Cohen v. Foster et al

Filing 13

ORDER re STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Stanley A. Boone on 5/31/2017. (Jessen, A)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JENNITA COHEN, 9 Plaintiff, 10 NO. 1:16-cv-01388 LJO SAB ORDER RE STIPULATED PROTECTIVE ORDER (ECF No. 12) 11 vs. 12 13 14 EMILY FOSTER, et al., 15 Defendants 16 17 18 19 20 21 1. A. PURPOSES AND LIMITATIONS 22 Discovery in this action is likely to involve production of confidential, 23 proprietary, or private information for which special protection from public 24 disclosure and from use for any purpose other than prosecuting this litigation may 25 be warranted. Accordingly, the parties hereby stipulate to and petition the court to 26 enter the following Stipulated Protective Order. The parties acknowledge that this 27 Order does not confer blanket protections on all disclosures or responses to 28 discovery and that the protection it affords from public disclosure and use extends 1 only to the limited information or items that are entitled to confidential treatment 2 under the applicable legal principles. The parties further acknowledge, as set forth 3 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 4 file confidential information under seal; Eastern District Local Rule 141 sets forth 5 the procedures that must be followed and the standards that will be applied when a 6 party seeks permission from the court to file material under seal. 7 B. GOOD CAUSE STATEMENT 8 This action is likely to involve confidential information for which special 9 protection from public disclosure and from use for any purpose other than 10 prosecution of this action is warranted. Such confidential and proprietary materials 11 and information consist of, among other things, confidential business or financial 12 information, information regarding police tactics and strategies, police officer 13 personnel files, or other confidential research, development, or commercial 14 information (including information implicating privacy rights of third parties), 15 information otherwise generally unavailable to the public, or which may be 16 privileged or otherwise protected from disclosure under state or federal statutes, 17 court rules, case decisions, or common law. Accordingly, to expedite the flow of 18 information, to facilitate the prompt resolution of disputes over confidentiality of 19 discovery materials, to adequately protect information the parties are entitled to 20 keep confidential, to ensure that the parties are permitted reasonable necessary uses 21 of such material in preparation for and in the conduct of trial, to address their 22 handling at the end of litigation, and serve the ends of justice, a protective order for 23 such information is justified in this matter. It is the intent of the parties that 24 information will not be designated as confidential for tactical reasons and that 25 nothing be so designated without a good faith belief that it has been maintained in a 26 confidential, non-public manner, and there is good cause why it should not be part 27 of the public record of this case. 28 2 1 2 3 4 5 6 2. DEFINITIONS 2.1 Action: This pending federal lawsuit and any consolidated or related actions. 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 7 how it is generated, stored or maintained) or tangible things that qualify for 8 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 9 the Good Cause Statement. 10 11 12 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 13 items that it produces in disclosures or in responses to discovery as 14 “CONFIDENTIAL.” 15 2.6 Disclosure or Discovery Material: all items or information, regardless 16 of the medium or manner in which it is generated, stored, or maintained (including, 17 among other things, testimony, transcripts, and tangible things), that are produced 18 or generated in disclosures or responses to discovery in this matter. 19 2.7 Expert: a person with specialized knowledge or experience in a matter 20 pertinent to the litigation who has been retained by a Party or its counsel to serve as 21 an expert witness or as a consultant in this Action. 22 2.8 House Counsel: attorneys who are employees of a party to this action. 23 House Counsel does not include Outside Counsel of Record or any other outside 24 counsel. 25 26 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 27 2.10 Outside Counsel of Record: attorneys who are not employees of a 28 party to this action but are retained to represent or advise a party to this Action and 3 1 have appeared in this Action on behalf of that party or are affiliated with a law firm 2 which has appeared on behalf of that party, and includes support staff. 3 2.11 Party: any party to this Action, including all of its officers, directors, 4 employees, consultants, retained experts, and Outside Counsel of Record (and their 5 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 6 7 Discovery Material in this Action. 2.13 Professional Vendors: 8 Persons or entities that provide litigation 9 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 10 demonstrations, and organizing, storing, or retrieving data in any form or medium) 11 and their employees and subcontractors. 12 2.14 Protected Material: Any Disclosure or Discovery Material that is 13 designated as “CONFIDENTIAL” or “CONFIDENTIAL COUNSEL EYES 14 ONLY.” 2.15 Receiving Party: 15 16 Material from a Producing Party. 17 3. a Party that receives Disclosure or Discovery SCOPE 18 The protections conferred by this Stipulation and Order cover not only 19 Protected Material (as defined above), but also (1) any information copied or 20 extracted from Protected Material; (2) all copies, excerpts, summaries, or 21 compilations of Protected Material; and (3) any testimony, conversations, or 22 presentations by Parties or their Counsel that might reveal Protected Material. 23 24 Any use of Protected Material at trial shall be governed by the orders of the trial judge. This order does not govern the use of Protected Material at trial. 25 Defendant City of Merced, Officer Emily Foster and Officer Edwin Arias 26 designate as Protected Material (1) any and all police officer personnel records 27 and/or portions thereof. 28 4 1 4. DURATION 2 Even after final disposition of this litigation, the confidentiality obligations 3 imposed by this Order shall remain in effect until a Designating Party agrees 4 otherwise in writing or a court order otherwise directs. Final disposition shall be 5 deemed to be the later of (1) dismissal of all claims and defenses in this action, with 6 or without prejudice; and (2) final judgment herein after the completion and 7 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 8 including the time limits for filing any motions or applications for extension of time 9 pursuant to applicable law. 10 11 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 12 Each Party or Non-Party that designates information or items for protection under 13 this Order must take care to limit any such designation to specific material that 14 qualifies under the appropriate standards. The Designating Party must designate for 15 protection only those parts of material, documents, items, or oral or written 16 communications that qualify – so that other portions of the material, documents, 17 items, or communications for which protection is not warranted are not swept 18 unjustifiably within the ambit of this Order. 19 Mass, indiscriminate, or routinized designations are prohibited. Designations 20 that are shown to be clearly unjustified or that have been made for an improper 21 purpose (e.g., to unnecessarily encumber or retard the case development process or 22 to impose unnecessary expenses and burdens on other parties) expose the 23 Designating Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that it 25 designated for protection do not qualify for protection, that Designating Party must 26 promptly notify all other Parties that it is withdrawing the inapplicable designation. 27 28 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 5 1 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 2 under this Order must be clearly so designated before the material is disclosed or 3 produced. 4 5 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 6 documents, but excluding transcripts of depositions or other pretrial or trial 7 proceedings), that the Producing Party affix at a minimum, the legend 8 “CONFIDENTIAL” 9 (hereinafter “CONFIDENTIAL legend”), to each page that contains protected 10 material. If only a portion or portions of the material on a page qualifies for 11 protection, the Producing Party also must clearly identify the protected portion(s) 12 (e.g., by making appropriate markings in the margins). or “CONFIDNETIAL-ATTORNEY EYES ONLY” 13 A Party or Non-Party that makes original documents or materials available 14 for inspection need not designate them for protection until after the inspecting Party 15 has indicated which material it would like copied and produced. During the 16 inspection and before the designation, all of the material made available for 17 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 18 identified the documents it wants copied and produced, the Producing Party must 19 determine which documents, or portions thereof, qualify for protection under this 20 Order. Then, before producing the specified documents, the Producing Party must 21 affix the “CONFIDENTIAL legend” to each page that contains Protected Material. 22 If only a portion or portions of the material on a page qualifies for protection, the 23 Producing Party also must clearly identify the protected portion(s) (e.g., by making 24 appropriate markings in the margins). 25 26 (b) for testimony given in deposition that the Designating Party identify on the record, before the close of the deposition all protected testimony. 27 (c) for information produced in some form other than documentary and 28 for any other tangible items, that the Producing Party affix in a prominent place on 6 1 the exterior of the container or containers in which the information or item is stored 2 the legend “CONFIDENTIAL.” If only a portion or portions of the information or 3 item warrant protection, the Producing Party, to the extent practicable, shall identify 4 the protected portion(s). 5.3 5 Inadvertent Failures to Designate. If timely corrected, an inadvertent 6 failure to designate qualified information or items does not, standing alone, waive 7 the Designating Party’s right to secure protection under this Order for such 8 material. Upon timely correction of a designation, the Receiving Party must make 9 reasonable efforts to assure that the material is treated in accordance with the 10 provisions of this Order. 11 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 12 Timing of Challenges. Any Party or Non-Party may challenge a 13 designation of confidentiality at any time that is consistent with the Court’s 14 scheduling order. 6.2 15 16 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 17 The burden of persuasion in any such challenge proceeding shall be on 18 the Designating Party. Frivolous challenges, and those made for an improper 19 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 20 parties) may expose the Challenging Party to sanctions. Unless the Designating 21 Party has waived or withdrawn the confidentiality designation, all parties shall 22 continue to afford the material in question the level of protection to which it is 23 entitled under the Producing Party’s designation until the court rules on the 24 challenge. 25 7. 26 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 27 disclosed or produced by another Party or by a Non-Party in connection with this 28 Action only for prosecuting, defending, or attempting to settle this Action. Such 7 1 Protected Material may be disclosed only to the categories of persons and under the 2 conditions described in this Order. When the litigation has been terminated, a 3 Receiving Party must comply with the provisions of section 13 below (FINAL 4 DISPOSITION). 5 Protected Material must be stored and maintained by a Receiving Party at a 6 location and in a secure manner that ensures that access is limited to the persons 7 authorized under this Order. 8 9 Disclosure of “CONFIDENTIAL” Information or Items. Unless 7.2 otherwise ordered by the court or permitted in writing by the Designating Party, a 10 Receiving Party may disclose 11 any information or item designated “CONFIDENTIAL” only to: 12 (a) the Receiving Party’s Outside Counsel of Record in this action, as 13 well as employees of said Outside Counsel of Record to whom it is reasonably 14 necessary to disclose the information for this Action; 15 16 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation; 17 (c) Experts (as defined in this Order) of the Receiving Party to whom 18 disclosure is reasonably necessary for this litigation and who have signed the 19 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 (d) the court and its personnel; 21 (e) court reporters and their staff; 22 (f) professional jury or trial consultants, mock jurors, and Professional 23 Vendors to whom disclosure is reasonably necessary for this litigation and who 24 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 26 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 27 (h) during their depositions, witnesses, and attorneys for witnesses, in the 28 Action to whom disclosure is reasonably necessary provided: (1) the depositing 8 1 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 2 they will not be permitted to keep any confidential information unless they sign the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 4 agreed by the Designating Party or ordered by the court. Pages of transcribed 5 deposition testimony or exhibits to depositions that reveal Protected Material must 6 be separately bound by the court reporter and may not be disclosed to anyone 7 except as permitted under this Stipulated Protective Order; and 8 9 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions. 10 Unless otherwise ordered by the Court or permitted in writing by the 11 Designating Party, a Receiving Party may disclose any information or item 12 designated as “CONFIDENTIAL-ATTORNEY EYES ONLY” only to 13 (a) Counsel for the parties; 14 (b) Paralegal, clerical, and secretarial personnel regularly employed by 15 counsel referred to in subpart (a) directly above, including stenographic 16 deposition reporters or videographers retained in connection with this 17 action; 18 (c) Court personnel including stenographic reporters or videographers 19 engaged in proceedings as are necessarily incidental to the preparation 20 for the trial of the civil action; 21 (d) Experts (as defined in this Order) of the Receiving Party to whom 22 disclosure is reasonably necessary for this litigation and who have 23 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 24 A); 25 26 (e) The finder of fact at the time of trial, subject to the court’s rulings on in limine motions and objections of counsel. 27 28 /// 9 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 2 IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation 4 that compels disclosure of any information or items designated in this action as 5 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification 6 7 shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order 9 to issue in the other litigation that some or all of the material covered by the 10 subpoena or order is subject to this Protective Order. Such notification shall include 11 a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be 12 13 pursued by the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served with 15 the subpoena or court order shall not produce any information designated in this 16 action as “CONFIDENTIAL” before a determination by the court from which the 17 subpoena or order issued, unless the Party has obtained the Designating Party’s 18 permission. The Designating Party shall bear the burden and expense of seeking 19 protection in that court of its confidential material and nothing in these provisions 20 should be construed as authorizing or encouraging a Receiving Party in this action 21 to disobey a lawful directive from another court. 22 9. 23 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 24 (a) The terms of this Order are applicable to information produced by a 25 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 26 produced by Non-Parties in connection with this litigation is protected by the 27 remedies and relief provided by this Order. Nothing in these provisions should be 28 construed as prohibiting a Non-Party from seeking additional protections. 10 1 (b) In the event that a Party is required, by a valid discovery request, to 2 produce a Non-Party’s confidential information in its possession, and the Party is 3 subject to an agreement with the Non-Party not to produce the Non-Party’s 4 confidential information, then the Party shall: 5 (1) promptly notify in writing the Requesting Party and the Non-Party 6 that some or all of the information requested is subject to a confidentiality 7 agreement with a Non-Party; 8 (2) promptly provide the Non-Party with a copy of the Stipulated 9 Protective Order in this litigation, the relevant discovery request(s), and a 10 reasonably specific description of the information requested; and (3) make the information requested available for inspection by the 11 12 Non-Party, if requested. 13 (c) If the Non-Party fails to object or seek a protective order from this 14 court within 14 days of receiving the notice and accompanying information, the 15 Receiving Party may produce the Non-Party’s confidential information responsive 16 to the discovery request. If the Non-Party timely seeks a protective order, the 17 Receiving Party shall not produce any information in its possession or control that 18 is subject to the confidentiality agreement with the Non-Party before a 19 determination by the court. Absent a court order to the contrary, the Non-Party 20 shall bear the burden and expense of seeking protection in this court of its Protected 21 Material. 22 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 24 Protected Material to any person or in any circumstance not authorized under this 25 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 26 writing the Designating Party of the unauthorized disclosures, (b) use its best 27 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 28 person or persons to whom unauthorized disclosures were made of all the terms of 11 1 this Order, and (d) request such person or persons to execute the “Acknowledgment 2 and Agreement to Be Bound” that is attached hereto as Exhibit A. 3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 4 PROTECTED 5 When a Producing Party gives notice to Receiving Parties that certain 6 inadvertently produced material is subject to a claim of privilege or other 7 protection, the obligations of the Receiving Parties are those set forth in Federal 8 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 9 whatever procedure may be established in an e-discovery order that provides for 10 production without prior privilege review. Pursuant to Federal Rule of Evidence 11 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 12 of a communication or information covered by the attorney-client privilege or work 13 product protection, the parties may incorporate their agreement in the stipulated 14 protective order submitted to the court. 15 12. 16 17 MATERIAL MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 18 12.2 Right to Assert Other Objections. By stipulating to the entry of this 19 Protective Order no Party waives any right it otherwise would have to object to 20 disclosing or producing any information or item on any ground not addressed in 21 this Stipulated Protective Order. Similarly, no Party waives any right to object on 22 any ground to use in evidence of any of the material covered by this Protective 23 Order. 24 12.3 Filing Protected Material. A Party that seeks to file under seal any 25 Protected Material must comply with Local Civil Rule 141. Protected Material may 26 only be filed under seal pursuant to a court order authorizing the sealing of the 27 specific Protected Material at issue. If a Party’s request to file Protected Material 28 12 1 under seal is denied by the court, then the Receiving Party may file the information 2 in the public record unless otherwise instructed by the court. 3 13. FINAL DISPOSITION 4 After the final disposition of this Action, as defined in paragraph 4, within 60 5 days of a written request by the Designating Party, each Receiving Party must 6 return all Protected Material to the Producing Party or destroy such material. As 7 used in this subdivision, “all Protected Material” includes all copies, abstracts, 8 compilations, summaries, and any other format reproducing or capturing any of the 9 Protected Material. Whether the Protected Material is returned or destroyed, the 10 Receiving Party must submit a written certification to the Producing Party (and, if 11 not the same person or entity, to the Designating Party) by the 60 day deadline that 12 (1) identifies (by category, where appropriate) all the Protected Material that was 13 returned or destroyed and (2) affirms that the Receiving Party has not retained any 14 copies, abstracts, compilations, summaries or any other format reproducing or 15 capturing any of the Protected Material. Notwithstanding this provision, Counsel 16 are entitled to retain an archival copy of all pleadings, motion papers, trial, 17 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 18 and trial exhibits, expert reports, attorney work product, and consultant and expert 19 work product, even if such materials contain Protected Material. Any such archival 20 copies that contain or constitute Protected Material remain subject to this Protective 21 Order as set forth in Section 4 (DURATION). 22 // 23 // 24 // 25 // 26 // 27 // 28 // 13 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 4 Date: May 31, 2017 /s/ G. Craig Smith G. Craig Smith Ferguson, Praet & Sherman Attorneys for Defendants City of Merced, Emily Foster, and Edwin Arias Date: May 31, 2017 /s/ Kevin G. Little Kevin G. Little Law Office of Kevin G. Little Attorneys for Plaintiff Jennita Cohen Date: May 31, 2017 /s/ Virna L. Santos Virna L. Santos Attorney for Plaintiff Jennita Cohen 5 6 7 8 9 10 11 12 13 14 15 16 17 ORDER 18 19 20 21 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 1. The protective order is entered; 2. The parties are advised that pursuant to the Local Rules of the United 22 States District Court, Eastern District of California, any documents 23 which are to be filed under seal will require a written request which 24 25 complies with Local Rule 141; and 26 27 28 3. The party making a request to file documents under seal shall be required to show good cause for documents attached to a 14 nondispositive motion or compelling reasons for documents attached 1 to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 2 3 665, 677-78 (9th Cir. 2009). 4 5 6 IT IS SO ORDERED. 7 Dated: May 31, 2017 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 15 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print 4 _________________________________ [print or type full address], declare under 5 penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Eastern 7 District of California on __________ [date] in the case of Jennita Cohen v. City of 8 Merced, et al.; No. 1:16-cv-01388 LJO SAB. 9 I agree to comply with and to be bound by all the terms of this Stipulated Protective 10 Order and I understand and acknowledge that failure to so comply could expose me 11 to sanctions and punishment in the nature of contempt. I solemnly promise that I 12 will not disclose in any manner any information or item that is subject to this 13 Stipulated Protective Order to any person or entity except in strict compliance with 14 the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for 16 the Eastern District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. 19 I hereby appoint __________________________ [print or type full name] of 20 _______________________________________ [print or type full address and 21 telephone number] as my California agent for service of process in connection with 22 this action or any proceedings related to enforcement of this Stipulated Protective 23 Order. 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: _______________________________ 27 28 Signature: _________________________________ 16 or type full name], of

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