Dual Diagnosis Treatment Center Inc et al v. City of San Clemente et al

Filing 48

STIPULATION AND PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order #45 . (kh)

1 PETER K. STRIS (SBN 216226)

[e-mail]

2 ELIZABETH R. BRANNEN (SBN 226234)

[e-mail]

3 HANNA CHANDOO (SBN 306973)

[e-mail]

4 STRIS & MAHER LLP

725 South Figueroa Street, Suite 1830

5 Los Angeles, CA 90017

Telephone: [phone]
[phone]

6 Facsimile:

7 Attorneys for Plaintiffs

Dual Diagnosis Treatment Center, Inc.,

8 Satya Health of California, Inc., and

Vedanta Laboratories, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION

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13 DUAL DIAGNOSIS TREATMENT

CENTER, INC., et al.,

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Plaintiffs,
v.

Case No. 8:15-cv-01611-CJC-JCG
Judge: Hon. Cormac J. Carney
STIPULATION AND PROTECTIVE
ORDER

CITY OF SAN CLEMENTE, et al.,
Defendants.

Trial Date:

September 12, 2017

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STIPULATION AND [PROPOSED] PROTECTIVE ORDER
CASE NO. 8:15-cv-01611-CJC-JCG

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Plaintiffs Dual Diagnosis Treatment Center, Inc., Satya Health of California,

2 Inc., and Vedanta Laboratories, Inc. (“Plaintiffs”) and Defendants City of San
3 Clemente and the City Council of San Clemente (“Defendants” or the “City”),
4 through their respective counsels of record, hereby stipulate and request that the
5 Court enter an order as follows:
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1.

DEFINITIONS AND STATEMENT OF GOOD CAUSE

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The terms defined in this Section shall, throughout this Order, have the

10 meanings herein provided. Defined terms may be used in the singular or in the
11 plural.
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1.1

“Designating party” means the party designating any information which

13 it either produces, is asked to produce, or whose information is sought from or
14 produced by any other person as “CONFIDENTIAL” or “CONFIDENTIAL—
15 ATTORNEY’S EYES ONLY.”
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1.2

“Receiving Party” means the party receiving or requesting production of

17 information designated “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S
18 EYES ONLY.”
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1.3

“Confidential Information” means any information, whether or not

20 embodied in any physical medium, used (or commercially scheduled to be used) by
21 the Designating Party in or pertaining to its trade or business that is not generally
22 known and as to which there is an overriding interest that overcomes the right of
23 access to the record. Any summary, compilation or copy of any Confidential
24 Information shall also constitute Confidential Information.
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1.4

“Attorney’s Eyes Only Information” means that subset of information

26 meeting the definition of “Confidential Information” set forth in Paragraph 1.3 above
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STIPULATION AND PROTECTIVE ORDER
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1 and that is so highly sensitive that disclosure beyond the limits set forth in Section 5
2 below would create a substantial risk of serious injury that could not be avoided by
3 less restrictive means. The Designating Party shall bear the ultimate burden of
4 proving that any information it has designated “CONFIDENTIAL—ATTORNEY’S
5 EYES ONLY” meets the foregoing definition.
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1.5

“Reporting Party” means any natural person who has furnished

7 information purporting to disclose a violation of a law of the United States, the State
8 of California, or the City of San Clemente, in confidence, to the City or to any law
9 enforcement officer or agency. “Reporting Party” shall specifically include, but is
10 not limited to, any natural person who has submitted such a complaint to the City
11 through 1) the City’s eTRAKiT online reporting portal; 2) email communication to
12 [e-mail]; or 3) telephone or email communication to any
13 person then employed by the City.
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1.6

“Personal Identifying Information” is defined in Penal Code section

15 530.55(b), and that definition is incorporated by reference as if fully set forth herein.
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1.7

“Termination” means the dismissal, whether with or without prejudice,

17 or settlement of this action, or entry of final judgment in this action and the expiration
18 of all periods of time to appeal or seek judicial review of such judgment, and/or the
19 final conclusion of any appeal, including time to seek any further review thereof.
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1.8

This action involves commercial, financial, and/or proprietary

21 information for which Plaintiffs contend special protection from public disclosure
22 and from use for any purpose other than in connection with this litigation is
23 warranted. Such confidential and proprietary materials and information consist of,
24 among other things, claimed confidential business or financial information,
25 information otherwise generally unavailable to the public, or which may be
26 privileged or otherwise protected from disclosure under state or federal statutes, court
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STIPULATION AND PROTECTIVE ORDER
CASE NO. 8:15-cv-01611-CJC-JCG

1 rules, case decisions, or common law. Accordingly, to expedite the flow of
2 information, to facilitate the prompt resolution of disputes over confidentiality of
3 discovery materials, to adequately protect information one or more of the parties
4 claims to be entitled to keep confidential, to ensure the parties are permitted
5 reasonable necessary uses of such material in preparation for and in the conduct of
6 trial, to address their handling at the end of the litigation, and to serve the ends of
7 justice, a protective order for such information is justified in this matter. It is the
8 intent of the parties that information will not be designated as confidential for tactical
9 reasons and that nothing be so designated without a good faith belief that it has been
10 maintained in a confidential, non-public manner, and there is good cause why it
11 should not be part of the public record of this case.
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2.

SCOPE AND INTERPRETATION OF THIS ORDER

2.1

This Order shall be applicable to, and shall govern, all (a) requests for

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16 production of documents and things; (b) depositions; (c) interrogatories; (d) requests
17 for admission; (e) any other discovery authorized by the Federal Rules of Civil
18 Procedure; and (f) any other letters, communications, mailings, or other exchanges of
19 information or presentation of evidence by the parties in this action not otherwise
20 identified by the preceding descriptions.
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2.2

A Designating Party who wishes to keep information confidential

22 pursuant to this Order shall identify with specificity and designate that information as
23 “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY” within
24 ten (10) days of the first production of such information and simultaneously deliver
25 that designation to all other parties via e-mail or overnight mail. All information
26 properly designated by a Designating Party as “CONFIDENTIAL” or
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1 “CONFIDENTIAL—ATTORNEY’S EYES ONLY” in accordance with this Order
2 shall be used solely for the purposes of this action. Such information may not be
3 used for any business, commercial, or governmental purpose, except by written
4 agreement between the Designating Party and the Receiving Party or upon an order
5 by this Court after reasonable notice and a hearing, at which the Designating and
6 Receiving Parties shall have an opportunity to be heard.
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2.3

A party that believes in good faith that any designated information

8 labeled as such by a Designating Party should not properly be deemed
9 “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY” pursuant
10 to this Order may object to such designation by making such an objection in writing
11 and delivering this objection to the Designating Party. The Designating Party shall in
12 such an event have fourteen (14) days from the receipt of any such objection to file a
13 motion with the Court that seeks to maintain the designated information as
14 “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY” pursuant
15 to this Order. The parties shall continue to treat designated information as
16 “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY” during
17 the pendency of any such motion until a decision on that motion is rendered by the
18 trial court. The parties agree to bear their own costs and attorney’s fees in connection
19 with any such motion. The Designating Party shall have the burden of proving that
20 the information is entitled to be treated as “CONFIDENTIAL” or
21 “CONFIDENTIAL—ATTORNEY’S EYES ONLY” for the purposes of this Order.
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2.4

The designation by a Designating Party of any document, thing, or

23 information as “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES
24 ONLY” pursuant to this Order shall be made in good faith and shall be intended
25 solely to facilitate the pre-trial proceedings, preparation, trial, and settlement of this
26 action. Counsel’s treatment of designated documents or information in conformity
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STIPULATION AND PROTECTIVE ORDER
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1 with the indicated designation shall not be an admission or agreement by any party
2 that the designated information, in fact or in law, constitutes any proprietary and/or
3 confidential information of any other party. The designation of information as
4 “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY” pursuant
5 to this Order shall not, in substantive proceedings in this action, excuse or relieve the
6 Designating Party from the burden of proof imposed by the relevant substantive law.
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2.5

This Order shall not be construed as a waiver by the parties of any

8 objection which might be raised as to the admissibility of any evidentiary material.
9 This Order shall also be without prejudice to the rights of any person to oppose
10 production of any information on any proper ground.
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3.

USE AND/OR DISCLOSURE OF PERSONAL IDENTIFYING
INFORMATION OF REPORTING PARTIES

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3.1

The Parties to this action understand and acknowledge that this

16 Stipulation and Protective Order is designed, in part, to protect the alleged privacy of
17 Reporting Parties while relieving the City of its alleged need to redact such
18 information prior to disclosing responsive documents and information in discovery.
19 Accordingly, the Personal Identifying Information of any Reporting Party is shall be
20 protected within the scope of this Order as follows:
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3.2

The Personal Identifying information of any Reporting Party shall be

22 used solely for the purposes of this action.
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3.3

The disclosure of the Personal Identifying Information of any Reporting

24 Party pursuant to this Order is not a waiver of the City’s right to assert applicable
25 statutory or common-law privilege at any deposition, hearing, or proceeding, or at
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STIPULATION AND PROTECTIVE ORDER
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1 trial, nor is such disclosure a waiver of any objection otherwise permitted by the
2 terms of this Order.
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3.4

The Personal Identifying information of any Reporting Party may not be

4 used for any non-litigation business, commercial, or governmental purpose, except by
5 written agreement between the City and the Receiving Party or upon an order by this
6 Court after reasonable notice and a hearing, at which the City and Receiving Parties
7 shall have an opportunity to be heard.
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3.5

The protections of Paragraphs 3.1 through 3.4 shall apply to the Personal

9 Identifying Information of all Reporting Parties without the need for City to
10 separately identify and designate that information as protected.
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3.6

Sections 4 through 7 of this Order shall not apply to the Personal

12 Identifying Information of a Reporting Party, unless the party disclosing such
13 information separately identifies and designates that information as also being
14 “CONFIDENTIAL,” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY”
15 pursuant to Paragraph 2.2.
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4.

USE AND/OR DISCLOSURE OF CONFIDENTIAL INFORMATION

4.1

The Receiving Party and its counsel shall not, directly or indirectly, in

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20 whole or in part, disclose any document, information or thing designated
21 “CONFIDENTIAL” during the pendency of its protection, pursuant to section 8, by
22 this Order to any person, except those persons described in Paragraphs 4.2 through
23 4.7:
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4.2

The Court and its personnel, any jury empaneled in this action, and any

25 other person who may serve in a judicial or quasi-judicial function;
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STIPULATION AND PROTECTIVE ORDER
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4.3

A professional court reporter engaged to transcribe testimony in this

2 action;
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4.4

Any party of record in this action or officer, director, in-house counsel,

4 or employee of a party of record who is actively assisting in the preparation and trial
5 of this litigation;
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4.5

Counsel of record and its employees providing active assistance with

7 this litigation (including law clerks, legal assistants, technical assistants, secretaries
8 and clerks of such counsel);
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4.6

Expert witnesses and consultants engaged to assist counsel in the

10 defense or prosecution of this action, provided that such expert witnesses and
11 consultants first shall have signed a Confidentiality Agreement in the form attached
12 as Exhibit A; and
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4.7

During the course of a deposition, to the person whose deposition is

14 being taken, provided that each deponent to whom disclosure is made first shall have
15 signed a Confidentiality Agreement in the form attached as Exhibit A.
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5.

USE AND/OR DISCLOSURE OF ATTORNEY’S EYES ONLY
INFORMATION

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5.1

The Receiving Party and its counsel shall not, directly or indirectly, in

21 whole or in part, disclose any document, information or thing designated
22 “CONFIDENTIAL—ATTORNEY’S EYES ONLY” to any person, except those
23 persons described in Paragraphs 5.2 through 5.6:
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5.2

The Court and its personnel, any jury empanelled in this action and any

25 other person who may serve in a judicial or quasi-judicial function;
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STIPULATION AND PROTECTIVE ORDER
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5.3

A professional court reporter engaged to transcribe testimony in this

2 action;
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5.4

Counsel for the parties and their employees providing active assistance

4 with this litigation (including law clerks, legal assistants, technical assistants,
5 secretaries and clerks of such counsel);
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5.5

Expert witnesses and consultants engaged to assist counsel in the

7 defense or prosecution of this action, provided that such expert witnesses and
8 consultants first shall have signed a Confidentiality Agreement in the form attached
9 as Exhibit A; and
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5.6

During the course of a deposition, to the person whose deposition is

11 being taken, provided that each deponent to whom disclosure is made first shall have
12 signed a Confidentiality Agreement in the form attached as Exhibit A. Persons
13 shown documents or information designated as “CONFIDENTIAL—ATTORNEY’S
14 EYES ONLY” under this Paragraph shall not be allowed to retain copies thereof.
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5.7

The designation of information as “CONFIDENTIAL—ATTORNEY’S

16 EYES ONLY” shall not preclude counsel from relying upon such material in the
17 course of providing legal advice to the parties in this action; provided, however that
18 counsel shall not disclose the contents of any “CONFIDENTIAL—ATTORNEY’S
19 EYES ONLY” information in the course of providing legal advice.
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6.

USE OF CONFIDENTIAL INFORMATION AND ATTORNEY’S
EYES ONLY INFORMATION AT DEPOSITIONS

6.1

Upon the good faith assertion by counsel for the Designating Party that a

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question or line of questions at a deposition or hearing is likely to result in the
disclosure of Confidential Information or Attorney’s Eyes Only Information, any
person not entitled under the pertinent provisions of Sections 4 and 5 to access to
Confidential Information or Attorney’s Eyes Only Information shall leave the
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STIPULATION AND PROTECTIVE ORDER
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1 deposition or hearing until the question or line of questions is completed, unless
2 otherwise ordered by the Court. The Confidential Information or Attorney’s Eyes
3 Only Information disclosed at the deposition or hearing shall not, directly or
4 indirectly, in whole or in part, be used with, disclosed or made available to any
5 person, except those persons set forth, with respect to Confidential Information or
6 Attorney’s Eyes Only Information, in Sections 4 and 5.
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6.2

Information disclosed at the deposition of the Designating Party or its

8 present or former officers, directors, employees, agents or independent consultants
9 may be designated as Confidential Information or Attorney’s Eyes Only Information
10 either (a) on the record at the deposition, or (b) by serving a written notification on
11 the other parties and any involved deponent pursuant to the provisions of Paragraphs
12 2.2 and 2.3.
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7.

DESIGNATED
CONFIDENTIAL
INFORMATION
ATTORNEY’S EYES ONLY INFORMATION AND
PROCEEDINGS OR FILINGS

7.1

If the parties believe it is necessary to submit with any motion, or as

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evidence in any proceeding in this action, any documents containing Confidential
Information or Attorney’s Eyes Only Information, the parties shall comply with the
provisions of Rules 2.550 and 2.551 of the California Rules of Court. The parties
agree not to oppose any motion to file materials under seal, unless any material
sought to be filed under seal is the subject of a dispute between the parties under
Paragraph 2.3 of this Order, which has not been resolved at the time the motion to
seal is filed.
7.2

All documents (or other appropriate sealed container) containing

Confidential Information or Attorney’s Eyes Only Information filed with the Court in

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AND
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STIPULATION AND PROTECTIVE ORDER
CASE NO. 8:15-cv-01611-CJC-JCG

1 connection with any motion or proceeding shall be endorsed with the following
2 legend:
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“FILED UNDER SEAL”

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Contains information designated “CONFIDENTIAL[—

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ATTORNEY’S EYES ONLY]” that is subject to a pending motion to

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file the record under seal.”

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7.3

Confidential Information and Attorney’s Eyes Only Information shall be

10 filed in separate envelopes and marked accordingly.
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7.4

Except as filed with the Court in accordance with this Order and except

12 as otherwise may be required by law, all documents, information, and things
13 designated “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES
14 ONLY” shall be maintained separately and at all times in the custody of individuals
15 to whom access may be given under this stipulation who, as applicable, have each
16 executed a Confidentiality Agreement in the form of Exhibit A.
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8.

TERMINATION OF THIS ACTION

8.1

Within sixty (60) days after Termination of this action, the original and

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21 all copies of each document and thing produced in discovery and, other than attorney
22 work product, any notes, summaries, abstracts or portions of any such document or
23 thing, including archival copies of counsel and copies given to any expert or other
24 person pursuant to this Order, which contain Confidential Information or Attorney’s
25 Eyes Only Information shall (unless contrary to the Court’s rulings in this action) be
26 either delivered to counsel for the Designating Party or, at the option of the Receiving
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1 Party, shall be destroyed by the party on possession of such documents or things,
2 except that this deadline shall be extended if there exists any other related litigation
3 between the parties in any forum. If the Receiving Party elects to have documents or
4 things embodying Confidential Information or Attorney’s Eyes Only Information
5 destroyed, the party in possession of such documents or things shall, within sixty (60)
6 days of Termination, certify to the Designating Party under penalty of perjury that
7 such destruction has been completed.
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8.2

This Order and the obligations of all persons subject to it, shall survive

9 the Termination of this case. The Court shall retain jurisdiction to modify this Order,
10 and over all persons and parties bound by this Order for the purposes of its
11 enforcement.
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9.

MISCELLANEOUS

9.1

If any authority subpoenas or orders production of Confidential

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16 Information or Attorney’s Eyes Only Information that a Receiving Party has obtained
17 under the terms of this Order, such party shall promptly notify the Designating Party
18 of the pendency of the subpoena or order and, absent a court order, shall not produce
19 the information until the Designating Party has had reasonable time (at least 14 days)
20 to object or take other appropriate steps to protect the information.
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9.2

When any attorney of record in this action becomes aware of any

22 violation of this Order, or of facts constituting good cause to believe that a violation
23 of this Order may have occurred, such attorney shall promptly report to the Court and
24 to the Designating Party that there may have been a violation of this Order.
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9.3

Execution and entry of this Order shall not prevent a party to this action

26 from seeking upon application to this Court to modify this Order for good cause
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STIPULATION AND PROTECTIVE ORDER
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1 shown or from seeking such other relief upon good cause shown as may become
2 appropriate or necessary.
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4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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DATED: June 30, 2017

STRIS & MAHER LLP
/s/ Peter K. Stris
Peter K. Stris

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Attorneys for Plaintiffs
Dual Diagnosis Treatment Center, Inc., Satya
Health of California, Inc., and Vedanta
Laboratories, Inc.

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BEST, BEST & KRIEGER LLP

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/s/ Daniel S. Shimell
Daniel S. Shimell

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Attorneys for Defendants

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Filer’s Attestation: Pursuant to Local Rule 5-4.3.4(a)(2)(l), Daniel S. Shimell hereby
attests that concurrence in the filing of this document and its contents was obtained
from all signatories listed.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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Dated:

June 30, 2017

______________________________
Hon. Jay C. Gandhi
United States Magistrate Judge

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STIPULATION AND PROTECTIVE ORDER
CASE NO. 8:15-cv-01611-CJC-JCG

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

12 DUAL DIAGNOSIS TREATMENT
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CENTER, INC., et al.,

Plaintiffs,

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v.

Case No. 8:15-cv-01611-CJC-JCG
Judge: Hon. Cormac J. Carney
EXHIBIT A: CONFIDENTIALITY
AGREEMENT

CITY OF SAN CLEMENTE, et al.,
Defendants.

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EXHIBIT A

EXHIBIT A

1

2 I, ________________________________, declare:
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1.

I have read and understand the Protective Order to which this Exhibit A

4 is annexed and I understand that, as permitted by the Protective Order, access to
5 documents, information or things designated “CONFIDENTIAL” or
6 “CONFIDENTIAL—ATTORNEY’S EYES ONLY” may be provided to me and that
7 such access is pursuant to the terms, conditions, and restrictions of the Protective
8 Order. I agree to be bound by the terms of the Protective Order.
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2.

I shall not use or disclose to others, except in accordance with the

10 Protective Order, any document, information, or thing designated
11 “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY.” If I
12 fail to abide by the terms of this Confidentiality Agreement or the Protective Order, I
13 understand that I shall be subject to sanctions, including contempt of this Court.
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3.

I agree to submit to the jurisdiction of this Court for the limited purpose

15 of resolving disputes relating to this Protective Order and the documents, information
16 and things it governs.
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19 Dated: __________________

Signature: ____________________________

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55452.02110\29892809.1

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EXHIBIT A