Estate of Stephen E. Crawley et al v. Kings County et al
Filing
36
PROTECTIVE ORDER signed by Magistrate Judge Stanley A. Boone on 12/29/2014. (Hernandez, M)
1
2
3
James J. Arendt, Esq.
James@walaw-fresno.com
Michelle E. Sassano, Esq.
Bar No. 232368
Michelle@walaw-fresno.com
WEAKLEY & ARENDT, LLP
1630 EAST SHAW AVE., SUITE 176
FRESNO, CALIFORNIA 93710
TELEPHONE: (559) 221-5256
FACSIMILE: (559) 221-5262
4
5
6
7
Bar No. 142937
Attorneys for Defendants, Kings County, Kings County Sheriff’s Department,
Shawn McRae and Marius Barsteceanu
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
12
13
THE ESTATE OF STEPHEN E. CRAWLEY,
NORMA CRAWLEY, individually and as
successor in interest to THE ESTATE OF
STEPHEN E. CRAWLEY, and JOHNNY
CRAWLEY, individually,
14
Plaintiffs,
15
vs.
16
17
18
19
KINGS COUNTY; KINGS COUNTY
SHERIFF’S DEPARTMENT; SHAWN
McRAE, individually, MARIUS
BARSTECEANU, individually, and DOES 150, inclusive,
20
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CASE NO. 1:13-cv-02042 LJO SAB
STIPULATION FOR
PROTECTIVE ORDER AND
ORDER THEREON
21
22
STIPULATED PROTECTIVE ORDER1
23
24
1.
Disclosure and discovery activity in this action are likely to involve
25
26
PURPOSES AND LIMITATIONS
production of confidential, proprietary, or private information for which special
27
1
28
This document is based on the model protective order for standard litigation promulgated by the
Northern District of California. It has been modified only to omit or replace references to that
district and its local rules.
1
protection from public disclosure and from use for any purpose other than
2
prosecuting this litigation may be warranted. Accordingly, the parties hereby
3
stipulate to and petition the court to enter the following Stipulated Protective Order.
4
The parties acknowledge that this Order does not confer blanket protections on all
5
disclosures or responses to discovery and that the protection it affords from public
6
disclosure and use extends only to the limited information or items that are entitled
7
8
to confidential treatment under the applicable legal principles. The parties further
acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective
9
10
11
Order does not entitle them to file confidential information under seal. Local Rule
141 sets forth the procedures that must be followed and the standards that will be
12
applied when a party seeks permission from the court to file material under seal.
13
2.
14
15
DEFINITIONS
2.1
of information or items under this Order.
16
17
Challenging Party: a Party or Non-Party that challenges the designation
2.2
“CONFIDENTIAL” Information or Items: information (regardless of
18
how it is generated, stored or maintained) or tangible things that qualify for protection
19
under Federal Rule of Civil Procedure 26(c).
20
21
22
23
2.3
Counsel (without qualifier):
Outside Counsel of Record and House
Counsel (as well as their support staff).
2.4
Designating Party: a Party or Non-Party that designates information or
items that it produces in disclosures or in responses to discovery as:
24
25
CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE ORDER
26
Estate of Stephen E. Crawley, et al. v. County of Kings, et al.
27
2.5
28
Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which it is generated, stored, or maintained (including,
2
1
2
3
4
5
among other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this matter.
2.6
Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to serve as an
expert witness or as a consultant in this action.
6
7
2.7
House Counsel: attorneys who are employees of a party to this action.
8
House Counsel does not include Outside Counsel of Record or any other outside
9
counsel.
10
11
12
2.8
Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
2.9
Outside Counsel of Record: attorneys who are not employees of a party
13
to this action but are retained to represent or advise a party to this action and have
14
appeared in this action on behalf of that party or are affiliated with a law firm which
15
has appeared on behalf of that party.
16
2.10 Party: any party to this action, including all of its officers, directors,
17
employees, consultants, retained experts, and Outside Counsel of Record (and their
18
support staffs).
19
20
2.11 Producing Party:
a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
21
2.12 Professional Vendors: persons or entities that provide litigation support
22
services (e.g., photocopying, videotaping, translating, preparing exhibits or
23
demonstrations, and organizing, storing, or retrieving data in any form or medium)
24
and their employees and subcontractors.
25
2.13 Protected Material:
26
designated as “Confidential Material.”
27
28
any Disclosure or Discovery Material that is
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
3
1
3.
SCOPE
2
The protections conferred by this Stipulation and Order cover not only
3
Protected Material (as defined above), but also (1) any information copied or extracted
4
from Protected Material; (2) all copies, excerpts, summaries, or compilations of
5
Protected Material; and (3) any testimony, conversations, or presentations by Parties
6
or their Counsel that might reveal Protected Material. However, the protections
7
conferred by this Stipulation and Order do not cover the following information: (a)
8
any information that is in the public domain at the time of disclosure to a Receiving
9
Party or becomes part of the public domain after its disclosure to a Receiving Party as
10
a result of publication not involving a violation of this Order, including becoming part
11
of the public record through trial or otherwise; and (b) any information known to the
12
Receiving Party prior to the disclosure or obtained by the Receiving Party after the
13
disclosure from a source who obtained the information lawfully and under no
14
obligation of confidentiality to the Designating Party. Any use of Protected Material at
15
trial shall be governed by a separate agreement or order.
16
4.
DURATION
17
Even after final disposition of this litigation, the confidentiality obligations
18
imposed by this Order shall remain in effect until a Designating Party agrees
19
otherwise in writing or a court order otherwise directs. Final disposition shall be
20
deemed to be the later of (1) dismissal of all claims and defenses in this action, with or
21
without prejudice; and (2) final judgment herein after the completion and exhaustion
22
of all appeals, rehearings, remands, trials, or reviews of this action, including the time
23
limits for filing any motions or applications for extension of time pursuant to
24
applicable law.
25
5.
26
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
27
Each Party or Non-Party that designates information or items for protection under this
28
Order must take care to limit any such designation to specific material that qualifies
4
1
under the appropriate standards. The Designating Party must designate for protection
2
only those parts of material, documents, items, or oral or written communications that
3
qualify – so that other portions of the material, documents, items, or communications
4
for which protection is not warranted are not swept unjustifiably within the ambit of
5
this Order.
6
Mass, indiscriminate, or routinized designations are prohibited. Designations
7
that are shown to be clearly unjustified or that have been made for an improper
8
purpose (e.g., to unnecessarily encumber or retard the case development process or to
9
impose unnecessary expenses and burdens on other parties) expose the Designating
10
Party to sanctions.
11
If it comes to a Designating Party’s attention that information or items that it
12
designated for protection do not qualify for protection, that Designating Party must
13
promptly notify all other Parties that it is withdrawing the mistaken designation.
14
5.2
Manner and Timing of Designations. Except as otherwise provided in
15
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
16
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
17
under this Order must be clearly so designated before the material is disclosed or
18
produced.
19
20
Designation in conformity with this Order requires:
(a)
for information in documentary form (e.g., paper or electronic
21
documents, but excluding transcripts of depositions or other pretrial or trial
22
proceedings), that the Producing Party affix the legend “CONFIDENTIAL” pursuant
23
to section 2.4 above, to each page that contains protected material. If only a portion or
24
portions of the material on a page qualifies for protection, the Producing Party also
25
must clearly identify the protected portion(s) (e.g., by making appropriate markings in
26
the margins).
27
A Party or Non-Party that makes original documents or materials available for
28
inspection need not designate them for protection until after the inspecting Party has
5
1
indicated which material it would like copied and produced. During the inspection and
2
before the designation, all of the material made available for inspection shall be
3
deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
4
it wants copied and produced, the Producing Party must determine which documents,
5
or portions thereof, qualify for protection under this Order. Then, before producing the
6
specified documents, the Producing Party must affix the “CONFIDENTIAL” legend
7
to each page that contains Protected Material. If only a portion or portions of the
8
material on a page qualifies for protection, the Producing Party also must clearly
9
identify the protected portion(s) (e.g., by making appropriate markings in the
10
margins).
11
(b) for testimony given in deposition or in other pretrial or trial proceedings,
12
that the Designating Party identify on the record, before the close of the deposition,
13
hearing, or other proceeding, all protected testimony.
14
(c) for information produced in some form other than documentary and for
15
any other tangible items, that the Producing Party affix in a prominent place on the
16
exterior of the container or containers in which the information or item is stored the
17
legend “CONFIDENTIAL.” If only a portion or portions of the information or item
18
warrant protection, the Producing Party, to the extent practicable, shall identify the
19
protected portion(s).
5.3
20
Inadvertent Failures to Designate. If timely corrected, an inadvertent
21
failure to designate qualified information or items does not, standing alone, waive the
22
Designating Party’s right to secure protection under this Order for such material.
23
Upon timely correction of a designation, the Receiving Party must make reasonable
24
efforts to assure that the material is treated in accordance with the provisions of this
25
Order.
26
6.
27
28
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges.
Any Party or Non-Party may challenge a
designation of confidentiality at any time. Unless a prompt challenge to a Designating
6
1
Party’s confidentiality designation is necessary to avoid foreseeable, substantial
2
unfairness, unnecessary economic burdens, or a significant disruption or delay of the
3
litigation, a Party does not waive its right to challenge a confidentiality designation by
4
electing not to mount a challenge promptly after the original designation is disclosed.
5
6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
6
process by providing written notice of each designation it is challenging and
7
describing the basis for each challenge. To avoid ambiguity as to whether a challenge
8
has been made, the written notice must recite that the challenge to confidentiality is
9
being made in accordance with this specific paragraph of the Protective Order. The
10
parties shall attempt to resolve each challenge in good faith and must begin the
11
process by conferring directly (in voice to voice dialogue; other forms of
12
communication are not sufficient) within 14 days of the date of service of notice. In
13
conferring, the Challenging Party must explain the basis for its belief that the
14
confidentiality designation was not proper and must give the Designating Party an
15
opportunity to review the designated material, to reconsider the circumstances, and, if
16
no change in designation is offered, to explain the basis for the chosen designation. A
17
Challenging Party may proceed to the next stage of the challenge process only if it has
18
engaged in this meet and confer process first or establishes that the Designating Party
19
is unwilling to participate in the meet and confer process in a timely manner.
20
6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court
21
intervention, the Designating Party shall file and serve a motion to retain
22
confidentiality within 21 days of the initial notice of challenge or within 14 days of
23
the parties agreeing that the meet and confer process will not resolve their dispute,
24
whichever is earlier. Each such motion must be accompanied by a competent
25
declaration affirming that the movant has complied with the meet and confer
26
requirements imposed in the preceding paragraph. Failure by the Designating Party to
27
make such a motion including the required declaration within 21 days (or 14 days, if
28
applicable) shall automatically waive the confidentiality designation for each
7
1
challenged designation. In addition, the Challenging Party may file a motion
2
challenging a confidentiality designation at any time if there is good cause for doing
3
so, including a challenge to the designation of a deposition transcript or any portions
4
thereof. Any motion brought pursuant to this provision must be accompanied by a
5
competent declaration affirming that the movant has complied with the meet and
6
confer requirements imposed by the preceding paragraph.
7
The burden of persuasion in any such challenge proceeding shall be on the
8
Designating Party. Frivolous challenges, and those made for an improper purpose
9
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
10
expose the Challenging Party to sanctions. Unless the Designating Party has waived
11
the confidentiality designation by failing to file a motion to retain confidentiality as
12
described above, all parties shall continue to afford the material in question the level
13
of protection to which it is entitled under the Producing Party’s designation until the
14
court rules on the challenge.
15
7.
16
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
17
disclosed or produced by another Party or by a Non-Party in connection with this case
18
only for prosecuting, defending, or attempting to settle this litigation. Such Protected
19
Material may be disclosed only to the categories of persons and under the conditions
20
described in this Order. When the litigation has been terminated, a Receiving Party
21
must comply with the provisions of section 13 below (FINAL DISPOSITION).
22
Protected Material must be stored and maintained by a Receiving Party at a
23
location and in a secure manner that ensures that access is limited to the persons
24
authorized under this Order.
25
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
26
otherwise ordered by the court or permitted in writing by the Designating Party, a
27
Receiving Party may disclose any information or item designated “CONFIDENTIAL”
28
only to:
8
1
(a) the Receiving Party’s Outside Counsel of Record in this action, as well
2
as employees of said Outside Counsel of Record to whom it is reasonably necessary to
3
disclose the information for this litigation and who have signed the “Acknowledgment
4
and Agreement to Be Bound” that is attached hereto as Exhibit A;
5
(b) the officers, directors, and employees (including House Counsel) of the
6
Receiving Party to whom disclosure is reasonably necessary for this litigation and
7
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
8
(c) Experts (as defined in this Order) of the Receiving Party to whom
9
disclosure is reasonably necessary for this litigation and who have signed the
10
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
11
(d) the court and its personnel;
12
(e) court reporters and their staff, professional jury or trial consultants,
13
mock jurors, and Professional Vendors to whom disclosure is reasonably necessary
14
for this litigation and who have signed the “Acknowledgment and Agreement to Be
15
Bound” (Exhibit A);
16
(f) during their depositions, witnesses in the action to whom disclosure is
17
reasonably necessary and who have signed the “Acknowledgment and Agreement to
18
Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered
19
by the court. Pages of transcribed deposition testimony or exhibits to depositions that
20
reveal Protected Material must be separately bound by the court reporter and may not
21
be disclosed to anyone except as permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a
22
23
custodian or other person who otherwise possessed or knew the information.
24
8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
25
OTHER LITIGATION
26
If a Party is served with a subpoena or a court order issued in other litigation
27
that compels disclosure of any information or items designated in this action as
28
“CONFIDENTIAL,” that Party must:
9
(a) promptly notify in writing the Designating Party. Such notification shall
1
2
include a copy of the subpoena or court order;
3
(b) promptly notify in writing the party who caused the subpoena or order to
4
issue in the other litigation that some or all of the material covered by the subpoena or
5
order is subject to this Protective Order. Such notification shall include a copy of this
6
Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued
7
8
by the Designating Party whose Protected Material may be affected.
9
If the Designating Party timely seeks a protective order, the Party served with
10
the subpoena or court order shall not produce any information designated in this
11
action as “CONFIDENTIAL” before a determination by the court from which the
12
subpoena or order issued, unless the Party has obtained the Designating Party’s
13
permission. The Designating Party shall bear the burden and expense of seeking
14
protection in that court of its confidential material – and nothing in these provisions
15
should be construed as authorizing or encouraging a Receiving Party in this action to
16
disobey a lawful directive from another court.
17
9.
18
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
19
(a) The terms of this Order are applicable to information produced by a
20
Non-Party in this action and designated as “CONFIDENTIAL.” Such information
21
produced by Non-Parties in connection with this litigation is protected by the
22
remedies and relief provided by this Order. Nothing in these provisions should be
23
construed as prohibiting a Non-Party from seeking additional protections.
24
(b) In the event that a Party is required, by a valid discovery request, to
25
produce a Non-Party’s confidential information in its possession, and the Party is
26
subject to an agreement with the Non-Party not to produce the Non-Party’s
27
confidential information, then the Party shall:
28
(1) promptly notify in writing the Requesting Party and the Non-Party
10
1
that some or all of the information requested is subject to a confidentiality agreement
2
with a Non-Party;
(2)
3
promptly provide the Non-Party with a copy of the Stipulated
4
Protective Order in this litigation, the relevant discovery request(s), and a reasonably
5
specific description of the information requested; and
(3) make the information requested available for inspection by the Non-
6
7
Party.
8
(c) If the Non-Party fails to object or seek a protective order from this court
9
within 14 days of receiving the notice and accompanying information, the Receiving
10
Party may produce the Non-Party’s confidential information responsive to the
11
discovery request. If the Non-Party timely seeks a protective order, the Receiving
12
Party shall not produce any information in its possession or control that is subject to
13
the confidentiality agreement with the Non-Party before a determination by the court.
14
Absent a court order to the contrary, the Non-Party shall bear the burden and expense
15
of seeking protection in this court of its Protected Material.
16
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
17
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
18
Protected Material to any person or in any circumstance not authorized under this
19
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
20
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
21
to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
22
persons to whom unauthorized disclosures were made of all the terms of this Order,
23
and (d) request such person or persons to execute the “Acknowledgment and
24
Agreement to Be Bound” that is attached hereto as Exhibit A.
25
11.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
26
PROTECTED MATERIAL
27
When a Producing Party gives notice to Receiving Parties that certain
28
inadvertently produced material is subject to a claim of privilege or other protection,
11
1
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
2
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
3
may be established in an e-discovery order that provides for production without prior
4
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
5
parties reach an agreement on the effect of disclosure of a communication or
6
information covered by the attorney-client privilege or work product protection, the
7
parties may incorporate their agreement in the stipulated protective order submitted to
8
the court.
9
12.
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
10
11
MISCELLANEOUS
person to seek its modification by the court in the future.
12
12.2 Right to Assert Other Objections. By stipulating to the entry of this
13
Protective Order no Party waives any right it otherwise would have to object to
14
disclosing or producing any information or item on any ground not addressed in this
15
Stipulated Protective Order. Similarly, no Party waives any right to object on any
16
ground to use in evidence of any of the material covered by this Protective Order.
17
12.3 Filing Protected Material. Without written permission from the
18
Designating Party or a court order secured after appropriate notice to all interested
19
persons, a Party may not file in the public record in this action any Protected Material.
20
A Party that seeks to file under seal any Protected Material must comply with Local
21
Rule 141. Protected Material may only be filed under seal pursuant to a court order
22
authorizing the sealing of the specific Protected Material at issue. A sealing order will
23
issue only upon a request establishing that the Protected Material at issue is
24
privileged, protectable as a trade secret, or otherwise entitled to protection under the
25
law. If a Receiving Party's request to file Protected Material under seal is denied by
26
the court, then the Receiving Party may file the information in the public record unless
27
otherwise instructed by the court.
28
///
12
1
13.
FINAL DISPOSITION
2
Within 60 days after the final disposition of this action, as defined in paragraph
3
4, each Receiving Party must return all Protected Material to the Producing Party or
4
destroy such material. As used in this subdivision, “all Protected Material” includes
5
all copies, abstracts, compilations, summaries, and any other format reproducing or
6
capturing any of the Protected Material. Whether the Protected Material is returned or
7
destroyed, the Receiving Party must submit a written certification to the Producing
8
Party (and, if not the same person or entity, to the Designating Party) by the 60 day
9
deadline that (1) identifies (by category, where appropriate) all the Protected Material
10
that was returned or destroyed and (2) affirms that the Receiving Party has not
11
retained any copies, abstracts, compilations, summaries or any other format
12
reproducing or capturing any of the Protected Material. Notwithstanding this
13
provision, Counsel are entitled to retain an archival copy of all pleadings, motion
14
papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
15
deposition and trial exhibits, expert reports, attorney work product, and consultant and
16
expert work product, even if such materials contain Protected Material. Any such
17
archival copies that contain or constitute Protected Material remain subject to this
18
Protective Order as set forth in Section 4 (DURATION).
19
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
20
DATED: December 24, 2014
21
WILLIAM L. SCHMIDT, ATTORNEY AT LAW, P.C.
22
By:
23
/s/ _William L. Schmidt __
William L. Schmidt,
Attorneys for Plaintiffs
24
DATED: December 24, 2014
25
26
27
28
WEAKLEY & ARENDT, LLP
By:
/s/ _James J. Arendt
___
James J. Arendt
Attorneys for Defendants
13
1
2
3
IT IS SO ORDERED.
Dated:
December 29, 2014
UNITED STATES MAGISTRATE JUDGE
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?