S.A. v. Hacienda La Puente Unified School District

Filing 34

STIPULATED PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh 33 (im)

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1 2 3 4 5 6 7 LEARNING RIGHTS LAW CENTER JANEEN STEEL (SBN 211401) janeen@learningrights.org KYRA CLIPPER (SBN 280904) kyra@learningrights.org PATRICIA VAN DYKE patsy@learningrights.org (SBN 160033) 205 S. Broadway, Suite 808 Los Angeles, California 90012 Phone: 213-542-1834 Fax: 213-489-4033 8 9 10 11 12 13 14 15 Attorneys for Plaintiff S.A. HARBOTTLE LAW GROUP S. Daniel Harbottle (SBN 156442) dharbottle@harbottlelaw.com Sydney J. Blaauw (SBN 293331) sblaauw@harbottlelaw.com 18401 Von Karman Ave., Suite 200 Irvine, CA 92612 Phone: 949-428-8780 Fax: 949-428-8779 16 17 Attorneys for Defendant 18 UNITED STATES DISTRICT COURT 19 CENTRAL DISTRICT OF CALIFORNIA 20 21 22 S.A., by and through his guardian ad litem, Lisa Trifiletti, Plaintiff, 23 v. 24 25 HACIENDA LA PUENTE UNIFIED SCHOOL DISTRICT. 26 27 28 Defendant. _________________________________ ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:17-CV-02759BRO(PJWx) DISCOVERY MATTER STIPULATED PROTECTIVE ORDER 1 2 1. PURPOSES AND LIMITATIONS Discovery in this action will involve production of the confidential, personal 3 medical and educational information of a foster youth for which special protection 4 from public disclosure and from use for any purpose other than prosecuting this 5 litigation may be warranted. Accordingly, the parties hereby stipulate to and petition 6 the Court to enter the following Stipulated Protective Order (“Order”). The parties 7 acknowledge that this Order does not confer blanket protections on all disclosures or 8 responses to discovery and that the protection it affords from public disclosure and 9 use extends only to the limited information or items that are entitled to confidential 10 treatment under the applicable legal principles. The parties further acknowledge, as 11 set forth in Section 13.3 below, that this Stipulated Protective Order does not entitle 12 them to file confidential information under seal; Civil Local Rule 79-5 sets forth the 13 procedures that must be followed and the standards that will be applied when a party 14 seeks permission from the Court to file material under seal. 15 16 2. GOOD CAUSE STATEMENT Plaintiff S.A. is a six-year-old foster child who has been diagnosed with 17 autism spectrum disorder. He has been enrolled as a special education student in 18 defendant Hacienda La Puente Unified School District (“District”) since 2014. In 19 this action, S.A. alleges that District discriminated against him on the basis of his 20 disability by engaging in an illegal pattern and practice of shortening S.A.’s school 21 schedule, excluding him from school on the basis of his disability, and failing to 22 provide appropriate accommodations and supports. Accordingly, S.A. alleges that 23 District deprived him of the benefits of, and access to, his education including, but 24 not limited to, those early interventions that are so crucial for children on the autism 25 spectrum. District denies S.A.’s allegations, denies his claims for injunctive relief 26 and damages, and denies it has any liability to him. 27 Because of the nature of this case, the Parties anticipate that they will seek and 28 rely on confidential information throughout the course of discovery and in support of 1  Stipulated Protective Order  1 their claims and defenses, including, but not limited to, academic and/or 2 performance records; nursing and health records; medical information; 3 psychoeducational evaluations; and individualized education or 504 plans. Most, if 4 not all of this information is protected from disclosure under state or federal statutes, 5 court rules, case decisions or common law, particularly because S.A. is a foster 6 youth who remains under the jurisdiction of the Juvenile Court. The Parties and any third parties whose confidential or private information 7 8 may be discussed or referred to within these documents may be harmed if no 9 protective order is entered to shield against the dissemination of such private, 10 confidential information. Thus, in order to expedite the flow of information, to 11 facilitate the prompt resolution of disputes over confidentiality of discovery 12 materials to adequately protect information the parties are entitled to keep 13 confidential, to ensure that the parties are permitted reasonable, necessary uses of 14 such material in preparation for and in the conduct of the trial, to address their 15 handling at the end of litigation and serve the ends of justice, a protective order is 16 justified in this matter. It is the intent of the parties that information will not be 17 designated as confidential for tactical reasons and that nothing be so designated 18 without a good faith belief that has been maintained in a confidential, non-public 19 manner, and there is good cause why it should not be part of the public record in this 20 case. 21 22 23 24 25 26 3. DEFINITIONS 3.1 Action: S. A., by and through his guardian ad litem, Lisa Trifilleti v. Hacienda La Puente Unified School District, Case No.: 2:17-CV-02759BRO-PJW (C. D. CA) 3.2 Challenging Party: A Party or Non-Party that challenges the designation of information or items under this Order. 3.3 “CONFIDENTIAL” Information or Items: information (regardless of how 27 it is generated, stored or maintained) or tangible things that qualify for 28 protection under Federal Rule of Civil Procedure 26(c), and as specified 2  Stipulated Protective Order  1 2 3 4 5 6 7 above in the Good Cause Statement. 3.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 3.5 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 3.6 Disclosure or Discovery Material: all items or information, regardless of 8 the medium or manner in which it is generated, stored or maintained 9 (including, among other things, testimony, transcripts and tangible things), 10 that are produced or generated in disclosures or responses to discovery in 11 this matter. 12 3.7 Expert: a person with specialized knowledge or experience in a matter 13 pertinent to the litigation who has been retained by a Party or its counsel to 14 serve as an expert witness or a consultant in the Action. 15 3.8 House Counsel: attorneys who are employees of a Party to this Action. 16 House Counsel does not include Outside Counsel of Record or any other 17 outside counsel. 18 19 20 3.9 Non-Party: any natural person, partnership, corporation, association or other legal entity not named as a Party to this action. 3.10 Outside Counsel of Record: attorneys who are not employees of a Party 21 to this Action but are retained to represent or advise a Party to this Action 22 and have appeared in this Action on behalf of that Party or are affiliated 23 with a law firm which has appeared on behalf of that Party or in the related, 24 administrative due process case. 25 3.11 Party: any party to this Action, including its officers, directors, 26 employees, consultants, retained experts and Outside Counsel of Record 27 (and their support staffs). 28 3  Stipulated Protective Order  1 2 3 3.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 3.13 Professional Vendors: persons or entities that provide litigation support 4 services (e.g. photocopying, videotaping, translating, preparing exhibits or 5 demonstrations and organizing, storing or retrieving data in any form or 6 medium) and their employees and subcontractors. 7 8 9 10 11 3.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 3.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 4. SCOPE 12 The protections conferred by this Stipulation and Order cover not only 13 Protected Material (as defined above), but also (1) any information copied or 14 extracted from Protected Material; (2) all copies, excerpts, summaries or 15 compilations of Protected Material; and (3) any testimony, conversations or 16 presentations by Parties or their Counsel that might reveal Protected Material. 17 Any use of Protected Material at trial shall be governed by the orders of the trial 18 judge. This Order does not govern the use of Protected Material at trial. 19 20 21 22 23 24 25 26 27 5. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials or reviews of this Action, including the time limits for filing motions or applications for extension of time pursuant to applicable law. 28 4  Stipulated Protective Order  1 2 6. DESIGNATING PROTECTED MATERIAL 3 6.1 Exercise of Restraint and Care in Designating Materials for Protection 4 Each Party or Non-Party that designates information or items for protection under 5 this Order must take care to limit any such designations to specific material that 6 qualifies under the appropriate standards. The Designating Party must designate 7 for protection only those parts of material, documents, items or oral or written 8 communications that qualify so that other portions of the material, documents, 9 items or communications for which protection is not warranted are not swept 10 unjustifiably within the ambit of this Order. 11 Mass, indiscriminate or routinized designations are prohibited. Designations 12 that are shown to be clearly unjustified or that have been made for an improper 13 purpose (e.g. to unnecessarily encumber the case development process or to 14 impose unnecessary expenses and burdens on other parties) may expose the 15 Designating Party to sanctions. 16 If it comes to a Designating Party’s attention that information or items that it 17 designated for protection do not qualify for protection, that Designating Party 18 must promptly notify all other Parties that it is withdrawing the inapplicable 19 designation. 20 21 22 23 24 25 26 6.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g. second paragraph of section 6.2(a) below, or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: (a) For information in documentary form (e.g. paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), 27 that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” 28 5  Stipulated Protective Order  1 (hereinafter “CONFIDENTIAL legend”), to each page that contains 2 protected material. If only a portion or portions of the material on a page 3 qualifies for protection, the Producing Party also must clearly identify the 4 protected portions(s) (e.g. by making appropriate markings in the margins). 5 A Party or Non-Party that makes original documents available for 6 inspection need not designate them for protection until after the inspecting 7 Party has indicated which documents it would like copied and produced. 8 During the inspection and before designation, all of the original material 9 made available for inspection shall be deemed “CONFIDENTIAL.” After 10 the inspecting Party has identified the documents it wants copied and 11 produced, the Producing Party must determine which documents, or portions 12 of documents, qualify for protection under this Order. Then, before 13 producing the specified documents, the Producing Party must affix the 14 “CONFIDENTIAL legend” to each page that contains Protected Material. If 15 only a portion or portions of the material on a page qualifies for protections, 16 the Producing Party also must clearly identify the protected portions(s) (e.g., 17 by making appropriate markings in the margins.) 18 19 20 21 (b) For testimony given in depositions that the Designating Party identify the Disclosure or Discovery Material on the record, before the close of the deposition all protected testimony. (c) For information produced in some form other than documentary and for any other tangible items that the Producing Party affix in a prominent place on 22 23 24 25 26 27 the exterior of the container or containers in which the information is stored the legend “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, the Producing Party, to the extent practicable, shall identify the protected portion(s). 6.3 Inadvertent Failure To Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, 28 6  Stipulated Protective Order  1 waive the Designating Party’s right to secure protection under this Order for 2 such material. Upon timely correction of a designation, the Receiving Party 3 must make reasonable efforts to assure that the material is treated in 4 accordance with the provisions of this Order. 5 6 7. CHALLENGING CONFIDENTIALITY DESIGNATIONS 7.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court’s 7 Scheduling Order. 8 7.2 Meet and Confer. The Challenging Party shall initiate the dispute 9 10 resolution process under Local Rule 37.1 et seq. 7.3 Burden. The burden of persuasion in any such challenge proceeding shall 11 be on the Designating Party. Frivolous challenges, and those made for an 12 improper purpose (e.g. to harass or impose unnecessary burdens and 13 expenses on other parties) may expose the Challenging Party to sanctions. 14 Unless the Designating Party has waived or withdrawn the confidentiality 15 designation, all parties shall continue to afford the material in question the 16 level of protection to which it is entitled under the Producing Party’s 17 designation until the Court rules on the challenge. 18 8. ACCESS TO AND USE OF PROTECTED MATERIAL 19 8.1 Basic Principles. A Receiving Party may use Protected Material that is 20 disclosed or produced by another Party or by a Non-Party in connection 21 with this Action only for prosecuting, defending or attempting to settle this 22 Action. Such Protected Material may be disclosed only to the categories of 23 24 25 26 persons and under the conditions described in this Order. When the Action has been terminated, a Receiving Party must comply with the provisions of section 14 below (FINAL DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under 27 this Order. 28 7  Stipulated Protective Order  1 8.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 2 ordered by the Court or permitted in writing by the Designating Party, a 3 Receiving Party may disclose any information or item designated 4 “CONFIDENTIAL” only to: 5 (a) The Receiving Party’s Outside Counsel of Record in this Action, as 6 well as employees of said Outside Counsel to whom it is reasonably necessary 7 to disclose the information for this Action; 8 9 10 (b) the officers, directors and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom 11 disclosure is reasonably necessary for this Action and who have signed the 12 “Acknowledgment and Agreement To Be Bound” (Exhibit A); 13 (d) the Court and its personnel; 14 (e) Court reporters and staff; 15 (f) Professional jury or trial consultants, mock jurors and Professional 16 Vendors to whom disclosure is reasonably necessary for this Action and who 17 have signed the “Acknowledgement and Agreement To Be Bound” (Exhibit A); 18 (g) the author or recipient of a document containing the information or 19 a custodian or other person who otherwise possessed or knew the information; 20 (h) During their depositions, witnesses and attorneys for witnesses in 21 the Action to whom disclosure is reasonably necessary provided: (1) the 22 deposing party requests that the witness sign the form attached as Exhibit A; 23 and (2) they will not be permitted to keep any confidential information unless 24 they sign Exhibit A (“Agreement and Acknowledgement To Be Bound”) unless 25 otherwise agreed by the Designating Party or ordered by the Court. Pages of 26 transcribed deposition testimony or exhibits to depositions that reveal Protected 27 Material may be separately bound by the court reporter and may not be 28 disclosed to anyone except as permitted under this Order; and 8  Stipulated Protective Order  1 (i) Any mediator or settlement officer and their supporting personnel, as 2 mutually agreed upon by any of the parties engaged in settlement discussions. 3 9. PROTECTED MATERIAL SUBPOENED OR ORDERED PRODUCED 4 IN OTHER LITIGATION 5 If a Party is served with a subpoena or a court order issued in other litigation 6 that compels the disclosure of any information or items designated in this 7 Action as “CONFIDENTIAL,” that Party must: 8 9 10 11 12 13 14 15 (a) Promptly notify in writing the Designating Party and include a copy of the subpoena or court order; (b) Promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order; and (c) Cooperate with respect to all reasonable procedures sought to be pursued by the Designating party whose Protected Material may be affected. 16 If the Designating Party timely seeks a protective order, the Party 17 served with the subpoena or court order shall not produce any 18 information designated in this action as “CONFIDENTIAL” before a 19 determination by the court from which the subpoena or order issued, 20 unless the Party has obtained the Designating Party’s written 21 permission. The Designating Party shall bear the burden and expense 22 of seeking protection in that court of its confidential material and 23 nothing in these provisions should be construed as authorizing or 24 encouraging a Receiving Party in the Action to disobey a lawful 25 directive from another court. 26 27 10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 28 9  Stipulated Protective Order  1 (a) The terms of this Order are applicable to information produced by a Non- 2 Party in this Action and designated as “CONFIDENTIAL.” Such 3 information produced by Non-Parties in connection with this litigation is 4 protected by the remedies and relief provided by this Order. Nothing in 5 6 7 8 these provisions should be construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s confidential information in its possession and the Party is subject to an agreement with the Non-Party not to produce the 9 10 11 12 13 Non-Party’s confidential information, then the Party shall: (1) Promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party; (2) Promptly provide the Non-Party with a copy of this Order, the 14 relevant discovery request(s) and a reasonably specific description 15 of the information requested; and 16 17 18 (3) Make the information requested available for inspection by the NonParty if requested. (c) If the Non-Party fails to seek a protective order from this Court within 14 19 days of receiving the notice and accompanying information, the Receiving 20 Party may produce the Non-Party’s confidential information responsive to 21 the discovery request, but must adhere to this Order to the extent it applies 22 to such information. If the Non-Party timely seeks a protective order, the 23 24 25 26 Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party before a determination by the Court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this Court of its Protected Material. 27 11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 28 10  Stipulated Protective Order  1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 2 Protected Material to any person or in any circumstance not authorized under this 3 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 4 writing the Designating Party of the unauthorized disclosure; (b) use its best 5 efforts to retrieve all unauthorized copies of the Protected Material,(c) inform the 6 person or persons to whom unauthorized disclosures were made of all of the 7 terms of this Order, and (d) request such person or persons execute the 8 “Acknowledgment and Agreement To Be Bound” that is attached as Exhibit A. 9 12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 10 PROTECTED MATERIAL 11 When a Producing Party gives notice to Receiving Parties that certain 12 inadvertently produced material is subject to a claim of privilege or other 13 protection, the obligations of the Receiving Party shall be those set forth in 14 Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 15 modify whatever procedure may be established in an e-discovery order that 16 provides for production without prior privilege review. Pursuant to Federal Rule 17 of Evidence 502(d) and (e), insofar as the parties reach an agreement on the 18 effect of disclosure of a communication or information covered by the attorney- 19 client privilege or work product protection, the parties may incorporate their 20 agreement in the stipulated protective order submitted to the Court. 21 13. MISCELLANEOUS 22 23 24 25 26 13.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 13.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order, no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Order. Similarly, no Party waives any right to object 27 on any ground to use in evidence of any of the material covered by this 28 11  Stipulated Protective Order  Stipulated Protective Order. 1 13.3 Filing Protected Material. A Party that seeks to file under seal any 2 3 Protected Material must comply with Civil Local Rule 79-5. Protected 4 Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a 5 Party’s request to file Protected Material under seal is denied by the 6 Court, then the Receiving Party may file the information in the public 7 record unless otherwise instructed by the Court. 8 14. FINAL DISPOSITION 9 After the final disposition of this Action, as defined in paragraph 5, 10 within 60 days of a written request by the Designating Party, each Receiving 11 Party must return all Protected Material to the Producing Party or destroy such 12 material. As used in this subdivision, “all Protected Material” includes all 13 copies, abstracts, compilations, summaries and any other format reproducing or 14 capturing any of the Protected Material. Whether the Protected Material is 15 returned or destroyed, the Receiving Party must submit a written certification to 16 the Producing Party ( and if not the same person or entity, the Designating 17 Party) by the 60 day deadline that (1) identifies (by category, where 18 appropriate) all the Protected Material that was returned or destroyed and (2) 19 affirms that the Receiving Party has not retained any copies abstracts, 20 compilations, summaries or any other format reproducing or capturing any of 21 the Protected Material. Notwithstanding this provision, Counsel are entitled to 22 retain an archival copy of all pleadings, motions papers, trial, deposition and 23 hearing transcripts, legal memoranda , correspondence, deposition and trial 24 exhibits, expert reports, attorney work product and consultant and expert work 25 product, even if such material contain Protected Material. Any such archival 26 copies that contain or constitute Protected Material remain subject to this 27 Protective Order as set forth in Section 5 (DURATION). 28 12  Stipulated Protective Order  1 15. Any violation of this Order may be punished by any and all appropriate 2 measures including, without limitation, contempt proceedings and/or 3 monetary sanctions. 4 5 IT IS SO STIPULATED THROUGH COUNSEL OF RECORD. 6 7 DATED: 9/7/2017 8 s/ Patricia Van Dyke 9 LEARNING RIGHTS LAW CENTER 10 Attorneys for Plaintiff 11 12 DATED: 9/7/2017 13 s/ Sydney J. Blaauw 14 HARBOTTLE LAW GROUP 15 Attorneys for Defendant 16 17 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 19 DATED: September 7, 2017 20 21 22 _______________________________ Patrick J. Walsh U.S. Magistrate Judge 23 24 25 26 27 28 13  Stipulated Protective Order  1 2 EXHIBIT A 3 ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND 4 I, ______________________________[print or type full name], of 5 _____________________________________[print or type full address], declare 6 under penalty of perjury that I have read in its entirety and understand the 7 Stipulated Protective Order that was issued by the United States District Court in 8 S. A., by and through his guardian ad litem, Lisa Trifilleti v. Hacienda La Puente 9 Unified School District, Case No.: 2:17-CV-02759-BRO-PJW (C. D. CA). I agree 10 to comply with and to be bound by all the terms of this Stipulated Protective 11 Order and I understand and acknowledge that failure to so comply could expose 12 me to sanctions and punishment in the nature of contempt. I solemnly promise 13 that I will not disclose in any manner any information or item that is subject to this 14 Stipulated Protective Order to any person or entity except in strict compliance 15 with the provisions of this Order. I further agree to submit to the jurisdiction of 16 the United States District Court for the Central District of California for the 17 purpose of enforcing the terms of this Stipulated Protective Order, even if such 18 enforcement proceedings occur after termination of this action. I hereby appoint 19 _______________________ [ print or type full name] of 20 __________________________________________ [ print or type full address 21 and telephone number] as my California agent for service of process in connection 22 with any action or any proceedings related to enforcement of this Stipulated 23 Protective Order. 24 Date:__________________ 25 City and State where sworn and signed:_____________________________ 26 27 Printed name: ___________________________ 28 Signature: ______________________________ 14  Stipulated Protective Order 

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