Free Order on Motion to Amend/Correct - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA, PHOENIX DIVISION __________________________________________ ) FEDERAL TRADE COMMISSION, ) ) Plaintiff, ) Civ. No. CV 04-0074 PHX SRB v. ) ) MODIFIED PROTECTIVE ORDER FIRST AMERICAN PAYMENT ) PROCESSING, INC., et al., ) ) Defendants. ) __________________________________________) To ensure that matters raised by this proceeding are open to the public and to protect the confidential information of consumers and producing parties, IT IS HEREBY ORDERED THAT: 1. As used in this Order, "Confidential Information" shall refer to: a. Any document or portion thereof containing: (1) information that

identifies or could be used to identify consumers (e.g., name, social security number, postal address, or email address); (2) a consumer's merchant's, client's, financial institution's, or thirdparty ACH processor's personal or business financial or account information, including but not limited to, credit reports, loan applications, records of accounts with financial institutions, income sources, income tax statements, payment or debt history, or other information that determines credit-worthiness; and (3) the trade secret information of any consumer, merchant, client, financial institution, or third-party ACH processor. b. Any information contained in any contract between First American

Payment Processing, Inc. ("FAPP"), CET Corp. ("CET"), Check Processing Center, LLC ("Check Processing Center") and any third-party, including but not limited to, financial information, account information and trade secrets.

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c.

The financial information of Matthew Robinson or Jennifer Robinson,

Carl Towner or Jennifer Towner, CET, Check Processing Center, or FAPP produced, if any, as part of this litigation. d. Employment files for FAPP employees (other than names and contact

infromation of employees). 2. This Protective Order applies to Confidential Information produced during the

course of this litigation by a party to the litigation. 3. Confidential Information shall be disclosed only to: a. FTC; b. c. Counsel of record for defendants and employees of their law firm(s); Defendants FAPP, CET, Check Processing Center, Matthew Robinson and FTC counsel, FTC Commissioners, employees and contractors of the

Jennifer Robinson and Carl Towner and Jennifer Towner; d Defendants' employees, upon obtaining an executed copy of the

acknowledgment of the receipt of a copy of this Order. A form of acknowledgment is attached hereto as Exhibit A. However, this Order shall not limit or impair defendants' employees from accessing defendants' files and records as otherwise permitted in the course and scope of their employment. Confidential Information that defendants' employees would not otherwise have access to may be disclosed to defendants' employees only for the purposes of theis or other litigation between the parties and for no other purpose, and shall not be used in the defendants' business affairs, be imparted to any other person, or used by any employee for his own affairs; e. Consultants and experts retained for the purpose of assisting in the

preparation of this or other litigation between the parties, upon obtaining an executed copy of the

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acknowledgment attached hereto as Exhibit A. Confidential Information shall not be used by the consultants or experts in any business or consulting affairs other than this litigation; f. Deponents, their counsel, Court reporters and any persons preparing

transcripts of depositions in connection with depositions taken in this litigation; and g. 4. The Court and Court personnel.

Notwithstanding Paragraph 3, a party may: (1) provide Confidential Information

about a particular witness to that witness, and (2) disclose and use Confidential Information during any other witness interview, deposition, or preparation session for any deposition or court appearance in the course of this action. A party may not provide copies of Confidential Information for a witness to keep, except in accordance with subsection 1 of this Paragraph. A party may also use Confidential Information to furmulate and pose discovery requests, including but not limited, depositions, interrogatories, document requests and requests for admissions. 5. Disclosure of Confidential Information to any person described in Paragraphs 3

and 4 of this Order shall be only for the following purposes: the preparation, litigation, settlement, and appeal of this proceeding and any subsequent enforcement proceeding against any entity or any proceeding to effectuate final relief such as consumer redress. 6. Subject to taking appropriate steps to preserve confidentiality, the FTC may:

(1) disclose and use information that is Confidential under Paragraph 1 of this Order to the extent permitted by the confidentiality provisions of applicable statutes and Commission rules; and (2) disclose and use Confidential Information obtained pursuant to this Order (a) in responding to a formal request or subpoena from either House of Congress of from any committee or subcommittee of the Congress, consistent with applicable law, including Sections 6(f) and 21 of the Federal Trade Commission Act; (b) pursuant to Section 6(f) of the Federal Trade

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Commission Act; (c) in responding to a federal, state, or local government access request under Commission Rule 4.11(c), 16 C.F.R. § 4.11(c); or (d) pursuant to court order. 7. Any party possessing Confidential Information may disclose and use it to the

extent required and/or permitted by any court order. If the disclosure would be public, the party subject to such a court order shall notify the original source of the Confidential Information promptly, with sufficient time to allow the source to present objections to the court, and prior to the production of the Confidential Information. 8. In the event that any Confidential Information is contained in any pleading,

motion, exhibit or other paper (collectively the "papers") filed or to be filed with the Clerk of the Court, the Clerk shall be so informed by the party filing such papers, and such papers shall be filed under seal and explicitly designate the Confidential Information. Confidential Information contained in the papers shall remain under seal until further order of this Court; provided, however, that such papers may be furnished to persons or entities who may receive Confidential Information pursuant to Paragraph 3. Upon or after filing any paper containing Confidential Information, the filing party may file on the public record a duplicate copy of the paper that does not reveal Confidential Information. At the conclusion of the litigation, the protected nature of all Confidential Information will be determined pursuant ro the provisions of Rule 26(c). 9. All information subject to Paragraph 1(a) or 1(b) of this Order about a particular

witness will no longer be deemed Confidential Information if the witness testifies at trial. 10. For information subject to Paragraph 1 of this Order, the producing party,

deponent or any party for the purpose of protecting Confidential Information including, but not limited to, his or her counsel or the FTC, on the record of the deposition or by written notice to counsel for all parties no later than thirty (30) days after the deposition transcript is first made available to the deponent, designate portions thereof as Confidential Information under the terms Case 2:04-cv-00074-SRB Document 47 4 Filed 10/13/2005 Page 4 of 6

of this Order. Until the submission of such designations, the deposition transcript and the information contained therein will be deemed to be Confidential Information in its entirety. At the end of the thirty-day period, only those portions of a transcript of a deposition marked Confidential, if any, shall be deemed Confidential Information. 11. Any party may challenge any Confidential designation by giving written notice to

the designating party (which notice shall specify with particularity the document or other matter pursuant to which the challenge is made). Within ten (10) days of receipt of such notice, counsel for the party that designated the materials must determine whether to withdraw the designation. If the designation is withdrawn, counsel for the designating party shall give written notice of the change. If counsel for the designating party does not withdraw the designation, the party making the challenge may file a motion with the Court with respect thereto. The parties agree that before seeking any relief from the court they will make a good faith effort to resolve any disputes concerning the appropriate treatment of materials. Until this Court enters an order changing the designation, all materials shall be treated in accordance with their initial designation. 12. At the conclusion of all litigation between the parties, all experts, consultants or

other persons retained to assist counsel in the preparation of this action shall return to counsel all copies of documents or portions thereof containing Confidential Information that are in the possession of such person, together with all notes, memoranda or other papers containing Confidential Information. 13. At the conclusion of all litigation between the parties, the parties shall return or

destroy documents obtained in this action to the producing party including all appeals, provided, however, that the FTC's obligation to return documents shall be governed by the provisions of Rule 4.12 of the FTC's Rules of Practice, 16 C.F.R. § 4.12.

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14.

Nothing in this Order shall be construed to affect or limit in any way the use or

admissibility of any document, testimony, or other evidence at trial or any evidentiary hearing. 15. Nothing in this Order shall be construed to effect an abrogation, waiver, or

limitation of any kind on the right of the parties or a third party to assert any applicable discovery or trial privilege.

DATED this 13th day of October, 2005.

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