DiGiantomasso et al v. Tulare County et al

Filing 67

STIPULATION and PROTECTIVE ORDER signed by Magistrate Judge Gary S. Austin on 9/4/2015. (Martinez, A)

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James J. Arendt, Esq.
Bar No. 142937
Brande L. Gustafson, Esq.
Bar No. 267130
Weakley & Arendt, LLP
1630 East Shaw Ave., Suite 176
Fresno, California 93710
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants, County of Kings, Sheriff David Robinson, Commander Kim
Pedreiro, and Sgt. Sheri Henderson
Michael J. Haddad, SBN 189114
Julia Sherwin, SBN 189268
Genevieve Guertin, SBN 262479
T. Kennedy Helm, SBN 282319
HADDAD & SHERWIN, LLP
505 Seventeenth Street
Oakland, CA 94612
Telephone: [phone]
Attorneys for Plaintiffs
Peter G. Bertling #131602
Jemma Parker Saunders #227962
BERTLING & CLAUSEN L.L.P.
15 West Carrillo Street, Suite 100
Santa Barbara, California 93101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants California Forensic Medical Group, Inc., Taylor Fithian, M.D.,
Megan Nabors, L.V.N., Danielle Ecker, Linda Weesner, R.N., Minetta Costa, R.N., and Jana
Cerarley, L.P.T.

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAURIE DIGIANTOMASSO, et al.,

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Plaintiff,

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vs.
TULARE COUNTY, et al.,
Defendants.

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Stipulation & Protective Order

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CASE NO. 1:14-cv-01633-MCE-GSA
STIPULATION AND
PROTECTIVE ORDER
Complaint Filed: October 17, 2014
Trial Date: March 13, 2017

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In the above captioned case, Laurie DiGiantomasso v. Tulare County, et al., U.S.D.C.

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(E.D. Cal.) No. 1:14-cv-01633-MCE-GSA (“the Action”), Plaintiffs Laurie DiGiantomasso,

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Randy DiGiantomasso, and Shaymus DiGiantomasso, Deceased (“Plaintiffs”); County of

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Kings, Sheriff David Robinson, Commander Kim Pedreiro, and Sergeant Shari Henderson

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(“County Defendants”), California Forensic Medical Group, Inc., Taylor Fithian, M.D., Megan

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Nabors, L.V.N., Danielle Ecker, Linda Weesner, R.N., Minetta Costa, R.N., and Jana Cerarley,

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L.P.T. (“CFMG Defendants”) (collectively, the “Parties”), agree that discovery and informal

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discovery in this action is likely to involve production of private, proprietary, or security-

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sensitive information for which protection from public disclosure and from use for any purpose

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other than this litigation may be warranted. As a result, the Parties seek to facilitate the

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exchange of information and documents which may be subject to confidentiality limitations on

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disclosure due to federal laws, state laws, and constitutional privacy rights.

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IT IS HEREBY STIPULATED AND AGREED by and between the Parties by and

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through their respective counsel of record, that they jointly request, pursuant to Rule 26(c) of

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the Federal Rules of Civil Procedure, that the Court enter this [Proposed] Protective Order as an

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Order of the Court, as follows:

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1.

For purposes of this Stipulation and Protective Order, CONFIDENTIAL

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INFORMATION means any document, information, or tangible thing, electronic recording or

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transcript of oral testimony, whether or not made under oath, or any portion of such a document,

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thing, recording, or transcript, designated by any party as “CONFIDENTIAL INFORMATION”

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because it contains (a) proprietary information (trade secret, proprietary matter, or other

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confidential research, development, or commercial information as those terms are used in

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Federal Rule of Civil Procedure 26), (b) security-sensitive information that if released to the

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public or inmate population may compromise the safety and security of a correctional facility,

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(c) confidential personal information, such that the party making the designation avers that it

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can and would make a showing to the Court sufficient to justify the filing of the document or

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information under seal in accordance with Federal Rule of Civil Procedure 26(c), Local Rule

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141, and controlling federal case law, or (d) information reasonably believed to be protected

Stipulation & Protective Order

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from disclosure pursuant to state or federal law.
2.

By way of example, the term “documents” includes but is not limited to

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operations records, institutional records, medical records, policy and procedure manuals,

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training materials, correspondence, emails, memoranda, or other printed or electronic matter,

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interoffice and/or intra-corporate communications, letters, statements, contracts, invoices,

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drafts, charts, maps, diagrams, video, photographs, medical records, institutional records,

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personnel files, work sheets, desk diaries, recordings, specifications, compilations from which

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information can be obtained and translated as required through detection devices into

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reasonably usable form, sketches, drawings, notes (including laboratory notebooks and records),

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disclosures, data, reports, work assignments, instructions, and other writings. By way of

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example, and not limitation, CONFIDENTIAL INFORMATION may include or be included in

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simulations, animations, computer programs and software, magnetic or digital discs,

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electronically recorded tapes of any sort, summaries, notes, abstracts, motions, drawings,

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videos, photographs, and any instrument that comprises, embodies, or summarizes otherwise

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CONFIDENTIAL INFORMATION.

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3.

During the Action, the Parties may produce certain documents pursuant to

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discovery requests, agreement, or in connection with the retention of experts. At the time of

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production, the producing party will designate the documents or portions thereof that they deem

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to contain CONFIDENTIAL INFORMATION. Only documents or portions thereof marked as

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“CONFIDENTIAL INFORMATION” will be subject to this Stipulation and Protective Order.

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CONFIDENTIAL INFORMATION will not be disseminated or produced except in accordance

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with this Stipulation and Protective Order. By designating a document or portion thereof as

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CONFIDENTIAL INFORMATION, the party making the designation avers that it can and

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would make a showing to the Court sufficient to justify the filing of the document or portion

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thereof under seal in accordance with Federal Rule of Civil Procedure 26(c), Local Rule 141,

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and controlling federal case law.

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4.

The designation of a document or portion thereof as CONFIDENTIAL

INFORMATION shall be made, whenever possible prior to production, by placing or affixing

Stipulation & Protective Order

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on each page of such material in a manner that will not interfere with its legibility the words

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“CONFIDENTIAL INFORMATION.” If such designation is not possible prior to the

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production, the designation must be made in writing by the producing party, and replacement

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documents bearing the “CONFIDENTIAL INFORMATION” designation shall be provided as

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soon as practicable. In the event that documents subject to confidentiality, or portions thereof,

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are inadvertently produced without being designated CONFIDENTIAL INFORMATION, they

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shall be treated as CONFIDENTIAL INFORMATION as of the date of designation.

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5.

Counsel for any party retains the right to challenge the designation of a particular

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document or portion thereof as CONFIDENTIAL INFORMATION. The burden of proof with

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respect to the propriety or correctness of the designation of any document or portion thereof as

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CONFIDENTIAL INFORMATION will rest on the designating party. If any party believes any

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designation of a document or portion thereof as CONFIDENTIAL INFORMATION is

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inappropriate, the Parties will meet and confer and attempt to resolve the issue on an expedited

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basis. If the Parties are unable to mutually agree on a resolution, the Parties will seek

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appropriate Court intervention, including a request for a discovery conference or call with the

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Judge, and where appropriate, submit the documents to the Judge under seal to determine

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whether and to what extent such documents or portions thereof should be deemed

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CONFIDENTIAL INFORMATION in accordance with Paragraphs 1 and 3 of this Protective

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Order. Specifically, the Judge shall determine whether the party seeking to designate

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CONFIDENTIAL INFORMATION has satisfied the requirements for filing the document or

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portion thereof sought to be designated under seal in accordance with Federal Rule of Civil

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Procedure 26(c), Local Rule 141, and controlling federal case law. Where requested or

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permitted by the Court, the Parties may provide the Court with separate statements containing

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the challenges by the party opposing the CONFIDENTIAL INFORMATION designation and

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the justifications by the party designating the documents or portions thereof as

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CONFIDENTIAL INFORMATION.

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6.

Whenever a deposition or court proceeding involves the disclosure of a party’s

CONFIDENTIAL INFORMATION, the following procedure will apply:

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a.

The court reporter will be directed to bind those portions of the transcript

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containing CONFIDENTIAL INFORMATION separately. This request will be made on the

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record whenever possible.

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b.

The cover of any portion of a deposition or court proceeding transcript

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that contains testimony or documentary evidence that has been designated CONFIDENTIAL

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INFORMATION will be prominently marked:

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CONFIDENTIAL/SUBJECT TO PROTECTIVE ORDER

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c.

All portions of deposition or court proceeding transcripts designated as

CONFIDENTIAL INFORMATION will be sealed and will not be disseminated except to the
persons identified in Paragraph 10.
7.

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Any party may designate a deposition or portion thereof as CONFIDENTIAL

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INFORMATION and subject to the Protective Order during or for a reasonable time after the

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deposition. If a party intends to designate portions of a deposition as “CONFIDENTIAL” that

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party shall have the right to limit attendance at the relevant portion of the deposition to the

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persons set forth in Paragraph 10 of this Order. For all pleadings that contain CONFIDENTIAL

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INFORMATION, the filing party shall seek leave of court to file under seal consistent with the

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Local Rules for the Eastern District of California. With leave of court, an unredacted version

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will be filed under seal with the Clerk of the Court, and pleadings containing CONFIDENTIAL

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INFORMATION will be filed in a sealed envelope prominently marked with the caption of this

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case, the identity of the party filing the envelope, and the notation:

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CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE ORDER

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THIS ENVELOPE IS NOT TO BE OPENED NOR THE CONTENTS DISPLAYED,

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COPIED, OR REVEALED, EXCEPT BY COURT ORDER

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Counsel for parties agree to accept service copies of sealed pleadings by email and first-class

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mail.

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8.

Upon a failure of the filing party to file personal, security, or proprietary

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information under seal, any party may request that the Court place the document under seal. The

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procedures of Local Rule 141 shall be followed.

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9.

Either party may challenge the designation of a deposition transcript, or a portion

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thereof, as CONFIDENTIAL INFORMATION, under the procedure set forth in paragraph 5,

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above.

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10.

Unless otherwise provided in this Order, and subject to the provisions of

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Paragraph 11, access to CONFIDENTIAL INFORMATION will be restricted to the Court, its

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officers, court personnel and stenographic parties engaged in proceedings in this matter,

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Plaintiff and Defense experts, and Plaintiff and Defense counsel (defined herein to include:

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attorneys in this action and their support staff, including copy services, investigators,

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consultants, paralegals, legal interns, and legal assistants), and other testifying or consulting

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experts, where production is required by the Federal Rules of Civil Procedure, or where

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production is ordered by the Court. Any attorney, the attorney’s support staff or expert to

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whom disclosure is made will be furnished with a copy of the Protective Order and will be

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subject to the Order. Nothing in this Protective Order will preclude Plaintiffs’ counsel from

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reviewing with the Plaintiffs, decedent’s jail medical and/or custody records.

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11.

The Parties agree that CONFIDENTIAL INFORMATION subject to this

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Protective Order shall be used solely for the purposes of this litigation, and in no other

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litigation, except as unsealed by the Court or filed in the public record in this action.

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12.

Within thirty (30) days of the conclusion of the litigation of this action, all

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material marked as CONFIDENTIAL INFORMATION under this Confidentiality Agreement

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and not received in evidence shall be returned to the producing Party or third party, unless the

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Parties agree that the material may be destroyed instead of being returned, in which instance

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counsel shall certify that the documents have been destroyed. The designating party may request

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that the Clerk of the Court return to the producing Party or third party, or destroy, any sealed

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material and/or CONFIDENTIAL INFORMATION used as evidence at the end of the

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litigation, including appeals. This Confidentiality Agreement shall survive the discontinuance or

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other resolution of the action.

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13.

As far as the provisions of any protective orders entered in this action restrict the

communication and use of the CONFIDENTIAL INFORMATION produced thereunder, such

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orders shall continue to be binding after the conclusion of this litigation, except that there shall

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be no restriction on documents that are used as exhibits in Court unless such exhibits were or

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should have been filed under seal.

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14.

Nothing in this Stipulation and Protective Order precludes Plaintiffs or

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Defendants from seeking and obtaining, on an appropriate showing, additional protection with

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respect to the confidentiality of documents or portions thereof, or relief from the Protective

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Order.

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15.

Each person designated in Paragraph 10, by receiving and reading a copy of the

Protective Order entered by the Court as part of this Stipulation and Protective Order, agrees to

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abide by its provisions and to see that its provisions are known and adhered to by those under

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his or her supervision or control, and to submit to the jurisdiction of the Court in the event the

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Protective Order is breached.

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IT IS SO STIPULATED.

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DATE: September 1, 2015

HADDAD & SHERWIN, LLP

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By:

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/s/ T. Kennedy Helm (as authorized on 9/01/15)
Michael J. Haddad
Julia Sherwin
Genevieve K. Guertin
T. Kennedy Helm
Attorneys for Plaintiffs

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DATE: September 1, 2015

WEAKLEY & ARENDT, LLP

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By:

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Stipulation & Protective Order

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/s/ Brande L. Gustafson
James J. Arendt
Brande L. Gustafson
Attorneys for Defendants County of Kings,
Sheriff David Robinson, Commander Kim
Pedreiro, and Sgt. Sheri Henderson

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DATE: September 2, 2015

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BERTLING & CLAUSEN, LLP

By:

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/s/ Jemma Parker Saunders (as authorized on
9/02/15)
Peter G. Bertling
Jemma Parker Saunders
Attorneys for Defendants
California Forensic Medical Group, Inc.,
Taylor Fithian, M.D., Megan Nabors, L.V.N.,
Danielle Ecker, Linda Weesner, R.N., Minetta
Costa, R.N., and Jana Cerarley, L.P.T.

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ORDER
The Court adopts the parties’ foregoing stipulated protective order with the following

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exceptions:
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The Court declines to adopt page 4, lines 19-26. To the extent motion practice is
required, the parties shall comply with Local Rules 141 and 251.

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The Court declines to adopt page 5, lines 17-23 (beginning with the line “With leave of

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court . . . “). Any request to file documents under seal shall follow the guidelines set

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forth under Local Rule 141.

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

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The Court declines to adopt page 6, lines 22-26 (beginning with the line “The
designating party . . .”).

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The Court declines to retain jurisdiction over enforcement of the terms of the protective

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order after the action has been closed, as requested under paragraph 13. See Local Rule

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141.1(f).

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The Court retains the discretion to determine the appropriate mechanism(s) for the resolution of

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any disputes arising out of the stipulated protective order.

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IT IS SO ORDERED.
Dated:

September 4, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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Stipulation & Protective Order

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