Martinez v. City of Clovis, et al.

Filing 60

PROTECTIVE ORDER, signed by Magistrate Judge Michael J. Seng on 1/30/2017. (Lafata, M)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DESIREE MARTINEZ, 10 Plaintiff, 11 No. 1:15-CV-00683 JAM MJS STIPULATED PROTECTIVE ORDER 12 vs. 13 14 15 KYLE PENNINGTON; KIM 16 PENNINGTON; CONNIE 17 PENNINGTON; KRISTINA 18 HERHBERGER; JESUS 19 SANTILLAN; CHANNON HIGH; 20 THE CITY OF CLOVIS; ANGELA 21 YAMBUPAH; RALPH SALAZAR; 22 FRED SANDERS; THE CITY OF 23 SANGER; and DOES 1 through 20, 24 25 26 1. A. PURPOSES AND LIMITATIONS 27 Discovery in this action is likely to involve production of confidential, 28 proprietary, or private information for which special protection from public 1 disclosure and from use for any purpose other than prosecuting this litigation may 2 be warranted. Accordingly, the parties hereby stipulate to and petition the court to 3 enter the following Stipulated Protective Order. The parties acknowledge that this 4 Order does not confer blanket protections on all disclosures or responses to 5 discovery and that the protection it affords from public disclosure and use extends 6 only to the limited information or items that are entitled to confidential treatment 7 under the applicable legal principles. The parties further acknowledge, as set forth 8 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 9 file confidential information under seal; Eastern District Local Rule 141 sets forth 10 the procedures that must be followed and the standards that will be applied when a 11 party seeks permission from the court to file material under seal. 12 B. GOOD CAUSE STATEMENT 13 This action is likely to involve confidential information for which special 14 protection from public disclosure and from use for any purpose other than 15 prosecution of this action is warranted. Such confidential and proprietary materials 16 and information consist of, among other things, confidential business or financial 17 information, information regarding police tactics and strategies, police officer 18 personnel files, or other confidential research, development, or commercial 19 information (including information implicating privacy rights of third parties), 20 information otherwise generally unavailable to the public, or which may be 21 privileged or otherwise protected from disclosure under state or federal statutes, 22 court rules, case decisions, or common law. Accordingly, to expedite the flow of 23 information, to facilitate the prompt resolution of disputes over confidentiality of 24 discovery materials, to adequately protect information the parties are entitled to 25 keep confidential, to ensure that the parties are permitted reasonable necessary uses 26 of such material in preparation for and in the conduct of trial, to address their 27 handling at the end of litigation, and serve the ends of justice, a protective order for 28 such information is justified in this matter. It is the intent of the parties that 2 1 information will not be designated as confidential for tactical reasons and that 2 nothing be so designated without a good faith belief that it has been maintained in a 3 confidential, non-public manner, and there is good cause why it should not be part 4 of the public record of this case. 5 2. 6 7 8 9 10 DEFINITIONS 2.1 Action: This pending federal lawsuit and any consolidated or related actions. 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 11 how it is generated, stored or maintained) or tangible things that qualify for 12 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 13 the Good Cause Statement. 14 15 16 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 17 items that it produces in disclosures or in responses to discovery as 18 “CONFIDENTIAL.” 19 2.6 Disclosure or Discovery Material: all items or information, regardless 20 of the medium or manner in which it is generated, stored, or maintained (including, 21 among other things, testimony, transcripts, and tangible things), that are produced 22 or generated in disclosures or responses to discovery in this matter. 23 2.7 Expert: a person with specialized knowledge or experience in a matter 24 pertinent to the litigation who has been retained by a Party or its counsel to serve as 25 an expert witness or as a consultant in this Action. 26 2.8 House Counsel: attorneys who are employees of a party to this action. 27 House Counsel does not include Outside Counsel of Record or any other outside 28 counsel. 3 1 /// 2.9 2 3 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 4 2.10 Outside Counsel of Record: attorneys who are not employees of a 5 party to this action but are retained to represent or advise a party to this Action and 6 have appeared in this Action on behalf of that party or are affiliated with a law firm 7 which has appeared on behalf of that party, and includes support staff. 8 2.11 Party: any party to this Action, including all of its officers, directors, 9 employees, consultants, retained experts, and Outside Counsel of Record (and their 10 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 11 12 Discovery Material in this Action. 2.13 Professional Vendors: 13 Persons or entities that provide litigation 14 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 15 demonstrations, and organizing, storing, or retrieving data in any form or medium) 16 and their employees and subcontractors. 17 2.14 Protected Material: Any Disclosure or Discovery Material that is 18 designated as “CONFIDENTIAL” or “CONFIDENTIAL COUNSEL EYES 19 ONLY.” 2.15 Receiving Party: 20 21 Material from a Producing Party. 22 3. a Party that receives Disclosure or Discovery SCOPE 23 The protections conferred by this Stipulation and Order cover not only 24 Protected Material (as defined above), but also (1) any information copied or 25 extracted from Protected Material; (2) all copies, excerpts, summaries, or 26 compilations of Protected Material; and (3) any testimony, conversations, or 27 presentations by Parties or their Counsel that might reveal Protected Material. 28 4 Any use of Protected Material at trial shall be governed by the orders of the 1 2 trial judge. This order does not govern the use of Protected Material at trial. Defendant City of Clovis and City of Sanger designate as Protected Material 3 4 (1) any and all police officer personnel files and/or portions thereof. 5 4. DURATION 6 Even after final disposition of this litigation, the confidentiality obligations 7 imposed by this Order shall remain in effect until a Designating Party agrees 8 otherwise in writing or a court order otherwise directs. Final disposition shall be 9 deemed to be the later of (1) dismissal of all claims and defenses in this action, with 10 or without prejudice; and (2) final judgment herein after the completion and 11 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 12 including the time limits for filing any motions or applications for extension of time 13 pursuant to applicable law. 14 5. 15 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 16 Each Party or Non-Party that designates information or items for protection under 17 this Order must take care to limit any such designation to specific material that 18 qualifies under the appropriate standards. The Designating Party must designate for 19 protection only those parts of material, documents, items, or oral or written 20 communications that qualify – so that other portions of the material, documents, 21 items, or communications for which protection is not warranted are not swept 22 unjustifiably within the ambit of this Order. 23 Mass, indiscriminate, or routinized designations are prohibited. Designations 24 that are shown to be clearly unjustified or that have been made for an improper 25 purpose (e.g., to unnecessarily encumber or retard the case development process or 26 to impose unnecessary expenses and burdens on other parties) expose the 27 Designating Party to sanctions. 28 If it comes to a Designating Party’s attention that information or items that it 5 1 designated for protection do not qualify for protection, that Designating Party must 2 promptly notify all other Parties that it is withdrawing the inapplicable designation. 3 5.2 Manner and Timing of Designations. Except as otherwise provided in 4 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 5 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 6 under this Order must be clearly so designated before the material is disclosed or 7 produced. 8 9 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 10 documents, but excluding transcripts of depositions or other pretrial or trial 11 proceedings), that the Producing Party affix at a minimum, the legend 12 “CONFIDENTIAL” 13 (hereinafter “CONFIDENTIAL legend”), to each page that contains protected 14 material. If only a portion or portions of the material on a page qualifies for 15 protection, the Producing Party also must clearly identify the protected portion(s) 16 (e.g., by making appropriate markings in the margins). or “CONFIDNETIAL-ATTORNEY EYES ONLY” 17 A Party or Non-Party that makes original documents or materials available 18 for inspection need not designate them for protection until after the inspecting Party 19 has indicated which material it would like copied and produced. During the 20 inspection and before the designation, all of the material made available for 21 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 22 identified the documents it wants copied and produced, the Producing Party must 23 determine which documents, or portions thereof, qualify for protection under this 24 Order. Then, before producing the specified documents, the Producing Party must 25 affix the “CONFIDENTIAL legend” to each page that contains Protected Material. 26 If only a portion or portions of the material on a page qualifies for protection, the 27 Producing Party also must clearly identify the protected portion(s) (e.g., by making 28 appropriate markings in the margins). 6 (b) for testimony given in deposition that the Designating Party identify 1 2 on the record, before the close of the deposition all protected testimony. 3 (c) for information produced in some form other than documentary and 4 for any other tangible items, that the Producing Party affix in a prominent place on 5 the exterior of the container or containers in which the information or item is stored 6 the legend “CONFIDENTIAL.” If only a portion or portions of the information or 7 item warrant protection, the Producing Party, to the extent practicable, shall identify 8 the protected portion(s). 5.3 9 Inadvertent Failures to Designate. If timely corrected, an inadvertent 10 failure to designate qualified information or items does not, standing alone, waive 11 the Designating Party’s right to secure protection under this Order for such 12 material. Upon timely correction of a designation, the Receiving Party must make 13 reasonable efforts to assure that the material is treated in accordance with the 14 provisions of this Order. 15 6. 16 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 17 designation of confidentiality at any time that is consistent with the Court’s 18 scheduling order. 19 20 21 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 The burden of persuasion in any such challenge proceeding shall be on 22 the Designating Party. Frivolous challenges, and those made for an improper 23 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 24 parties) may expose the Challenging Party to sanctions. Unless the Designating 25 Party has waived or withdrawn the confidentiality designation, all parties shall 26 continue to afford the material in question the level of protection to which it is 27 entitled under the Producing Party’s designation until the court rules on the 28 challenge. 7 1 /// 2 /// 3 7. 4 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 5 disclosed or produced by another Party or by a Non-Party in connection with this 6 Action only for prosecuting, defending, or attempting to settle this Action. Such 7 Protected Material may be disclosed only to the categories of persons and under the 8 conditions described in this Order. When the litigation has been terminated, a 9 Receiving Party must comply with the provisions of section 13 below (FINAL 10 DISPOSITION). 11 Protected Material must be stored and maintained by a Receiving Party at a 12 location and in a secure manner that ensures that access is limited to the persons 13 authorized under this Order. 14 Disclosure of “CONFIDENTIAL” Information or Items. Unless 7.2 15 otherwise ordered by the court or permitted in writing by the Designating Party, a 16 Receiving 17 “CONFIDENTIAL” only to: Party may disclose any information or item designated 18 (a) the Receiving Party’s Outside Counsel of Record in this action, as 19 well as employees of said Outside Counsel of Record to whom it is reasonably 20 necessary to disclose the information for this Action; 21 22 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation; 23 (c) Experts (as defined in this Order) of the Receiving Party to whom 24 disclosure is reasonably necessary for this litigation and who have signed the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 26 (d) the court and its personnel; 27 (e) court reporters and their staff; 28 (f) professional jury or trial consultants, mock jurors, and Professional 8 1 Vendors to whom disclosure is reasonably necessary for this litigation and who 2 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 3 4 custodian or other person who otherwise possessed or knew the information; 5 (h) during their depositions, witnesses, and attorneys for witnesses, in the 6 Action to whom disclosure is reasonably necessary provided: (1) the depositing 7 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 8 they will not be permitted to keep any confidential information unless they sign the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 10 agreed by the Designating Party or ordered by the court. Pages of transcribed 11 deposition testimony or exhibits to depositions that reveal Protected Material must 12 be separately bound by the court reporter and may not be disclosed to anyone 13 except as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 14 15 mutually agreed upon by any of the parties engaged in settlement discussions. 16 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 17 IN OTHER LITIGATION 18 If a Party is served with a subpoena or a court order issued in other litigation 19 that compels disclosure of any information or items designated in this action as 20 “CONFIDENTIAL,” that Party must: 21 22 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 23 (b) promptly notify in writing the party who caused the subpoena or order 24 to issue in the other litigation that some or all of the material covered by the 25 subpoena or order is subject to this Protective Order. Such notification shall include 26 a copy of this Stipulated Protective Order; and 27 28 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 9 1 If the Designating Party timely seeks a protective order, the Party served with 2 the subpoena or court order shall not produce any information designated in this 3 action as “CONFIDENTIAL” before a determination by the court from which the 4 subpoena or order issued, unless the Party has obtained the Designating Party’s 5 permission. The Designating Party shall bear the burden and expense of seeking 6 protection in that court of its confidential material and nothing in these provisions 7 should be construed as authorizing or encouraging a Receiving Party in this action 8 to disobey a lawful directive from another court. 9 Unless otherwise ordered by the Court or permitted in writing by the Designating 10 Party, a Receiving Party may disclose any information or item designated as 11 “CONFIDENTIAL-ATTORNEY EYES ONLY” only to 12 (a) Counsel for the parties; 13 (b) Paralegal, clerical, and secretarial personnel regularly employed by 14 counsel referred to in subpart (a) directly above, including stenographic 15 deposition reporters or videographers retained in connection with this 16 action; (c) Court personnel including stenographic reporters or videographers 17 18 engaged in proceedings as are necessarily incidental to the preparation 19 for the trial of the civil action; 20 (d) Experts (as defined in this Order) of the Receiving Party to whom 21 disclosure is reasonably necessary for this litigation and who have 22 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 23 A); (e) The finder of fact at the time of trial, subject to the court’s rulings on in 24 limine motions and objections of counsel. 25 26 27 28 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a 10 1 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 2 produced by Non-Parties in connection with this litigation is protected by the 3 remedies and relief provided by this Order. Nothing in these provisions should be 4 construed as prohibiting a Non-Party from seeking additional protections. 5 (b) In the event that a Party is required, by a valid discovery request, to 6 produce a Non-Party’s confidential information in its possession, and the Party is 7 subject to an agreement with the Non-Party not to produce the Non-Party’s 8 confidential information, then the Party shall: 9 (1) promptly notify in writing the Requesting Party and the Non-Party 10 that some or all of the information requested is subject to a confidentiality 11 agreement with a Non-Party; 12 (2) promptly provide the Non-Party with a copy of the Stipulated 13 Protective Order in this litigation, the relevant discovery request(s), and a 14 reasonably specific description of the information requested; and (3) make the information requested available for inspection by the 15 16 Non-Party, if requested. 17 (c) If the Non-Party fails to object or seek a protective order from this 18 court within 14 days of receiving the notice and accompanying information, the 19 Receiving Party may produce the Non-Party’s confidential information responsive 20 to the discovery request. If the Non-Party timely seeks a protective order, the 21 Receiving Party shall not produce any information in its possession or control that 22 is subject to the confidentiality agreement with the Non-Party before a 23 determination by the court. Absent a court order to the contrary, the Non-Party 24 shall bear the burden and expense of seeking protection in this court of its Protected 25 Material. 26 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 27 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 28 Protected Material to any person or in any circumstance not authorized under this 11 1 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 2 writing the Designating Party of the unauthorized disclosures, (b) use its best 3 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 4 person or persons to whom unauthorized disclosures were made of all the terms of 5 this Order, and (d) request such person or persons to execute the “Acknowledgment 6 and Agreement to Be Bound” that is attached hereto as Exhibit A. 7 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 8 PROTECTED 9 When a Producing Party gives notice to Receiving Parties that certain 10 inadvertently produced material is subject to a claim of privilege or other 11 protection, the obligations of the Receiving Parties are those set forth in Federal 12 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 13 whatever procedure may be established in an e-discovery order that provides for 14 production without prior privilege review. Pursuant to Federal Rule of Evidence 15 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 16 of a communication or information covered by the attorney-client privilege or work 17 product protection, the parties may incorporate their agreement in the stipulated 18 protective order submitted to the court. 19 12. 20 21 MATERIAL MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 22 12.2 Right to Assert Other Objections. By stipulating to the entry of this 23 Protective Order no Party waives any right it otherwise would have to object to 24 disclosing or producing any information or item on any ground not addressed in 25 this Stipulated Protective Order. Similarly, no Party waives any right to object on 26 any ground to use in evidence of any of the material covered by this Protective 27 Order. 28 12.3 Filing Protected Material. A Party that seeks to file under seal any 12 1 Protected Material must comply with Local Civil Rule 141. Protected Material may 2 only be filed under seal pursuant to a court order authorizing the sealing of the 3 specific Protected Material at issue. If a Party’s request to file Protected Material 4 under seal is denied by the court, then the Receiving Party may file the information 5 in the public record unless otherwise instructed by the court. 6 13. FINAL DISPOSITION 7 After the final disposition of this Action, as defined in paragraph 4, within 60 8 days of a written request by the Designating Party, each Receiving Party must 9 return all Protected Material to the Producing Party or destroy such material. As 10 used in this subdivision, “all Protected Material” includes all copies, abstracts, 11 compilations, summaries, and any other format reproducing or capturing any of the 12 Protected Material. Whether the Protected Material is returned or destroyed, the 13 Receiving Party must submit a written certification to the Producing Party (and, if 14 not the same person or entity, to the Designating Party) by the 60 day deadline that 15 (1) identifies (by category, where appropriate) all the Protected Material that was 16 returned or destroyed and (2) affirms that the Receiving Party has not retained any 17 copies, abstracts, compilations, summaries or any other format reproducing or 18 capturing any of the Protected Material. Notwithstanding this provision, Counsel 19 are entitled to retain an archival copy of all pleadings, motion papers, trial, 20 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 21 and trial exhibits, expert reports, attorney work product, and consultant and expert 22 work product, even if such materials contain Protected Material. Any such archival 23 copies that contain or constitute Protected Material remain subject to this Protective 24 Order as set forth in Section 4 (DURATION). 25 // 26 // 27 // 28 // 13 1 // 2 // 3 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 4 5 6 Date: January 26, 2017 /s/ G. Craig Smith G. Craig Smith Ferguson, Praet & Sherman Attorneys for Defendants City of Clovis, City of Sanger and Kristina Hershberger, Jesus Santillan, Channon High, Angela Yambupah, Ralph Salazar and Fred Sanders Date: January 26, 2017 /s/ Kevin G. Little Kevin G. Little Law Office of Kevin G. Little Attorneys for Plaintiff Desiree Martinez Date: January 26, 2017 /s/ Yan Shrayberman Yan Shrayberman Attorney for Defendant Kyle Pennington Date: January 26, 2017 /s/ John W. Phillips John W. Phillips Wild, Carter & Tipton Attorneys for Defendants Kim and Connie Pennington 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print 4 _________________________________ [print or type full address], declare under 5 penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Eastern 7 District of California on __________ [date] in the case of Desiree Martinez v. 8 City of Clovis, et al.; No. 1:15-CV-00683 JAM MJS. 9 I agree to comply with and to be bound by all the terms of this Stipulated Protective 10 Order and I understand and acknowledge that failure to so comply could expose me 11 to sanctions and punishment in the nature of contempt. I solemnly promise that I 12 will not disclose in any manner any information or item that is subject to this 13 Stipulated Protective Order to any person or entity except in strict compliance with 14 the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for 16 the Eastern District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. 19 I hereby appoint __________________________ [print or type full name] of 20 _______________________________________ [print or type full address and 21 telephone number] as my California agent for service of process in connection with 22 this action or any proceedings related to enforcement of this Stipulated Protective 23 Order. 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: _______________________________ 27 28 Signature: _________________________________ 15 or type full name], of 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 No. 1:15-CV-00683 JAM MJS DESIREE MARTINEZ, 6 STIPULATED PROTECTIVE ORDER Plaintiff, 7 8 9 vs. 10 11 KYLE PENNINGTON; KIM 12 PENNINGTON; CONNIE 13 PENNINGTON; KRISTINA 14 HERHBERGER; JESUS 15 SANTILLAN; CHANNON HIGH; 16 THE CITY OF CLOVIS; ANGELA 17 YAMBUPAH; RALPH SALAZAR; 18 FRED SANDERS; THE CITY OF 19 SANGER; and DOES 1 through 20, 20 21 22 Good cause appearing, the foregoing stipulation for protective order in case No. 1:15-CV-00683 JAM MJS is accepted and its terms adopted as the Order of this Court. 23 24 IT IS SO ORDERED. 25 26 Dated: January 30, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 27 28 16

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