Richard Teisher et al v. National Railroad Passenger Corporation

Filing 27

PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams re Stipulation for Protective Order 25 (sbu)

Michael E. Murphy Esq. Bar #174408)
Brock Christensen ~sQ. ar #216237)
(
2 SIMS LAW FIR1V~ LLP
19712 MacArthur boulevard, Suite 120
Irvine, California 92612
(
949)253-7900
4 (
949)253-7930 -FAX

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Attorneys for Defendant NATIONAL RAILROAD PASSENGER
CORPORATION,service mark AMTRAK,and UriION PACIFIC RAILROAD
COMPANY

UI~IITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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RICHARD TEISHER,Individually and
as Successor in Interest ofDecedent
KATHLEEN TEISHER,ZACHARY
TEISHER,Individually and as Successor
in Interest of Decedent KATHIrEEN
TEISHE~ GRANT TEISHER,
Individual y and as Successor in Interest
ofDecedent KATI .EEN TEISHER2
II
TRAVIS TEISHER,Individually and as
Successor in Interest ofDecedent
KATHLEEN TEISHER,

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Case No.: 2:16-cv-08556-PLA

NON-DISCLOSURE
AGREEMENT AND
STIPULATED PROTECTIVE
ORDER

Plaintiffs,

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vs.

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NATIONAL RAILROAD PASSENGER
CORPORATION,Individuall and dba
AMTRAK,iJNION PACIFI~
RAILROAD COMPANY COUNTY OF
SANTA BARBARA,CITY OF
CARPINTERIA,STATE OF
CALIFORNIA,and DOES 1 through
100,inclusive,

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CompTaint Filed: 11/2/2016
DateRemoved: 11/1 b/201 b
None
Trial Date:

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Defendants.
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G:149721PIcadingsWon-Disclosure Agra~ncnt; Protective Order mem~w20170217.wpd

NON-DISCLOSURE AGREEMENT AND STIPULATED PROTECTIVE ORDER

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NON-DISCLOSURE AGYiEEMENT
ER

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Plaintiffs RICHARD TEISHER,Individually and as Successor in Interest of
Decedent KATHI,EEN TEISI~R,ZACHARY TEISHER,Individually and as
Successor in Interest ofDecedent KATHLEEN TEISHER,GRANT TEISHER,

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Individually and as Successor in Interest ofDecedent KATHI..EEN TEISHER,

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TRAVIS TEISHER,Individually and as Successor in interest ofDecedent
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KATIII.EEN TEISHER,by and through their attorneys, DAG Law Firm,
Defendant City ofCarpinteria by and through its attorneys Procter &Shyer,and

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Defendants National Raikoad Passenger Corporation,service mark Amtrak,and
Union Pacific Railroad Company,by and through their attorneys, Sims Law Firm
LLP,stipulate and agree as follows:
X.

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The Locomotive Digital Video Recording(LDVR)ofthe subject

incident, bearing production Bates Number Amtrak OOOOOI,including the
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substance and content thereof, is considered sensitive and confidential information
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that is subject to the terms ofttus Nnn-Disclosure Agreement and Stipulated
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Protective Order. There is good cause to protect the confidentiality ofthe LDVR
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and limit its use to this matter based on the following facts and reasons: There was
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an outward facing LDVR camera mounted on the front ofthe lead locomotive on

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the train that faced the track at the time ofthe incident. The LDVR recorded the
decedent's death. Public release ofthe video or providing access to it on the
intemet would violate the privacy ofAmtrak, the Amtrak crew members,and the
decedent and PIaintiff—publication ofthe death video would potentially harm all
ofthem —and publication would provide the opportunity for unauthorized
distribution ox posting ofthe LDVR on the intemet, and the potential for misuse of
the LDVR.Publication could cause embarrassment to the crew, Amtrak and other
ofits employees, Plaintiff, her decedent, and potentially others, depending on bow
the end user modifies it, which nobody can control once it is released. The only
reasonable alternative is to limit the use ofthe LDVR to this case only.
a:149T11P1eadingslNon-Diaelowm Agre~m~ Protoctiw O~dar mem~av20170217.wpd

NON-DISCLOSURE AGREEMENT AND STIPULATED PROTECTIVE ORDER

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2.

The Electronic Data Recording(EDR)ofthe subject incident, bearing

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production Bates Number Amtrak 000002,including the substance and content

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thereof, is considered sensitive and confidential information that is subject to the

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terms ofthis Non-Disclosure Agreement and Stipulated Protective Order.

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3.

The LDVR and EDR are sensitive and proprietary property of Amtrak

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and may be used solely for the purpose ofthis litigation subject to the terms ofthis

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agreement and,ifapplicable,order. The transmission or production ofthe LDVR

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and EDR by Amtrak does not create any interest or right, itwteUectual or otherwise,

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in the LDVR or EDR and shall not result in any waiver by Amtrak ofits property

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rights,intellectual or otherwise, or ofthe developer, manufacturer, and/or

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distributor ofthe software.

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4.

The terms"LDVR"and "EDR"as used in this order spec~cally

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uacludes any and all CDs,DVDs,paper and electronic copies,transcripts, prints,

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negatives,recordings, duplicates, and summaries ofthe LDVR and EDR

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5.

Prior to producing the LDVR and EDR,or any part thereof, to any

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party to this lawsuit or to nay related matter, Amtrak shall stamp the LDVR and

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EDR with the word "Confidential" or other similar language, and in the event that

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there is a deposition or other testimony regarding the LDVR or EDR,or any part

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thereof, in this lawsuit or any related matter, a copy ofthis agreement shall be

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provided to the court reporter by the party introducing the LDVR or EDR into the

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record,and those parts ofthe transcript shall be kept"Confidential."

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6.

Counsel ofrecord who receive any form ofthe LDVR and/or EDR

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from counsel ofrecord for Amisak shall not, except as provided in Paragraph 7,

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divulge or disclose the LDVR and/or EDR,or any part thereof,to any person or

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entity other than their clients or individuals employed by them to assist in the

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preparation or t~rrial ofthis case,ifany —such as secretaries or legal assistants who

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work with and for the attorneys —and who have a need to lmow the content ofthe

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LDVR and/or EDR for purposes ofthis lawsuit. In addition, counsel ofrecord
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'419721Pkedin=sWoa-D'pclpiuo AgrammK Pioxctive Orda mem~e~/1O170217.wpd

NON-DISCLOSURE AGREEMENT AND STIPULATED PROTECTIVE ORDER

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who receive any form ofthe LDVR and/or EDR from counsel ofrecord for

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Amtrak may disclose it, or any part thereof,to consulting or testifying expert

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witnesses who are employed to assist in the preparation or trial ofthis case subject

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to the requirements in Paragraph 7.

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7.

Counsel receiving the LDVR and/or EDR,on behalfofthemselves,

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their secretaries, legal assistants, and staff, shall provide to counsel for Amtrak the

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signed aclaiowledgment(Exhibit A)that they have reviewed and understand this

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Non-Disclosure Agreement and Stipulated Protective Order; that they agree to be

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bound by all ofits terms; that they agree to be subject to thejurisdiction of this

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Court with respect to any claimed violations of this Non-Disclosure Agreement

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and Stipulated Protective Order; that they will not reveal the Confidential

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Informatioq or any part thereof, to any other person or entity; and that they will

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not discuss the Confidential Information, or any part thereof, with anyone other

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than the counsel ofrecord who retained them. Consulting or testifying experts

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must sign the acknowledgment before counsel provides them with the LDVR

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and/or EDR.Counsel shall keep the acknowledgment signed by any testifying or

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consulting expert provided the LDVR and/or EDR pursuant to this stipulation as

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Exhibit A.

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8.

Any person who receives the LDVR and/or EDR in accordance with

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paragraphs 6 and 7 above,shall use it solely for the purposes ofthis lawsuit except

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as expressly authorized by this Court, and the recipients thereof shall not use, give,

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show,divulge, or otherwise disclose the LDVR and/or EDR,or any part thereof,

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or any paper or electronic copies,transcripts, prints, negatives, recordings, or

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summaries ofthe LDVR and/or EDR,to any other person or entity.

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9.

Prior to lodging or filing the LDVR and/or EDR,or any part thereof,

with the Court as an exhibitor otherwise, the filing party shall give at least ten

27 (10)days notice to counsel for Amtrak so that Amtrak may move the Court to have
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G:4f97Z1PleadiogtlNort-Disclosure A~eanent Protx6re Order ma~ev20170217.wpd

NON-DISCLOSURE AGREEMENT AND STIPULATED PROTECTIVE ORDER

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the LDVR and/or EDR sealed. Upon filing ofa motion to seal, the LDVR and/or

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EDR will be treated as sealed pending the Court's ruling on such motion.

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10.

Within 30 days after the ternunation ofthis lawsuit, including any

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appeals, by finaljudgment,settlement or otherwise, counsel ofrecord for any

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party who received the LDVR and/or EDR from counsel of record for Amtirrak

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shall retrieve all such LDVR and/or EDR paper and electronic copies, transcripts,

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prints, negatives,recordings and summaries thereofthat aze in the possession of

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any other person or entity, including their employees, consultants and expert

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witnesses; shall return to counsel ofrecord for Amtrak all copies ofthe LDVR

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and/or EDR;and shall certify under penalty ofperjury, in writing,to counsel of

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record for Amtrak that they have complied with this Paragraph 10.

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No person who receives any form ofthe LDVR and/or EDR shall sell,

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offer, advertise, publicize or provide, under any circumstances or conditions, the

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LDVR and/or EDR,or any part thereof, to any person or entity other than in

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accordance with the provisions ofthis Non-Disclosure Agreement and Stipulated

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Protective Order. No person who receives any form ofthe LDVR and/or EDR

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shall make it available, copy it, or disseminate it to any electronic media,including

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but not limited to the intemet.

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12.

In the event that the LDVR and/or EDR,or any part thereof appears

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is any form,in the hands ofan unauthorized person or entity in any proceeding or

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forum other than this lawsuit as a result ofan unauthorized disclosure by any

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recipient ofthe LDVR and/or EDR,including counsel ofrecord and the plaintiff,

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such shall be considered a direct violation of the provisions ofthis Non-Disclosure

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Agreement and Stipulated Protective Order,for which any and all appropriate

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sanctions and legal remedies may be imposed against the offending recipient who

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disclosed the LDVR and/or EDR is an unauthorized manner or who disclosed it to

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an unauthorized person or entity.

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aa9nwxsaia~uvo~-~bsure e~moo~ r~v~ocu~ aaR m~m~wio~~o2».~a
NON-DISCLOSURE AGREEMENT AND STIPULATED PROTECTNE ORDER

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Nothing in this Non-Disclosure Agreement and Stipulated Protective
Order is intended to deny any party the right to an open and public trial ofthe
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issues in this lawsuit and the Court will address use of the LDVR and/or EDR as
evidence and/or additional protections ofthe LDVR and/or EDR,if necessary, at

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time of trial.

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If the Court refuses to accept this Non-Disclosure Agreement and
Stipulated Protective Order for any reason, each and all of the provisions ofthis

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Non-Disclosure Agreement and Stipulated Protective Order still are effective and

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legally binding on the parties to this Non-Disclosure Agreement and Stipulated

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Protective Order.

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SO STIPULATED AND AGREED:

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Date: March ~,
2017

DAG LAW F[RM

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ons r~s ~n, q. _
Attorneys for Plamt~ffs

IS
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Date: March ~,
2017

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Mic7ael Murp ,Esg.~
Attomeys for ATIaNAL RAILROAD
PASSENGE CORPORAT[~N,service
mark AM
K,and UN(ON PACIFIC
RAILROAD COMPANY

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SIMS I~1GV ~RN~. LLP

Dated: March _,
2017

PROCTER &SHYER,LLP

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James N. Procter II
Attorneys for Defendant CITY OF
CARPINTERIA

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G:W9731PkodingslNon-Diacloa~urc Agrcemrnt: ProKc~ive Only ign~v20170217.a~pJ

NON-DISCLOSURE AGREEMENT AND STIPULATED PROTECTIVE ORDER

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13.

Nothing in this Non-Disclosure Agreement and Stipulated Protective

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Order is intended to deny any party the right to an open and public trial ofthe

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issues in this lawsuit and the Court will address use ofthe LDVR and/or EDR as

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evidence and/or additional protections of the LDVR and/or EDR,if necessary, at

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time oftrial.

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Ifthe Court refuses to accept this Non-Disclosure Agreement and

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Stipulated Protective Order for any reason,each and all ofthe provisions ofthis

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Non-Disclosure Agreement and Stipulated Protective Order still are effective and

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legally binding on the parties to this Non-Disclosure Agreement and Stipulated

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Protective Qrder.
SO STIPULATED AND AGREED:

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Date: March ~2017

DAG LAW FIRM

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sq. ,
ons ns
Attorneys for Plaintiffs

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Date: March

,2017

SIMS LAW FIRM,LL,P

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Michael Morp~hy Fsg. ~
,
Attorn~eys for NATIONAL RAILROAD
PASSENGER CORPORATION service
mark AMTRAK,and UNION P1~CIFIC
RAILROAD COMPANY

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Dated: March~2017
y

PROCTER &SHYER,LLP

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r
ter II
James N.
Attorne or Defendant CITY OF
RIA
CARP

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0:149T11PIndia~lNan-Dbebwre A~eemeo~ Protective Order m~2oy~as~~.wpa

NONDISCLOSURE AGREEMENT AND STIPULATED PROTECTIVE ORDER

P'~~-URDER

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The Court having considered this matter and having found that all parties,

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by and through their respective attorneys, have agreed to this Non-Disclosure

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Agreement and Stipulated Protective Order, and having found good cause as

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stated by the parties, hereby enters its order pursuant to the agreed upon terms as

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set forth above. The Court further orders that the LDVR and EDR shall not, under

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any circumstances, be copied or disseminated to any electronic media, including

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but not limited to the Internet.

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SO ORDERED AND ADJUDGED,this the ~~day of

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M~ rt

,zoi ~.

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Hon.Paul L. Abrams,

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MAGISTRATE JUDGE OF TIC UNITED

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STATES DISTRICT COURT

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G:149721PIesdingsWon-Disclosure Agreement; Protective Order mem7e~20170217.wpd

NON-DISCLOSURE AGREEMENT AND STIPULATED PROTECTIVE ORDER

EXHIBIT A
ACKNOWLEDGMENT OF RECIPIENT

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I, the undersigned, on behalfof myself, my employees, secretaries,
assistants, staff and associates, hereby~acknowled e that I have received a copy of
the Locomotive Di tal Video Recording(LDVR~ produced in the case of
`
2tICHAR.D TEIS~g,,Individually~and as Successor in Interest ofDecedent
KATIII,EEN TEISHEf~,ZACHARY TEISHEg~,Individual~l+~and as Successor in
Interest of Decedent KATHI.EEN 7'EISHER GRANT TEISHER,Individually
and as Successor in Interest ofDecedent KA~'HLEEN TEISHE~,,TRAVIS
TEISHER,Individually and as Successor in Interest ofDecedent YCATHI..EEN
TEISHER,Plaintiffs, vs. NA'I'~ONAL RAILROAD PASSENGER
CORPORATION,Individuall and dba AM
UrTION PACIFIC
RAILROAD COMPANY,C~UNTY OF SANTA ARBARA,CITY OF
CARPINTERIA,STATE OF CALIFORNIA,and DOES 1 through 140 inclusive,
Defendants" being Civil Action No. 2:16-cv-08556-DMG-AJW m the ~7nited
States District Court, Central District of California; that such L13VR and EDR is
sub'ect tv allon-Disclosure Agreement and Stipulated Protective Order agreed to
by ~e~ partier and/or entered by the Court in such lawsuit; that I have reviewed
such Non-Disclosure Agreement and Stipulated Protective Order andagree to its
terms; that I will keep it and all copies and/or parts thereofsiricdy confidential as
provided in such Non-Disclosure AgrBement and Stipelated Protective Order,and
that I agree to comply strictly with all terms and conditions ofsuch NonDisclosure Agreement and Stipulated Protective Order, a copy of which is
attached hereto. I further agree to immediately provide counsel for Amtrak a
second copy ofthis form at the address provided below.

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FOR
Murn

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19712 MacArthur $lvd., Suite 120
Irvine CA 92612
(
949 153-7900
X
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3 949 253-7930 -FAX
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cYY n9721r1aadin~clNon-uieclos~ue n~mfi rrooenive oda meo~ev2a~ 70:~ 7.wpa
a

NONDISCLOSURE AGREEMENT AND STIPULATED PROTECTIVE ORDER

PROOF OF SERVICE BY MAIL
Case No.2:16-cv-08556-DMG-PLA
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I am employed in the County ofOrange State ofCalifornia. I am over the age
of 18 and not a party to the within action; my business address is 19712 MacArthur
Blvd., Ste. 120,Irvine, CA 92612.

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n
4 March 28,2017,I served the foregoing documents on the interested parties
in this action:
NON-DISCLOSURE AGREEMENT AND STIPULATED PROTECTIVE
ORDER

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[
X] by placing the true copies thereofenclosed in sealed envelopes addressed as
listed below:

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See Attached Service List

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BY MAIL: I deQosited such envelope in the mail at Irvine, California. The
envelope was mailed with postage thereon fully prepaid. I am "readily
f
amiliar" with the firm's practice ofcollection and processing
correspondence for mailin .Under that practice, said correspondence is
deposited with the United Mates Postal Service on that same day with
postage thereon fully prepaid at Irvine California in the ordinary course of
business; and there is delivery service Eby United States mail at the place so
addressed.

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I am aware that on motion ofthe party served, service is presumed invalid if
postal cancellation date or poste~ge meter date is more than one day after
date ofdeposit for mailing in ai~idavit. Executed on March 28,2017,at
Irvine, California.

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BY E-MAIL TRANSMISSION:I caused the above document to be
emailed to counsel and sent from [e-mail] executed on
March 28,2017,at Irvine, California

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X] BY E-SERVICE: The undersigned hereby,certifies that a true and correct

copy ofthe forgoing document was filed with the Court and served
electronically tTirough pursuant to the United States District Court CM/ECF
rules to all counsel ofrecord to those registered to receive a Notice of
Electronic Filing for this case on March 28,2017.

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{Federal Express): I caused such envelopes)to be delivered by air
courier, with next day service.

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[
X] {Federal): I declare that I am employed in the office ofa member ofthe bar
ofthis court at whose direction the service was made. Executed March 28,
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017,at Irvine, California.
,

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J

A. Mortimore

SERVICE LIST
T
eisher, et al. v. Amtral~ et al.
Boris Briskin ~E~sq.
DAG LAW FIRM
6300 Wilshire Blvd., Suite 1400
Los Angeles CA 90048
323 930-2420
323 930-2225 -Facsimile
ttorneys for Plaintiffs RICHARD TEISHER,Individua~l~)y and as Successor in
Interest ofDecedent KATHLEEN TEISHE ZACFiARYTEISHEg,Individually
and as Successor in Interest ofDecedent KA
EEN TEISHE~,, GIANT
TEISHER,Individual)y and as Successor in Interest ofDecedent~ATHI,EEN
TEISHER TRAVIS TEISHE~t,,Individually and as Successor in Interest of
Decedent ~ATIII,EEN TEISH~R
lU
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James N.Procter II, Esq.
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R~CTER~& SHYE~ LLP
V
E,
s
300 Esplanade Drive,Suite 1500
Oxnard. CA 93036
805)278-0920
805)278-0289 -Facsimile
ttorneys for Defendant CITY OF CARPIIVTERIA