to receive. During the inspection and before the
designation, 	all 	material 	made 	available 	for 	inspection 	is 	deemed
“CONFIDENTIAL.” 	After 	the 	Receiving 	Party 	has 	identified 	the
Discovery Material it wants produced, 	the 	Producing 	Party 	must
determine which materials, or portions thereof, qualify for protection
under this Order, and designate the materials as “CONFIDENTIAL” as
required under this order.
5) 	Qualified Recipients. For the purposes of this Protective Order, the
persons authorized to receive Discovery Material designated as “CONFIDENTIAL”
3) Manner of Confidential Designation. A Producing Party shall affix a
“CONFIDENTIAL” designation to any confidential Discovery Material produced in
this Action.
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(hereinafter “Qualified Recipients”) are:
a. 	The Parties, including any members, council members, officers, board
members, directors, employees, or other legal representatives of the
parties;
b. 	Legal counsel representing the parties, and members of the paralegal,
secretarial, or clerical staff who are employed by, retained by, or
assisting such counsel; including vendors who are retained to copy
documents or electronic files, provide technical, litigation support, or
mock 	trial 	services, 	or 	provide 	messenger 	or 	other 	administrative
support services;
c. 	Any non-expert witness during any deposition or other proceeding in
this Action, and counsel for that witness;
d. 	Potential witnesses and their counsel, but only to the extent reasonably
related to the anticipated subject matter of the potential witness’s
deposition, trial, or hearing testimony for this Action, so long as such
persons 	agree 	to 	maintain 	the 	confidential 	Discovery 	Material 	in
confidence per the terms of this Order, and provided that such persons
may only be shown copies of confidential Discovery Material and may
not retain any such material;
e. 	Consulting 	or 	testifying 	expert 	witnesses 	who 	will 	be 	providing
professional opinions or assistance for this Action based upon a review
of the CONFIDENTIAL information, 	and the staff and assistants
employed by the consulting or testifying experts;
f. 	Any mediator or arbitrator retained by the parties to assist with
resolving and/or settling the claims of this Action and members of the
arbitrator’s or mediator’s staff and assistants;
g. 	The parties’ insurers for this Action, and their staff and assistants,
members, 	officers, 	board 	members, 	directors 	or 	other 	legal
representatives;
h. 	Court reporters for depositions taken in this Action, including persons
operating video recording equipment and persons preparing transcripts
of testimony;
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i. 	The court and its staff, any court reporter or typist recording or
transcribing hearings and testimony, and jurors; and
j. 	Any auditor or regulator of a party entitled to review the confidential
Discovery Material due to contractual rights or obligations, or federal or
state laws, or court orders, but solely for such contractual or legal
purposes.
6) 	Dissemination by the Receiving Party. Counsel for the Receiving
Party shall:
a. 	Require Qualified Recipients who are non-expert witnesses or expert
witnesses and consultants and who receive information designated as
“CONFIDENTIAL” to review and agree to the terms of this Protective
Order and execute a copy of the Agreement attached hereto as Appendix
A before receiving confidential Discovery Material.
b. 	Instruct witnesses, consultants, and outside counsel who assist with
case 	preparation 	or 	represent 	a 	witness 	that 	disclosure 	of 	the
information designated as “CONFIDENTIAL” is prohibited as set forth
herein.
c. 	Maintain a list of any confidential Discovery Material disclosed and to
whom, along with the executed copies of the Appendix A Agreement.
The prohibition on disclosing information designated as “CONFIDENTIAL”
exists and is enforceable by the court even if the person receiving the information
fails or refuses to sign the Appendix A Agreement.
7) 	Duty 	as 	to 	Designations. 	Each 	Producing 	Party 	that 	designates
information or items as CONFIDENTIAL must exercise reasonable care to limit any
such designation to specific material that qualifies under the appropriate standards,
and designate only those parts of material, documents, items, or oral or written
communications that qualify, so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order. Broadly described, indiscriminate, or
routinized designations are prohibited.
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8) Limitations on Use. Confidential Discovery Material shall be used by the
Receiving Party only to prepare for and conduct proceedings herein and not for any
business or other purpose whatsoever.
9) Maintaining Confidentiality. Discovery Material designated as
“CONFIDENTIAL” shall be held in confidence by each Qualified Recipient to whom
it is disclosed, shall be used only for purposes of this action, and shall not be disclosed
to any person who is not a Qualified Recipient. Each party, each Qualified Recipient,
and all counsel representing any party, shall use their best efforts to maintain all
information designated as “CONFIDENTIAL” in such a manner as to prevent
access, even at a hearing or trial, by individuals who are not Qualified Recipients.
Nothing herein prevents disclosure beyond the terms of this Protective Order if the
party claiming confidentiality consents in writing to such disclosure.
10) Copies. Discovery Material designated as “CONFIDENTIAL” shall not be
copied or otherwise reproduced by the Receiving Party, except for transmission
to Qualified Recipients, without the written permission of the Producing Party or,
in the alternative, by order of the court. However, nothing herein shall restrict a
Qualified Recipient from loading confidential documents into document review
platforms or programs for the purposes of case or trial preparation or making
working copies, abstracts, digests, and analyses of information designated as
“CONFIDENTIAL” under the terms of this Protective Order.
11) Docket Filings. All documents of any nature including, but not limited
to, briefs, motions, memoranda, transcripts, discovery responses, evidence, and the
like that are filed with the court for any purpose and that contain Discovery Material
designated as “CONFIDENTIAL” shall be provisionally filed under restricted access
with the filing party’s motion for leave to file restricted access documents. A party
seeking to file Discovery Material under restricted access must comply with the
court’s rules and electronic docketing procedures for filing such motions.
12) Depositions. The following procedures shall be followed at all depositions
to protect the integrity of all Discovery Material designated as “CONFIDENTIAL”:
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a. 	Only Qualified Recipients may be present at a deposition in which such
information is disclosed or discussed.
b. 	All 	deposition 	testimony 	which 	discloses 	or 	discusses 	information
designated as “CONFIDENTIAL” is likewise deemed designated as
“CONFIDENTIAL”.
c. 	Information 	designated 	as 	“CONFIDENTIAL” 	may 	be 	used 	at 	a
nonparty deposition only if necessary to the testimony of the witness.
13) 	Challenges to Confidentiality Designations. A Receiving Party that
questions the Producing Party’s confidentiality designation will, as an initial step,
contact the Producing Party and confer in good faith to resolve the dispute. If the
parties are unable to resolve the dispute without court intervention, they shall
schedule a conference call with the magistrate judge assigned to the case before
engaging in written motion practice. If a written motion and briefing are necessary
and the information in dispute must be reviewed by the court to resolve that motion,
the confidential information shall be filed under restricted access pursuant to the
court’s electronic docketing procedures. The party that produced the information
designated as “CONFIDENTIAL” bears the burden of proving it was properly
designated. The party challenging a “CONFIDENTIAL” designation must obtain a
court order before disseminating the information to anyone other than Qualified
Recipients.
14) 	Use at Court Hearings and Trial. Subject to the Federal Rules of
Evidence, Discovery Material designated as “CONFIDENTIAL” may be offered and
received into evidence at trial or at any hearing or oral argument. A party agreeing
to 	the 	entry 	of 	this 	order does not thereby waive the right to object to the
admissibility of the material in any proceeding, including trial. Any party may move
the court for an order that Discovery Material designated as “CONFIDENTIAL” be
reviewed in camera or under other conditions to prevent unnecessary disclosure.
15) 	Return or Destruction of Documents. Upon final termination of this
Action, including all appeals, each party shall make reasonable efforts to destroy all
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18) 	Sanctions.
a. 	Any party subject to the obligations of this order who is determined by
the court to have violated its terms may be subject to sanctions imposed
by the court under Rule 37 of the Federal Rules of Civil Procedure and
the court’s inherent power.
b. 	Confidentiality designations that are shown to be clearly unjustified or
that have been made for an improper purpose (e.g., to unnecessarily
prolong 	or 	encumber 	the 	case 	development 	process 	or 	to 	impose
unnecessary 	expenses 	and 	burdens 	on 	other 	parties) 	expose 	the
designating party to sanctions. Upon discovering that information was
erroneously designated as CONFIDENTIAL, the Producing Party shall
promptly notify all other Parties of the improper designation
19) 	Inadvertent Disclosure of Protected Discovery Material.
Discovery Material designated as “CONFIDENTIAL.” The destroying party shall
notify the producing party when destruction under this provision is complete. If a
party is unable to destroy all Discovery Material designated as “CONFIDENTIAL,”
that material shall be returned to the Producing Party or the Producing Party’s
counsel. This Protective Order shall survive the final termination of this action, and
it shall be binding on the parties and their legal counsel in the future.
16) Modification. This Protective Order is entered without prejudice to the
right of any party to ask the court to order additional protective provisions, or to
modify, relax or rescind any restrictions imposed by this Protective Order when
convenience or necessity requires. Disclosure other than as provided for herein shall
require the prior written consent of the Producing Party, or a supplemental
Protective Order of the court.
17) Additional Parties to Litigation. In the event additional parties are
joined in this action, they shall not have access to Discovery Material as
“CONFIDENTIAL” until the newly joined party, by its counsel, has executed and, at
the request of any party, filed with the court, its agreement to be fully bound by this
Protective Order.
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a. 	A 	Producing 	Party 	that 	inadvertently 	fails 	to 	properly 	designate
Discovery Material as “CONFIDENTIAL” shall have 14 days from
discovering the oversight to correct that failure. Such failure shall be
corrected by providing written notice of the error to every Receiving
Party.
b. 	Any Receiving Party notified that confidential Discovery Material was
received 	without 	the 	appropriate 	confidentiality 	designation 	as
authorized under this order shall make reasonable efforts to retrieve
any such documents distributed to persons who are not Qualified
Recipients 	under 	this order, and as to Qualified Recipients, shall
exchange the undesignated or improperly designated documents with
documents that include the correct “CONFIDENTIAL” designation.
20) 	Disclosure of Privileged or Work Product Discovery Material.
a. 	The production of attorney-client privileged, or work-product protected
electronically stored information (“ESI”) or paper documents, whether
disclosed inadvertently or otherwise, is not a waiver of the privilege or
protection from discovery in this case or in any other federal or state
proceeding. This Protective Order shall be interpreted to provide the
maximum 	protection 	allowed 	by 	Federal 	Rule 	of 	Evidence 	502(d).
Nothing contained herein is intended to or shall serve to limit a party’s
right to conduct a review of documents, ESI or information (including
metadata) for relevance, responsiveness and/or segregation of privileged
and/or protected information before production.
b. 	Any party who discloses documents that are privileged or otherwise
immune from discovery shall promptly upon discovery of such disclosure,
advise the Receiving Party and request that the documents be returned. The
Receiving Party shall return such produced documents or certify their
destruction, including all copies, within 14 days of receiving such a written
request. The party returning such produced documents may thereafter seek re-
production of any such documents pursuant to applicable law.
BY THE COURT:
/s/ Clare R. Hochhalter,
Clare R. Hochhalter
United States Magistrate
Judge
Case 1:19-cv-00166-DMT-CRH Document 19 Filed 06/29/20 Page 9 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Monique Lopez,
Plaintiff,
vs.
TS Banking Group, d/b/a The Bank of
Tioga,
Defendant.
Civil No.1:19-cv-00166-CRH
I hereby acknowledge that I am about to receive Confidential Information
supplied 	in connection with the above-captioned case. I understand that such
information is being provided to me pursuant to the terms and restrictions of the
Protective Order entered in this case. I have been given a copy of the Protective Order,
have read the Protective Order, and agree to be bound by its terms. I understand that
Confidential Information as defined in the Protective Order, or any notes or other
records that may be made regarding any such materials, shall not be disclosed to any
persons except as permitted by the Protective Order.
Printed Name 	Signature
DOCS/2478808.1
Case 1:19-cv-00166-DMT-CRH Document 19 Filed 06/29/20 Page 10 of 10