Swan v. San Joaquin Valley College, Inc. et al

Filing 22

Stipulation for Non-Trial PROTECTIVE ORDER and ORDER Thereon signed by Magistrate Judge Gary S. Austin on 2/24/2014. (Martinez, A)

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GREGORY S. GLAZER (SBN 172197)
[e-mail]
MONTE GRIX (SBN 241050)
[e-mail]
HIRSCHFELD KRAEMER LLP
233 Wilshire Boulevard, Suite 600
Santa Monica, CA 90401
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
SAN JOAQUIN VALLEY COLLEGE,
INC., a California Corporation, MELISSA
GRIMSLEY, an individual, and KERRIE
LILES, an individual

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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ATTO RNEY S AT LAW

H IRSCHFELD K RAEMER LLP

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DANIEL SWAN,
Plaintiff,

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vs.

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SAN JOAQUIN VALLEY
COLLEGE, INC., a California
corporation, MELISSA GRIMSLEY,
an individual, KERRIE LILES, an
individual, and DOES 1 through 20,
inclusive,

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Case No. 13-cv-01073 LJO (GSAx)
STIPULATION FOR NON-TRIAL
PROTECTIVE ORDER AND
ORDER THEREON
Complaint Filed:

June 3, 2013

Trial Date:

January 13, 2015

Defendants.

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Pursuant to Rule 26 of the Federal Rules of Civil Procedure and Local Rule

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141.1, the parties to this action (Plaintiff, Daniel Swan; Defendant, San Joaquin

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Valley College, Inc.; Defendant, Melissa Grimsley; and Defendant, Kerrie Liles,

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together the “Parties” and individually the “Party) stipulate as follows:

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STIPULATION AND PROPOSED PROTECTIVE ORDER

STIPULATION

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1.

This protective order (“Order”) shall be applicable throughout the

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pendency of this action and after final resolution of this litigation. Certain of the

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Parties may claim that certain documents and/or other information or testimony

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constitute or contain confidential, proprietary or trade secret information, private

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third-Party/non-Party information, and/or private records or information relating to

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San Joaquin Valley College, Inc.’s (“SJVC”) current and/or former employees, and

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records relating to students or former students of Defendant, San Joaquin Valley

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College that may fall within the protections of the federal Family Education Rights
“Confidential Information.” Documents containing or constituting such

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and Privacy Act (“FERPA”). Such records are referred to herein collectively as

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H IRSCHFELD K RAEMER LLP

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Confidential Information may be produced, disclosed, demanded, or otherwise

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provided, through discovery in this action. Pursuant to the terms of this Order,

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such documents may be designated “Confidential” or “Confidential – Attorneys’

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Eyes Only” subject to the provisions set forth herein.

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2.

No documents, discovery, or deposition testimony specifically

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designated as “Confidential – Attorneys’ Eyes Only” shall be disclosed to or

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discussed with any person except: (a) counsel for each Party; (b) experts, agents or

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consultants of such Party who are not otherwise employees of the Party, but only to

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the extent disclosure is deemed reasonably necessary for the consultant’s, expert’s

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or agent’s work, and only for as long as is necessary for the performance of his/her

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expert or consulting services, and such expert or consultant may use such

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information only for the purpose of providing assistance to counsel on this

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litigation; (c) pursuant to legal process; (d) the Court, subject to the terms and

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provisions of this Agreement; (e) employees and former employees of the

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designating Party, if reasonably necessary for the purposes of the litigation, persons

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who have prepared or assisted in the preparation of such documents, or to whom

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the documents or copies thereof were addressed or delivered, but only to the extent
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that such disclosure is reasonably necessary for the conduct of this litigation, and

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provided that such persons may not retain any “Confidential – Attorneys’ Eyes

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Only” documents and/or information obtained as a result of this litigation; (f) court

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reporters or other personnel employed to record deposition testimony; and (g) any

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witness testifying at a hearing or deposition in connection with this litigation. All

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persons, experts, consultants and any other person to whom such confidential

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information will be disclosed pursuant to this provision, shall agree to be bound by

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the terms of this Order, and shall execute the Acknowledgment and Agreement

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attached as Exhibit A, or, alternatively, shall state his or her agreement to the be

oath shall be transcribed by a certified court reporter.

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bound by the terms of the Acknowledgement and Agreement under oath, and such

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3.

When used in this Order, the word “document(s)” means all written,

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recorded, electronic or graphic matters created and whatever the medium on which

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it was produced or reproduced, including but not limited to, documents produced

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by agreement, and may also include deposition transcripts and exhibits and

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electronic data, files and records.

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4.

“Confidential” or “Confidential – Attorneys’ Eyes Only” documents

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shall be designated by marking each page of the document with the legend

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“Confidential” or “Confidential – Attorneys’ Eyes Only.” Documents produced by

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a non-designating Party, may be marked by another Party as “Confidential” or

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“Confidential-Attorneys’ Eyes Only” by providing written notice to all other

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counsel of record in this action specifically identifying by Bates Number, Bates

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Number ranges, or other similarly specific description of the documents being

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designated. Such designation shall be made within 30 days of receipt of the

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document(s).

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5.

It shall be the duty of the designating Party to inform all other Parties

as to which materials that are not in documentary form are to be treated as

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“Confidential” or as “Confidential – Attorneys’ Eyes Only” by designating the

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information with reasonable particularity.

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6.

Items or information produced or generated by a non-Party shall be

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treated as “Confidential” for a period of fifteen (15) days after their production or

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disclosure. If, at the conclusion of fifteen (15) days, no Party has designated the

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items or information as “Confidential” or “Confidential – Attorneys’ Eyes Only”

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the documents or information shall not be protected. Nothing in this provision shall

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waive the right to re-designate pursuant to Paragraph 13 below.

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7.

The Parties agree that no documents produced by a Party during the

Attorneys’ Eyes Only” shall be used by another Party or her, his or its counsel for

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course of these proceedings designated as “Confidential” or “Confidential –

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any purpose other than the litigation of this action.

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8.

The Parties may, based upon separate written agreement of all counsel

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to this action, provide that certain confidential information be discussed with or

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shown to specified individuals other than the persons identified in The parties shall

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follow and abide by applicable law, including Local Rule 141.1(e), with respect to

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filing documents under seal. Documents that are the subject of a protective order

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may be filed under seal only if a sealing order is first obtained in compliance with

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L.R. 141.

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9.

A Party shall not be obligated to challenge the propriety of a

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designation under this Order at the time made, and a failure to do so shall not

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preclude a subsequent challenge thereto. As set forth fully in Paragraph 21, below,

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the Party to whom documents have been produced reserves the right to challenge

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the designation of any documents as “Confidential” or “Confidential – Attorneys’

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Eyes Only.” After receiving notice of such challenge and meeting and conferring

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as set forth more fully in Paragraph 21, below, if no informal resolution is obtained

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the Party designating such challenged documents as confidential may move for an

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order from the court that the confidentiality designation be retained. The
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document(s) or testimony will remain confidential until the Court rules on the

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matter.

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10.

Information disclosed during depositions may be designated as

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“Confidential” or “Confidential – Attorneys’ Eyes Only” either on the record at

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deposition or within thirty (30) days of receipt of the transcript by any Party. Prior

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to the expiration of the 30-day period, all information disclosed during a deposition

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shall constitute “Confidential” information unless otherwise agreed by the Parties,

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ordered by the Court, or so designated at the deposition, except that within 15 days

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of the filing deadline for any Motion for Summary Judgment or Opposition papers
Any document attached to any deposition previously marked as “Confidential” or

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thereto, the 30-day presumptive confidentiality period shall be reduced to 7 days.

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“Confidential – Attorneys’ Eyes Only” shall remain so designated whether or not

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so designated at deposition. Similarly all testimony related to a document so

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marked shall also be treated as “Confidential” or “Confidential – Attorneys’ Eyes

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Only” whether or not so designated at deposition.

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11.

If a non-designating Party wishes to file Confidential Documents, and

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such Party does not challenge the Confidential designation, then that Party shall

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follow and abide by applicable law, including Local Rule 141.1(e), with respect to

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filing documents under seal. Documents that are the subject of a protective order

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may be filed under seal only if a sealing order is first obtained in compliance with

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L.R. 141.

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12.

If, on the other hand, a non-designating Party wishes to file

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Confidential Documents with the Court, and that Party does challenge the

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Confidential designation, then that Party must first provide notice of such

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challenge, and allow the designating Party to file an appropriate motion to retain

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such Confidential designation, as set forth in Paragraphs 9 and 21. If the Court

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orders that such documents retain their Confidential designation, then the Party

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must proceed as set forth in Paragraph 11, above. If the Court denies such a
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motion, and does not order that such Confidential designation be retained, then on

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or after the date of entry of such order, the non-designating Party may proceed to

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file such documents (without engaging in any of the foregoing “under seal”

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provisions).

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13.

Production of any document or information without a designation as

as “Confidential” or “Confidential – Attorneys’ Eyes Only” at a later date. For the

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purposes of this Order, any document or information that is subsequently

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designated shall be “Re-designated Material.” Any Party may make this

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designation by sending written notice of the designation to counsel for the Party to

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nature or stop the designating Party from re-designating a document or information

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provided herein will not be deemed to waive a later claim as to its confidential

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whom or from whom such documents or testimony was produced. Any counsel

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receiving this notice shall treat all such documents or testimony in accordance with

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the notice by the designating Party. Disclosure of such a document or information

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by any Party prior to such later re-designation shall not be deemed a violation of the

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provisions of this Order; provided, however, that the Party that disclosed the Re-

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designated Material shall promptly endeavor to procure all copies of such

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previously disclosed Re-designated Material from any persons known to have

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possession of any such previously disclosed Re-designated Material who are not

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entitled to receipt under the new designation under Paragraph 2 above. Any

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reasonable expenses incurred by the non-designating Party shall be borne by the

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designating Party.

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14.

Nothing in this Order shall be construed as a waiver of any Party’s

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right to object on any grounds whatsoever to any requests for discovery or as an

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agreement by the Parties to produce any documents or to supply any information.

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Additionally, none of the provisions of this Order are intended to abrogate the right

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of either Party to file, or preclude the Court’s jurisdiction to rule upon, any Motions

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to Compel production of records, regardless of designation.
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15.

All Confidential Documents shall be returned or destroyed upon

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request to the respective producing Parties at the conclusion of the litigation,

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regardless of the outcome. Counsel is permitted to retain a copy of the records

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solely for their files.

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16.

The termination of this action shall not relieve any person to whom

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Confidential Information has been disclosed from the terms of this Order unless the

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Court orders otherwise.

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17.

All Parties, their counsel and other agents, and all those acting in

concert with them, are enjoined from the use of said “Confidential” or

permitted by this Order, as otherwise agreed by the Parties in writing, or as ordered

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“Confidential – Attorneys’ Eyes Only” information in any manner not expressly

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by the Court.

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18.

This Order is made for the express purpose of facilitating the litigation

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of this matter. Should the litigation conclude without resolving the case in full,

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nothing in this Order shall be deemed a waiver of the Parties’ right to contest the

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confidential status of the documents. Nothing in this Order shall be deemed to

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preclude the Parties from seeking and obtaining, on an appropriate showing,

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additional protection with respect to the confidentiality of documents, testimony,

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court papers or other matters.

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19.

By signing this Order, the Parties do not acknowledge the validity of

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either Party’s claims of protection from disclosure for the Confidential Documents

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and Confidential Information. The Parties reserve the right to challenge such

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claims. The Parties agree, however, to be bound by the terms of this Order unless

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and until one of the Parties seeks and obtains from the Court a modification of the

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terms of this Order as provided below.

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20.

Any disclosure of information designated “Confidential” or

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“Confidential – Attorneys’ Eyes Only” as defined herein, other than to the specific

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Parties, for the specific purposes and under the specific procedures described in this
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Order shall be considered an “unauthorized disclosure” and shall be considered a

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breach of this Order entitling the aggrieved Party to all appropriate relief within the

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Court’s discretion. However, such unauthorized disclosure shall not constitute a

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waiver of the confidential nature of the information or document(s) in question.

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Treatment of this information or document(s) as “Confidential” or “Confidential –

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Attorneys’ Eyes Only” shall continue until further order of the Court as described in

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Paragraph 16.

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21.

Any Party may object to the designation of certain

information/documents as Confidential Information or Confidential Documents by

within thirty days of the production date. Such notice shall identify with reasonable

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giving written notice to the Party making the designation and to all other Parties

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specificity the Confidential Information or Confidential Documents to which the

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objection is directed and the basis for the objection. The Parties shall attempt to

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resolve any such dispute by meeting and conferring in good faith. In the event the

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dispute is not resolved within seven days from the date that the objecting Party first

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notifies the Party that made such designation, the designating Party may move the

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Court for an Order that the disputed, previously-designated Confidential

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Information or Confidential Documents shall remain designated as Confidential

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Information or Confidential Documents.

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22.

If either Party desires to modify the terms of this Order or otherwise

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has any dispute relating to the protections afforded under this Order, that Party shall

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proceed to meet and confer, and, if necessary, move the Court in accordance with

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the terms set forth in Paragraph 21, above.

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23.

The Parties intend for this Order to be binding and enforceable against

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them beginning at the time it is executed by their counsel even though it may not

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yet be ordered by the Court.

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24.

Pursuant to Local Rule 141.1(b)(1), this Order is a Non-Trial

Protective Order, and is without prejudice to the ability of either party to seek a
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Protective Order for Trial pursuant to Local Rule 141.1(b)(2).
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The Court may modify the protective order in the interests of justice or

for public policy reasons.
IT IS SO STIPULATED.

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Dated: February 19, 2014

HIRSCHFELD KRAEMER LLP

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By:

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Gregory S. Glazer
Monte K. Grix
Attorneys for Defendants, SAN JOAQUIN
VALLEY COLLEGE, KERRIE LILES and
MELISSA GRIMSLEY

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H IRSCHFELD K RAEMER LLP

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Dated: February 19, 2014

BRYANT WHITTEN, LLP

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By:

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Amanda B. Whitten
Attorneys for Plaintiff, DANIEL SWAN

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ORDER

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The Court hereby adopts the parties’ stipulated protective order set forth

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above and filed as Doc. 21 (signed copy).

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IT IS SO ORDERED.
Dated:

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February 24, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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