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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1 2 3 4 5 6 7 8 9 10 11 12 13 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: (619) 236-0244 todd@burnsandcohan.com gabriel@burnsandcohan.com 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: (213) 894-6167 E-mail: jennifer.jacobs3@usdoj.gov Attorneys for Defendants United States of America and Joshua Bisch 14 15 16 17 18 19 20 21 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). 22 23 24 1 1 I. 2 PURPOSES AND LIMITATIONS A. 3 Discovery in this action is likely to involve production of confidential or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be 5 6 warranted. Accordingly, the parties hereby stipulate to and petition the 7 Court to enter the following Stipulated Protective Order. The parties 8 acknowledge that this Order does not confer blanket protections on all 9 disclosures or responses to discovery and that the protection it affords from 10 public disclosure and use extends only to the limited information or items 11 that are entitled to confidential treatment under the applicable legal 12 13 principles. The parties further acknowledge, as set forth in Section XIII(C), 14 below, that this Stipulated Protective Order does not entitle them to file 15 confidential information under seal; Civil Local Rule 79-5 sets forth the 16 procedures that must be followed and the standards that will be applied 17 when a party seeks permission from the Court to file material under seal. 18 19 II. GOOD CAUSE STATEMENT 20 A. 21 Bisch’s performance evaluations, financial and medical information for 22 23 24 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 2 1 confidential materials and information consist of, among other things, 2 confidential financial information, information regarding confidential 3 performance evaluations and potentially other sensitive information in 4 personnel files, medical records and/or other confidential information 5 6 (including information implicating privacy rights of the parties), 7 information otherwise generally unavailable to the public, or which may be 8 privileged or otherwise protected from disclosure under state or federal 9 statutes, court rules, case decisions, or common law. Accordingly, to 10 expedite the flow of information, to facilitate the prompt resolution of 11 disputes over confidentiality of discovery materials, to adequately protect 12 13 information the parties are entitled to keep confidential, to ensure that the 14 parties are permitted reasonable necessary uses of such material in 15 preparation for and in the conduct of trial, to address their handling at the 16 end of the litigation, and serve the ends of justice, a protective order for 17 such information is justified in this matter. It is the intent of the parties that 18 19 information will not be designated as confidential for tactical reasons and 20 that nothing be so designated without a good faith belief that it has been 21 maintained in a confidential, non-public manner, and there is good cause 22 23 24 why it should not be part of the public record of this case. III. DEFINITIONS 3 1 A. Action: This pending federal law suit. 2 B. Challenging Party: A Party or Non-Party that challenges the 3 designation of information or items under this Order. 4 5 C. “CONFIDENTIAL” Information or Items: Information (regardless 6 of how it is generated, stored or maintained) or tangible things that qualify 7 for protection under Federal Rule of Civil Procedure 26(c), and as specified 8 above in the Good Cause Statement. 9 10 11 12 D. Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). E. Designating Party: A Party or Non-Party that designates information 13 or items that it produces in disclosures or in responses to discovery as 14 “CONFIDENTIAL.” 15 F. 16 Disclosure or Discovery Material: All items or information, regardless of the medium or manner in which it is generated, stored, or 17 18 maintained (including, among other things, testimony, transcripts, and 19 tangible things), that are produced or generated in disclosures or responses 20 to discovery in this matter. 21 G. 22 23 24 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. 4 1 H. 2 Action, such as Agency Counsel for the U.S. Department of Veterans 3 House Counsel: Attorneys who are employees of a party to this Affairs. House Counsel does not include Outside Counsel of Record or any 4 5 other outside counsel. 6 I. 7 or other legal entity not named as a Party to this action. 8 J. 9 10 11 12 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 13 includes support staff. 14 K. 15 directors, employees, consultants, retained experts, and Outside Counsel of 16 Party: Any party to this Action, including all of its officers, Record (and their support staffs). 17 18 L. Producing Party: A Party or Non-Party that produces Disclosure or 19 Discovery Material in this Action. 20 M. 21 support services (e.g., photocopying, videotaping, translating, preparing 22 23 24 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. 5 1 N. 2 designated as “CONFIDENTIAL.” 3 O. Protected Material: Any Disclosure or Discovery Material that is Receiving Party: A Party that receives Disclosure or Discovery 4 Material from a Producing Party. 5 6 IV. SCOPE 7 A. 8 only Protected Material (as defined above), but also (1) any information 9 The protections conferred by this Stipulation and Order cover not copied or extracted from Protected Material; (2) all copies, excerpts, 10 summaries, or compilations of Protected Material; and (3) any testimony, 11 conversations, or presentations by Parties or their Counsel that might reveal 12 13 Protected Material. 14 B. 15 of the trial judge. This Order does not govern the use of Protected Material 16 Any use of Protected Material at trial shall be governed by the orders at trial. 17 18 V. DURATION 19 Even after final disposition of this litigation, the confidentiality obligations 20 imposed by this Order shall remain in effect until a Designating Party 21 agrees otherwise in writing or a court order otherwise directs. Final 22 23 24 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 6 1 herein after the completion and exhaustion of all appeals, rehearings, 2 remands, trials, or reviews of this Action, including the time limits for filing 3 any motions or applications for extension of time pursuant to applicable 4 law. 5 6 7 8 9 10 11 12 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 13 those parts of material, documents, items, or oral or written 14 communications that qualify so that other portions of the material, 15 documents, items, or communications for which protection is not 16 warranted are not swept unjustifiably within the ambit of this Order. 17 18 2. Mass, indiscriminate, or routinized designations are prohibited. 19 Designations that are shown to be clearly unjustified or that have 20 been made for an improper purpose (e.g., to unnecessarily encumber 21 the case development process or to impose unnecessary expenses and 22 23 24 burdens on other parties) may expose the Designating Party to sanctions. 7 1 3. 2 or items that it designated for protection do not qualify for protection, 3 If it comes to a Designating Party’s attention that information that Designating Party must promptly notify all other Parties that it is 4 withdrawing the inapplicable designation. 5 6 B. Manner and Timing of Designations 7 1. 8 B(2)(b) below), or as otherwise stipulated or ordered, Disclosure or 9 10 11 12 13 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: 14 a. 15 electronic documents, but excluding transcripts of depositions 16 For information in documentary form (e.g., paper or or other pretrial or trial proceedings), that the Producing Party 17 18 affix at a minimum, the legend “CONFIDENTIAL” 19 (hereinafter “CONFIDENTIAL legend”), to each page that 20 contains protected material. If only a portion or portions of the 21 material on a page qualifies for protection, the Producing Party 22 23 24 also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). 8 1 b. 2 available for inspection need not designate them for protection 3 A Party or Non-Party that makes original documents until after the inspecting Party has indicated which documents 4 5 it would like copied and produced. During the inspection and 6 before the designation, all of the material made available for 7 inspection shall be deemed “CONFIDENTIAL.” After the 8 inspecting Party has identified the documents it wants copied 9 10 11 12 and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, 13 the Producing Party must affix the “CONFIDENTIAL legend” 14 to each page that contains Protected Material. If only a portion 15 or portions of the material on a page qualifies for protection, 16 the Producing Party also must clearly identify the protected 17 18 portion(s) (e.g., by making appropriate markings in the 19 margins). 20 c. 21 Party identify the Disclosure or Discovery Material on the 22 23 24 For testimony given in depositions, that the Designating record, before the close of the deposition all protected testimony. 9 1 d. 2 and for any other tangible items, that the Producing Party affix 3 For information produced in form other than document in a prominent place on the exterior of the container or 4 containers in which the information is stored the legend 5 6 “CONFIDENTIAL.” If only a portion or portions of the 7 information warrants protection, the Producing Party, to the 8 extent practicable, shall identify the protected portion(s). 9 C. 10 Inadvertent Failure to Designate 1. 11 If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating 12 13 Party’s right to secure protection under this Order for such material. 14 Upon timely correction of a designation, the Receiving Party must 15 make reasonable efforts to assure that the material is treated in 16 accordance with the provisions of this Order. 17 18 19 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS A. Timing of Challenges 20 1. 21 confidentiality at any time that is consistent with the Court’s 22 23 24 Any party or Non-Party may challenge a designation of Scheduling Order. B. Meet and Confer 10 1 1. 2 process under Local Rule 37.1 et seq. 3 C. The Challenging Party shall initiate the dispute resolution The burden of persuasion in any such challenge proceeding shall be 4 5 on the Designating Party. Frivolous challenges, and those made for an 6 improper purpose (e.g., to harass or impose unnecessary expenses and 7 burdens on other parties) may expose the Challenging Party to sanctions. 8 Unless the Designating Party has waived or withdrawn the confidentiality 9 10 11 12 13 14 15 16 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 1. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with 17 18 this Action only for prosecuting, defending, or attempting to settle 19 this Action. Such Protected Material may be disclosed only to the 20 categories of persons and under the conditions described in this 21 Order. When the Action has been terminated, a Receiving Party must 22 comply with the provisions of Section XIV below. 23 24 11 1 2. 2 Receiving Party at a location and in a secure manner that ensures that 3 Protected Material must be stored and maintained by a access is limited to the persons authorized under this Order. 4 5 B. Disclosure of “CONFIDENTIAL” Information or Items 6 1. 7 by the Designating Party, a Receiving Party may disclose any 8 information or item designated “CONFIDENTIAL” only to: 9 10 11 12 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 13 information for this Action; 14 b. 15 Counsel) of the Receiving Party to whom disclosure is 16 The officers, directors, and employees (including House reasonably necessary for this Action; 17 18 c. Experts (as defined in this Order) of the Receiving Party 19 to whom disclosure is reasonably necessary for this Action and 20 who have signed the “Acknowledgment and Agreement to Be 21 Bound” (Exhibit A); 22 23 24 d. The Court and its personnel; e. Court reporters and their staff; 12 1 f. 2 Professional Vendors to whom disclosure is reasonably 3 Professional jury or trial consultants, mock jurors, and necessary or this Action and who have signed the 4 5 “Acknowledgment and Agreement to be Bound” attached as 6 Exhibit A hereto; 7 g. 8 information or a custodian or other person who otherwise 9 10 11 12 The author or recipient of a document containing the possessed or knew the information; h. During their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonably 13 necessary provided: (i) the deposing party requests that the 14 witness sign the “Acknowledgment and Agreement to Be 15 Bound;” and (ii) they will not be permitted to keep any 16 confidential information unless they sign the 17 18 “Acknowledgment and Agreement to Be Bound,” unless 19 otherwise agreed by the Designating Party or ordered by the 20 Court. Pages of transcribed deposition testimony or exhibits to 21 depositions that reveal Protected Material may be separately 22 bound by the court reporter and may not be disclosed to 23 24 13 1 anyone except as permitted under this Stipulated Protective 2 Order; and 3 i. Any mediator or settlement officer, and their supporting 4 personnel, mutually agreed upon by any of the parties engaged 5 in settlement discussions. 6 7 8 9 10 11 12 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: 13 1. 14 notification shall include a copy of the subpoena or court order; 15 2. 16 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 17 18 covered by the subpoena or order is subject to this Protective Order. 19 Such notification shall include a copy of this Stipulated Protective 20 Order; and 21 3. 22 23 24 Cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 14 1 B. 2 served with the subpoena or court order shall not produce any information 3 If the Designating Party timely seeks a protective order, the Party designated in this action as “CONFIDENTIAL” before a determination by 4 the Court from which the subpoena or order issued, unless the Party has 5 6 obtained the Designating Party’s permission. The Designating Party shall 7 bear the burden and expense of seeking protection in that court of its 8 confidential material and nothing in these provisions should be construed as 9 authorizing or encouraging a Receiving Party in this Action to disobey a 10 lawful directive from another court. 11 12 X. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 13 PRODUCED IN THIS LITIGATION 14 A. 15 Non-Party in this Action and designated as “CONFIDENTIAL.” Such 16 The terms of this Order are applicable to information produced by a information produced by Non-Parties in connection with this litigation is 17 18 protected by the remedies and relief provided by this Order. Nothing in 19 these provisions should be construed as prohibiting a Non-Party from 20 seeking additional protections. 21 B. 22 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 23 24 15 1 Party is subject to an agreement with the Non-Party not to produce the Non- 2 Party’s confidential information, then the Party shall: 3 1. Promptly notify in writing the Requesting Party and the Non- 4 Party that some or all of the information requested is subject to a 5 6 confidentiality agreement with a Non-Party; 7 2. 8 Protective Order in this Action, the relevant discovery request(s), and 9 Promptly provide the Non-Party with a copy of the Stipulated a reasonably specific description of the information requested; and 10 3. 11 Make the information requested available for inspection by the Non-Party, if requested. 12 13 C. 14 within 14 days of receiving the notice and accompanying information, the 15 Receiving Party may produce the Non-Party’s confidential information 16 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 17 protective order, the Receiving Party shall not produce any information in 18 19 its possession or control that is subject to the confidentiality agreement with 20 the Non-Party before a determination by the court. Absent a court order to 21 the contrary, the Non-Party shall bear the burden and expense of seeking 22 23 24 protection in this court of its Protected Material. XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 16 1 A. 2 disclosed Protected Material to any person or in any circumstance not 3 If a Receiving Party learns that, by inadvertence or otherwise, it has authorized under this Stipulated Protective Order, the Receiving Party must 4 5 immediately (1) notify in writing the Designating Party of the unauthorized 6 disclosures, (2) use its best efforts to retrieve all unauthorized copies of the 7 Protected Material, (3) inform the person or persons to whom unauthorized 8 disclosures were made of all the terms of this Order, and (4) request such 9 10 11 12 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 13 OTHERWISE PROTECTED MATERIAL 14 A. 15 inadvertently produced material is subject to a claim of privilege or other 16 When a Producing Party gives notice to Receiving Parties that certain protection, the obligations of the Receiving Parties are those set forth in 17 18 Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended 19 to modify whatever procedure may be established in an e-discovery order 20 that provides for production without prior privilege review. Pursuant to 21 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an 22 23 24 agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection, the 17 1 parties may incorporate their agreement in the Stipulated Protective Order 2 submitted to the Court. 3 XIII. MISCELLANEOUS 4 5 A. Right to Further Relief 1. 6 Nothing in this Order abridges the right of any person to seek 7 its modification by the Court in the future. 8 B. Right to Assert Other Objections 9 1. 10 By stipulating to the entry of this Protective Order, no Party waives any right it otherwise would have to object to disclosing or 11 producing any information or item on any ground not addressed in 12 13 this Stipulated Protective Order. Similarly, no Party waives any right 14 to object on any ground to use in evidence of any of the material 15 covered by this Protective Order. 16 C. Filing Protected Material 17 18 1. A Party that seeks to file under seal any Protected Material 19 must comply with Civil Local Rule 79-5. Protected Material may 20 only be filed under seal pursuant to a court order authorizing the 21 sealing of the specific Protected Material at issue. If a Party's request 22 to file Protected Material under seal is denied by the Court, then the 23 24 18 1 Receiving Party may file the information in the public record unless 2 otherwise instructed by the Court. 3 XIV. FINAL DISPOSITION 4 5 A. After the final disposition of this Action, as defined in Section V, 6 within sixty (60) days of a written request by the Designating Party, each 7 Receiving Party must return all Protected Material to the Producing Party or 8 destroy such material. As used in this subdivision, “all Protected Material” 9 10 11 12 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 13 submit a written certification to the Producing Party (and, if not the same 14 person or entity, to the Designating Party) by the 60 day deadline that (1) 15 identifies (by category, where appropriate) all the Protected Material that 16 was returned or destroyed and (2) affirms that the Receiving Party has not 17 18 retained any copies, abstracts, compilations, summaries or any other format 19 reproducing or capturing any of the Protected Material. Notwithstanding 20 this provision, Counsel are entitled to retain an archival copy of all 21 pleadings, motion papers, trial, deposition, and hearing transcripts, legal 22 23 24 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if 19 1 such materials contain Protected Material. Any such archival copies that 2 contain or constitute Protected Material remain subject to this Protective 3 Order as set forth in Section V. 4 5 B. Any violation of this Order may be punished by any and all 6 appropriate measures including, without limitation, contempt proceedings 7 and/or monetary sanctions. 8 9 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 10 11 Dated:November 17, 2021 /s/ Gabriel L. Cohan Gabriel L. Cohan BURNS & COHAN Attorneys for Plaintiff Darla Drinan Dated:November 17, 2021 18 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 19 /s/--Jennifer R. Jacobs 20 JENNIFER R. JACOBS Assistant United States Attorney Attorneys for Defendants United States of America and Joshua Bisch 12 13 14 15 16 17 21 22 23 24 20 1 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 2 3 4 Dated: 11/19/2021 HON. SHASHI H. KEWALRAMANI United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 21 1 2 3 4 5 6 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 7 8 9 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 10 comply with and to be bound by all the terms of this Stipulated Protective Order 11 and I understand and acknowledge that failure to so comply could expose me to 12 13 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 14 15 16 17 18 19 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 20 21 22 23 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 24 22 1 connection with this action or any proceedings related to enforcement of this 2 Stipulated Protective Order. 3 Date: 4 5 City and State where sworn and signed: 6 Printed Name: 7 Signature: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23

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