Mack v. California Department of Corrections and Rehabilitation et al

Filing 90

PROTECTIVE ORDER, signed by Magistrate Judge Jennifer L. Thurston on 12/12/2016. (Hall, S)

1
2
3
4
5
6
7
8
9
10
11

CURTIS E. ALLEN
2303 Twin Dolphin Drive, Suite 600
Redwood City, CA 94065
Ph 650 868 6620
Fax [phone]
[e-mail]
Attorney for Plaintiff Jerome Mack
KAMALA D. HARRIS
Attorney General of California
JUDITH A. RECCHIO
Supervising Deputy Attorney General
MARY HORST
Deputy Attorney General
State Bar No. 163069
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
Telephone: [phone]
Fax: [phone]
E-mail: Mary.Horst @doj.ca.gov
Attorneys for Defendants CDCR & Kim Holland

12

UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14
15
JEROME J. MACK,

Case No. 1:15-CV-01600 JLT

16
Plaintiff, [PROPOSED] PROTECTIVE ORDER
17
v.

(Doc. 89)

18
19
20
21
22
23
24
25

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; K. HOLLAND,
WARDEN; R. GROVES, CHIEF DEPUTY
WARDEN; E. GARCIA, ASSOCIATE
WARDEN; B. SANDERS, ASSOCIATE
WARDEN; T. HAAK, CORRECTIONAL
CAPTAIN; CORRECTIONAL
LIEUTENANT K. WESTERGREN;
CORRECTIONAL LIEUTENANT D.
MASON; ERO DISCIPLINARY OFFICER
S. MCKAY; STEVEN M. YAPLEE, MD;
KRISTY WOODS, RN; STATE
PERSONNEL BOARD,

26
Defendant.
27
28
1
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1

1.

Pursuant to Rule 26 of the Federal Rules of Civil Procedure, and it appearing that

2

discovery in this action will involve the disclosure of confidential information, it is hereby

3

stipulated by and between Plaintiff Jerome Mack (“Plaintiff”) and Defendants California

4

Department of Corrections and Rehabilitation (“CDCR”) and Kim Holland (together,

5

“Defendants”), collectively referred to as the “Parties” and individually referred to as “Party,”

6

through their respective counsel, and ordered that the following Protective Order be entered to

7

give effect to the terms and conditions set forth below:

8
9
10

2.

“Designating Party” means any one of the Parties producing Documents or

information under this Protective Order.
3.

“Document” or “Documents” shall have the broadest meaning permitted under

11

Rules 26 and 34 of the Federal Rules of Civil Procedure, Rule 1001 of the Federal Rules of

12

Evidence, and relevant case law.

13

4.

“Protected Information” includes the following categories of information, and

14

shall include Documents produced during discovery, answers to interrogatories, responses to

15

requests for admissions, depositions, hearing or trial transcripts, and tangible things, the

16

information contained therein, and all copies, abstracts, excerpts, analyses, or other writings that

17

contain, reflect, or disclose such information.

18

A.

“CONFIDENTIAL” designates information that a Designating Party reasonably

19

believes to be confidential due to safety or security reasons, that is not readily available to the

20

public, and/or the disclosure of which is likely to result in imminent or substantial endangerment

21

to an inmate or prison employee.

22

B.

“REDACTED & CONFIDENTIAL” designates information that is protected

23

against disclosure by various privacy laws, including, for example, social security numbers, home

24

addresses, and bank account numbers.

25
26
27
28

C.

The designation of information as “CONFIDENTIAL” or “REDACTED &

CONFIDENTIAL” is limited to information falling into one or more of the following categories:
i.

Prison, CDCR, or OIG policies, operational procedures, rules, or
regulations that have previously been designated as confidential;
2
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1

ii.

personnel documents;

2

iii.

post orders;

3

iv.

investigation documents;

4

v.

documents contained in the central prison file, medical file, or

5

parole files of an inmate or former inmate;

6

vi.

any personal information regarding an inmate, former inmate, or

7

staff member employed or formerly employed by the CDCR or

8

OIG;

9

vii.

10

information regarding the identity of a confidential informant and
confidential investigations; and

11

viii.

the information addressed in Eastern District of California Local

12

Rule 39-140, including minors’ names, financial account numbers,

13

social security numbers, and dates of birth.

14

However, information falling within these categories does not, solely by virtue of that fact, merit

15

designation as “CONFIDENTIAL” or “REDACTED & CONFIDENTIAL.” Such information

16

must also meet the criteria described in Paragraphs 4.A and 4.B, respectively, to merit those

17

designations.

18

E.

Protected Information shall not include: (i) information that is in the public

19

domain at the time of disclosure; (ii) information that after disclosure is published or becomes

20

part of the public domain through no fault or action (in whole or in part) of any Party receiving

21

information under this Protective Order, but only after it is published or comes into the public

22

domain; (iii) information that is in the possession of a Party receiving such information without

23

any confidentiality obligations at the time of disclosure; or (iv) information disclosed by a third

24

party without any confidentiality obligations at the time of disclosure.

25

5.

This Protective Order shall apply to all Protected Information exchanged by any

26

Party, including, without limitation, Documents, things, other discovery materials, transcripts,

27

depositions, testimony, or other papers produced, filed, generated, or served by a Party in this

28

litigation.
3
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1

6.

All Protected Information produced and designated as confidential hereunder shall

2

have stamped or affixed on each page that contains Protected Information the appropriate

3

confidentiality classification—either “CONFIDENTIAL,” or “REDACTED &

4

CONFIDENTIAL,”— and the designation “Case No. 1:15-CV-01600 (E.D. Cal.)” at the time

5

such materials, or copies thereof, are delivered to the receiving Party, or within ten (10) court

6

days thereafter in the event such labeling or marking is inadvertently omitted. Until ten (10) court

7

days have elapsed after receipt, the reviewing Party will treat Documents and things that have

8

been received and that have not been designated “CONFIDENTIAL,” “REDACTED &

9

CONFIDENTIAL,” as if they had been designated with the “CONFIDENTIAL,”

10

“REDACTED & CONFIDENTIAL,” classification. The parties will use due care to designate as

11

Protected Information only Documents or other materials that truly encompass such information.

12
13

7.

Protected Information that has been classified as “CONFIDENTIAL” or

“REDACTED & CONFIDENTIAL” may be disclosed only to the following:

14

A.

outside counsel for the receiving Party and their clerical and paralegal staffs and

15

litigation support providers (for example, outside copy services, coding and imaging vendors,

16

graphic art and visual aid providers, or jury consultants) whose duties and responsibilities require

17

access to Protected Information;

18

B.

Plaintiffs and Defendants;

19

C.

Experts and consultants who are requested by counsel of the receiving Party to

20

furnish technical, legal, expert, or other specialized services in connection with this litigation;

21
22

D.

any necessary secretarial, clerical, or other lay personnel of such officer;

23
24
25

An officer before whom a deposition is taken, including stenographic reporters and

E.

Any other person to whom the parties agree in writing or as allowed by the Court;

F.

During their depositions, witnesses in the action to whom disclosure is reasonably

and;

26

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

27

unless otherwise agreed by the Designating Party or ordered by the court.

28
4
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1

8.

No Protected Information shall be provided to any person identified in subpart B

2

or C of Paragraph 7 until each such person has been provided with a copy of this Protective

3

Order, reviewed it, and signed the Certification attached hereto as Exhibit A.

4

9.

Designations of Discovery

5

A.

Depositions may be designated as Protected Information in accordance with this

6

Order: (a) in the course of the deposition, orally on the record; or (b) by notifying the other Party

7

in writing, within ten (10) court days of receipt of the transcript by the parties, of the pages and

8

lines of the transcript that contain the Protected Information.

9

i.

All depositions shall presumptively be treated as Protected

10

Information marked with the “CONFIDENTIAL” designation in

11

accordance with the definition above and subject to this Order

12

during the deposition and for a period of ten (10) court days after a

13

transcript of said deposition is received by the Parties.

14

ii.

Counsel of record for the Designating Party may also request that

15

all persons other than the individuals specified in Paragraph 7 of

16

this Protective Order, as appropriate, leave the deposition room

17

during the portion of the deposition in which Protected Information

18

is disclosed. The failure of such other persons to comply with a

19

request of this type shall constitute substantial justification for

20

counsel of record to advise the witness not to answer the question

21

pending a ruling from the Court on the issue.

22

iii.

Where appropriate in light of the amount of Protected Information

23

likely to be disclosed at a given deposition, counsel of record for

24

the Parties may agree at the beginning of the deposition that the

25

entire transcript shall be designated “CONFIDENTIAL,” subject to

26

review of the transcript and withdrawal of any unnecessary

27

designation within ten (10) court days of receipt of the transcript.

28
5
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1
2
3

B.

Answers to interrogatories and requests for admission may also be designated

confidential by marking the Documents in a manner described in Paragraph 6 of this Order.
C.

Notwithstanding Paragraph 7 above, other persons identified in that specific item,

4

or on any attachment thereto, as being the author, or as having previously received a copy of an

5

exact duplicate of said specific item.

6

10.

Documents Available for Inspection and Copying

7

A.

Notwithstanding the provisions of Paragraph 6, all Documents and things that are

8

produced for initial inspection prior to copying and delivery shall presumptively be considered to

9

be designated Protected Information marked with the “CONFIDENTIAL” classification and shall

10

be produced for inspection only by persons representing the receiving Party who fall within at

11

least one of the categories permitted under Paragraph 7.

12

B.

At the initial inspection of Documents and things, the receiving Party shall not

13

make copies of the Documents made available for inspection, and if notes are made therefrom

14

other than a list identifying Documents or things to be copied or otherwise furnished, the notes

15

shall be treated as Protected Information marked with the “CONFIDENTIAL” classification.

16

C.

After the receiving Party has selected Documents or things for copying, they shall

17

promptly be sequentially numbered (if not already done), copied, and the copies delivered to the

18

receiving Party by the producing Party (with the receiving Party paying only for the costs of its

19

copy set and delivery of such set). Before copies are delivered to the receiving Party, counsel for

20

the producing Party shall designate and mark each page of the Documents and things with the

21

appropriate confidentiality classification — either “CONFIDENTIAL,” “REDACTED &

22

CONFIDENTIAL,” and with the litigation case number (“Case No. 1:15-CV-01600 (E.D. Cal.)”)

23

if and to the extent appropriate in accordance with Paragraph 6 of this Protective Order. Copies

24

of Documents and things delivered to the receiving Party and not so marked shall be considered

25

thereafter to be outside the restrictions imposed by this Protective Order, except as provided in

26

Paragraph 6.

27

11.

Compliance With Civil Local Rule 141

28
6
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1

A.

All deposition transcripts, exhibits, answers to interrogatories, and other

2

Documents that have previously been designated by a Party as comprising or containing Protected

3

Information, or any pleading, brief, or memorandum purporting to reproduce or paraphrase such

4

material, shall be lodged with the Court for filing in accordance with Gen. L.R. 141, subd. (e).

5
6
7

B.

The confidential portions of Documents and things that are accepted for filing

under seal by the Court shall be treated in accordance with Gen. L.R. 141, subd. (e).
12.

If the receiving Party disagrees with the confidential or redacted status of any

8

Document or other material, or if the receiving Party disagrees with the level of confidentiality

9

classification, the receiving Party will notify and confer with the producing Party to request

10

reclassification of the Document or material. If no agreement has been reached within ten (10)

11

court days of such notification or a later date if agreed to in writing by the parties, the receiving

12

Party may thereafter make a request of the Court for an order reclassifying the confidentiality

13

designation and/or removing such Document or other material from the restrictions of this Order.

14

If such a request is made, the Party seeking to maintain a confidentiality classification bears the

15

burden of establishing that the restrictions of this Order apply to such Protected Information.

16

13.

Privileged Information

17

A.

Nothing in this Protective Order shall in and of itself require disclosure of

18

information that is protected by the attorney-client privilege, work-product doctrine, or any other

19

privilege, doctrine, or immunity, nor does this Protective Order result in any Party giving up its

20

right to argue that otherwise privileged documents must be produced due to waiver or for any

21

other reason.

22

B.

In the event any Party claims that it has inadvertently disclosed materials subject to

23

the attorney-client privilege, work-product doctrine, or any other privilege, doctrine, or immunity,

24

it shall, upon discovery of the inadvertent disclosure, promptly notify the opposing Party thereof.

25

Promptly upon receiving such notice, outside counsel for the Party who received the allegedly

26

inadvertently-disclosed privileged materials shall sequester all identified materials (including any

27

and all copies) in its offices until the matter has been resolved either by agreement of the parties

28
7
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1

or by an order of this Court. Counsel shall also take reasonable steps to retrieve the materials if

2

disclosed to anyone else before notification.

3

C.

In the event any Party receives materials that on their face appear to be subject to

4

the attorney-client privilege and to have been inadvertently disclosed, the Party shall treat the

5

materials in the manner described in Paragraph 13.B and shall promptly notify the disclosing

6

Party.

7

D.

With respect to the application of any claim of privilege or immunity for

8

inadvertently produced materials, if the parties are unable to reach a satisfactory agreement as to

9

the return and/or use of such Documents within ten (10) court days of such notice, the producing

10

Party may, within ten (10) court days thereafter, petition the Court on an expedited basis to

11

resolve the matter. If the Party alleging an inadvertent disclosure makes an adequate showing,

12

reasonable under the circumstances, of both inadvertence and privilege, the Court shall order all

13

such information returned to the Party that inadvertently produced them. The period of time that

14

elapses while a Party follows the procedures set forth in this Paragraph 13 for resolving any

15

inadvertent disclosure dispute shall not be considered as a factor in deciding whether a Party’s

16

delay in attending to the inadvertent disclosure was unreasonable under the circumstances.

17
18

14.

A third party from whom discovery is sought in this litigation (“the Third Party”)

may produce Protected Information entitled to the protections afforded by this Order as follows:

19

A.

The Third Party shall be given a copy of this Order;

20

B.

The Third Party shall request, in writing addressed to the propounding

21
22
23
24
25
26
27

Party’s counsel, the protections afforded by this Order;
C.

The Third Party shall produce any Protected Information in the manner

described in Paragraphs 6, 9, and/or 10;
D.

The Third Party’s Protected Information produced in such manner may be

disclosed only to the persons identified in Paragraph 7;
E.

Paragraph 12 sets the procedures for disputing classification of material

produced by the Third Party;

28
8
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1
2

F.

found in Paragraph 13;

3
4

The Third Party is entitled to the protections against inadvertent disclosure

G.

Following the termination of this Action, the Third Party’s Protected

Information shall be treated as described in Paragraph 16; and

5

H.

Before any modification of the Order pursuant to Paragraph 17 that might

6

affect the Third Party’s rights under this Order, the Third Party is entitled to notice and an

7

opportunity to object.

8
9

15.

If Protected Information produced in accordance with this Order is disclosed to

any person other than in the manner authorized by this Order, the Party responsible for the

10

disclosure shall immediately bring all pertinent facts relating to such disclosure to the attention of

11

all counsel of record and, without prejudice to other rights and remedies available to the

12

producing Party, make every effort to obtain the return of the disclosed Protected Information and

13

prevent further disclosure of it by the person who was the recipient of such information.

14

16.

Unless otherwise agreed or ordered by the Court, within ninety (90) calendar days

15

after the termination of this Action, Case No. 1:15-CV-01600 (E.D. Cal.), including any and all

16

appeals therefrom, attorneys for the receiving Party shall destroy all Protected Information

17

received from the other parties to this litigation or third parties hereunder, and provide the other

18

parties with written verification of such destruction. Notwithstanding this provision, outside

19

counsel for each Party may maintain for archival purposes one copy of all pleadings, transcripts,

20

exhibits and written discovery responses, including portions designated under this Protective

21

Order. Prompt written notice shall be given to a Party who produced Protected Information

22

hereunder if that Party’s Protected Information is sought by any person not a party to this

23

litigation, by subpoena in another action, or by service with any legal process. Any person

24

seeking such Protected Information who takes action to enforce such subpoena or other legal

25

process shall be apprised of this Order.

26

17.

This Order may be changed only by the written agreement of the parties or further

27

order of the Court, and is without prejudice to the rights of a Party to seek relief from or variation

28

of any of its provisions.
9
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1

18.

Subject to Paragraph 16 above, the remaining provisions of this Order, including

2

the obligations to maintain confidentiality embodied herein, shall survive the final disposition of

3

this litigation and continue in full force and effect.

4
5

Dated: December 12, 2016

6

CURTIS E. ALLEN
By:

//s Curtis E. Allen
Curtis E. Allen

7

Attorneys for Plaintiff JEROME MACK

8
9
10

Dated: December 12, 2016

11
12

EDMUND G. BROWN JR.
Attorney General of the State of California
JUDITH A. RECCHIO
Supervising Deputy Attorney General
MARY HORST
Deputy Attorney General

13
By:

14
15

//s Mary Horst
Mary Horst

Attorneys for Defendants CDCR & KIM
HOLLAND

16
17
18

IT IS SO ORDERED.

19
Dated:
20

December 12, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
10
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

1

EXHIBIT A

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)

CERTIFICATION

1
2
3
4

I, __________________________, residing at __________________________________,
___________________________, being duly sworn according to law, state as follows:
1.

I understand that information or Documents designated “Protected Information”

5

will be provided to me in accordance with the terms and conditions and restrictions of the

6

Protective Order (“Protective Order”), dated __________________, entered in the lawsuit styled

7

Jerome Mack v. CDCR , et al., United States District Court, Eastern District of California, Civil

8

Action No. 1:15-CV-01600 (the “Litigation”);

9
10
11

2.

I have been given a copy of and have read and understand the Protective Order,

and I hereby agree to be bound by its terms;
3.

I further agree that I shall not disclose to others, except in accordance with the

12

terms and conditions of the Protective Order, such Protected Information and that such Protected

13

Information shall be used only for the purposes of the Litigation;

14
15
16

4.

I further understand that my obligation to honor the confidentiality of such

Protected Information will continue even after the Litigation terminates;
5.

I further agree and attest to my understanding that, in the event that I fail to abide

17

by the terms of the Protective Order, I may be subject to sanctions imposed by the Court for such

18

a failure, including sanctions by way of contempt of court, and a claim for damages by the party

19

producing the Protected Information disclosed to me;

20

6.

For purposes of enforcing this Protective Order, I hereby consent to the

21

jurisdiction of the federal courts and state courts in California, and agree that service by mail or

22

personal service of any notice, order, or proceeding in connection therewith shall be valid service

23

upon me;

24

7.

25

I certify that the foregoing statements made by me are true and correct under

penalty of perjury under the laws of the State of California.

26
27

Executed on: ___________________

By: _____________________________

28
12
[PROPOSED] PROTECTIVE ORDER (1:15-CV-01600 JLT)