Walsh, individually and as Successor-in-Interest to S.W., Deceased v. Tehachapi Unified School District et al

Filing 27

STIPULATION and ORDER to Protect Confidential Information signed by Magistrate Judge Jennifer L. Thurston on 1/23/2012. (Leon-Guerrero, A)

Michael Kellar (SBN 80251)
ROBINSON & KELLAR
2 3434 Truxtun Avenue, Suite 150
Bakersfield, CA 93301
3 Tel. [phone] / Fax [phone]
Email: [e-mail]
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5895.047

Attorneys for Defendants Tehachapi Unified School District,
Dr. Richard Swanson, Susan Ortega, and Paul Kaminski

Daniel P. Barer (SBN 150812)
Girard Fisher (SBN 54007)
7 POLLAK, VIDA & FISHER
11150 W. Olympic Boulevard, Suite 980
8 Los Angeles, CA 90064-1839
Tel. [phone] / Fax: [phone]
9 Email: [e-mail]
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Attorneys for Defendant Tehachapi Unified School District

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA (BAKERSFIELD)

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WENDY WALSH, individually and as )
Successor-in-Interest to S. W., Deceased, )
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Plaintiff
)
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v.
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TEHACHAPI UNIFIED SCHOOL
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DISTRICT; SUPERINTENDENT
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SWANSON; SUSAN ORTEGA; MR. )
KAMINSKY; MS. KIRBY; MS.
)
HAIGHT; MRS. KABONIC;
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MR. FEEHAN; and DOES 1 through
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100, Inclusive,
)
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Defendants.
)
)
)
_________________________________ )

CASE NO. 1:11-CV-01489-LJ0-JLT
[Assigned to U.S. District Judge
Lawrence J. O’Neill; U.S. Magistrate
Judge Jennifer L. Thurston]

STIPULATION AND ORDER
TO PROTECT CONFIDENTIAL
INFORMATION

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Subject to the approval of this Court, the parties hereby stipulate to the
following protective order:

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LAW OFFICES OF
POLLAK, VIDA
& FISHER

STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION

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1.

In connection with discovery proceedings in this action, the parties may

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designate any document, thing, material, testimony or other information derived

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therefrom, as “Confidential” under the terms of this Stipulated Protective Order

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(hereinafter “Order”) Confidential information is information which has not been

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made public and which concerns or relates to (1) students or former students of

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Tehachapi Unified School District (TUSD); and (2) TUSD employee personnel

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matters or the identity of employees or officers of TUSD.

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2.

By designating a document, thing, material, testimony or other

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information derived therefrom as “confidential,” under the terms of this order, the

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party making the designation is certifying to the court that there is a good faith basis

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both in law and in fact for the designation within the meaning of Federal Rule of

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Civil Procedure 26(g). Confidential documents shall be so designated by stamping

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copies of the document produced to a party with the legend “CONFIDENTIAL.”

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Stamping the legend “CONFIDENTIAL” on the cover of any multi-page document

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shall designate all pages of the document as confidential, unless otherwise indicated

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by the producing party.

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3.

Testimony taken at a deposition, conference, hearing or trial may be

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designated as confidential by making a statement to that effect on the record at the

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deposition or other proceeding. Arrangements shall be made with the court reporter

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taking and transcribing such proceeding to separately bind such portions of the

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transcript containing information designated as confidential, and to label such

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portions appropriately.

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4.

Material designated as confidential under this Order, the information

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contained therein, and any summaries, copies, abstracts, or other documents derived

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in whole or in part from material designated as confidential (hereinafter

LAW OFFICES OF
POLLAK, VIDA
& FISHER

-2STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION

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“Confidential Material”) shall be used only for the purpose of the prosecution,

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defense, or settlement of this action, and for no other purpose.

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5.

Confidential Material produced pursuant to this Order may be disclosed

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or made available only to the Court, to counsel for a party (including the paralegal,

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clerical, and secretarial staff employed by such counsel), and to the "qualified

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persons" designated below:

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(a)

a party, or an officer, director, or employee of a party deemed

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necessary by counsel to aid in the prosecution, defense, or

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settlement of this action;

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(b)

experts or consultants (together with their clerical staff) retained

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by such counsel to assist in the prosecution, defense, or

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settlement of this action;

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(c)

court reporter(s) employed in this action;

(d)

a witness at any deposition or other proceeding in this action;

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and

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(e)

any other person as to whom the parties in writing agree.

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Prior to receiving any Confidential Material, each “qualified person” shall be

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provided with a copy of this Order and shall execute a nondisclosure agreement in

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the form of Attachment A, a copy of which shall be provided forthwith to counsel

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for each other party and for the parties.

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LAW OFFICES OF
POLLAK, VIDA
& FISHER

-3STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION

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6.

Depositions shall be taken only in the presence of “qualified persons.”

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The parties may also seek, by stipulation or court order, a further

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designation of certain discovery material or testimony as “Attorney’s Eyes Only

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Material.” To obtain a court order designating material as Attorney’s Eyes Only

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Material, the party seeking the designation must show that (a) the material is

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confidential, and (b) specific harm may result from disclosing the material to

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persons other than those listed below in this paragraph. If that party makes this

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showing, the party opposing the designation shall have the burden of showing that

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the burden of the designation on the party’s ability to pursue or defend the case

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outweighs the harm of disclosing the material. If material is designated Attorney’s

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Eyes Only Material, it, and the information contained therein, shall be disclosed

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only to the Court, to counsel for the parties (including the paralegal, clerical, and

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secretarial staff employed by such counsel), and to the “qualified persons” listed in

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subparagraphs 5(b) through (e) above, but shall not be disclosed to a party, or to an

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officer, director or employee of a party, unless otherwise agreed or ordered. If

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disclosure of Attorney’s Eyes Only Material is made pursuant to this paragraph, all

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other provisions in this order with respect to confidentiality shall also apply.

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8.

Nothing herein shall impose any restrictions on the use or disclosure by

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a party of material obtained by such party independent of discovery in this action,

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whether or not such material is also obtained through discovery in this action, or

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from disclosing its own Confidential Material as it deems appropriate.

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9.

If Confidential Material, including any portion of a deposition

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transcript designated as Confidential or Attorney’s Eyes Only, is included in any

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papers to be filed in Court, such papers shall be labeled “Confidential – Subject to

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Court Order” and filed under seal until further order of this Court. The party

LAW OFFICES OF
POLLAK, VIDA
& FISHER

-4STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION

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seeking the filing of Confidential Material shall first obtain an order for the sealing

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the material pursuant to Local Rules 141 and 141.1(e).

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10.

In the event that any Confidential Material is used in any court

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proceeding in this action, it shall not lose its confidential status through such use,

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and the party using such shall take all reasonable steps to maintain its confidentiality

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during such use.

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11.

This Order shall be without prejudice to the right of the parties (i) to

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bring before the Court at any time the question of whether any particular document

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or information is confidential or whether its use should be restricted or (ii) to present

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a motion to the Court under FRCP 26(c) for a separate protective order as to any

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particular document or information, including restrictions differing from those as

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specified herein.

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11.1 Timing of Challenges.

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Any party or non-party may challenge a designation of confidentiality at any

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time. Unless a prompt challenge to a designating party’s confidentiality designation

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is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a party does not waive

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its right to challenge a confidentiality designation by electing not to mount a

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challenge promptly after the original designation is disclosed.

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11.2. Meet and Confer.

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The challenging party shall initiate the dispute resolution process by

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providing written notice of each designation it is challenging and describing the

LAW OFFICES OF
POLLAK, VIDA
& FISHER

-5STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION

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basis for each challenge. To avoid ambiguity as to whether a challenge has been

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made, the written notice must recite that the challenge to confidentiality is being

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made in accordance with this specific paragraph of this protective order. The parties

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shall attempt to resolve each challenge in good faith and must begin the process by

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conferring directly (in voice to voice dialogue; other forms of communication are

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not sufficient) within 14 days of the date of service of notice. In conferring, the

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challenging party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the designating party an opportunity to

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review the designated material, to reconsider the circumstances, and, if no change in

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designation is offered, to explain the basis for the chosen designation. A

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challenging party may proceed to the next stage of the challenge process only if it

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has engaged in this meet and confer process first or establishes that the designating

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party is unwilling to participate in the meet and confer process in a timely manner.

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11.3 Judicial Intervention.

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If the parties cannot resolve a challenge without court intervention, the

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designating party shall file and serve a motion to retain confidentiality within 21

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days of the initial notice of challenge or within 14 days of the parties agreeing that

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the meet and confer process will not resolve their dispute, whichever is earlier. Each

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such motion must be accompanied by a competent declaration affirming that the

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movant has complied with the meet and confer requirements imposed in the

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preceding paragraph. Failure by the designating party to make such a motion

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including the required declaration within 21 days (or 14 days, if applicable) shall

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automatically waive the confidentiality designation for each challenged designation.

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In addition, the challenging party may file a motion challenging a confidentiality

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designation at any time if there is good cause for doing so, including a challenge to

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the designation of a deposition transcript or any portions thereof. Any motion

LAW OFFICES OF
POLLAK, VIDA
& FISHER

-6STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION

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brought pursuant to this provision must be accompanied by a competent declaration

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affirming that the movant has complied with the meet and confer requirements

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imposed by the preceding paragraph. The burden of persuasion in any such

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challenge proceeding shall be on the designating party. Frivolous challenges, and

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those made for an improper purpose (e.g., to harass or impose unnecessary expenses

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and burdens on other parties) may expose the challenging party to sanctions. Unless

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the designating party has waived the confidentiality designation by failing to file a

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motion to retain confidentiality as described above, all parties shall continue to

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afford the material in question the level of protection to which it is entitled under the

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producing party’s designation until the court rules on the challenge.

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This Order is entered solely for the purpose of facilitating the exchange

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of documents and information between the parties to this action without involving

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the Court unnecessarily in the process. Nothing in this Order nor the production of

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any information or document under the terms of this Order nor any proceedings

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pursuant to this Order shall be deemed to have the effect of an admission or waiver

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by either party or of altering the confidentiality or nonconfidentiality of any such

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document or information or altering any existing obligation of any party or the

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absence thereof.

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13.

This Order shall survive the final termination of this action, to the

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extent that the information contained in Confidential Material is not or does not

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become known to the public, and the Court shall retain jurisdiction to resolve any

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dispute concerning the use of information disclosed hereunder.

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14.

If a party produces information in discovery without designating that

27 information as confidential, the party may subsequently make a claim that the
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LAW OFFICES OF
POLLAK, VIDA
& FISHER

-7STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION

1 notify any party that received the information of the claim and the basis for it. After
2 being notified, a party must promptly sequester, return, or destroy the specified
3 information and any copies the party has; must not use or disclose the information,
4 except in the manner set forth in paragraphs 1-13 above, until the claim is resolved;
5 must take reasonable steps to retrieve the information if the party disclosed it before
6 being notified; and may promptly present the information to the court under seal for
7 a determination of the claim pursuant to the procedures in Local Rule 141. The
8 producing party must preserve the information until the claim is resolved.
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Upon termination of this case, counsel for the parties shall assemble and

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return to each other all documents, material and deposition transcripts designated as

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confidential and all copies of same, or shall certify the destruction thereof.

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SO STIPULATED:

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RODRIGUEZ & ASSOCIATES

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By:__________/S/________________________
John A. Kawai
Attorneys for Plaintiff, Wendy Walsh

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ROBINSON & KELLAR

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By:__________/S/___________________________
Michael C. Kellar
Attorneys for Defendants Tehachapi
Unified School District, Dr. Richard Swanson,
Susan Ortega, and Paul Kaminski

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LAW OFFICES OF
POLLAK, VIDA
& FISHER

-8STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION

POLLAK, VIDA & FISHER

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By:__________/S/___________________________
Daniel P. Barer
Attorneys for Defendant Tehachapi
Unified School District

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ORDER

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IT IS SO ORDERED.
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Dated: January 23, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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LAW OFFICES OF
POLLAK, VIDA
& FISHER

-9STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION

NONDISCLOSURE AGREEMENT

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I, _______________________, do solemnly swear that I am fully familiar

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with the terms of the Stipulated Protective Order entered in Wendy Walsh v.

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Tehachapi Unified School District, United States District Court for the Central

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District of California, Civil Action No. 1:11-CV-01489-LJO-JLT, and hereby agree

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to comply with and be bound by the terms and conditions of said Order unless and

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until modified by further Order of this Court. I hereby consent to the jurisdiction of

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said Court for purposes of enforcing this Order.

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DATED:

__________________________________
xxx

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LAW OFFICES OF
POLLAK, VIDA
& FISHER

-10STIPULATION AND ORDER TO PROTECT CONFIDENTIAL INFORMATION