John Doe v. United States et al

Filing 41

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order 37 . (See Order for details) [Note Changes Made By The Court]. (bem)

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01 02 03 04 05 06 07 08 09 10 11 12 13 14 BOHM WILDISH, LLP James G. Bohm (SBN 132430) Joanne P. Freeman (SBN 140137) 695 Town Center Drive, Suite 700 Costa Mesa, CA 92626 Telephone: (714) 384-6500 NOTE: CHANGES MADE BY THE COURT Facsimile: (714) 384-6501 Attorneys for Plaintiff, JOHN DOE SANDRA R. BROWN Acting United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section KEITH STAUB Assistant United States Attorney Attorneys for Defendant United States of America 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 18 Case No. CV 16-7033 CAS (JPRx) JOHN DOE, an individual, 19 20 Plaintiff, 21 v. STIPULATED PROTECTIVE ORDER 22 23 UNITED STATES OF AMERICA, 24 Defendants. 25 _ 26 27 28 BOHM WILDISH, LLP ATTORNEYS 1 01 1. A. PURPOSES AND LIMITATIONS 02 Discovery in this action is likely to involve production of confidential, 03 proprietary, or private information for which special protection from public 04 disclosure and from use for any purpose other than prosecuting this litigation may be 05 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter 06 the following Stipulated Protective Order. The parties acknowledge that this Order 07 does not confer blanket protections on all disclosures or responses to discovery and 08 that the protection it affords from public disclosure and use extends only to the 09 limited information or items that are entitled to confidential treatment under the 10 applicable legal principles. The parties further acknowledge, as set forth in Section 11 12.3, below, that this Stipulated Protective Order does not entitle them to file 12 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures 13 that must be followed and the standards that will be applied when a party seeks 14 permission from the court to file material under seal. 15 B GOOD CAUSE STATEMENT 16 This action is likely to involve patient, medical, and financial information for 17 which special protection from public disclosure and from use for any purpose other 18 than prosecution of this action is warranted. Such confidential information consists 19 of, among other things, confidential medical information, information regarding 20 confidential business/medical practices, or other confidential medical and patient 21 information (including information implicating privacy rights of third parties), 22 information otherwise generally unavailable to the public, or which may be 23 privileged or otherwise protected from disclosure under state or federal statutes, court 24 rules, case decisions, or common law. Accordingly, to expedite the flow of 25 information, to facilitate the prompt resolution of disputes over confidentiality of 26 discovery materials, to adequately protect information the parties believe they are 27 entitled to keep confidential, to ensure that the parties are permitted reasonable 28 BOHM WILDISH, LLP ATTORNEYS necessary uses of such material in preparation for trial, to address their handling at 2 01 the end of the litigation, and serve the ends of justice, a protective order for such 02 information is justified in this matter. It is the intent of the parties that information 03 will not be designated as confidential for tactical reasons and that nothing be so 04 designated without a good faith belief that it has been maintained in a confidential, 05 non-public manner, and there is good cause why it should not be part of the public 06 record of this case. The parties stipulate and agree that any and all information (including but not 07 08 limited to records, documents, notes, emails, and charts) produced in this action by 09 Dr. Larry Brooks, Ph.D., that pertain or relate to Plaintiff JOHN DOE may be 10 designated CONFIDENTIAL. 11 2. DEFINITIONS 12 2.1 Action: This pending federal law suit 13 2.2 Challenging Party: a Party or Non-Party that challenges the designation 14 of information or items under this Order. 2.3 15 “CONFIDENTIAL” Information or Items: information (regardless of 16 how it is generated, stored or maintained) or tangible things that qualify for 17 protection under Feder Rule of Civil Procedure 26c, and as specified above in the 18 Good Cause Statement. 2.4 19 Counsel: Counsel of Record and House Counsel (as well as their 20 support staff). 2.5 21 22 items Designating Party: a Party or Non-Party that designates information or that it produces in disclosures or in responses to discovery as 23 “CONFIDENTIAL.” 24 2.6 Disclosure of Discovery Material: all items or information, regardless of 25 the medium or manner in which it is generated, stored, or maintained (including, 26 among other things, testimony, transcripts, and tangible things), that are produced or 27 generated in disclosures or responses to discovery in this matter. 28 BOHM WILDISH, LLP ATTORNEYS 3 2.7 01 Expert: a person with specialized knowledge or experience in a matter 02 pertinent to the litigation who has been retained by a Party or its counsel to serve as 03 an expert witness or as a consultant in this Action. 2.8 04 House Counsel: attorneys who are employees of a party to this Action. 05 House Counsels does not include Outside Counsel of Record or any other outside 06 counsel. 2.9 07 Non-Party: any natural person, partnership, corporation, association, or 08 other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a party 09 10 to this Action but are retained to represent or advise a party to this Action and have 11 appeared in this Action on behalf of that party or are affiliated with a law firm which 12 has appeared on behalf of that party, and includes support staff. 2.11 Party: any party to this Action, including all of its officers, directors, 13 14 employees, consultants, retained experts, and Outside Counsel of Record (and their 15 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 16 17 Discovery Material in this Action. 2.13 Professional Vendors: persons or entities that provide litigation support 18 19 services (e.g., photocopying, videotaping, translating, preparing exhibits or 20 demonstrations, and organizing, storing, or retrieving data in any form or medium) 21 and their employees and subcontractors. 2.14 Protected Material: 22 any Disclosure or Discovery Material that is 23 designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 24 25 from a Producing Party. 26 27 28 BOHM WILDISH, LLP ATTORNEYS 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also any information copied or extracted 4 01 from Protected Material. All copies, excerpts, summaries, or compilations of 02 Protected Material at trial shall be governed by the orders of the trial judge. This 03 Order does not govern the use of Protected Material at trial. 04 4. DURATION 05 Even after final disposition of this litigation, the confidentiality obligations 06 imposed by this Order shall remain in effect until a Designating Party agrees 07 otherwise in writing or a court order otherwise directs. Final disposition shall be 08 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 09 or without prejudice; and (2) final judgment herein after the completion and 10 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 11 including the time limits for filing any motions or applications for extension of time 12 pursuant to applicable law. 13 5. DESIGNATING PROTECTED MATERIAL 14 5.1 15 Each Party or Non-Party that designates information or items for protection Exercise of Restraint and Care in Designating Material for Protection. 16 under this Order must take care to limit any such designation to specific material that 17 qualifies under appropriate standards. The Designating Party must designate for 18 protection only those parts of material, documents, items, or oral or written 19 communications that qualify so that other portions of the material, documents, items, 20 or communications for which protection is not warranted are not swept unjustifiably 21 within the ambit of this Order. 22 Mass, indiscriminate, or routinized designations are prohibited. Designations 23 that are shown to be clearly unjustified or that have been made for an improper 24 purpose (e.g., to unnecessarily encumber the case development process or to impose 25 unnecessary expenses and burdens on other parties) may expose the Designating 26 Party to sanctions. 27 28 BOHM WILDISH, LLP ATTORNEYS 5 01 If it comes to a Designating Party’s attention that information or items that it 02 designated for protection do not qualify for protection, that Designating Party must 03 promptly notify all other Parties that it is withdrawing the inapplicable designation. 04 5.2 Manner and Timing of Designations. Except as otherwise provided in 05 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 06 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 07 under this Order must be clearly so designated before the material is disclosed or 08 produced. 09 Designation in conformity with this Order requires: (a) 10 For information in documentary form (e.g., paper or electronic 11 documents, but excluding transcripts of depositions or other pretrial or trial 12 proceedings), that the Producing Party affix at a minimum, the legend 13 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) to each page that 14 contains protected material. If only a portion or portions of the material on a page 15 qualifies for protection, the Producing Party also must clearly identify the protected 16 portion(s) (e.g., by making appropriate markings in the margins). 17 A Party or Non-Party that makes original documents available for inspection 18 need not designate them for protection until after the inspecting Party has indicated 19 which documents it would like copied and produced. During the inspection and 20 before the designation, all of the material made available for inspection shall be 21 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 22 it wants copied and produced, the Producing Party must determine which documents, 23 or portions thereof, qualify for protection under this Order. Then, before producing 24 the specified documents, the Producing Party must affix the “CONFIDENTIAL” 25 legend to each page that contains Protected Material. If only a portion or portions of 26 the material on a page qualifies for protection, the Producing Party also must clearly 27 identify the protected portion(s) (e.g., by making appropriate makings in the 28 margins). BOHM WILDISH, LLP ATTORNEYS 6 (b) 01 For testimony given in deposition that the Designating Party 02 identify the Disclosure or Discovery Material on the record, before the close of the 03 deposition all protected testimony. (c) 04 For information produced in some form other than documentary 05 and for any other tangible items, that the Producing Party affix in a prominent place 06 on the exterior of the container or containers in which the information is stored the 07 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants 08 protections, the Producing Party, to the extent practicable, shall identify the protected 09 portion(s). 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive the 12 Designating Party’s right to secure protection under this Order for such material. 13 Upon timely correction of a designation, the Receiving Party must make reasonable 14 efforts to assure that the material is treated in accordance with the provisions of this 15 Order. 16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19 Scheduling Order. 20 6.2 Meet and Confer. The challenging Party shall initiate the dispute 21 resolution process under Local Rule 37.1 et seq. 22 6.3 The burden of persuasion in any such challenge proceeding shall be on 23 the Designating Party. Frivolous challenges, and those made for an improper purpose 24 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 25 expose the Challenging Party to sanctions. Unless the Designating Party has waived 26 or withdrawn the confidentiality of designation, all parties shall continue to afford the 27 material in question the level of protection to which it is entitled under the Producing 28 Party’s designation until the Court rules on the challenge. BOHM WILDISH, LLP ATTORNEYS 7 01 7. ACCESS TO AND USE OF PROTECTED MATERIAL 02 7.1 Basic Principles. A receiving Party may use Protected Material that is 03 disclosed or produced by another Party or by a Non-Party in connection with this 04 Action only for prosecuting, defending, or attempting to settle this Action. Such 05 Protected Material may be disclosed only to the categories of persons and under the 06 conditions described in this Order. When the Action has been terminated, a 07 Receiving Party must comply with the provisions of section 13 below (FINAL 08 DISPOSITION). 09 Protected Material must be stored and maintained by a Receiving Party at a 10 location and in a secure manner that ensures that access is limited to the persons 11 authorized under this Order. 12 7.2 Disclosure of “CONFIDENIAL” Information or Items. Unless 13 otherwise ordered by the court or permitted in writing by the Designating Party, a 14 Receiving Party may disclose any information or item designated 15 “CONFIDENTIAL” only to: 16 (a) the Receiving Party’s Outside Counsel of Records in this Action, 17 as well as employees of said Outside Counsel of Record to whom it is reasonably 18 necessary to disclose the information for this Action; 19 (b) the officers, directors, and employees (including House Counsel) 20 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 21 (c) Experts (as defined in this Order) of the Receiving Party to whom 22 disclosure is reasonably necessary for this Action and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (d) the court and its personnel; 25 (e) court reporters and their staff; 26 (f) professional jury or trial consultants, mock jurors, and 27 Professional Vendors to whom disclosure is reasonably necessary for this Action and 28 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); BOHM WILDISH, LLP ATTORNEYS 8 (g) 01 the author or recipient of a document containing the information 02 or a custodian or other person who otherwise possessed or knew the information; (h) 03 during their depositions, witnesses, and attorneys for witnesses, in 04 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 05 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 06 they will not be permitted to keep any confidential information unless they sign the 07 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 08 agreed by the Designating Party or ordered by the court. Pages of transcribed 09 deposition testimony or exhibits to depositions that reveal Protected Material may be 10 separately bound by the court reporter and may not be disclosed to anyone except as 11 permitted under this Stipulated Protective Order; and (i) 12 any mediator or settlement officer, and their supporting personnel, 13 mutually agreed upon by any of the parties engaged in settlement discussions or 14 ordered by the court. 15 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 16 OTHER LITIGATION 17 If a Party is served with a subpoena or a court order issued in other litigation 18 that compels disclosure of any information or items designated in this Action as 19 “CONFIDENTIAL,” that Party must: 20 (a) Promptly notify in writing the Designating Party. Such notification shall 21 include a copy of the subpoena or court order unless prohibited by law; 22 (b) Promptly notify in writing the party who caused the subpoena or order to 23 issue in the other litigation that some or all of the material covered by the subpoena 24 or order is subject to this Protective Order. Such notification shall include a copy of 25 this Stipulated Protective Order; and 26 (c) Cooperate with respect to all reasonable procedures sought to be pursued 27 by the Designating Party whose Protected Material may be affected. 28 BOHM WILDISH, LLP ATTORNEYS 9 01 If the Designating Party timely seeks a protective order, the Party served with 02 the subpoena or court order shall not produce any information designated in this 03 action as “CONFIDENTIAL” before a determination by the court from which the 04 subpoena or order issued, unless the Party has obtained the Designating Party’s 05 permission or unless otherwise required by law or court order. The Designating Party 06 shall bear the burden and expense of seeking protection in that court of its 07 confidential material and nothing in these provisions should be construed as 08 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 09 directive from another court. 10 /// 11 /// 12 /// 13 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 14 PRODUCED IN THIS LITIGATION 15 (a) the terms of this Order are applicable to information produced by 16 a Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 17 produced by Non-Parties in connection with this litigation is protected by the 18 remedies and relief provided by this Order. Nothing in these provisions should be 19 construed as prohibiting a Non-Party from seeking additional protections. 20 (b) in the event that a Party is required, by a valid discovery request, 21 to produce a Non-Party’s confidential information in its possession, and the Party is 22 subject to an agreement with the Non-Party not to produce the Non-Party’s 23 confidential information, then the Party shall: 24 (1) promptly notify in writing the Requesting Party and the Non- 25 Party that some or all of the information requested is subject to a confidentiality 26 agreement with a Non-Party; 27 28 BOHM WILDISH, LLP ATTORNEYS 10 (2) promptly provide the Non-Party with a copy of the Stipulated 01 02 Protective Order in this Action, the relevant discovery request(s), and a reasonably 03 specific description of the information requested; and (3) make the information requested available for inspection by 04 05 the Non-Party, if requested. 06 (c) if the Non-Party fails to seek a protective order from this court 07 within 14 days of receiving the notice and accompanying information, the Receiving 08 Party may produce the Non-Party’s confidential information responsive to the 09 discovery request. If the Non-Party timely seeks a protective order, the Receiving 10 Party shall not produce any information in its possession or control that is subject to 11 the confidentiality agreement with the Non-Party before a determination by the court 12 unless otherwise required by law or court order. Absent a court order to the contrary, 13 the Non-Party shall bear the burden and expense of seeking protection in this court of 14 its Protected Material. 15 /// 16 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 17 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 18 Protected Material to any person or in any circumstance not authorized under this 19 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 20 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 21 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 22 persons to whom unauthorized disclosures were made of all the terms of this Order, 23 and (d) request such person or persons to execute the “Acknowledgment and 24 Agreement to Be Bound” that is attached hereto as Exhibit A. 25 11. INADVERTENT PRODUCTION OF PRIVLEDGED OR OTHERWISE 26 PROTECED MATERIAL 27 When a Producing Party gives notice to Receiving Parties that certain 28 inadvertently produced material is subject to a claim of privilege or other protection, BOHM WILDISH, LLP ATTORNEYS 11 01 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 02 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 03 may be established in an e-discovery order that provides for production without prior 04 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 05 parties reach an agreement on the effect of disclosure of a communication or 06 information covered by the attorney client privilege or work product protection, the 07 parties may incorporate their agreement in the stipulated protective order submitted 08 to the court if the Court so allows. 09 12. MISCELLANEOUS 10 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 11 person to seek its modification by the Court in the future. 12 12.2 Right to Assert Other Objections. By stipulating to the entry of this 13 Protective Order no Party waives any right it otherwise would have to object to 14 disclosing or producing any information or item on any ground not addressed in this 15 Stipulated Protective Order. Similarly, no Party waives any right to object on any 16 ground to use in evidence of any of the material covered by this Protective Order. 17 12.3 Filing Protected Material. A Party that seeks to file under seal any 18 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 19 only be filed under seal pursuant to a court order authorizing the sealing of the 20 specific Protected Material at issue. If a Party’s request to file Protected Material 21 under seal is denied by the court. Then the Receiving Party may file the information 22 in the public record unless otherwise instructed by the court. 23 13. FINAL DISPOSITION 24 After the final disposition of this Action, as defined in paragraph 4, within 60 25 days of a written request by the Designating Party, each Receiving Party must return 26 all Protected Material to the Producing Party or destroy such material. As used in this 27 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 28 summaries, and any other format reproducing or capturing any of the Protected BOHM WILDISH, LLP ATTORNEYS 12 01 Material. Whether the Protected Material is returned or destroyed, the Receiving 02 Party must submit a written certification to the Producing Party (and, if not the same 03 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 04 (by category, where appropriate) all the Protected Material that was returned or 05 destroyed and (2) affirms that the Receiving Party has not retained any copies, 06 abstracts, compilations, summaries or any other format reproducing or capturing any 07 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 08 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 09 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 10 reports, attorney work product, and consultant and expert work product, even if such 11 materials contain Protected Material. Any such archival copies that contain or 12 constitute Protected Material remain subject to this Protective Order as set forth in 13 Section 4 (DURATION). 14 14. Any violation of this Order may be punished by any and all appropriate 15 measures including, without limitation, contempt proceedings and/or monetary 16 sanctions. 17 18 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 19 20 21 DATED: 6/23/2017 22 23 _____/s/__________________________________ Attorneys for Plaintiff 24 25 26 DATED: 6/23/2017 27 28 ________________________________________ BOHM WILDISH, LLP ATTORNEYS 13 01 ______/s/__________________________ Attorneys for Defendant 02 03 04 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 05 06 DATED: 7/13/2017 07 08 ________________________________________ 09 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BOHM WILDISH, LLP ATTORNEYS 14 01 EXHIBIT A 02 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 I, ___________________________ [print or type full name], __________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Central District of California on ______ in case of John Doe v. United States of America, United States District Court, Central District of California, Case No. CV 16-7033 CAS (JPRx) . I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint _____________________ [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. 21 22 Date: __________________________________ 23 City and State where sworn and signed: _________________________________ 24 25 26 Printed name: ___________________________________ 27 Signature: ______________________________________ 28 BOHM WILDISH, LLP ATTORNEYS of 15

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