D.G., et al v. County of Kern

Filing 18

PROTECTIVE ORDER, signed by Magistrate Judge Jennifer L. Thurston on 7/22/2015. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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D.G., a minor, by and through his
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guardian ad litem, Denise Bonilla,
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individually and as successor-in-interest )
to David Garcia, deceased; D.E.G., a
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minor, by and through her guardian ad )
litem, Denise Bonilla, individually and )
as successor-in-interest to David Garcia, )
deceased; G.D., a minor, by and
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through her guardian ad litem, Denise )
Bonilla, individually and as successor- )
in-interest to David Garcia, deceased; )
RAMONA RAMIREZ NUNEZ,
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individually;
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Plaintiffs,
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vs.
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COUNTY OF KERN; DOES 1
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THROUGH 10;
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Defendants.
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CASE NO. 1:15-CV-00760 JAM-JLT
PROTECTIVE ORDER; [PROPOSED]
ORDER
(Doc. 17)

COME NOW the Parties in this matter and jointly present this Protective Order for the

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Court’s approval.

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PROTECTIVE ORDER

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1. PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of confidential,

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

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any purpose other than prosecuting this litigation may be warranted. Accordingly, the Parties in DG et

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al v. County of Kern et al., USDC Eastern District of California Case No.1:15-CV-00706 JAM-JLT

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petitioned the Court to enter the following Protective Order. Good cause appearing, the Court ORDERS

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as follows:

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This Order does not confer blanket protections on all disclosures or responses to discovery and that the

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

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are entitled to confidential treatment under the applicable legal principles. As set forth in Section 12.3,

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below, this Protective Order does not entitle the parties to file confidential information under seal.

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2. DEFINITIONS

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2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or
items under this Order.

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2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated,

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stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil

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Procedure 26(c).

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2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as
their support staff).

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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 “CONFIDENTIAL.”

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2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or

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manner in which it is generated, stored, or maintained (including, among other things, testimony,

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transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery

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in this matter.

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2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the

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litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant

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in this action.

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2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does
not include Outside Counsel of Record or any other outside counsel.

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2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity
not named as a Party to this action.

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2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action but

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are retained to represent or advise a party to this action and have appeared in this action on behalf of

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that party or are affiliated with a law firm which has appeared on behalf of that party.

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any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and Outside Counsel of Record (and their support staffs).

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Party:

2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in
this action.

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2.12 Professional Vendors: persons or entities that provide litigation support services (e.g.,

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photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or

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retrieving data in any form or medium) and their employees and subcontractors.

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2.13

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“CONFIDENTIAL.”

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Protected Material:

any Disclosure or Discovery Material that is designated as

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing

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Party.

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3. SCOPE

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The protections conferred by this Order cover not only Protected Material (as defined above), but also

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(1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or

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their Counsel that might reveal Protected Material. However, the protections conferred by this Order do

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not cover the following information: (a) any information that is in the public domain at the time of

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disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving

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Party as a result of publication not involving a violation of this Order, including becoming part of the

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public record through trial or otherwise; and (b) any information known to the Receiving Party prior to

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the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the

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information lawfully and under no obligation of confidentiality to the Designating Party. Any use of

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Protected Material at trial shall be governed by a separate agreement or order.

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4. DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall

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remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs.

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Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this

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action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of

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all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any

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motions or applications for extension of time pursuant to applicable law.

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5. DESIGNATING PROTECTED MATERIAL

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5.1 Exercise of Restraint and Care in Designating Material for Protection

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Each Party or Non-Party that designates information or items for protection under this Order must take

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care to limit any such designation to specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of material, documents, items, or oral

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or written communications that qualify – so that other portions of the material, documents, items, or

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communications for which protection is not warranted are not swept unjustifiably within the ambit of

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this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be

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clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or

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retard the case development process or to impose unnecessary expenses and burdens on other parties)

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expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it designated for protection

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do not qualify for protection, the Designating Party must promptly notify all other Parties that it is

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withdrawing the mistaken designation.

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5.2 Manner and Timing of Designations

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Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as

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otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this

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Order must be clearly so designated before the material is disclosed or produced. Designation in

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conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts

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of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend

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“CONFIDENTIAL” to each page that contains protected material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).A Party or Non-Party that makes

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original documents or materials available for inspection need not designate them for protection until

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after the inspecting Party has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL” legend to each page that contains Protected Material.

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If only a portion or portions of the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party

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identify on the record, before the close of the deposition, hearing, or other proceeding, all protected

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testimony.

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(c) for information produced in some form other than documentary and for any other tangible items,

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that the Producing Party affix in a prominent place on the exterior of the container or containers in

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which the information or item is stored the legend “CONFIDENTIAL.” If only a portion or portions of

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the information or item warrant protection, the Producing Party, to the extent practicable, shall identify

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the protected portion(s).

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5.3 Inadvertent Failures to Designate

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If timely corrected, an inadvertent failure to designate qualified information or items does not, standing

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alone, waive the Designating Party’s right to secure protection under this Order for such material. Upon

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timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1 Timing of Challenges

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Any Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a

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Designating Party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, the challenge must

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be brought within a reasonable time or it is waived.

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6.2 Meet and Confer

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The Challenging Party shall initiate the dispute resolution process by providing written notice of each

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designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to

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whether a challenge has been made, the written notice must recite that the challenge to confidentiality is

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being made in accordance with this specific paragraph of the Protective Order. The parties shall attempt

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to resolve each challenge in good faith and must begin the process by conferring directly (in voice to

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voice dialogue; other forms of communication are not sufficient) within 14 days of the date of service

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of notice. In conferring, the Challenging Party must explain the basis for its belief that the

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confidentiality designation was not proper and must give the Designating Party an opportunity to

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review the designated material, to reconsider the circumstances, and, if no change in designation is

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offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer process first or establishes

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that the Designating Party is unwilling to participate in the meet and confer process in a timely manner.

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6.3 Judicial Intervention

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If the Parties cannot resolve a challenge after meeting and conferring, the Challenging Party SHALL

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initiate an informal, telephonic conference with the assigned Magistrate Judge as required by the

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scheduling order (Doc. 85 at 5, Headnote VI). At that conference, the Court will attempt to resolve the

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matter without need for formal motion practice. If, in the Court’s view, the matter can only be resolved

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through formal motion practice, the Court will authorize the Challenging Party to file a motion which

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SHALL comply with Local Rule 251(c).

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As with motions to compel, the Challenging Party SHALL bear the initial burden of demonstrating that

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the Designating Party has improperly marked the material as confidential. If this showing is made, the

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burden will shift and as with motions for protective orders under Federal Rules of Civil Procedure

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26(c), the burden of establishing the need for the confidentiality—as with any evidentiary privilege—

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must be borne by the Designating Party who is asserting it. Frivolous challenges, and those made for an

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improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. All parties shall continue to afford the material in question

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the level of protection to which it is entitled under the Producing Party’s designation until the court

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rules on the challenge.

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7. ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1 Basic Principles

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A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a

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Non-Party in connection with this case only for prosecuting, defending, or attempting to settle this

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litigation. Such Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the litigation has been terminated, a Receiving Party must

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comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and in a secure

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manner that ensures that access is limited to the persons authorized under this Order.

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7.2 Disclosure of “CONFIDENTIAL” Information or Items

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Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving

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Party may disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of said

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Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this

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litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached

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hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unlessotherwise

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agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and

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may not be disclosed to anyone except as permitted under this Protective Order.

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(g) the author or recipient of a document containing the information or a custodian or other person who

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otherwise possessed or knew the information.

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8.

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LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of

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any information or items designated in this action as “CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall include a copy of the

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subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to issue in the other

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litigation that some or all of the material covered by the subpoena or order is subject to this Protective

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Order. Such notification shall include 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

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whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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Party served with the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party’s permission. The Designating Party shall

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bear the burden and expense of seeking protection in that court of its confidential material – and

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nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this

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action to disobey a lawful directive from another court.

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9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS

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LITIGATION

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(a) The terms of this Order are applicable to information produced by a Non-Party in this action and

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designated as “CONFIDENTIAL.” Such information produced by Non-Parties in connection withthis

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litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s

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confidential information in its possession, and the Party is subject to an agreement with the Non-Party

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not to produce the Non-Party’s confidential information, then the Party shall:

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(1)

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information requested is subject to a confidentiality agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Protective Order in this litigation, the relevant

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discovery request(s), and a reasonably specific description of the information requested; and

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(3) make the information requested available for inspection by the Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this court within 14 days of receiving

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the notice and accompanying information, the Receiving Party may produce the Non-Party’s

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confidential information responsive to the discovery request. If the Non-Party timely seeks a protective

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order, the Receiving Party shall not produce any information in its possession or control that is subject

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to the confidentiality agreement with the Non-Party before a determination by the court. Absent a court

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order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this

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court of its Protected Material.

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promptly notify in writing the Requesting Party and the Non-Party that some or all of the

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10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any

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person or in any circumstance not authorized under this Protective Order, the Receiving Party must

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immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or

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persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as

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Exhibit A.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material

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is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those

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set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for production without

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prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach

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an agreement on the effect of disclosure of a communication or information covered by the attorney-

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client privilege or work product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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12. MISCELLANEOUS

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12.1 Right to Further Relief

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Nothing in this Order abridges the right of any person to seek its modification by the court in the future.

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12.2 Right to Assert Other Objections

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The entry of this Protective Order does not imply any Party’s waiver of any right it otherwise would

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have to object to disclosing or producing any information or item on any ground not addressed in this

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Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any

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of the material covered by this Protective Order.

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12.3 Filing Protected Material

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Without written permission from the Designating Party or a court order secured after appropriate notice

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to all interested persons, a Party may not file in the public record in this action any Protected Material.

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A Party that seeks to file under seal any Protected Material must comply with the applicable local rules.

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Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. A sealing order will issue only upon a request establishing that the

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Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection

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under the law. If a Receiving Party's request to file Protected Material under seal is denied by the court,

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then the Receiving Party may file the information in the public record unless otherwise instructed by the

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court.

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13. FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving Party

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must return all Protected Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any

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other format reproducing or capturing any of the Protected Material. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification to the Producing Party

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(and, if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

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(by category, where appropriate) all the Protected Material that was returned or destroyed and (2)

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affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any

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other format reproducing or capturing any of the Protected Material. Notwithstanding this provision,

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Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and

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hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports,

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attorney work product, and consultant and expert work product, even if such materials contain Protected

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Material. Any such archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4 (DURATION).

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Dated: July 17, 2015

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By /s/ Thomas C. Seabaugh

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Matthew C. Clark
Neil K. Gehlawat
Dale K. Galipo
Thomas C. Seabaugh
Attorneys for Plaintiffs

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Dated: July 17, 2015

THERESA A. GOLDNER, COUNTY COUNSEL

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By /s/ Andrew C. Thomson
Andrew C. Thomson, Deputy
Attorneys for Defendant County of Kern

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IT IS SO ORDERED.
Dated:

July 22, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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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 _________________ [print

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or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Protective Order that was issued by the United States District Court for the

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Eastern District of

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California on [date] in the case of DG et al v. County of Kern et al., USDC Eastern District of

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California Case No.1:15-CV-00706- JAM-JLT.

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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 Order.

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I further agree to submit to the jurisdiction of the United States District Court for the Eastern

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District of California for the purpose of enforcing the terms of this Protective Order, even if

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such enforcement proceedings occur after termination of this action.

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I hereby appoint ____________________________________________ [print/type full name]

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of ________________________________________ [print/type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Protective Order.

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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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