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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BOHM WILDISH, LLP
James G. Bohm (SBN 132430)
Joanne P. Freeman (SBN 140137)
695 Town Center Drive, Suite 700
Costa Mesa, CA 92626
Telephone: [phone]
NOTE: CHANGES MADE BY THE COURT
Facsimile: [phone]
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

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. CV 16-7033 CAS (JPRx)

JOHN DOE, an individual,

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Plaintiff,

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v.

STIPULATED PROTECTIVE
ORDER

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UNITED STATES OF AMERICA,

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Defendants.

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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.
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B

GOOD CAUSE STATEMENT

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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
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discovery materials, to adequately protect information the parties believe they are

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entitled to keep confidential, to ensure that the parties are permitted reasonable

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necessary uses of such material in preparation for trial, to address their handling at

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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

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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

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2.1

Action: This pending federal law suit

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2.2

Challenging Party: a Party or Non-Party that challenges the designation

14 of information or items under this Order.

2.3

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“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

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Counsel:

Counsel of Record and House Counsel (as well as their

20 support staff).

2.5

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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.”
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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,
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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.7

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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

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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

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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

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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,

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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

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17 Discovery Material in this Action.

2.13 Professional Vendors: persons or entities that provide litigation support

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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:

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any Disclosure or Discovery Material that is

23 designated as “CONFIDENTIAL.”

2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

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25 from a Producing Party.
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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

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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

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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

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5.1

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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,
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or communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to impose

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unnecessary expenses and burdens on other parties) may expose the Designating

26 Party to sanctions.
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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.
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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.
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Designation in conformity with this Order requires:
(a)

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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).
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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
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(b)

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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)

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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).
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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

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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.
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6.2

Meet and Confer.

The challenging Party shall initiate the dispute

21 resolution process under Local Rule 37.1 et seq.
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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.
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01 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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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).
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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.
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7.2

Disclosure of “CONFIDENIAL”

Information or Items.

Unless

13 otherwise ordered by the court or permitted in writing by the Designating Party, a
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Party

may

disclose

any

information

or

item

designated

15 “CONFIDENTIAL” only to:
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(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;
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(b)

the officers, directors, and employees (including House Counsel)

20 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
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(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);
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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(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);
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(g)

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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)

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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)

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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
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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:
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(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;
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(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
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(c)

Cooperate with respect to all reasonable procedures sought to be pursued

27 by the Designating Party whose Protected Material may be affected.
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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.
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13 9.

A

NON-PARTY’S

PROTECTED

MATERIAL

SOUGHT

TO

BE

14 PRODUCED IN THIS LITIGATION
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(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.
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(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:
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(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;
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(2) promptly provide the Non-Party with a copy of the Stipulated

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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

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05 the Non-Party, if requested.
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(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.
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16 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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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
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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,
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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

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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.
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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.
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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

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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
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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.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: 6/23/2017

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_____/s/__________________________________
Attorneys for Plaintiff

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26 DATED:

6/23/2017

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01 ______/s/__________________________

Attorneys for Defendant

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED:

7/13/2017

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________________________________________

09 United States Magistrate Judge
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01

EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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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.

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22 Date: __________________________________
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City and State where sworn and signed: _________________________________

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26 Printed name: ___________________________________
27 Signature: ______________________________________
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of

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