Oildale Mutual Water Company v. Crop Production Services, Inc.

Filing 23

ORDER GRANTING STIPULATED PROTECTIVE ORDER as Modified by the Court, signed by Magistrate Judge Jennifer L. Thurston on 5/15/2014. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OILDALE MUTUAL WATER COMPANY,

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Plaintiff,

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vs.

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CROP PRODUCTION SERVICES, INC., et
al.,

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Defendants.

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CASE NO. 1:13-cv-02054-AWI-JLT
ORDER GRANTING STIPULATED
PROTECTIVE ORDER AS MODIFIED
BY THE COURT
(Doc. 22)

PURPOSE AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,

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the Court issues the following Protective Order Regarding Confidential Information. This

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Protective Order does not confer blanket protections on all disclosures or responses to discovery and

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the protection it affords from public disclosure and use extends only to the limited information that

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is entitled to confidential treatment under the applicable legal principles. This Protective Order does

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not entitle the parties to file confidential information under seal; however, this Protective Order is

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not intended to limit the parties’ from taking appropriate steps to file documents under seal.

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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Any requests to file documents under seal SHALL comply with Local Rule 141.
2.

DESIGNATING CONFIDENTIAL INFORMATION
2.1

For purposes of this Protective Order, “CONFIDENTIAL INFORMATION” is

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information, designated as such in accordance with the provisions herein, that the designating

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party in good faith believes contains personal, commercial, financial, proprietary, or other

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confidential information. Such CONFIDENTIAL INFORMATION includes but is not limited to

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information that:

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a.

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Disclosure of which would violate a personal, financial, proprietary or other
interest protected by law.

b.

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Disclosure of which would reveal:
(i)

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the physical address or geographic location of public drinking water wells,
storage facilities, pumping stations and water treatment facilities;

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(ii)

water system schematics and facility maps;

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(iii)

pipeline maps;

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(iv)

facility plans and specifications;

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(v)

water system vulnerabilities that have not been publicly disclosed;

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(vi)

water system hydraulics or operational practices;

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(vii)

emergency operations and response plans;

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(viii)

water system security plans, practices and/or precautions, including

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planned security enhancements; or

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(ix)

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personal information about employees, such as home phone numbers,
mobile phone numbers and home addresses.

2.2

CONFIDENTIAL INFORMATION protected by this Protective Order shall not

include information that is:
a.

Lawfully received by a party from a source other than the party asserting the
claim of confidentiality; or

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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b.

Public knowledge or information, or information that becomes public after

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disclosure other than through an act or omission of a person or entity receiving or

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maintaining the information designated as confidential.

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2.3

Information may only be designated “CONFIDENTIAL INFORMATION” if it

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has been reviewed by an attorney and if that attorney concludes in good faith that the information

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is entitled to confidentiality as defined in section 2.1.

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2.4

Produced Documents. A party producing a document in formal or informal

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discovery that it, in good faith, believes constitutes or contains CONFIDENTIAL

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INFORMATION subject to the foregoing provisions shall produce a copy of such document

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with a label that states “CONFIDENTIAL” or “CONFIDENTIAL INFORMATION” on the face

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of each page of the document. As used herein, the term “document” includes all writings,

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electronically stored information and tangible things subject to production under Federal Rule of

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Civil Procedure 34(a)(1). Any party receiving a document labeled as CONFIDENTIAL

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INFORMATION is responsible for maintaining the document as CONFIDENTIAL

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INFORMATION pursuant to this Protective Order.

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2.5

Written Discovery. If a party responding to an interrogatory or other written

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discovery believes that its response contains CONFIDENTIAL INFORMATION, it shall set

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forth its response in a separate document that is produced and designated as CONFIDENTIAL

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INFORMATION in the same manner as a produced document under section 2.4. The non-

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designated responses should make reference to the separately produced document containing the

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responses with CONFIDENTIAL INFORMATION, but such document should not be attached

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to the non-designated responses.

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2.6

Deposition Transcripts. Unless otherwise agreed to by the parties or ordered by

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the Court, within 30 days after the receipt of a deposition transcript (or if the transcript is

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received within 30 days of the date set for the beginning of trial, within half of the number of

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days remaining before the date set for the beginning of trial), a party may inform the other parties

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to the action of the portions of the transcript that it wishes to designate as CONFIDENTIAL

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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INFORMATION. Until such time has elapsed, deposition transcripts in their entirety are to be

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considered as CONFIDENTIAL INFORMATION. All parties in possession of a copy of a

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designated deposition transcript shall appropriately mark the transcript cover and the designated

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pages as containing CONFIDENTIAL INFORMATION.

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2.7

Information Designated “Confidential” in Other Litigation. A party responding to

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discovery shall not withhold or object to the production of information in its possession, custody

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or control on the grounds that such information is or may be subject to a confidentiality or

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protective order entered in another proceeding, unless the information in question (a) was

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designated “confidential” in such other proceeding by an entity other than the responding party

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and (b) remains subject to the confidentiality or protective order in the other proceeding, in

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which case the responding party may withhold the information, but shall provide the requesting

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party with the identity of the entity that designated the information “confidential,” a description

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of the information sufficiently detailed to enable the requesting party to obtain such information

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directly from the designating entity, and a copy of the confidentiality or protective order upon

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which the “confidential” designation is based.

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2.8

Designating Certain Electronically Stored Information. The parties shall

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cooperate as necessary to establish specific procedures, as needed, to protect the confidentiality

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of any electronically stored information that may be produced. The failure to affix a

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“CONFIDENTIAL” or “CONFIDENTIAL INFORMATION” label on any electronic file shall

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not prevent a party from asserting that such files contain CONFIDENTIAL INFORMATION or

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that it may be subject to a claim of attorney-client privilege or protection as work product.

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2.9

Original documents made available for inspection. Documents made available for

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inspection do not need to be marked individually with a “CONFIDENTIAL” or

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“CONFIDENTIAL INFORMATION” label. Rather, if a party, after its inspection, requests

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copies of some or all of the documents made available for inspection, the producing party shall

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have an opportunity to review those requested documents and affix a “CONFIDENTIAL” or

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“CONFIDENTIAL INFORMATION” label to them prior to production.

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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3.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
3.1

Timing of Challenges. Any party or non-party may challenge a designation of

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

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designation 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 its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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3.2

Meet and Confer. The party challenging a designation of CONFIDENTIAL

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INFORMATION shall advise the designating party in writing of its desire to meet and confer

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regarding the disputed designation(s). The challenging and the designating parties shall then

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promptly meet and confer in an attempt to resolve their differences. If the designating and

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challenging parties are unable to resolve their differences after a good faith effort to meet and

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confer, then the challenging party shall provide to the designating party written notice

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(hereinafter “Notice of Objection”) that the challenging party is not satisfied with some or all of

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the results of the meet and confer. The Notice of Objection provided by the challenging party

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shall set forth clearly which confidential designations are in dispute and a brief summary of the

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challenging party’s arguments as to why such documents should not be treated as confidential.

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Within twenty-one (21) days of receiving the Notice of Objection from the challenging party, the

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designating party shall file with the Court a motion to retain confidentiality on the documents at

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issue. All disputed transcripts, documents or discovery materials shall remain as

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CONFIDENTIAL INFORMATION unless and until the Court rules otherwise. The designating

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party shall have the burden to show that the information at issue justifies the CONFIDENTIAL

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INFORMATION designation and treatment. If the designating party does not file a motion with

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the Court to retain confidentiality with respect to the documents at issue within twenty-one (21)

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days from its receipt of the Notice of Objection, the designating party shall be deemed to have

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withdrawn its confidential designation as to those documents at issue and, as to those documents,

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shall then provide a copy of the previously designated documents without the CONFIDENTIAL

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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INFORMATION designation to each party to whom the previously designated documents were

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originally produced.

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In advance of the filing of any motion related to the confidentiality of records, the parties

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SHALL comply with the scheduling order (Doc. 17 at 4) which requires a telephonic conference

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with the Court and counsel.

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4.

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ACCESS TO AND USE OF CONFIDENTIAL INFORMATION
4.1

Authorized Disclosures. Unless otherwise agreed by the parties or ordered by the

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Court, CONFIDENTIAL INFORMATION shall be disclosed by the receiving party only to the

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following persons:

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a.

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paralegals, clerks, and secretarial and clerical personnel;
b.

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c.

Qualified persons taking testimony involving such information, and necessary
stenographic, videotape and clerical personnel;

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In-house counsel and their staff and those employees of a party designated by inhouse counsel to assist with the prosecution or defense of the included actions;

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Attorneys of record in this proceeding, including their necessary associates,

Trial experts, expert consultants and their staffs, and e-discovery vendors who are
consulted or retained by counsel for a receiving party;

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Deponents and witnesses who already know the CONFIDENTIAL

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INFORMATION being disclosed (as confirmed through counsel in advance of

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any disclosure to the deponent or witness and/or as demonstrated by the deponent

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or witness being clearly shown as an author or prior recipient of the

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CONFIDENTIAL INFORMATION on the face of the document to be disclosed);

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f.

Discovery masters or settlement judges appointed by the Court or agreed to

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between the parties, who are engaged in proceedings connected with this action,

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and personnel regularly employed by them;

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g.

The Court, Court staff and other personnel before whom this proceeding and/or
any related action is pending.

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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A party may provide CONFIDENTIAL INFORMATION to authorized persons

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designated in sections 4.1(d) and 4.1(f) above only if such persons first acknowledge in writing

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that they have read this Protective Order and agree to be bound by its terms. (A form of such

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acknowledgment is attached hereto as Exhibit A.) Such written acknowledgment shall not be

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discoverable in this proceeding or any action included therein. Each party takes responsibility

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for ensuring that all authorized recipients of CONFIDENTIAL INFORMATION are informed of

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and agree to this Protective Order. Any disclosures under this section are authorized only to the

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extent necessary to prosecute or defend this litigation.

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4.2

Unauthorized Disclosures. If CONFIDENTIAL INFORMATION is disclosed to

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any person other than in the manner authorized by this Protective Order, and the party or person

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responsible for the disclosure, or any other party or person who is subject to this Order learns of

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such disclosure (including without limitation all employees, officers, directors, agents and

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attorneys of each party to this lawsuit), then such party or person shall immediately bring such

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disclosure to the attention of the designating party. Without prejudice to other rights and

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remedies of the designating party, the responsible party or person shall make every reasonable

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effort to obtain the return of the CONFIDENTIAL INFORMATION and to prevent further

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disclosure on its own part or on the part of the person who was the unauthorized recipient of such

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information.

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4.3

Court Filings. To the extent that CONFIDENTIAL INFORMATION is contained

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in or attached to materials filed with the Court, such materials shall be filed under seal. No one,

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other than the Court, its agents and employees, and persons authorized by this Protective Order

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or any subsequent order of the Court or agreement of the parties, shall have access to such sealed

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materials.

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Any requests to file documents under seal SHALL comply with Local Rule 141.
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USE OF CONFIDENTIAL INFORMATION AT TRIAL

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CONFIDENTIAL INFORMATION, which is subject to this Order and deemed

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admissible as trial evidence by the Court, may be marked and used as trial exhibits by a party

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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according to the terms imposed by the Trial Court upon the request of a designating party at time

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of trial. It is the intent of the parties hereto that CONFIDENTIAL INFORMATION will not be

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disclosed or available to any other parties or third persons, other than authorized disclosures as

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stated in section 4.1 above, without the consent of the designating party and/or the Court.

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RETURN OF CONFIDENTIAL INFORMATION AFTER FINAL DISPOSITION
Each receiving party must return all CONFIDENTIAL INFORMATION or destroy such

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material within forty-five (45) days after final disposition of the lawsuit, as defined in section 9

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below. Notwithstanding this provision, counsel are entitled to retain an archival copy of all

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pleadings, motion papers, legal memoranda, correspondence, expert reports, attorney work

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product, and consultant and expert work product, even if such material contain

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CONFIDENTIAL INFORMATION. Any such archival copies that contain or constitute

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CONFIDENTIAL INFORMATION remain subject to this Protective Order.

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7.

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IN OTHER LITIGATION

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CONFIDENTIAL INFORMATION SUBPOENAED OR ORDERED PRODUCED

If a receiving party is served with a subpoena, request or court order issued in other

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litigation that compels disclosure of any information or items designated in this action as

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CONFIDENTIAL INFORMATION, that party must:

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a.

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Promptly notify in writing the designating party, including a copy of the
subpoena, request or court order;

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Promptly notify in writing the party seeking the CONFIDENTIAL

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INFORMATION that some of the requested information is subject to this

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Protective Order, and provide a copy of this Protective Order; and

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c.

Cooperate with respect to all reasonable procedures sought to be pursued by the
designating party whose CONFIDENTIAL INFORMATION may be affected.

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If the designating party timely seeks a protective order, the party served with the

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subpoena, request or court order shall not produce any information designated in this action as

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CONFIDENTIAL INFORMATION before a determination by the court from which the

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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subpoena, request or order issued, unless the party has obtained the designating party’s

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permission. The designating party shall bear the burden and expense of seeking protection in

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that court of its confidential material, and nothing in these provisions should be construed as

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authorizing or encouraging a receiving party in this action to disobey a lawful directive from

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another court.

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INADVERTENT DISCLOSURE OR PRODUCTION

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The inadvertent production of any privileged or otherwise protected or exempted

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information, as well as the inadvertent production of information without an appropriate

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designation of confidentiality, shall not be deemed a waiver or impairment of any claim of

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privilege, protection or confidentiality, including but not limited to the attorney-client privilege,

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the protection afforded to work product materials or the subject matter thereof, or the

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confidential nature of any such information. If CONFIDENTIAL INFORMATION is

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inadvertently produced, the producing party may notify any party that received such information

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of the inadvertent production claim and the basis for it. The producing party must then re-

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produce the document(s) with a label that states “CONFIDENTIAL” or “CONFIDENTIAL

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INFORMATION” on the face of each page of the document(s), and the receiving party must

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return, sequester, or destroy copies of the document(s) that do not contain a “CONFIDENTIAL”

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or “CONFIDENTIAL INFORMATION” label and, if the receiving party disclosed the

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document(s) before being notified, it must take reasonable steps to retrieve non-labeled copies of

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the document(s). If the receiving party seeks to challenge whether the producing party’s re-

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designation of the document(s) as CONFIDENTIAL INFORMATION is justified, such a

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challenge shall follow the procedures set forth in Section 3.2 above. If attorney-client privileged

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information or work product material is inadvertently produced, the party making the claim of

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inadvertant production may notify any party that received such information of the inadvertant

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production claim and the basis for it. After being notified of a party’s claim of inadvertant

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production, a receiving party must promptly return, sequester, or destroy the specified

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information and any copies it has or has distributed to others and may not use or disclose the

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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information until the claim is resolved. If the receiving party disclosed the information before

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being notified, it must take reasonable steps to retrieve it. The party who made the inadvertant

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production claim must preserve the information until the claim is resolved. The producing party

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may then, if necessary, move the Court for an order compelling return of the material. Any

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analyses, memoranda or notes which were internally generated based upon such inadvertently

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produced information shall immediately be treated in conformance with the protected nature of

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the information. Also, the parties agree that if they locate clearly privileged communications of

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the opposing party, they will promptly provide written notice to the opposing party of such a

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discovery.

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DURATION
Even after final disposition of this lawsuit, the confidentiality obligations imposed by this

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Protective Order shall remain in effect until a designating party agrees otherwise in writing or a

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court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of

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all claims and defenses in this action, with or without prejudice; and (2) final judgment herein

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after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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action, including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law. The Court shall retain jurisdiction to resolve any dispute concerning

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this agreement or the CONFIDENTIAL INFORMATION even after final disposition of this

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lawsuit.

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ORDER

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Based upon the stipulation of counsel, the Court ORDERS:

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1. The stipulated protective order, as modified by the Court in paragraphs 1, 3.2 and 4.3,

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is GRANTED.

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IT IS SO ORDERED.
Dated:

May 15, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ___________________________________ [print or type full name], of

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________________________________________________ [print or type full address], declare

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under penalty of perjury that I have read in its entirety and understand the Protective Order

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Regarding Confidential Information that was issued by the United States District Court for the

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Eastern District of California on _______________________ [date] in the case of Oildale

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Mutual Water Company v. Crop Production Services, Inc., et al., Case No. 1:13-cv-02054-AWI-

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JLT. I agree to comply with and to be bound by all the terms of this Protective Order, and I

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understand and acknowledge that failure to so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner

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any information or item that is subject to this Protective Order to any person or entity except in

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strict compliance with the provisions of this Protective Order. I further agree to submit to the

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jurisdiction of the United States District Court for the Eastern District of California for the

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purpose of enforcing the terms of this Protective Order, even if such enforcement proceedings

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occur after termination of this action.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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Signature: _______________________________

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EXHIBIT A
[PROPOSED] PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION