Victor Concepcion v. County of San Bernardino et al

Filing 27

ORDER APPROVING STIPULATED PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation for Protective Order 26 (dts)

1 ATKINSON, ANDELSON, LOYA, RUUD & ROMO
A Professional Corporation
2 Nate J. Kowalski
State Bar No. 181136
[e-mail]
3 Paul G. Szumiak
State Bar No. 109982
[e-mail]
4 12800 Center Court Drive South, Suite 300
Cerritos, California 90703-9364
5 Telephone: [phone]
Fax: [phone]
6
Attorneys for Defendant COUNTY OF SAN
7 BERNARDINO

A PROFESSIONAL CORPO RATION
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ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

EASTERN DIVISION

11
12 VICTOR CONCEPCION, individually
and on behalf of all others similarly
13 situated,
14

Plaintiffs,

15 v.
16 COUNTY OF SAN BERNARDINO, a
legal subdivision of the State of
17 California, and DOES 1-10, inclusive,
18

Case No.

5:16-cv-00752 JGB (KKx)

STIPULATED PROTECTIVE
ORDER
Judge:
Ctrm.:

Hon. Jesus G. Bernal
1

Complaint Filed: April 20, 2016

Defendants.

19
20 1.

A.

PURPOSES AND LIMITATIONS

21

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

22 proprietary, or private information for which special protection from public
23 disclosure and from use for any purpose other than prosecuting this litigation may
24 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
25 enter the following Stipulated Protective Order. The parties acknowledge that this
26 Order does not confer blanket protections on all disclosures or responses to
27 discovery and that the protection it affords from public disclosure and use extends
28 only to the limited information or items that are entitled to confidential treatment
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STIPULATED PROTECTIVE ORDER

1 under the applicable legal principles. The parties further acknowledge, as set forth in
2 Section 12.3, below, that this Stipulated Protective Order does not entitle them to
3 file confidential information under seal; Civil Local Rule 79-5 sets forth the
4 procedures that must be followed and the standards that will be applied when a party
5 seeks permission from the court to file material under seal.
6

B.

7

In this action Plaintiff, a Social Worker employed by Defendant, claims he

GOOD CAUSE STATEMENT

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8 performed work in his capacity as a social worker for which he claims he was not
9 paid by Defendant. Plaintiff works in the Child and Family Services Department
10 and as part of his job duties he interacts with juveniles and their families and/or
11 guardians, and has knowledge of the juveniles’ private information such as personal
12 contact and identification information, the factual details requiring the intervention
13 of the County, and medical and psychological information of the minor. This
14 information is contained in emails between Plaintiff and his supervisors, and in
15 reports prepared by Plaintiff. These emails and reports may be relevant to Plaintiff’s
16 claim to the extent such documents indicate the time the work was performed and
17 the amount of time needed to prepare the email, report, etc. Such confidential
18 information contained in these documents implicates the privacy rights of third
19 persons in addition to the minor, and is deemed confidential pursuant to Cal.
20 Welfare and Institutions Code sec. 10850 et seq. Accordingly, to expedite the flow
21 of information, to facilitate the prompt resolution of disputes over confidentiality of
22 discovery materials, to adequately protect information the parties are entitled to keep
23 confidential, to ensure that the parties are permitted reasonable necessary uses of
24 such material in preparation for and in the conduct of trial, to address their handling
25 at the end of the litigation, and serve the ends of justice, a protective order for such
26 information is justified in this matter. It is the intent of the parties that information
27 will not be designated as confidential for tactical reasons and that nothing be so
28 designated without a good faith belief that it has been maintained in a confidential,
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-2STIPULATED PROTECTIVE ORDER

1 non-public manner, and there is good cause why it should not be part of the public
2 record of this case.
3 2.

DEFINITIONS

4

2.1

Action: this pending federal law suit.

5

2.2

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

6 designation of information or items under this Order.
7

2.3

“CONFIDENTIAL” Information or Items: information (regardless of

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8 how it is generated, stored or maintained) or tangible things that qualify for
9 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
10 the Good Cause Statement.
11

2.4

Counsel: Outside Counsel of Record and House Counsel (as well as

12 their support staff).
13

2.5

Designating Party: a Party or Non-Party that designates information or

14 items that it produces in disclosures or in responses to discovery as
15 “CONFIDENTIAL.”
16

2.6

Disclosure or Discovery Material: all items or information, regardless

17 of the medium or manner in which it is generated, stored, or maintained (including,
18 among other things, testimony, transcripts, and tangible things), that are produced
19 or generated in disclosures or responses to discovery in this matter.
20

2.7

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

21 pertinent to the litigation who has been retained by a Party or its counsel to serve
22 as an expert witness or as a consultant in this Action.
23

2.8

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

24 House Counsel does not include Outside Counsel of Record or any other outside
25 counsel.
26

2.9

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

27 or other legal entity not named as a Party to this action.
28
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-3STIPULATED PROTECTIVE ORDER

1

2.10 Outside Counsel of Record: attorneys who are not employees of a

2 party to this Action but are retained to represent or advise a party to this Action
3 and have appeared in this Action on behalf of that party or are affiliated with a law
4 firm which has appeared on behalf of that party, and includes support staff.
5

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

6 employees, consultants, retained experts, and Outside Counsel of Record (and their
7 support staffs).

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8

2.12 Producing Party: a Party or Non-Party that produces Disclosure or

9 Discovery Material in this Action.
10

2.13 Professional Vendors: persons or entities that provide litigation

11 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
12 demonstrations, and organizing, storing, or retrieving data in any form or medium)
13 and their employees and subcontractors.
14

2.14 Protected Material: any Disclosure or Discovery Material that is

15 designated as “CONFIDENTIAL.”
16

2.15 Receiving Party: a Party that receives Disclosure or Discovery

17 Material from a Producing Party.
18 3.

SCOPE

19

The protections conferred by this Stipulation and Order cover not only

20 Protected Material (as defined above), but also (1) any information copied or
21 extracted from Protected Material; (2) all copies, excerpts, summaries, or
22 compilations of Protected Material; and (3) any testimony, conversations, or
23 presentations by Parties or their Counsel that might reveal Protected Material.
24

Any use of Protected Material at trial shall be governed by the orders of the

25 trial judge. This Order does not govern the use of Protected Material at trial.
26 4.

DURATION

27

Even after final disposition of this litigation, the confidentiality obligations

28 imposed by this Order shall remain in effect until a Designating Party agrees
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-4STIPULATED PROTECTIVE ORDER

1 otherwise in writing or a court order otherwise directs. Final disposition shall be
2 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
3 or without prejudice; and (2) final judgment herein after the completion and
4 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
5 including the time limits for filing any motions or applications for extension of time
6 pursuant to applicable law.

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DESIGNATING PROTECTED MATERIAL

8
ATKINSON, ANDELSON, LOYA, RUUD & ROMO

7 5.

5.1

Exercise of Restraint and Care in Designating Material for Protection.

9 Each Party or Non-Party that designates information or items for protection under
10 this Order must take care to limit any such designation to specific material that
11 qualifies under the appropriate standards. The Designating Party must designate for
12 protection only those parts of material, documents, items, or oral or written
13 communications that qualify so that other portions of the material, documents,
14 items, or communications for which protection is not warranted are not swept
15 unjustifiably within the ambit of this Order.
16

Mass, indiscriminate, or routinized designations are prohibited. Designations

17 that are shown to be clearly unjustified or that have been made for an improper
18 purpose (e.g., to unnecessarily encumber the case development process or to impose
19 unnecessary expenses and burdens on other parties) may expose the Designating
20 Party to sanctions.
21

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

22 designated for protection do not qualify for protection, that Designating Party must
23 promptly notify all other Parties that it is withdrawing the inapplicable designation.
24

5.2

Manner and Timing of Designations. Except as otherwise provided in

25 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
26 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
27 under this Order must be clearly so designated before the material is disclosed or
28 produced.
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-5STIPULATED PROTECTIVE ORDER

1
2

Designation in conformity with this Order requires:
(a)

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

3 documents, but excluding transcripts of depositions or other pretrial or trial
4 proceedings), that the Producing Party affix at a minimum, the legend
5 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
6 contains protected material. If only a portion or portions of the material on a page
7 qualifies for protection, the Producing Party also must clearly identify the protected

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8 portion(s) (e.g., by making appropriate markings in the margins).
9

A Party or Non-Party that makes original documents available for inspection

10 need not designate them for protection until after the inspecting Party has indicated
11 which documents it would like copied and produced. During the inspection and
12 before the designation, all of the material made available for inspection shall be
13 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
14 documents it wants copied and produced, the Producing Party must determine which
15 documents, or portions thereof, qualify for protection under this Order. Then, before
16 producing the specified documents, the Producing Party must affix the
17 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
18 portion or portions of the material on a page qualifies for protection, the Producing
19 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
20 markings in the margins).
21

(b)

for testimony given in depositions that the Designating Party

22 identify the Disclosure or Discovery Material on the record, before the close of the
23 deposition all protected testimony.
24

(c)

for information produced in some form other than documentary

25 and for any other tangible items, that the Producing Party affix in a prominent place
26 on the exterior of the container or containers in which the information is stored the
27 legend “CONFIDENTIAL.” If only a portion or portions of the information
28 warrants protection, the Producing Party, to the extent practicable, shall identify the
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-6STIPULATED PROTECTIVE ORDER

1 protected portion(s).
2

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

3 failure to designate qualified information or items does not, standing alone, waive
4 the Designating Party’s right to secure protection under this Order for such
5 material. Upon timely correction of a designation, the Receiving Party must make
6 reasonable efforts to assure that the material is treated in accordance with the
7 provisions of this Order.

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8 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

9

6.1

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

10 designation of confidentiality at any time that is consistent with the Court’s
11 Scheduling Order.
12

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

13 resolution process under Local Rule 37.1 et seq.
14

6.3

The burden of persuasion in any such challenge proceeding shall be

15 on the Designating Party. Frivolous challenges, and those made for an improper
16 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
17 parties) may expose the Challenging Party to sanctions. Unless the Designating
18 Party has waived or withdrawn the confidentiality designation, all parties shall
19 continue to afford the material in question the level of protection to which it is
20 entitled under the Producing Party’s designation until the Court rules on the
21 challenge.
22 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

23

7.1

Basic Principles. A Receiving Party may use Protected Material that is

24 disclosed or produced by another Party or by a Non-Party in connection with this
25 Action only for prosecuting, defending, or attempting to settle this Action. Such
26 Protected Material may be disclosed only to the categories of persons and under
27 the conditions described in this Order. When the Action has been terminated, a
28
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-7STIPULATED PROTECTIVE ORDER

1 Receiving Party must comply with the provisions of section 13 below (FINAL
2 DISPOSITION).
3

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

4 location and in a secure manner that ensures that access is limited to the persons
5 authorized under this Order.
6

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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8 Receiving

Party

may

disclose

any

information

or

item

designated

9 “CONFIDENTIAL” only to the Receiving Party, if the Receiving Party is an
10 individual, as well as:
11

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

12 well as employees of said Outside Counsel of Record to whom it is reasonably
13 necessary to disclose the information for this Action;
14

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

15 the Receiving Party to whom disclosure is reasonably necessary for this Action;
16

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

17 disclosure is reasonably necessary for this Action and who have signed the
18 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
19

(d) the court and its personnel;

20

(e) court reporters and their staff;

21

(f) professional jury or trial consultants, mock jurors, and Professional

22 Vendors to whom disclosure is reasonably necessary for this Action and who have
23 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
24

(g) the author or recipient of a document containing the information or a

25 custodian or other person who otherwise possessed or knew the information;
26

(h) during their depositions, witnesses, and attorneys for witnesses, in

27 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
28 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
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-8STIPULATED PROTECTIVE ORDER

1 they will not be permitted to keep any confidential information unless they sign the
2 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
3 agreed by the Designating Party or ordered by the court. Pages of transcribed
4 deposition testimony or exhibits to depositions that reveal Protected Material may
5 be separately bound by the court reporter and may not be disclosed to anyone
6 except as permitted under this Stipulated Protective Order; and
7

(i) any mediator or settlement officer, and their supporting personnel,

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8 mutually agreed upon by any of the parties engaged in settlement discussions.
9 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

10

IN OTHER LITIGATION

11

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

12 that compels disclosure of any information or items designated in this Action as
13 “CONFIDENTIAL,” that Party must:
14

(a)

promptly notify in writing the Designating Party. Such

15 notification shall include a copy of the subpoena or court order;
16

(b)

promptly notify in writing the party who caused the subpoena

17 or order to issue in the other litigation that some or all of the material covered by
18 the subpoena or order is subject to this Protective Order. Such notification shall
19 include a copy of this Stipulated Protective Order; and
20

(c)

cooperate with respect to all reasonable procedures sought to be

21 pursued by the Designating Party whose Protected Material may be affected.
22

If the Designating Party timely seeks a protective order, the Party served with

23 the subpoena or court order shall not produce any information designated in this
24 action as “CONFIDENTIAL” before a determination by the court from which the
25 subpoena or order issued, unless the Party has obtained the Designating Party’s
26 permission. The Designating Party shall bear the burden and expense of seeking
27 protection in that court of its confidential material and nothing in these provisions
28 should be construed as authorizing or encouraging a Receiving Party in this Action
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-9STIPULATED PROTECTIVE ORDER

1 to disobey a lawful directive from another court.
2 9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

3

PRODUCED IN THIS LITIGATION

4

(a)

The terms of this Order are applicable to information produced

5 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
6 information produced by Non-Parties in connection with this litigation is protected
7 by the remedies and relief provided by this Order. Nothing in these provisions

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8 should be construed as prohibiting a Non-Party from seeking additional
9 protections.
10

(b) In the event that a Party is required, by a valid discovery request, to

11 produce a Non-Party’s confidential information in its possession, and the Party is
12 subject to an agreement with the Non-Party not to produce the Non-Party’s
13 confidential information, then the Party shall:
14

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

15 that some or all of the information requested is subject to a confidentiality
16 agreement with a Non-Party;
17

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

18 Protective Order in this Action, the relevant discovery request(s), and a reasonably
19 specific description of the information requested; and
20

(3) make the information requested available for inspection by the

21 Non-Party, if requested.
22

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

23 14 days of receiving the notice and accompanying information, the Receiving
24 Party may produce the Non-Party’s confidential information responsive to the
25 discovery request. If the Non-Party timely seeks a protective order, the Receiving
26 Party shall not produce any information in its possession or control that is subject
27 to the confidentiality agreement with the Non-Party before a determination by the
28
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- 10 STIPULATED PROTECTIVE ORDER

1 court. Absent a court order to the contrary, the Non-Party shall bear the burden and
2 expense of seeking protection in this court of its Protected Material.
3 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

4

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

5 Protected Material to any person or in any circumstance not authorized under this
6 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
7 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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8 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
9 persons to whom unauthorized disclosures were made of all the terms of this Order,
10 and (d) request such person or persons to execute the “Acknowledgment and
11 Agreement to Be Bound” that is attached hereto as Exhibit A.
12 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

13

PROTECTED MATERIAL

14

When a Producing Party gives notice to Receiving Parties that certain

15 inadvertently produced material is subject to a claim of privilege or other protection,
16 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
17 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
18 may be established in an e-discovery order that provides for production without
19 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
20 as the parties reach an agreement on the effect of disclosure of a communication or
21 information covered by the attorney-client privilege or work product protection, the
22 parties may incorporate their agreement in the stipulated protective order submitted
23 to the court.
24 12.

MISCELLANEOUS

25

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

26 person to seek its modification by the Court in the future.
27

12.2 Right to Assert Other Objections. By stipulating to the entry of this

28 Protective Order no Party waives any right it otherwise would have to object to
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- 11 STIPULATED PROTECTIVE ORDER

1 disclosing or producing any information or item on any ground not addressed in
2 this Stipulated Protective Order. Similarly, no Party waives any right to object on
3 any ground to use in evidence of any of the material covered by this Protective
4 Order.
5

12.3 Filing Protected Material. A Party that seeks to file under seal any

6 Protected Material must comply with Civil Local Rule 79-5. Protected Material
7 may only be filed under seal pursuant to a court order authorizing the sealing of the

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8 specific Protected Material at issue. If a Party's request to file Protected Material
9 under seal is denied by the court, then the Receiving Party may file the information
10 in the public record unless otherwise instructed by the court.
11 13.

FINAL DISPOSITION

12

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

13 days of a written request by the Designating Party, each Receiving Party must return
14 all Protected Material to the Producing Party or destroy such material. As used in
15 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
16 summaries, and any other format reproducing or capturing any of the Protected
17 Material. Whether the Protected Material is returned or destroyed, the Receiving
18 Party must submit a written certification to the Producing Party (and, if not the same
19 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
20 (by category, where appropriate) all the Protected Material that was returned or
21 destroyed and (2) affirms that the Receiving Party has not retained any copies,
22 abstracts, compilations, summaries or any other format reproducing or capturing any
23 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
24 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
25 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
26 reports, attorney work product, and consultant and expert work product, even if such
27 materials contain Protected Material. Any such archival copies that contain or
28 constitute Protected Material remain subject to this Protective Order as set forth in

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- 12 STIPULATED PROTECTIVE ORDER

1 Section 4 (DURATION).
2 14.

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

3 measures including, without limitation, contempt proceedings and/or monetary
4 sanctions.
5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
6
7 Dated: January 24, 2017

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8
9

LAW OFFICE OF ALEXANDER E.
PAPAEFTHIMIOU

By: /s/ Alexander E. Papaefthimiou
Alexander E. Papaefthimiou
Attorneys for Plaintiff
VICTOR CONCEPCION

10
11
12
13

Dated: January 24, 2017

14
15

By: /s/ Paul G. Szumiak
Nate J. Kowalski
Paul G. Szumiak
Attorneys for Defendant COUNTY OF
SAN BERNARDINO

16
17
18
19

ATKINSON, ANDELSON, LOYA, RUUD &
ROMO

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

20
21 Dated:

January 25, 2017

22
23
24

______________________________________________

Kenly Kiya Kato
United States District/Magistrate Judge

25
26
27
28
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- 13 STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4 I,

_____________________________

[print

or

type

full

name],

of

5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that
7 was issued by the United States District Court for the Central District of California

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8 on [date] in the case of Victor Concepcion v. County of San Bernardino, C.D.
9 Cal. Case No. 5:16-cv-00752 JGB (KKx). I agree to comply with and to be bound
10 by all the terms of this Stipulated Protective Order and I understand and
11 acknowledge that failure to so comply could expose me to sanctions and punishment
12 in the nature of contempt. I solemnly promise that I will not disclose in any manner
13 any information or item that is subject to this Stipulated Protective Order to any
14 person or entity except in strict compliance with the provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court for the
16 Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint __________________________ [print or
19 type full name] of _______________________________________ [print or type
20 full address and telephone number] as my California agent for service of process in
21 connection with this action or any proceedings related to enforcement of this
22 Stipulated Protective Order.
23

Date: ______________________________________

24
25 City and State where sworn and signed: _________________________________
26 Printed name: _______________________________
27
28 Signature: __________________________________
006164.00015
14897121.1

- 14 STIPULATED PROTECTIVE ORDER