Mility v. County of Kern et al

Filing 53

STIPULATED PROTECTIVE ORDER, signed by Magistrate Judge Jennifer L. Thurston on 7/12/2018. (Hall, S)

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MARK L. NATIONS, COUNTY COUNSEL
By: Andrew C. Thomson, Chief Deputy (SBN 149057)
Kern County Administrative Center
1115 Truxtun Avenue, Fourth Floor
Bakersfield, CA 93301
Telephone [phone]
Fax [phone]
Attorneys for Defendants, County
of Kern, Carillo and Langella

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KERNEL MILITY,
Plaintiff,

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v.
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COUNTY OF KERN, CA; PHIL
TAYLOR; CHRIS RODRIGUEZ;
RICHARD CARILLO; DAVE
LANGELLA
Defendants.

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Case No.: 1:17-CV-00446-JLT
STIPULATION FOR A PROTECTIVE
ORDER; EXHIBIT A; [PROPOSED]
ORDER
(Doc. 52)

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This Stipulation for a Protective Order (hereinafter the “Stipulation”), based upon the 9th Cicuit

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Model Protective Order, is agreed to by Plaintiff Kernel Mility (hereinafter “Plaintiff”), and

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Defendants, County of Kern (hereinafter “County”), Phil Taylor (hereinafter “Taylor”), Chris

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Rodriguez (hereinafter “Rodriguez”), Richard Carillo (hereinafter “Carillo”), Dave Langella

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(hereinafter “Langella”), (hereinafter County, Taylor, Rodriguez, Carillo and Langella are

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collectively referred to as “Defendants”) (hereinafter Plaintiff and Defendants are collectively

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referred to as the “Parties”), by and through their respective attorneys of record.

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MILITY v. COUNTY OF KERN et al. PROTECTIVE ORDER (9th CIRCUIT MODEL)

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

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the Parties in Kernel Mility v. County of Kern et al., USDC Eastern District of

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California Case No. 1:17-CV-00446-JLT petition the Court to enter the following Protective

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Order, with good cause appearing therefore:

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

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

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

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forth in Section 12.3, below, this Protective Order does not entitle the Parties to file confidential

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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

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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

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support staff).

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2.4 Designating Party: a Party or Non-Party that designates information or items that it produces

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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

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discovery in this matter.

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MILITY v. COUNTY OF KERN et al. PROTECTIVE ORDER (9th CIRCUIT MODEL)

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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

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consultant in this action.

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

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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

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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 are

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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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2.10 Party: any party to this action, including all of its officers, directors, employees, consultants,

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

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

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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,

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storing, or 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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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

Protected Material:

any Disclosure or Discovery Material that is designated as

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

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

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

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

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protections conferred by this Order do not cover the following information: (a) any information

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that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the

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MILITY v. COUNTY OF KERN et al. PROTECTIVE ORDER (9th CIRCUIT MODEL)

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public domain after its disclosure to a Receiving Party as a result of publication not involving a

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violation of this Order, including becoming part of the public record through trial or otherwise;

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and (b) any information known to the Receiving Party prior to the disclosure or obtained by the

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Receiving Party after the disclosure from a source who obtained the information lawfully and

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under no obligation of confidentiality to the Designating Party. Any use of Protected Material at

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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

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

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

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

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

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including the time limits for filing any motions or applications for extension of time pursuant to

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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

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

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appropriate standards. The Designating Party must designate for protection only those parts of

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

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of the material, documents, items, or communications for which protection is not warranted are

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not swept unjustifiably within the ambit of this Order.

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

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

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Parties that it is 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)

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

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MILITY v. COUNTY OF KERN et al. PROTECTIVE ORDER (9th CIRCUIT MODEL)

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

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produced. Designation in conformity with this Order requires:

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

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

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

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portions of the material on a page qualifies for protection, the Producing Party also must clearly

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

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or Non-Party that makes original documents or materials available for inspection need not

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designate them for protection until after the inspecting Party has indicated which material it would

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like copied and produced. During the inspection and before the designation, all of the material

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made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party

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has identified the documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order. Then, before

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producing the specified documents, the Producing Party must affix the “CONFIDENTIAL”

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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

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Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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

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

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protected testimony.

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

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items, that the Producing Party affix in a prominent place on the exterior of the container[s] in

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

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portions of the information or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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MILITY v. COUNTY OF KERN et al. PROTECTIVE ORDER (9th CIRCUIT MODEL)

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5.3 Inadvertent Failure to Designate

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If timely corrected, an inadvertent failure to designate qualified information or items does

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not, standing alone, waive the Designating Party’s right to secure protection under this Order for

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

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efforts to assure that the 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

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

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

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litigation, the challenge must 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

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

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

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challenge to confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The Parties shall attempt to resolve each challenge in good faith and must begin

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the process by conferring directly (in voice to voice dialogue; other forms of communication are

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not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party

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must explain the basis for its belief that the confidentiality designation was not proper and must

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give the Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge process only if

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it has engaged in this meet and confer process first or establishes that the Designating Party is

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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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MILITY v. COUNTY OF KERN et al. PROTECTIVE ORDER (9th CIRCUIT MODEL)

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

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

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required by the scheduling order. At that conference, the Court will attempt to resolve the matter

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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

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which 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

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

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

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

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

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

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unnecessary expenses and burdens on other Parties) may expose the Challenging Party to

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sanctions. All Parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Producing Party’s designation until the court 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

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

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attempting to settle this litigation. Such Protected Material may be disclosed only to the categories

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of persons and under the conditions described in this Order. When the litigation has been

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terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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

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in a secure 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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MILITY v. COUNTY OF KERN et al. PROTECTIVE ORDER (9th CIRCUIT MODEL)

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

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Receiving 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

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attached hereto as Exhibit A;

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

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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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(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

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Bound” (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

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

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signed the “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

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

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

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testimony or exhibits to depositions that reveal Protected Material must be separately bound by

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the court reporter and may not be disclosed to anyone except as permitted under this Protective

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Order.

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

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who otherwise possessed or knew the information.

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8. PROTECTED MATERIAL SUBPOENAED AND/OR ORDERED PRODUCED IN

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OTHER LITIGATION

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MILITY v. COUNTY OF KERN et al. PROTECTIVE ORDER (9th CIRCUIT MODEL)

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

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disclosure of information/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

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the 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

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Protective 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

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

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

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

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

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permission. The Designating Party shall bear the burden and expense of seeking protection in that

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court of its confidential material – and nothing in these provisions should be construed as

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authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from

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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

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

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

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provisions 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-

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

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

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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

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

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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

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

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

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

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

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

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

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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

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

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Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material,

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(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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PROTECTED MATERIAL

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

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

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

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the Parties reach an agreement on the effect of disclosure of

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a communication or information covered by the attorney-client privilege or work product

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protection, the Parties may incorporate their agreement in the stipulated protective order

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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

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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

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otherwise would have to object to disclosing or producing any information or item on any ground

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not addressed in this Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any 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

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

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

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

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

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only upon a request establishing that the Protected Material at issue is privileged, protectable as

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a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to

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file Protected Material under seal is denied by the court, then the Receiving Party may file the

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information in the public record unless otherwise instructed by the 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

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

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material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

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

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or entity, to the

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MILITY v. COUNTY OF KERN et al. PROTECTIVE ORDER (9th CIRCUIT MODEL)

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Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all

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the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has

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not retained any copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

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legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

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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

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to this Protective Order as set forth in Section 4.

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Dated July 9, 2018

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LAW OFFICE OF RANDY RUMPH
By:

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/s/ Randy M. Rumph__________________
Randy M. Rumph, Esq.
Attorneys for Plaintiff Kernel Mility

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Dated: July 10, 2018

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MARK L. NATIONS, COUNTY COUNSEL
By:

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Dated: July 10, 2018

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ROBINSON & KELLAR
By:

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/s/ Andrew C. Thomson
Andrew C. Thomson, Chief Deputy
Attorneys for Defendants County of Kern,
Richard Carillo and Dave Langella

/s/ Michael Kellar
Michael Kellar, Esq.
Attorneys for Defendants Phil Taylor and
Chris Rodriguez

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IT IS SO ORDERED.

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Dated:

July 12, 2018

/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 or

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

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

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of California on _______ [date] in the case of Kernel Mility v. County of Kern et al., USDC

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Eastern District of California Case No. 1:17-CV-00446-JLT.

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

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and acknowledge that failure to so comply could expose me to sanctions and punishment in the

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nature of contempt. I solemnly promise that I will not disclose in any manner any information or

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

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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 such

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enforcement proceedings occur after termination of this action.

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I hereby appoint ____________________________________________ [print/type full name] of

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________________________________________ [print/type full address and telephone number]

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

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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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23U7157.doc

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