E.S., et al. v. County of Tulare, et al.

Filing 62

Stipulated Confidentiality Agreement and PROTECTIVE ORDER re Release of Peace Officer Personnel Records, signed by Magistrate Judge Barbara A. McAuliffe on 3/23/2015. (Herman, H)

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Leonard C. Herr, #081896
Caren L. Curtiss, Certified Law Student
HERR PEDERSEN & BERGLUND LLP
100 Willow Plaza, Suite 300
Visalia, California 93291
Telephone: [phone]
Attorneys for Defendants CITY OF VISALIA and TIM HAENER

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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E.S., a minor, by and through her
Guardian ad Litem, VALINE
GONZALEZ, J.F., a minor, by and
through his Guardian ad Litem,
BRIDGET FLORES; in each case
individually and as successor in interest
to ARMANDO SANTIBANEZ, deceased;
and MARIA MORENO, individually,

CASE NO.: 1:13-cv-01697-LJO-BAM
STIPULATED CONFIDENTIALITY
AGREEMENT AND PROTECTIVE
ORDER RE RELEASE OF PEACE
OFFICER PERSONNEL RECORDS

Plaintiffs,
v.
CITY OF VISALIA, TIM HAENER and
DOES 2-10, inclusive.
Defendants.

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I.

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RECITALS

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WHEREAS, the parties stipulated to submit the personnel file of Defendant
Police Officer TIM HAENER to the Court for an in camera review;

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WHEREAS, following the in camera review, the Court has ordered

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Defendant CITY OF VISALIA to produce certain documents, which Defendants

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assert contain official information and information of a privileged, confidential,

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private, or sensitive nature;

Law Offices of
HERR, PEDERSEN &
BERGLUND LLP
100 Willow Plaza
Suite 300
Visalia, CA 93291
[phone]

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[PROPOSED] STIPULATED CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER RE RELEASE OF PEACE OFFICER PERSONNEL
RECORDS

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WHEREAS, in order to protect the privacy rights of Defendant TIM HAENER

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and the integrity of the official information to be produced, the parties do hereby

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stipulate to the terms and conditions of a Protective Order, as follows:

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II.

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STIPULATION

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IT IS HEREBY STIPULATED, BY AND BETWEEN THE PARTIES

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HERETO, THROUGH THEIR RESPECTIVE ATTORNEYS OF RECORD, AS

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FOLLOWS:

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Defendant CITY OF VISALIA will produce the information ordered to be

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produced from the personnel files of Defendant TIM HAENER, pursuant to the

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following terms, conditions and limitations:

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1.

As used herein, “Confidential Information” means all of the following

information:

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(a) Performance Evaluation for July 2010-July 2011

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(b) Performance Evaluation for July 2011-July 2012

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(c) Performance Evaluation for July 2012-June 2013

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(d) Performance Evaluation for July 2013-June 2014

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(e) Letter dated February 27, 2014 from the Office of the Tulare

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County District Attorney

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(f) Findings and Conclusions of the Deadly Force Review Board

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(g) Confidential Interoffice Memorandum dated September 3, 2013

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(h) Citizen complaint dated January 3, 2007 [sic]

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(i) Witness statement dated December 26, 2007

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(j) Two (2) letters dated September 16, 2008 to the complainants

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(k) Copies of returned envelopes addressed to the complainants

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(l) Letter dated February 1, 2008 from the Office of the Tulare

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Law Offices of
HERR, PEDERSEN &
BERGLUND LLP
100 Willow Plaza
Suite 300
Visalia, CA 93291
[phone]

County District Attorney
(m) Amended Misdemeanor Complaint
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[PROPOSED] STIPULATED CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER RE RELEASE OF PEACE OFFICER PERSONNEL
RECORDS

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(n) File Memorandum dated January 31, 2008 from the Office of the
Tulare County District Attorney
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In order for the items listed in Paragraph 1 to be treated by the

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parties and the Court as Confidential Information, such information must be

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designated as Confidential Information as follows:

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(a)

In connection with the production of these materials and

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documents by the CITY OF VISALIA, a party or non-party witness shall designate

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such materials as Confidential Information by conspicuously marking each page

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that contains, reflects, or discloses such information as Confidential.

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(b)

Information disclosed during depositions may be designated

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as Confidential Information by the deponent or a party at the time of the

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deposition.

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deponent or a party may designate any additional portion of the deposition as

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Confidential Information by informing the other parties in writing of the specific

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pages of the transcript that contain Confidential Information.

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Within (30) days after receipt of the deposition transcript, the

(c)

Any depositions referring to or using the disclosed documents

as exhibits will be sealed and marked “Confidential – Subject to Protective Order”.

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3.

Except as provided in Paragraphs 4 and 5, Confidential

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Information shall be disclosed, used, reviewed and/or discussed only by “qualified

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persons” as defined herein. For purposes of this Agreement “qualified persons”

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means:

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Law Offices of
HERR, PEDERSEN &
BERGLUND LLP
100 Willow Plaza
Suite 300
Visalia, CA 93291
[phone]

(a)

Legal counsel for each of the parties to this action, including

secretarial, clerical or support personnel of such legal counsel.
(b)

The Plaintiffs and each of the Defendants to the extent

necessary for preparation of their respective cases for trial.
(c)

Experts, advisors or consultants retained by counsel of record

as necessary for trial preparation.
(d)

Stenographic reporters and videographers.
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[PROPOSED] STIPULATED CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER RE RELEASE OF PEACE OFFICER PERSONNEL
RECORDS

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4.

Prior to the disclosure of any Confidential Information to any

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qualified person described in paragraph 3(a), (b), (c) or (d), attorneys who seek to

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use or disclose such Confidential Information shall first provide a copy of this

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Stipulated Confidentiality Agreement and Protective Order and have the individual

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to whom counsel intends to disclose said Confidential Information sign the

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Certification Re Confidential Discovery Information set forth in Exhibit “A”

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acknowledging his/her agreement to be bound by its terms.

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If Plaintiffs’ counsel wishes to disclose Confidential Information to a person

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other than one designated in Paragraph 3, Plaintiffs’ counsel shall serve a written

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request to Defendant CITY OF VISALIA’s counsel stating the name of the proposed

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person, the reasons for disclosure, the information to be disclosed, and that the

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proposed person has read this Protective Order and has signed a copy of the

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Certification Re Confidential Discovery Information attached hereto as Exhibit “A”

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acknowledging his/her agreement to be bound by its terms. If Defendant CITY OF

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VISALIA’S counsel does not agree in writing to the disclosure within ten (10) days

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of being served with the request, then Plaintiffs’ counsel may apply to this Court

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for relief from the provisions of this Protective Order.

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5.

The court reporter and videographer, if any, who record all or part of

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the depositions in this matter of any CITY OF VISALIA defendant, or any other

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current or former employee of the Visalia Police Department, shall be subject to

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this Protective Order. In preparing the original deposition, videotape, audiotape,

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or portions thereof, any copies thereof, or portions of copies thereof, the

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Confidential Information and all testimony involving information derived from the

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Confidential Information, shall be segregated from the rest of the deposition. No

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copies of such segregated Confidential Information portions of the materials

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described above shall be provided to any persons other than those identified in

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paragraph 3.

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Law Offices of
HERR, PEDERSEN &
BERGLUND LLP
100 Willow Plaza
Suite 300
Visalia, CA 93291
[phone]

6.

If any Confidential Information or testimony derived therefore, occurs
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[PROPOSED] STIPULATED CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER RE RELEASE OF PEACE OFFICER PERSONNEL
RECORDS

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at a deposition, those attending the deposition shall be bound by this Protective

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Order and, therefore, shall not disclose to any person or entity, in any manner,

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including orally, any statements made by CITY OF VISALIA defendants, or any

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other current or former employee of the Visalia Police Department during the

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confidential sections of said deposition.

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7.

Confidential Information shall be disclosed only to persons

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permitted access to it pursuant to Paragraphs 3 and 4 above.

Confidential

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Information shall be used only for purposes directly related to this litigation and

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shall not be used for any other purposes, including personal, business or

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commercial purposes.

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Information” given to a receiving party or its experts in discovery will be retained

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exclusively in the files of counsel or experts for the receiving party, with no

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copies of such materials being distributed to the receiving party or its employees

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for retention in such party’s own business records or files.

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8.

All copies of materials designated as “Confidential

There will be no public disclosure of any of the disclosed documents

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or the information contained therein absent a court order or written consent by

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counsel for Defendant CITY OF VISALIA. Any qualified person who has received

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Confidential Information and has been served with a lawful subpoena or other

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compulsory process, shall immediately give notice thereof to counsel for Defendant

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CITY OF VISALIA by telephone, electronic transmission or facsimile transmission,

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and shall furnish said counsel with a copy of the subpoena or other compulsory

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process so as to afford counsel for the CITY OF VISALIA a reasonable opportunity

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to seek a protective order. After application for a protective order is made, no

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qualified person shall produce any information prior to receiving a court order or

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the written consent from counsel for the CITY OF VISALIA.

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If any party wishes to file, lodge and/or make use of any Confidential

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Information in connection with any court proceeding herein, that party shall

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comply with United States District Court, Eastern District of California. Local Rule

Law Offices of
HERR, PEDERSEN &
BERGLUND LLP
100 Willow Plaza
Suite 300
Visalia, CA 93291
[phone]

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[PROPOSED] STIPULATED CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER RE RELEASE OF PEACE OFFICER PERSONNEL
RECORDS

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141 and make the proper motion or application for an order sealing the

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Confidential Information. Confidential documents lodged for a hearing shall be

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returned to the party offering the same immediately following the hearing.

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Confidential Information is filed with the Court, it shall be filed with the Clerk of

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the Court in a sealed envelope marked with the caption and case number of the

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case, a schedule of contents, and the following notation:

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Contains Confidential Information:
“To Be Opened Only By Or As Directed By The Court”

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If

No sealed or confidential record maintained by the Court Clerk shall be disclosed
except upon written order of the Court.
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Prior to use of the disclosed documents or sealed deposition

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transcripts in court, the party intending to introduce such documents must give

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24-hours’ notice to opposing counsel. Opposing counsel will have an opportunity

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to raise objections to their use in camera, to obtain a ruling on their admissibility

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prior to their introduction in open court.

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Disclosure to each other of any documents, business records or

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other confidential information of any kind by any qualified person or party to this

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litigation, at any time hereafter and through conclusion of this litigation, shall not

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constitute public disclosure of any such information so as to negate, waive or

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abandon any party’s claim that such documents, business records or information

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constitute confidential information.

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12.

This Protective Order does not constitute any ruling on any potential

objection to the admissibility of any document.
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This Protective Order only applies to the documents identified by the

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Court’s Order dated March 11, 2015 [Doc. 60] and is without prejudice to the

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Plaintiffs’ to request the Court’s reconsideration as to their confidentiality.

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14.

This Protective Order shall survive the termination of this action.

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15.

After the conclusion of this litigation, Plaintiffs’ counsel and all

Law Offices of
HERR, PEDERSEN &
BERGLUND LLP
100 Willow Plaza
Suite 300
Visalia, CA 93291
[phone]

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[PROPOSED] STIPULATED CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER RE RELEASE OF PEACE OFFICER PERSONNEL
RECORDS

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other persons to whom Confidential Information was disclosed, shall not disclose

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or communicate to, or discuss with, any other person any portion of such

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Confidential Information.

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conclusion of this litigation, all Confidential Information under the control or

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possession of all qualified persons shall be returned to counsel for the CITY OF

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VISALIA, or destroyed, with confirmation of destruction provided to counsel for

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the CITY OF VISALIA, in lieu of return.

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Within sixty (60) days after the resolution or

Any violation of this Protective Order may be punished by any and

all appropriate measures including, without limitation, contempt proceedings
and/or monetary sanctions.
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Any procedures specified above in this Protective Order are in

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addition to, and not in lieu of, compliance with this Court’s local rules regarding

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discovery motions.

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DATED: March 20. 2015

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LAW OFFICES OF DALE K. GALIPO
LAW OFFICES OF NIKOLAUS W. REED
QUIRK LAW GROUP
By:

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DATED: March 20, 2015

/s/ Dale K. Galipo
DALE K. GALIPO
NIKOLAUS W. REED
LOGAN QUIRK
Attorneys for Plaintiffs

HERR PEDERSEN & BERGLUND LLP

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By:

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ORDER

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/s/ Leonard C. Herr
LEONARD C. HERR
Attorney for Defendants

IT IS SO ORDERED.
Dated:

/s/ Barbara

March 23, 2015

A. McAuliffe

UNITED STATES MAGISTRATE JUDGE

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Law Offices of
HERR, PEDERSEN &
BERGLUND LLP
100 Willow Plaza
Suite 300
Visalia, CA 93291
[phone]

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[PROPOSED] STIPULATED CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER RE RELEASE OF PEACE OFFICER PERSONNEL
RECORDS

EXHIBIT A

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CERTIFICATION RE CONFIDENTIAL DISCOVERY INFORMATION

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I hereby acknowledge that I, _________________________________________ am

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about to receive Confidential Information supplied in connection with the matter

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of E.S., et al., v. City of Visalia, et al., United States District Court Case No: 1:13-

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cv-01697-LJO-BAM.

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I certify that I understand that the Confidential Information provided to me

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is subject to the terms and restrictions of the Stipulated Confidentiality Agreement

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and Protective Order Re Release of Peace Officer Personnel Records filed in this

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action. I have been given a copy of the Stipulated Confidentiality Agreement and

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Protective Order Re Release of Peace Officer Personnel Records, I have read it, and

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I agree to be bound by its terms.

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I understand that Confidential Information, as defined in the Stipulated

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Confidentiality Agreement and Protective Order Re Release Of Peace Officer

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Personnel Records, including any notes or other records that may be made

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regarding any such materials, shall not be disclosed to anyone except as expressly

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permitted by the Stipulated Confidentiality Agreement and Protective Order Re

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Release of Peace Officer Personnel Records. I will not copy or use, except solely for

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the purposes of this action, any Confidential Information obtained pursuant to

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this Protective Order, except as provided therein or otherwise ordered by the Court

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in this proceeding.

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I further understand that I am to retain all copies of all Confidential

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Information provided to me in this action in a secure manner, and that all copies

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of such materials are to remain in my personal custody until termination of my

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participation in this action, whereupon the copies of such materials will be

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returned to counsel who provided me with such materials.

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Law Offices of
HERR, PEDERSEN &
BERGLUND LLP
100 Willow Plaza
Suite 300
Visalia, CA 93291
[phone]

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[PROPOSED] STIPULATED CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER RE RELEASE OF PEACE OFFICER PERSONNEL
RECORDS

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I declare under penalty of perjury, under the laws of the State of California,
that the foregoing is true and correct.
Executed this _____ day of _________________, 2015, at __________________.

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BY: _________________________________
Signature
_________________________________
Title
_________________________________
Address
_________________________________
City, State, Zip
_________________________________
Telephone Number

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Law Offices of
HERR, PEDERSEN &
BERGLUND LLP
100 Willow Plaza
Suite 300
Visalia, CA 93291
[phone]

-9-

[PROPOSED] STIPULATED CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER RE RELEASE OF PEACE OFFICER PERSONNEL
RECORDS