Guthrey v. California Department of Corrections and Rehabilitation et al

Filing 42

STIPULATED PROTECTIVE ORDER, signed by Magistrate Judge Barbara A. McAuliffe on 2/24/2012. (Gaumnitz, R)

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1 2 3 4 5 6 7 KAMALA D. HARRIS Attorney General of California FIEL D. TIGNO Supervising Deputy Attorney General MICHAEL D. GOWE Deputy Attorney General State Bar No. 226989 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 622-2201 Fax: (510) 622-2121 E-mail: Attorneys for Defendants 8 9 10 11 12 13 Shannon Seibert (State Bar No. 240317) Joe Bautista (State Bar No. 255708) SEIBERT & BAUTISTA 18711 Tiffeni Drive #17-129 Twain Harte, California 95383 Telephone: 209.586.2890 Facsimile: 888.874.8107 Attorneys for Plaintiff 14 IN THE UNITED STATES DISTRICT COURT 15 FOR THE EASTERN DISTRICT OF CALIFORNIA 16 FRESNO DIVISION 17 18 19 RAYMOND GUTHREY, 20 21 1:10-cv-02177-AWI-BAM Plaintiff, STIPULATED PROTECTIVE ORDER v. 22 23 24 25 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants. 26 27 28 1 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of 3 confidential or private information for which special protection from public disclosure and from 4 use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the 5 parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order 6 pursuant to Civil Local Rule 141.1. The parties acknowledge that this Order does not confer 7 blanket protections on all disclosures or responses to discovery and that the protection it affords 8 from public disclosure and use extends only to the limited information or items that are entitled to 9 confidential treatment under the applicable legal principles. The parties further acknowledge, as 10 set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file 11 confidential information under seal; Civil Local Rule 141 sets forth the procedures that must be 12 followed and the standards that will be applied when a party seeks permission from the court to 13 file material under seal. 14 2. 15 16 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 17 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 19 of Civil Procedure 26(c). 20 2.3 Counsel (without qualifier): Counsel of record (as well as their support staff). 21 2.4 Designating Party: a Party or Non-Party that designates information or items that 22 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 23 2.5 Disclosure or Discovery Material: all items or information, regardless of the 24 medium or manner in which it is generated, stored, or maintained (including, among other things, 25 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 26 responses to discovery in this matter. 27 //// 28 2 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 2 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 3 consultant in this action. 4 5 2.7 entity not named as a Party to this action. 6 7 2.8 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 8 9 Non-Party: any natural person, partnership, corporation, association, or other legal 2.9 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 10 2.10 Professional Vendors: persons or entities that provide litigation support services 11 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 12 organizing, storing, or retrieving data in any form or medium) and their employees and 13 subcontractors. 14 15 2.11 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 16 2.12 Receiving Party: a Party that receives Disclosure or Discovery Material from a 17 Producing Party. 18 3. SCOPE 19 The protections conferred by this Stipulation and Order cover not only Protected Material 20 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 21 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 22 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 23 However, the protections conferred by this Stipulation and Order do not cover the following 24 information: (a) any information that is in the public domain at the time of disclosure to a 25 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 26 a result of publication not involving a violation of this Order, including becoming part of the 27 public record through trial or otherwise; and (b) any information known to the Receiving Party 28 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 3 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 obtained the information lawfully and under no obligation of confidentiality to the Designating 2 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations imposed by 5 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 6 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 7 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 8 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 9 including the time limits for filing any motions or applications for extension of time pursuant to 10 applicable law. 11 5. 12 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 13 or Non-Party that designates information or items for protection under this Order must take care 14 to limit any such designation to specific material that qualifies under the appropriate standards. 15 The Designating Party must designate for protection only those parts of material, documents, 16 items, or oral or written communications that qualify – so that other portions of the material, 17 documents, items, or communications for which protection is not warranted are not swept 18 unjustifiably within the ambit of this Order. 19 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 20 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 21 unnecessarily encumber or retard the case development process or to impose unnecessary 22 expenses and burdens on other parties) expose the Designating Party to sanctions. 23 If it comes to a Designating Party’s attention that information or items that it designated 24 for protection do not qualify for protection, that Designating Party must promptly notify all other 25 Parties that it is withdrawing the mistaken designation. 26 27 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 28 4 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 2 designated before the material is disclosed or produced. 3 4 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but 5 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 6 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a 7 portion or portions of the material on a page qualifies for protection, the Producing Party also 8 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 9 margins). 10 A Party or Non-Party that makes original documents or materials available for inspection 11 need not designate them for protection until after the inspecting Party has indicated which 12 material it would like copied and produced. During the inspection and before the designation, all 13 of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the 14 inspecting Party has identified the documents it wants copied and produced, the Producing Party 15 must determine which documents, or portions thereof, qualify for protection under this Order. 16 Then, before producing the specified documents, the Producing Party must affix the 17 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or 18 portions of the material on a page qualifies for protection, the Producing Party also must clearly 19 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 20 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 21 Designating Party identify on the record, before the close of the deposition, hearing, or other 22 proceeding, all protected testimony. 23 (c) for information produced in some form other than documentary and for any other 24 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 25 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 26 portion or portions of the information or item warrant protection, the Producing Party, to the 27 extent practicable, shall identify the protected portion(s). 28 5 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 2 designate qualified information or items does not, standing alone, waive the Designating Party’s 3 right to secure protection under this Order for such material. Upon timely correction of a 4 designation, the Receiving Party must make reasonable efforts to assure that the material is 5 treated in accordance with the provisions of this Order. 6 6. 7 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 8 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 9 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 10 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 11 challenge a confidentiality designation by electing not to mount a challenge promptly after the 12 original designation is disclosed. 13 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 14 process by providing written notice of each designation it is challenging and describing the basis 15 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 16 notice must recite that the challenge to confidentiality is being made in accordance with this 17 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 18 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 19 forms of communication are not sufficient) within 14 days of the date of service of notice. In 20 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 21 designation was not proper and must give the Designating Party an opportunity to review the 22 designated material, to reconsider the circumstances, and, if no change in designation is offered, 23 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 24 stage of the challenge process only if it has engaged in this meet and confer process first or 25 establishes that the Designating Party is unwilling to participate in the meet and confer process in 26 a timely manner. 27 28 6 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 2 intervention, the Designating Party shall file and serve a motion to retain confidentiality within 21 3 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 4 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 5 accompanied by a competent declaration affirming that the movant has complied with the meet 6 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 7 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 8 shall automatically waive the confidentiality designation for each challenged designation. In 9 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 10 time if there is good cause for doing so, including a challenge to the designation of a deposition 11 transcript or any portions thereof. Any motion brought pursuant to this provision must be 12 accompanied by a competent declaration affirming that the movant has complied with the meet 13 and confer requirements imposed by the preceding paragraph. 14 The burden of persuasion in any such challenge proceeding shall be on the Designating 15 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 16 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 17 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 18 file a motion to retain confidentiality as described above, all parties shall continue to afford the 19 material in question the level of protection to which it is entitled under the Producing Party’s 20 designation until the court rules on the challenge. 21 7. 22 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 23 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 24 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 25 the categories of persons and under the conditions described in this Order. When the litigation has 26 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 27 DISPOSITION). 28 7 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 Protected Material must be stored and maintained by a Receiving Party at a location and 2 in a secure manner that ensures that access is limited to the persons authorized under this Order. 3 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 4 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 5 information or item designated “CONFIDENTIAL” only to: 6 (a) the Receiving Party’s Counsel of Record in this action, as well as employees of said 7 Counsel of Record to whom it is reasonably necessary to disclose the information for this 8 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 9 attached to the Parties’ Stipulation for Protective Order, Exhibit A (Doc. 41.); 10 (b) the officers, directors, and employees (including House Counsel) of the Receiving 11 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 12 “Acknowledgment and Agreement to Be Bound” (Doc. 41, Exhibit A); 13 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 14 reasonably necessary for this litigation and who have signed the “Acknowledgment and 15 Agreement to Be Bound” (Doc. 41, Exhibit A); 16 (d) the court and its personnel; 17 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 18 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 19 signed the “Acknowledgment and Agreement to Be Bound” (Doc. 41, Exhibit A); 20 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 21 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Doc. 41, 22 Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages 23 of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must 24 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 25 under this Stipulated Protective Order. 26 27 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or had personal knowledge of the information. 28 8 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 8. 2 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation that compels 4 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 5 must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy 6 7 of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the 8 9 other litigation that some or all of the material covered by the subpoena or order is subject to this 10 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 11 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 12 Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the 13 14 subpoena or court order shall not produce any information designated in this action as 15 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 16 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 17 shall bear the burden and expense of seeking protection in that court of its confidential material – 18 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 19 Party in this action to disobey a lawful directive from another court. 20 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 21 22 (a) The terms of this Order are applicable to information produced by a Non-Party in this 23 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 24 connection with this litigation is protected by the remedies and relief provided by this Order. 25 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 26 additional protections. 27 28 9 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 2 Party’s confidential information in its possession, and the Party is subject to an agreement with 3 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 4 (1) promptly notify in writing the Requesting Party and the Non-Party 5 that some or all of the information requested is subject to a confidentiality agreement with a Non- 6 Party; 7 (2) promptly provide the Non-Party with a copy of the Stipulated 8 Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 9 description of the information requested; and 10 11 (3) make the information requested available for inspection by the Non-Party. 12 (c) If the Non-Party fails to seek a protective order from this court within 14 days of 13 receiving the notice and accompanying information, the Receiving Party may produce the Non- 14 Party’s confidential information responsive to the discovery request. If the Non-Party timely 15 seeks a protective order, the Receiving Party shall not produce any information in its possession 16 or control that is subject to the confidentiality agreement with the Non-Party before a 17 determination by the court.1 Absent a court order to the contrary, the Non-Party shall bear the 18 burden and expense of seeking protection in this court of its Protected Material. 19 10. 20 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 21 Material to any person or in any circumstance not authorized under this Stipulated Protective 22 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 23 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 24 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 25 26 1 27 28 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 10 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 made of all the terms of this Order, and (d) request such person or persons to execute the 2 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 3 11. 4 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 5 When a Producing Party gives notice to Receiving Parties that certain inadvertently 6 produced material is subject to a claim of privilege or other protection, the obligations of the 7 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 8 provision is not intended to modify whatever procedure may be established in an e-discovery 9 order that provides for production without prior privilege review. Pursuant to Federal Rule of 10 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 11 communication or information covered by the attorney-client privilege or work product 12 protection, the parties may incorporate their agreement in the stipulated protective order 13 submitted to the court. 14 12. 12.1 15 16 MISCELLANEOUS Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 12.2 17 Right to Assert Other Objections. By stipulating to the entry of this Protective 18 Order no Party waives any right it otherwise would have to object to disclosing or producing any 19 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 20 Party waives any right to object on any ground to use in evidence of any of the material covered 21 by this Protective Order. 12.3 22 Filing Protected Material. Without written permission from the Designating Party 23 or a court order secured after appropriate notice to all interested persons, a Party may not file in 24 the public record in this action any Protected Material. A Party that seeks to file under seal any 25 Protected Material must comply with Civil Local Rule 141. 26 13. 27 28 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing Party or destroy such 11 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM) 1 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 2 compilations, summaries, and any other format reproducing or capturing any of the Protected 3 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 4 submit a written certification to the Producing Party (and, if not the same person or entity, to the 5 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 6 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 7 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 8 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 9 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 10 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 11 product, and consultant and expert work product, even if such materials contain Protected 12 Material. Any such archival copies that contain or constitute Protected Material remain subject to 13 this Protective Order as set forth in Section 4 (DURATION). 14 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 15 16 DATED: February 23, 2012 /s/ Shannon Seibert SEIBERT & BAUTISTA Shannon Seibert, Esq. Attorneys for Plaintiff Raymond Guthrey DATED: February 23, 2012 /s/ Michael Gowe California Department of Justice - OAG Michael Gowe, Deputy Attorney General Attorneys for Defendants 17 18 19 20 21 22 23 IT IS SO ORDERED. 24 Dated: 25 /s/ Barbara February 24, 2012 A. McAuliffe UNITED STATES MAGISTRATE JUDGE 26 DEAC_Signature-END: 10c20kb8554 27 28 12 STIPULATED PROTECTIVE ORDER (1:10-cv-02177-AWI-BAM)

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