Doe v. County of Kern et al

Filing 17

PROTECTIVE ORDER, signed by Magistrate Judge Jennifer L. Thurston on 2/3/2016. (Hall, S)

1
2
3
4
5

THERESA A. GOLDNER, COUNTY COUNSEL
By: KATHLEEN RIVERA (SBN 211606)
ANDREW C. THOMSON, DEPUTY (SBN 149057)
Kern County Administrative Center
1115 Truxtun Avenue, Fourth Floor
Bakersfield, CA 93301
Telephone [phone]
Fax [phone]

6
7

Attorneys for Defendant County of Kern

8

UNITED STATES DISTRICT COURT

9
10
11
12
13
14
15

EASTERN DISTRICT OF CALIFORNIA
JANE DOE, an individual,

)
)
Plaintiff,
)
vs.
)
)
COUNTY OF KERN, a municipality;
)
GEORGE ANDERSON; an individual; )
and DOES 1-10, inclusive,
)
Defendants.
)

CASE NO. 1:15-CV-01641-WBS-JLT
PROTECTIVE ORDER
[PROPOSED ORDER]
(Docs. 15, 16)

16
17
18

COME NOW the Parties in this matter and jointly present this Protective Order for the
Court’s approval.
PROTECTIVE ORDER

19
20

1. PURPOSES AND LIMITATIONS

21

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

22

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

23

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

24

Doe v. County of Kern and George Anderson, USDC Eastern District of California Case No. 1:15-CV-

25

01641-WBS-JLT petitioned the Court to enter the following Protective Order. Good cause appearing,

26

the Court ORDERS as follows:

27

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

28

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

1
______________________________________________________________________________
Protective Order

1

items that are entitled to confidential treatment under the applicable legal principles. As set forth in

2

Section 12.3, below, this Protective Order does not entitle the parties to file confidential information

3

under seal.

4

2. DEFINITIONS
2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or

5
6

items under this Order.

7

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

8

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

9

Procedure 26(c).
2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as

10
11

their support staff).
2.4 Designating Party: a Party or Non-Party that designates information or items that it

12
13

produces in disclosures or in responses to discovery as “CONFIDENTIAL.”

14

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

15

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

16

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

17

in this matter.

18

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

19

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

20

in this action.
2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does

21
22

not include Outside Counsel of Record or any other outside counsel.
2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity

23
24

not named as a Party to this action.

25

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

26

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

27

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

28

///

2
______________________________________________________________________________
Protective Order

2.10

1
2

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

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in

3
4

Party:

this action.

5

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

6

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

7

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

8

2.13

Protected Material:

9

any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing

10
11

Party.

12

3. SCOPE

13

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

14

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

15

summaries, or compilations of Protected Material; and (3) any testimony, conversations, or

16

presentations by Parties or their Counsel that might reveal Protected Material. However, the protections

17

conferred by this Order do not cover the following information: (a) any information that is in the public

18

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

19

disclosure to a Receiving Party as a result of publication not involving a violation of this Order,

20

including becoming part of the public record through trial or otherwise; and (b) any information known

21

to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure

22

from a source who obtained the information lawfully and under no obligation of confidentiality to the

23

Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or

24

order.

25

4. DURATION

26

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

27

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order

28

otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and

3
______________________________________________________________________________
Protective Order

1

defenses in this action, with or without prejudice; and (2) final judgment herein after the completion

2

and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time

3

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

4

5. DESIGNATING PROTECTED MATERIAL

5

5.1 Exercise of Restraint and Care in Designating Material for Protection

6

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

7

must take care to limit any such designation to specific material that qualifies under the appropriate

8

standards. The Designating Party must designate for protection only those parts of material, documents,

9

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

10

documents, items, or communications for which protection is not warranted are not swept unjustifiably

11

within the ambit of this Order.

12

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

13

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

14

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

15

expose the Designating Party to sanctions.

16

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

17

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

18

that it is withdrawing the mistaken designation.

19

5.2 Manner and Timing of Designations

20

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

21

below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for

22

protection under this Order must be clearly so designated before the material is disclosed or produced.

23

Designation in conformity with this Order requires:

24

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

25

excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

26

Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only

27

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

28

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

4
______________________________________________________________________________
Protective Order

1

margins).A Party or Non-Party that makes original documents or materials available for

2

inspection need not designate them for protection until after the inspecting Party has indicated

3

which material it would like copied and produced. During the inspection and before the

4

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

5

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

6

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

7

qualify for protection under this Order. Then, before producing the specified documents, the

8

Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected

9

Material.

10

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

11

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

12

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

13

Designating Party identify on the record, before the close of the deposition, hearing, or other

14

proceeding, all protected testimony.

15

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

16

tangible items, that the Producing Party affix in a prominent place on the exterior of the

17

container or containers in which the information or item is stored the legend

18

“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,

19

the Producing Party, to the extent practicable, shall identify the protected portion(s).

20

5.3 Inadvertent Failures to Designate

21

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

22

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

23

material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts to

24

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

25

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

26

6.1 Timing of Challenges

27

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

28

challenge to a Designating Party’s confidentiality designation is necessary to avoid foreseeable,

5
______________________________________________________________________________
Protective Order

1

substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the

2

litigation, the challenge must be brought within a reasonable time or it is waived.

3

6.2 Meet and Confer

4

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

5

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

6

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

7

confidentiality is being made in accordance with this specific paragraph of the Protective Order. The

8

parties shall attempt to resolve each challenge in good faith and must begin the process by conferring

9

directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 days of

10

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

11

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

12

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

13

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

14

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

15

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

16

6.3 Judicial Intervention

17

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

18

SHALL initiate an informal, telephonic conference with the assigned Magistrate Judge.

At that

19

conference, the Court will attempt to resolve the matter without need for formal motion practice. If, in

20

the Court’s view, the matter can only be resolved through formal motion practice, the Court will

21

authorize the Challenging Party to file a motion which SHALL comply with Local Rule 251(c).

22

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

23

demonstrating that the Designating Party has improperly marked the material as confidential. If this

24

showing is made, the burden will shift and as with motions for protective orders under Federal Rules of

25

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

26

evidentiary privilege—must be borne by the Designating Party who is asserting it.

27

challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary expenses

28

and burdens on other parties) may expose the Challenging Party to sanctions. All parties shall continue

Frivolous

6
______________________________________________________________________________
Protective Order

1

to afford the material in question the level of protection to which it is entitled under the Producing

2

Party’s designation until the court rules on the challenge.

3

7. ACCESS TO AND USE OF PROTECTED MATERIAL

4

7.1 Basic Principles

5

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

6

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

7

litigation. Such 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 Receiving Party must

9

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

10
11

Protected Material must be stored and maintained by a Receiving Party at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Order.

12

7.2 Disclosure of “CONFIDENTIAL” Information or Items

13

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

14
15

Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to:
(a)

the Receiving Party’s Outside Counsel of Record in this action, as well as

16

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose

17

the information for this litigation and who have signed the “Acknowledgment and Agreement

18

to Be Bound” that is attached hereto as Exhibit A;

19

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

20

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

21

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

22

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

23

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

24

Agreement to Be Bound” (Exhibit A);

25

(d) the court and its personnel;

26

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

27

and Professional Vendors to whom disclosure is reasonably necessary for this litigation and

28

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

7
______________________________________________________________________________
Protective Order

1

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

2

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

3

A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

4

transcribed deposition testimony or exhibits to depositions that reveal Protected Material must

5

be separately bound by the court reporter and may not be disclosed to anyone except as

6

permitted under this Protective Order.
(g) the author or recipient of a document containing the information or a custodian or

7

other person who otherwise possessed or knew the information.

8
9
10

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

LITIGATION

11

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

12

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

13

(a) promptly notify in writing the Designating Party. Such notification shall include a
copy of the subpoena or court order;

14
15

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

16

the other litigation that some or all of the material covered by the subpoena or order is subject

17

to this Protective Order. Such notification shall include a copy of this Protective Order; and

18

(c) cooperate with respect to all reasonable procedures sought to be pursued by the

19

Designating Party who’s Protected Material may be affected. If the Designating Party timely

20

seeks a protective order, the Party served with the subpoena or court order shall not produce

21

any information designated in this action as “CONFIDENTIAL” before a determination by the

22

court from which the subpoena or order issued, unless the Party has obtained the Designating

23

Party’s permission. The Designating Party shall bear the burden and expense of seeking

24

protection in that court of its confidential material – and nothing in these provisions should be

25

construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful

26

directive from another court.

27

///

28

///

8
______________________________________________________________________________
Protective Order

1

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

2

LITIGATION

3

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

4

this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties

5

in connection with this litigation is protected by the remedies and relief provided by this Order.

6

Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

7

additional protections.

8

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

9

Party’s confidential information in its possession, and the Party is subject to an agreement with

10

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

11

(1) promptly notify in writing the Requesting Party and the Non-Party that

12

some or all of the information requested is subject to a confidentiality agreement with a

13

Non-Party;

14

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

15

litigation, the relevant discovery request(s), and a reasonably specific description of the

16

information requested; and

17

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

18

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

19

days of receiving the notice and accompanying information, the Receiving Party may produce

20

the Non-Party’s confidential information responsive to the discovery request. If the Non-Party

21

timely seeks a protective order, the Receiving Party shall not produce any information in its

22

possession or control that is subject to the confidentiality agreement with the Non-Party before

23

a determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

24

burden and expense of seeking protection in this court of its Protected Material.

25

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

26

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

27

Material to any person or in any circumstance not authorized under this Protective Order, the Receiving

28

Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b)

9
______________________________________________________________________________
Protective Order

1

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

2

persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request

3

such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached

4

hereto as Exhibit A.

5

11.

6

MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

7

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

8

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

9

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

10

modify whatever procedure may be established in an e-discovery order that provides for production

11

without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

12

parties reach an agreement on the effect of disclosure of a communication or information covered by

13

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

14

the stipulated protective order submitted to the court.

15

12. MISCELLANEOUS

16

12.1 Right to Further Relief

17

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

18

the future.

19

12.2 Right to Assert Other Objections

20

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

21

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

22

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

23

any of the material covered by this Protective Order.

24

12.3 Filing Protected Material

25

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

26

appropriate notice to all interested persons, a Party may not file in the public record in this action any

27

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

28

applicable local rules. Protected Material may only be filed under seal pursuant to a court order

10
______________________________________________________________________________
Protective Order

1

authorizing the sealing of the specific Protected Material at issue. A sealing order will issue only upon a

2

request establishing that the Protected Material at issue is privileged, protectable as a trade secret, or

3

otherwise entitled to protection under the law. If a Receiving Party's request to file Protected Material

4

under seal is denied by the court, then the Receiving Party may file the information in the public record

5

unless otherwise instructed by the court.

6

13. FINAL DISPOSITION

7

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

8

Receiving Party must return all Protected Material to the Producing Party or destroy such material. As

9

used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

10

summaries, and any other format reproducing or capturing any of the Protected Material. Whether the

11

Protected Material is returned or destroyed, the Receiving Party must submit a written certification to

12

the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day

13

deadline that (1) identifies (by category, where appropriate) all the Protected Material that was returned

14

or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,

15

compilations, summaries or any other format reproducing or capturing any of the Protected Material.

16

Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion

17

papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial

18

exhibits, expert reports, attorney work product, and consultant and expert work product, even if such

19

materials contain Protected Material. Any such archival copies that contain or constitute Protected

20

Material remain subject to this Protective Order as set forth in Section 4 (DURATION).

21

Dated: February ___, 2016

22

CHAIN-COHN-STILES
By /s/ Neil K. Gehlawat
_
David K. Cohn and Neil K. Gehlawat
Attorneys for Plaintiff, Jane Doe

23
24
25

Dated: February ___, 2016

26

By /s/ Kathleen Rivera
Kathleen Rivera and Andrew C. Thomson
Attorneys for Defendant, County of Kern

27
28

THERESA A. GOLDNER, COUNTY COUNSEL

///
11
______________________________________________________________________________
Protective Order

1

Dated: February ___, 2016

WEAKLEY AND ARENDT
By /s/ Leslie M. Dillahunty
James D. Weakley and Leslie M. Dillahunty
Attorneys for Defendant, George Anderson

2
3
4
5
6
7

IT IS SO ORDERED.
Dated:

February 3, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
______________________________________________________________________________
Protective Order

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of _________________ [print

4

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

5

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

6

Eastern District of California on [date] in the case of Jane Doe v. County of Kern and George

7

Anderson, USDC Eastern District of California Case No. 1:15-CV-01641-WBS-JLT.

8

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

9

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

10

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

11

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

12

strict compliance with the provisions of this Order.

13

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

14

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

15

even if such enforcement proceedings occur after termination of this action.

16

I hereby appoint ____________________________________________ [print/type full

17

name] of ________________________________________ [print/type full address and

18

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

19

or any proceedings related to enforcement of this Protective Order.

20

Date: ______________________________________

21

City and State where sworn and signed: _________________________________

22
23

Printed name: _______________________________

24
25

Signature: __________________________________

26
27
28
13
______________________________________________________________________________
Protective Order