Darla Drinan v. United States of America et al

Filing 52

PROTECTIVE ORDER by Magistrate Judge Shashi H. Kewalramani re Stipulation for Protective Order 51 . (see document for details) (hr)

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TODD W. BURNS (Cal. Bar No. 194937)
GABRIEL L. COHAN (Cal. Bar No. 259449)
Burns & Cohan, Attorneys at Law
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff Darla Drinan
TRACY L. WILKISON
United States Attorney
DAVID M. HARRIS
Assistant United States Attorney
Chief, Civil Division
JOANNE S. OSINOFF
Assistant United States Attorney
Chief, General Civil Section
JENNIFER R. JACOBS (Cal. Bar No. 157609)
Assistant United States Attorney
300 North Los Angeles Street, Ste. 7516
Los Angeles, California 90012
Telephone: [phone]
E-mail: [e-mail]
Attorneys for Defendants United States of
America and Joshua Bisch

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
DARLA DRINAN,
Case No. 5:20-CV-01634-GW-SHK
Plaintiff(s),
v.
UNITED STATES OF AMERICA,
JOSHUA BISCH, AND DOES 1-10,

STIPULATED PROTECTIVE
ORDER

Defendant(s).

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I.

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PURPOSES AND LIMITATIONS
A.

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Discovery in this action is likely to involve production of confidential

or private information for which special protection from public disclosure

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

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

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Court to enter the following Stipulated Protective Order. The parties

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acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from

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

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that are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section XIII(C),

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

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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

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

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II.

GOOD CAUSE STATEMENT

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A.

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Bisch’s performance evaluations, financial and medical information for

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This action involves portions of personnel files, including Officer

which special protection from public disclosure and from use for any
purpose other than prosecution of this action is warranted. Such

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confidential materials and information consist of, among other things,

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confidential financial information, information regarding confidential

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performance evaluations and potentially other sensitive information in

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personnel files, medical records and/or other confidential information

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(including information implicating privacy rights of the parties),

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information otherwise generally unavailable to the public, or which may be

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privileged or otherwise protected from disclosure under state or federal

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statutes, court rules, case decisions, or common law. Accordingly, to

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expedite the flow of information, to facilitate the prompt resolution of

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disputes over confidentiality of discovery materials, to adequately protect

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information the parties are entitled to keep confidential, to ensure that the

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parties are permitted reasonable necessary uses of such material in

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preparation for and in the conduct of trial, to address their handling at the

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end of the litigation, and serve the ends of justice, a protective order for

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such information is justified in this matter. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and

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that nothing be so designated without a good faith belief that it has been

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maintained in a confidential, non-public manner, and there is good cause

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why it should not be part of the public record of this case.
III.

DEFINITIONS

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A.

Action: This pending federal law suit.

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B.

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

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designation of information or items under this Order.

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C.

“CONFIDENTIAL” Information or Items: Information (regardless

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

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

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above in the Good Cause Statement.

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D.

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

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

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“CONFIDENTIAL.”

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F.

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Disclosure or Discovery Material: All items or information,

regardless of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and

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tangible things), that are produced or generated in disclosures or responses

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to discovery in this matter.

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G.

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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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H.

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Action, such as Agency Counsel for the U.S. Department of Veterans

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House Counsel: Attorneys who are employees of a party to this

Affairs. House Counsel does not include Outside Counsel of Record or any

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other outside counsel.

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I.

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or other legal entity not named as a Party to this action.

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J.

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

Outside Counsel of Record: Attorneys who are not employees of a

party to this Action but are retained to represent or advise a party to this
Action and have appeared in this Action on behalf of that party or are
affiliated with a law firm which has appeared on behalf of that party, and

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includes support staff.

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K.

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directors, employees, consultants, retained experts, and Outside Counsel of

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Party: Any party to this Action, including all of its officers,

Record (and their support staffs).

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L.

Producing Party: A Party or Non-Party that produces Disclosure or

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Discovery Material in this Action.

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M.

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support services (e.g., photocopying, videotaping, translating, preparing

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Professional Vendors: Persons or entities that provide litigation

exhibits or demonstrations, and organizing, storing, or retrieving data in any
form or medium) and their employees and subcontractors.

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N.

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designated as “CONFIDENTIAL.”

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O.

Protected Material: Any Disclosure or Discovery Material that is

Receiving Party: A Party that receives Disclosure or Discovery

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Material from a Producing Party.

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IV.

SCOPE

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A.

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

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The protections conferred by this Stipulation and Order cover not

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

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

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conversations, or presentations by Parties or their Counsel that might reveal

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Protected Material.

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B.

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

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

at trial.

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V.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party

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agrees otherwise in writing or a court order otherwise directs. Final

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disposition shall be deemed to be the later of (1) dismissal of all claims and
defenses in this Action, with or without prejudice; and (2) final judgment

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herein after the completion and exhaustion of all appeals, rehearings,

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remands, trials, or reviews of this Action, including the time limits for filing

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any motions or applications for extension of time pursuant to applicable

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law.

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VI.

DESIGNATING PROTECTED MATERIAL
A.

Exercise of Restraint and Care in Designating Material for Protection
1.

Each Party or Non-Party that designates information or items

for protection under this Order must take care to limit any such
designation to specific material that qualifies under the appropriate
standards. The Designating Party must designate for protection only

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

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communications that qualify so that other portions of the material,

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documents, items, or communications for which protection is not

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

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2.

Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have

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been made for an improper purpose (e.g., to unnecessarily encumber

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the case development process or to impose unnecessary expenses and

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burdens on other parties) may expose the Designating Party to
sanctions.

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3.

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or items that it designated for protection do not qualify for protection,

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

that Designating Party must promptly notify all other Parties that it is

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withdrawing the inapplicable designation.

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B.

Manner and Timing of Designations

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1.

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B(2)(b) below), or as otherwise stipulated or ordered, Disclosure or

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Except as otherwise provided in this Order (see, e.g., Section

Discovery Material that qualifies for protection under this Order must
be clearly so designated before the material is disclosed or produced.
2.

Designation in conformity with this Order requires the

following:

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a.

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electronic documents, but excluding transcripts of depositions

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For information in documentary form (e.g., paper or

or other pretrial or trial proceedings), that the Producing Party

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affix at a minimum, the legend “CONFIDENTIAL”

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

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

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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 in the margins).

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b.

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available for inspection need not designate them for protection

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A Party or Non-Party that makes original documents

until after the inspecting Party has indicated which documents

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it would like copied and produced. During the inspection and

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before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the

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inspecting Party has identified the documents it wants copied

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and produced, the Producing Party must determine which
documents, or portions thereof, qualify for protection under
this Order. Then, before producing the specified documents,

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the Producing Party must affix the “CONFIDENTIAL legend”

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to each page that contains Protected Material. If only a portion

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

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the Producing Party also must clearly identify the protected

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

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margins).

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c.

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Party identify the Disclosure or Discovery Material on the

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For testimony given in depositions, that the Designating

record, before the close of the deposition all protected
testimony.

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d.

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and for any other tangible items, that the Producing Party affix

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For information produced in form other than document

in a prominent place on the exterior of the container or

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containers in which the information is stored the legend

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

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information warrants protection, the Producing Party, to the

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

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C.

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Inadvertent Failure to Designate
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If timely corrected, an inadvertent failure to designate qualified

information or items does not, standing alone, waive the Designating

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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

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make reasonable efforts to assure that the material is treated in

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accordance with the provisions of this Order.

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VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS
A.

Timing of Challenges

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

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Any party or Non-Party may challenge a designation of

Scheduling Order.
B.

Meet and Confer

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process under Local Rule 37.1 et seq.

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C.

The Challenging Party shall initiate the dispute resolution

The burden of persuasion in any such challenge proceeding shall be

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

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improper purpose (e.g., to harass or impose unnecessary expenses and

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burdens on other parties) may expose the Challenging Party to sanctions.

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Unless the Designating Party has waived or withdrawn the confidentiality

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designation, all parties shall continue to afford the material in question the
level of protection to which it is entitled under the Producing Party’s
designation until the Court rules on the challenge.
VIII. ACCESS TO AND USE OF PROTECTED MATERIAL
A.

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

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

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

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this Action. Such Protected Material may be disclosed only to the

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categories of persons and under the conditions described in this

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

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comply with the provisions of Section XIV below.

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Receiving Party at a location and in a secure manner that ensures that

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Protected Material must be stored and maintained by a

access is limited to the persons authorized under this Order.

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B.

Disclosure of “CONFIDENTIAL” Information or Items

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1.

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by the Designating Party, a Receiving Party may disclose any

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information or item designated “CONFIDENTIAL” only to:

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Unless otherwise ordered by the Court or permitted in writing

a.

The Receiving Party’s Outside Counsel of Record in this

Action, as well as employees of said Outside Counsel of
Record to whom it is reasonably necessary to disclose the

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information for this Action;

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b.

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Counsel) of the Receiving Party to whom disclosure is

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The officers, directors, and employees (including House

reasonably necessary for this Action;

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c.

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

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to whom disclosure is reasonably necessary for this Action and

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who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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d.

The Court and its personnel;

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Court reporters and their staff;

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f.

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Professional Vendors to whom disclosure is reasonably

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Professional jury or trial consultants, mock jurors, and

necessary or this Action and who have signed the

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“Acknowledgment and Agreement to be Bound” attached as

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Exhibit A hereto;

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g.

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information or a custodian or other person who otherwise

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The author or recipient of a document containing the

possessed or knew the information;
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During their depositions, witnesses, and attorneys for

witnesses, in the Action to whom disclosure is reasonably

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necessary provided: (i) the deposing party requests that the

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witness sign the “Acknowledgment and Agreement to Be

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Bound;” and (ii) they will not be permitted to keep any

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confidential information unless they sign the

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“Acknowledgment and Agreement to Be Bound,” unless

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otherwise agreed by the Designating Party or ordered by the

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Court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material may be separately

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bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Stipulated Protective

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Order; and

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i.

Any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged

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in settlement discussions.

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IX.

PROTECTED MATERIAL SUPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
A.

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

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

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1.

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

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2.

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Promptly notify in writing the Designating Party. Such

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

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covered by the subpoena or order is subject to this Protective Order.

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Such notification shall include a copy of this Stipulated Protective

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Order; and

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3.

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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.

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B.

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served with the subpoena or court order shall not produce any information

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

designated in this action as “CONFIDENTIAL” before a determination by

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the Court from which the subpoena or order issued, unless the Party has

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obtained the Designating Party’s permission. The Designating Party shall

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bear the burden and expense of seeking protection in that court of its

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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

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lawful directive from another court.

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X.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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A.

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

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

information produced by Non-Parties in connection with this litigation is

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protected by the remedies and relief provided by this Order. Nothing in

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these provisions should be construed as prohibiting a Non-Party from

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seeking additional protections.

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B.

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

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

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Party is subject to an agreement with the Non-Party not to produce the Non-

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Party’s confidential information, then the Party shall:

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1.

Promptly notify in writing the Requesting Party and the Non-

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

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confidentiality agreement with a Non-Party;

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2.

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

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Promptly provide the Non-Party with a copy of the Stipulated

a reasonably specific description of the information requested; and

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3.

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Make the information requested available for inspection by the

Non-Party, if requested.

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C.

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within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information

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

responsive to the discovery request. If the Non-Party timely seeks a

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protective order, the Receiving Party shall not produce any information in

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its possession or control that is subject to the confidentiality agreement with

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

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

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protection in this court of its Protected Material.
XI.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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A.

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disclosed Protected Material to any person or in any circumstance not

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

authorized under this Stipulated Protective Order, the Receiving Party must

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immediately (1) notify in writing the Designating Party of the unauthorized

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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (3) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (4) request such

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person or persons to execute the “Acknowledgment and Agreement to be
Bound” that is attached hereto as Exhibit A.
XII. INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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A.

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

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When a Producing Party gives notice to Receiving Parties that certain

protection, the obligations of the Receiving Parties are those set forth in

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

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

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that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an

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agreement on the effect of disclosure of a communication or 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

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submitted to the Court.

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XIII. MISCELLANEOUS

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A.

Right to Further Relief
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Nothing in this Order abridges the right of any person to seek

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its

modification by the Court in the future.

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B.

Right to Assert Other Objections

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By stipulating to the entry of this Protective Order, no Party

waives any right it otherwise would have to object to disclosing or

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producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives any right

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to object on any ground to use in evidence of any of the material

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covered by this Protective Order.

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C.

Filing Protected Material

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1.

A Party that seeks to file under seal any Protected Material

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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

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sealing of the specific Protected Material at issue. If a Party's request

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to file Protected Material under seal is denied by the Court, then the

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Receiving Party may file the information in the public record unless

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otherwise instructed by the Court.

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XIV. FINAL DISPOSITION

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A.

After the final disposition of this Action, as defined in Section V,

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within sixty (60) days of a written request by the Designating Party, each

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Receiving Party must return all Protected Material to the Producing Party or

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destroy such material. As used in this subdivision, “all Protected Material”

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includes all copies, abstracts, compilations, summaries, and any other
format reproducing or capturing any of the Protected Material. 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

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person or entity, to the Designating Party) by the 60 day deadline that (1)

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identifies (by category, where appropriate) all the Protected Material that

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was returned or destroyed and (2) affirms that the Receiving Party has not

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retained any copies, abstracts, compilations, summaries or any other format

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reproducing or capturing any of the Protected Material. Notwithstanding

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this provision, Counsel are entitled to retain an archival copy of 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 work product, and consultant and expert work product, even if

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such materials contain Protected Material. Any such archival copies that

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contain or constitute Protected Material remain subject to this Protective

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Order as set forth in Section V.

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B.

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

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appropriate measures including, without limitation, contempt proceedings

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and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated:November 17, 2021

/s/ Gabriel L. Cohan
Gabriel L. Cohan
BURNS & COHAN
Attorneys for Plaintiff Darla Drinan

Dated:November 17, 2021

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TRACY L. WILKISON
United States Attorney
DAVID M. HARRIS
Assistant United States Attorney
Chief, Civil Division
JOANNE S. OSINOFF
Assistant United States Attorney
Chief, General Civil Section

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/s/--Jennifer R. Jacobs

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JENNIFER R. JACOBS
Assistant United States Attorney
Attorneys for Defendants United
States of America and Joshua Bisch

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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Dated:

11/19/2021
HON. SHASHI H. KEWALRAMANI
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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 issue by the United States District Court for the Central District of California

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on [DATE] in the case of

[insert formal name of

the case and the number and initials assigned to it by the Court]. I agree to

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comply with and to be bound by all the terms of this Stipulated Protective Order

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and I understand and acknowledge that failure to so comply could expose me to

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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

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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

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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

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connection with this action or any proceedings related to enforcement of this

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Stipulated Protective Order.

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Date:

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City and State where sworn and signed:

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Printed Name:

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Signature:

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