Linda Richcreek et al v. United States of America et al

Filing 21

STIPULATED PROTECTIVE ORDER by Magistrate Judge Sheri Pym (SEE ORDER FOR DETAILS). (kca)

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EILEEN M. DECKER
United States Attorney
DOROTHY A. SCHOUTEN
Assistant United States Attorney
Chief, Civil Division
BETH MAXWELL STRATTON (Cal. Bar No. 138049)
Assistant United States Attorney
Federal Building, Suite 7516
300 North Los Angeles Street
Los Angeles, California 90012
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Attorneys for Defendant United States of America

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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LINDA RICHCREEK; SHAWN
ERIC RICHCREEK; HEATHER
LYNN RUEN; SARAH LEANNE
HERNHOLM; LISA ANNE
RICHCREEK; Z.R., a minor, by and
through his Guardian ad Litem Lisa
Anne Richcreek; BENJAMIN
DAVID RICHCREEK; ESTATE OF
ROGER WILLIAM RICHCREEK,
by and through his successor in
interest, Linda Richcreek,

STIPULATED PROTECTIVE ORDER

Plaintiffs,

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v.

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No. CV 15-02535 JGB (SPx)

UNITED STATES OF AMERICA;
DOES 1 through 100, Inclusive,

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Defendants.

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1.

A.

PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential, proprietary,
or private information for which special protection from public disclosure and from use

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for any purpose other than prosecuting this litigation may be warranted. Accordingly, the

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parties hereby stipulate to and petition the Court to enter the following Stipulated

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Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it affords

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from public disclosure and use extends only to the limited information or items that are

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entitled to confidential treatment under the applicable legal principles. The parties

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further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective

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Order does not entitle them to file confidential information under seal; Civil Local Rule

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79-5 sets forth the procedures that must be followed and the standards that will be

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applied when a party seeks permission from the court to file material under seal.

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B.

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This action concerns an automobile incident and medical care received by Roger

GOOD CAUSE STATEMENT

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Richcreek (“Richcreek”) at the VA Medical Center in Loma Linda, California.

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Richcreek’s medical records are at issue and will be the subject of discovery. In

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addition, the identity of potential witnesses who are patients at the VA Medical Center is

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sought by Plaintiffs. The parties wish to safeguard the private nature of the identity of

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patients and of the medical records and information contained therein.

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2.

DEFINITIONS
2.1

Action: Linda Richcreek, et al. v. United States, Central District of

California Case No. CV 15-02535-JGB SPx.
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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 how

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

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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

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Statement.

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2.4

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

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
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Disclosure or Discovery Material: all items or information, regardless of

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the medium or manner in which it is generated, stored, or maintained (including, among

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other things, testimony, transcripts, and tangible things), that are produced or generated

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in disclosures or responses to discovery in this matter.

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2.7

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

pertinent to the litigation who has been retained by a Party or its counsel to serve as 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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2.9

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 to

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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 has

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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) and

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their employees and subcontractors.
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2.14 Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.

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3.

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SCOPE
The protections conferred by this Stipulated Protective Order cover not only

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

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

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Protected Material; and (3) any testimony, conversations, or presentations by Parties or

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their Counsel that might reveal Protected Material. Protected Material, however, does

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not include information and evidence that is lawfully obtained by the Receiving Parties

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by means other than through production by the Producing Party, or which information is

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otherwise publicly available information, although the Producing Party reserves the right

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to seek to have such information deemed confidential and privileged by the Court.
Any use of Protected Material at trial shall be governed by the orders of the trial

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

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4.

DURATION

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Once a case proceeds to trial, all of the information that was designated as

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confidential or maintained pursuant to this protective order becomes public and will be

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presumptively available to all members of the public, including the press, unless

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compelling reasons supported by specific factual findings to proceed otherwise are made

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to the trial judge in advance of the trial. See Kamakana v. City and County of Honolulu,

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447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for

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sealing documents produced in discovery from “compelling reasons” standard when

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merits-related documents are part of court record). Accordingly, the terms of this

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protective order do not extend beyond the commencement of the trial.
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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or Non-Party that designates information or items for protection under this Order

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must take care to limit any such designation to specific material that qualifies under the

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appropriate standards. The Designating Party must designate for protection only those

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parts of material, documents, items, or oral or written communications that qualify so

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that other portions of the material, documents, items, or communications for which

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protection is not warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

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to unnecessarily encumber the case development process or to impose unnecessary

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expenses and burdens on other parties) may expose the Designating 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, the 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 this

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

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(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 proceedings),

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that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter

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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 Party

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

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in the margins).
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A Party or Non-Party that makes original documents available for inspection need

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

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

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designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order. Then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

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that 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).
(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 deposition, all

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protected testimony.
(c)

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for information produced in some form other than documentary and

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for 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 protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failure to Designate. If timely corrected, an inadvertent failure

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

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

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

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assure that the material is treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

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6.3

The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

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to harass or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

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the confidentiality designation, all parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing Party’s

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designation until the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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 Action

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

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

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described in this Order. When the Action has been terminated, a Receiving Party must

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comply with the provisions of section 13 below (FINAL DISPOSITION).

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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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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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may disclose any information or item designated “CONFIDENTIAL” only to:

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(a)

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

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

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to disclose the information for this Action;

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(b)

the parties in this action, including the officers, directors, and
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employees (including House Counsel) of the government, corporate or business entity

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parties, where disclosure is reasonably necessary for their defense or prosecution of this

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Action (this section is understood to mean that items designated as “CONFIDENTIAL”

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may be disclosed to all parties to this action, without the need of their executing Exhibit

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A attached hereto, and that said parties shall be bound by all terms of this Protective

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Order);

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(c)

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

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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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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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

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(g)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;
(h)

during their depositions, witnesses and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party

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requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not

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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 agreed

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

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testimony or exhibits to depositions that reveal Protected Material may be separately

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

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under this Stipulated Protective Order; and

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(i)

any mediator or settlement officer, and their supporting personnel,

mutually agreed upon by any of the parties engaged in settlement discussions.

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8.

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 that

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

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“CONFIDENTIAL,” that Party must:
(a)

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shall include a copy of the subpoena or court order;
(b)

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promptly notify in writing the Designating Party. Such notification

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

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subpoena or order is subject to this Protective Order. Such notification shall 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 the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” before a determination by the court from which the subpoena or

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order issued, unless the Party has obtained the Designating Party’s permission. The

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Designating Party shall bear the burden and expense of seeking protection in that court

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of its confidential material and nothing in these provisions should be construed as

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authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive

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from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(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 remedies

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and relief provided by this Order. Nothing in these provisions should be construed as
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prohibiting a Non-Party from seeking additional protections.
(b)

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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 subject

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

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information, then the Party shall:
(1)

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promptly notify in writing the Requesting Party and the

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

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agreement with a Non-Party;
(2)

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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)

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make the information requested available for inspection by the

Non-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 may

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produce the Non-Party’s confidential information responsive to the discovery request. If

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the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

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information in its possession or control that is subject to the confidentiality agreement

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with the Non-Party before a determination by the court. Absent a court order to the

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contrary, the Non-Party shall bear the burden and expense of seeking protection in this

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court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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 writing

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

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all unauthorized copies of the Protected Material, (c) inform the person or persons to
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whom unauthorized disclosures were made of all the terms of this Order, and (d) request

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such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

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that is attached hereto as Exhibit A.

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11.

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, the

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Receiving Parties will make reasonable efforts to assure that the material is treated in

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accordance with the provisions of this Order, as provided above in paragraph 5.3, and

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said Protected Material will thereafter be subject to, and treated in accordance with the

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provisions of this Stipulated Protective Order as Protected Material or as set forth in

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Federal Rule of Civil Procedure 26(b)(5)(B), as appropriate. This provision is not

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intended to modify whatever procedure may be established in an e-discovery order that

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provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of

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disclosure of a communication or information covered by the attorney-client privilege or

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work product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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12.

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

person to seek its modification by the Court in the future.
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 ground

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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 Protected

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

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under seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue. If a Party’s request to file Protected Material under seal is denied by

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the court, then the Receiving Party may file the information in the public record unless

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otherwise instructed by the court.

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13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60 days

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of a written request by the Designating Party, each Receiving Party must return all

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Protected Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected Material.

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Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or

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entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category,

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where appropriate) all the Protected Material that was produced by the Producing Party

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that is returned or destroyed and (2) affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or any other format reproducing or capturing

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any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if such

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materials 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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Any violation of this Order may be punished by any and all appropriate measures

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including, without limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED________________________

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Lynn Whitlock
Attorney for Plaintiffs

DATED:________________________
EILEEN M. DECKER
United States Attorney
DOROTHY A. SCHOUTEN
Chief, Civil Division

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Beth Maxwell Stratton
Assistant United States Attorney
Attorneys for Defendant

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: June 8, 2016

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Hon. Sheri Pym
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _______________________________________ [print or type full name], of
_________________________________________________ [print or type full address],
declare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District Court for the
Central District of California on ________ in the case of Linda Richcreek, et al. v.
United States, Central District of California Case No. CV 15-02535-JGB SPx. I agree to
comply with and to be bound by all the terms of this Stipulated Protective Order and I
understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt. I solemnly promise that I will not disclose in any
manner any information or item that is subject to this Stipulated Protective Order to any
person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for
the Central District of California for the purpose of enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occur after termination of this
action. I hereby appoint ______________________________ [print or type full name]
of _______________________________________ [print or type full address and
telephone number] as my California agent for service of process in connection with this
action or any proceedings related to enforcement of this Stipulated Protective Order.
Date: ______________________________
City and State where sworn and signed: ___________________________________
Printed name: _____________________________________________
Signature: ________________________________________________

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