Karissa Fenwick v. University of Southern California et al

Filing 23

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner. re Stipulation for Protective Order #22 (vm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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13 KARISSA FENWICK, an individual;
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Case No. 2:17-CV-08673-MRW

Plaintiff,
v.

STIPULATED PROTECTIVE
ORDER

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UNIVERSITY OF SOUTHERN
17 CALIFORNIA; ERICK G.
GUERRERO; and DOES 1-25, inclusive,
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Defendants.

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STIPULATED PROTECTIVE ORDER

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INTRODUCTION

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1.1

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Discovery in this action is likely to involve production of confidential,

PURPOSES AND LIMITATIONS

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proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth in

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Section 12.3, below, that this Stipulated Protective Order does not entitle them to

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file confidential information under seal; Civil Local Rule 79-5 sets forth the

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procedures that must be followed and the standards that will be applied when a party

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seeks permission from the court to file material under seal.

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1.2

GOOD CAUSE STATEMENT

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Plaintiff Karissa Fenwick (“Plaintiff”), a PhD student at the University of

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Southern California (“USC”), filed this action against USC and Erick G. Guerrero,

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PhD (“Guerrero”), her former professor. She has asserted various causes of action,

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including alleging that Dr. Guerrero sexually harassed her and discouraged her from

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reporting the incident. Plaintiff also alleges USC’s response to her complaint about

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Dr. Guerrero was inadequate. To investigate her claims, she has propounded

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discovery seeking information regarding Dr. Guerrero’s employment history,

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complaints made about Dr. Guerrero, and email communications between herself

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and USC employees. Some of the documents Plaintiff requested are likely to

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contain private information regarding USC employees and/or students. USC

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contends its employees and students have a right to privacy in their personnel

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records and student records and will not produce such records absent a Court order
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STIPULATED PROTECTIVE ORDER

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or a stipulated protective order requiring the parties to maintain the confidentiality

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of private documents. See Mintz v. Mark Bartelstein and Associates Inc., 906

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F.Supp.2d 1017, 1033 (C.D. Cal. 2012); Board of Trustees, Stanford University v.

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Superior Court, 119 Cal. App. 3d 516 (1981); Harding Lawson Associates v.

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Superior Court, 10 Cal. App. 4th 7, 10 (1992); Family Education Rights Privacy Act

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(“FERPA”), 20 U.S.C. § 1232g.

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In addition, some of the documents Plaintiff requested are likely to include

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confidential, unpublished drafts of USC’s employees’ and/or students’ academic

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research. USC, its employees, and its students’ interests may be damaged if their

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unpublished research becomes public.
Finally, in response to USC’s discovery, Plaintiff is likely to produce certain

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private medical records. Accordingly, to facilitate the production of confidential

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and private documents, the parties stipulate to this protective order.

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DEFINITIONS

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2.1

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Action: the above-entitled proceeding, Karissa Fenwick v. University of

Southern California, et al., Case No. 2:17-CV-08673-MRW.
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Challenging Party: a Party or Non-Party that challenges the designation

of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement. This specifically includes, but is not necessarily limited

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to, Plaintiff’s medical records, any investigation documentation that discusses third

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parties, harassment training documentation that is proprietary in nature, and any and

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all draft research and unpublished data.

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2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
their support staff).
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Designating Party: a Party or Non-Party that designates information or
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STIPULATED PROTECTIVE ORDER

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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Disclosure or Discovery Material: all items or information, regardless

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of 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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Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this Action.

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House Counsel: attorneys who are employees of a party to this Action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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Non-Party: any natural person, partnership, corporation, association, or

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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to this Action but are retained to represent or advise a party to this Action and have

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appeared in this Action on behalf of that party or are affiliated with a law firm which

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has appeared on behalf of that party, and includes support staff.

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2.11 Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is
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STIPULATED PROTECTIVE ORDER

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designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial will be governed by the orders of the

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trial judge. This Order does not govern the use of Protected Material at trial.

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DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order will remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition will be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action, with

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or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

21 5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept
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STIPULATED PROTECTIVE ORDER

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unjustifiably within the ambit of this Order.
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

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Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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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

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:

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(a)

for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected

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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

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection will be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine which
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STIPULATED PROTECTIVE ORDER

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documents, or portions thereof, qualify for protection under this Order. Then, before

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producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).
(b)

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for testimony given in depositions that the Designating Party identify

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the Disclosure or Discovery Material on the record, before the close of the

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deposition all protected testimony.
(c)

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for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information warrants

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protection, the Producing Party, to the extent practicable, will identify the protected

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portion(s).
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Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such material.

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Upon timely correction of a designation, the Receiving Party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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6.2

Meet and Confer. If there is a dispute that cannot be resolved, the

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Designating Party has the burden of filing a motion to have the information at issue

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be deemed to be “Confidential” under Local Rule 37.1 et seq.
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STIPULATED PROTECTIVE ORDER

6.3

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The burden of persuasion in any such challenge proceeding will be on

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the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties will

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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ACCESS TO AND USE OF PROTECTED MATERIAL
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Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this

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Action only for prosecuting, defending, or attempting to settle this Action. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the Action has been terminated, a

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.
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Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party,1 a

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Defendant USC wishes to designate the Office of Equity and Diversity’s investigation report as
Confidential to protect the privacy rights of Non-Parties. In the event a Receiving Party believes it
is necessary to publicly file the Office of Equity and Diversity’s investigation report (or otherwise
use any information or item designated CONFIDENTIAL outside the scope of the litigation), the
Receiving Party will provide the Designating Party with a redacted version of the documents or
item, fully redacting the true name(s), identifying information, and confidential and/or private
information of Non-Parties (and where applicable, Parties) and seek the Designating Party’s
written permission to use a redacted version of the document or item for a specific purpose. As
long as the third party information is properly redacted, the Designating Party will not

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STIPULATED PROTECTIVE ORDER

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b)

House Counsel for USC;

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(c)

the officers, directors, and employees of the Receiving Party to

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whom disclosure is reasonably necessary for this Action;
(d)

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Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(e)

the Court and its personnel;

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(f)

court reporters and their staff;

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(g)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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(h)

the author or recipient of a document containing the information

or a custodian or other person who otherwise possessed or knew the information;
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during their depositions, witnesses, and attorneys for witnesses,

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unreasonably withhold such permission. The Designating Party will have seven days to respond
to the Receiving Party’s request. If the Designating Party does not respond within seven days, or
will not agree to allow the Receiving Party to use the redacted document or item for their proposed
purpose, the Receiving Party may initiate the dispute resolution process (and, if necessary, file a
discovery motion or other motion) under Local Rule 37.1 et seq. Unless the Designating Party has
waived or withdrawn the confidentiality designation, all parties will continue to afford the material
in question the level of protection to which it is entitled under the Designating Party’s designation
until the Court rules on the challenge. Provided the parties comply with this Stipulated Protective
Order, no party shall be limited in being able to fully participate in and contribute to any
committees or task forces in regards to university policies.

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STIPULATED PROTECTIVE ORDER

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in the Action to whom disclosure is reasonably necessary provided: (1) counsel

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using CONFIDENTIAL INFORMATION for this purpose informs the deponent

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(and their attorney, if applicable) of this Order, provides him or her with a copy of

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this Order, and informs the deponent that they are subject to this Order; and (2) they

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will not be permitted to keep any confidential information unless they sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material may

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be separately bound by the court reporter and may not be disclosed to anyone except

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as permitted under this Stipulated Protective Order; and
(j)

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any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.
(k)

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Notwithstanding the foregoing, to the extent any Party is

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independently aware (through sources outside of the documents, items, or

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information produced in discovery) of any information or item designated

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CONFIDENTIAL, this Stipulated Protective Order does not place any new

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restrictions on the Party’s use of such independently known information or item.

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Further, Plaintiff’s medical records will not be shown or discussed with any

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individual who falls exclusively into categories (c) or (i) listed above.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such notification will

include a copy of the subpoena or court order;
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STIPULATED PROTECTIVE ORDER

(b)

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promptly notify in writing the party who caused the subpoena or order

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to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification will include a

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copy of this Stipulated Protective Order; and
(c)

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cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

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the subpoena or court order will not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party will bear the burden and expense of seeking

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protection in that court of its confidential material and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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(a)

The terms of this Order are applicable to information produced by a

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Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

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produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be

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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, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party will:

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(1) promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;
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STIPULATED PROTECTIVE ORDER

(2) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this Action, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and
(3) make the information requested available for inspection by the Non-

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Party, if requested.
(c)

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If the Non-Party fails to seek a protective order from this court within

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14 days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery

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request. If the Non-Party timely seeks a protective order, the Receiving Party will

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not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court.

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Absent a court order to the contrary, the Non-Party will bear the burden and expense

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of seeking protection in this court of its Protected Material.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
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may be established in an e-discovery order that provides for production without

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prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar

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as the parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order submitted

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to the court.

7 12.

MISCELLANEOUS

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12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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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

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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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

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may

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only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. If a Party’s request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information

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in the public record unless otherwise instructed by the court.

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FINAL DISPOSITION

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Counsel are entitled to retain an archival copy of the entire file, including all

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

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work product, and consultant and expert work product, even if such materials

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contain Protected Material. Any such archival copies that contain or constitute

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Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).
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14.

Any willful violation of this Order may be punished by civil or criminal

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contempt proceedings, financial or evidentiary sanctions, reference to disciplinary

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authorities, or other appropriate action at the discretion of the Court.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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3/15/2018
DATED: ____________________

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HON. MICHAEL R. WILNER
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ____________________________ [full name], of _______________

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[full address], declare under penalty of perjury that I have read in its entirety

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and understand the Stipulated Protective Order that was issued by the United States

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District Court for the Central District of California on __________[date] in the case

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of Karissa Fenwick v. University of Southern California, et al., Case No. 2:17-CV-

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08673-MRW. I agree to comply with and to be bound by all the terms of this

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Stipulated Protective Order and I understand and acknowledge that failure to so

YOUNG & ZINN LLP

comply could expose me to sanctions and punishment in the nature of contempt. I

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1150 SOUTH OLIVE STREET, SUITE 1800
LOS ANGELES, CALIFORNIA 90015

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solemnly promise that I will not disclose in any manner any information or item that

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is subject to this Stipulated Protective Order to any person or entity except in strict

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compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court

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for the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint __________________ [full name] of

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________________________ [full address and telephone number] as my

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California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where signed: ________________________________

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Printed name: ___________________________________

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Signature: ______________________________________

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