Kim Adams v. County of Kern et al

Filing 34

STIPULATED PROTECTIVE ORDER, signed by Magistrate Judge Jennifer L. Thurston on 2/19/2019. (Hall, S)

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MARGO A. RAISON, COUNTY COUNSEL
COUNTY OF KERN, STATE OF CALIFORNIA
By: Marshall Scott Fontes, Deputy (Bar# 139567)
Kern County Administrative Center
1115 Truxtun Avenue, Fourth Floor
Bakersfield, CA 93301
Telephone [phone]
Fax [phone]
Attorneys for Defendant County of Kern

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KIM ADAMS, an individual;

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Plaintiff,
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vs.
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COUNTY OF KERN, KERN COUNTY
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PROBATION DEPARTMENT; DAVID M. )
KUGE, an individual; REYES
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SOBERON, JR., an individual; and
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DOES 1-50 inclusive;
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Defendants.
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Case No.: 1:17-CV-00464-JLT
STIPULATION FOR PROTECTIVE
ORDER; [PROPOSED] ORDER
(Doc. 33)

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COMES NOW the Parties in this matter and jointly present and stipulate to this
proposed Protective Order for the Court’s approval:

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PROTECTIVE ORDER
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PURPOSES AND LIMITATIONS

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

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

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public disclosure and from use for any purpose other than prosecuting this litigation

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may be warranted. Accordingly, the Parties, in Kim Adams v. County of Kern, Kern

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County Probation Department, David M. Kuge and Reyes Soberon Jr. in USDC

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

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Eastern District of California Case No. 1:17-cv-00464-JLT, petition the Court to enter

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the following Protective Order. Good cause appearing, the Court ORDERS as follows:

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

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to discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment under

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the applicable legal principles. As set forth in Section 12.3, below, this Protective Order

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does not entitle the parties to file confidential information under seal.

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2.

2.1. Challenging Party: a Party or Non-Party that challenges the designation

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DEFINITIONS

of information or items under this Order.

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2.2. “CONFIDENTIAL” Information or Items: information (regardless of how it

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is generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c).
2.3. Counsel (without qualifier):

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Outside Counsel of Record and House

Counsel (as well as their support staff).

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2.4. Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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

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the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.6. Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this action.

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

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

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.
2.8. Non-Party: any natural person, partnership, corporation, association, or

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other legal entity not named as a Party to this action.

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2.9. Outside Counsel of Record: attorneys who are not employees of a party

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to this action but are retained to represent or advise a party to this action and have

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appeared in this action on behalf of that party or are affiliated with a law firm which has

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appeared on behalf of that party.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).
2.11. Producing Party:

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a Party or Non-Party that produces Disclosure or

Discovery Material in this action.

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2.12. Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium) and

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their employees and subcontractors.

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2.13. Protected Material:

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designated as “CONFIDENTIAL.”

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any Disclosure or Discovery Material that is

2.14. Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

SCOPE

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

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defined above), but also (1) any information copied or extracted from Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;

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and (3) any testimony, conversations, or presentations by Parties or their Counsel that

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

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

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

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

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its disclosure to a Receiving Party as a result of publication not involving a violation of

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

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

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

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

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

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees otherwise

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in writing or a court order otherwise directs. Final disposition shall be deemed to be

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the later of (1) dismissal of all claims and defenses in this action, with or without

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prejudice; and (2) final judgment herein after the completion and exhaustion of all

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appeals, rehearings, remands, trials, or reviews of this action, including the time limits

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

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5.

DESIGNATING PROTECTED MATERIAL

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5.1.

Exercise of Restraint and Care in Designating Material for Protection

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Each Party or Non-Party that designates information or items for protection

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

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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

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or communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or

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to impose unnecessary expenses and burdens on other parties) expose the

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Designating Party to sanctions.

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

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designated for protection do not qualify for protection, the Designating Party must

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promptly notify all other 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

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section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery

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Material that qualifies for protection under this

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Order must be clearly so designated before the material is disclosed or
produced. Designation in conformity with this Order requires:

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

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

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

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protected material. If only a portion or portions of the material on a page qualifies for

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

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by making appropriate markings in the margins).A Party or Non-Party that makes

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

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protection until after the inspecting Party has indicated which material it would like

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

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

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inspecting Party has identified the documents it wants copied and produced, the

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

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

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

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Protected Material.

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

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

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

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appropriate markings in the margins).

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

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the Designating Party identify on the record, before the close of the deposition,

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hearing, or other proceeding, all protected testimony.

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

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

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

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

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protection, the Producing Party, to the extent practicable, shall identify the protected

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portion(s).

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5.3.

Inadvertent Failures to Designate

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

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items does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. Upon timely correction of a designation,

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the Receiving Party must make reasonable efforts to assure that the material is treated

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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

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prompt challenge to a Designating Party’s confidentiality designation is necessary to

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avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a

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significant disruption or delay of the litigation, the challenge must be brought within a

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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

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written notice of each designation it is challenging and describing the basis for each

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challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

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with this specific paragraph of the Protective Order. The parties shall attempt to

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

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

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days of the date of service of notice. In conferring, the Challenging Party must explain

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

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

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

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the chosen designation. A Challenging Party may proceed to the next stage of the

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challenge process only if it has engaged in this meet and confer process first or

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establishes that the Designating Party is unwilling to participate in the meet and confer

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process in a timely manner.

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6.3.

Judicial Intervention

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

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Challenging Party SHALL initiate an informal, telephonic conference with the assigned

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Magistrate Judge as required by the scheduling order (Doc. 85 at 5, Headnote VI). At

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that conference, the Court will attempt to resolve the matter without need for formal

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motion practice. If, in the Court’s view, the matter can only be resolved through formal

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

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SHALL comply with Local Rule 251(c).

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

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demonstrating that the Designating Party has improperly marked the material as

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confidential. If this showing is made, the burden will shift and as with motions for

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protective orders under Federal Rules of Civil Procedure 26(c), the burden of

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establishing the need for the confidentiality—as with any evidentiary privilege—must

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

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

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

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shall continue to afford the material in question the level of protection to which it is

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

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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

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

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defending, or attempting to settle this litigation. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this

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Order. When the litigation has been terminated, a Receiving Party must comply with

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the provisions of section 13 below (FINAL DISPOSITION).

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

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2.

Disclosure of “CONFIDENTIAL” Information or Items

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Unless otherwise ordered by the court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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

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

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

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

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

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Receiving Party to whom disclosure is reasonably necessary for this litigation and who

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have signed the “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

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

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and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

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

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jurors, and Professional Vendors to whom disclosure is reasonably necessary for this

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

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(Exhibit A);

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

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reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered

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by the court. Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material must be separately bound by the court reporter and may not

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be disclosed to anyone except as permitted under this Protective Order.
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information.

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8.

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OTHER LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:

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

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

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issue in the other litigation that some or all of the material covered by the subpoena or

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order is subject to this Protective Order. Such notification shall include a copy of this

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Protective Order; and

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

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

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Party timely seeks a protective order, the Party served with the subpoena or court

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order shall not produce any information designated in this action as “CONFIDENTIAL”

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

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before a determination by the court from which the subpoena or order issued, unless

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the Party has obtained the Designating Party’s permission. The Designating Party

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

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material – and nothing in these provisions should be construed as authorizing or

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

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court.

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9.

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THIS LITIGATION

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

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

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Party in this action and designated as “CONFIDENTIAL.” Such information produced

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by Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as prohibiting

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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

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a Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential information,

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then the Party shall:

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

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

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with a Non-Party;

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

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in this litigation, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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(3) make the information requested available for inspection by the NonParty.

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

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within 14 days of receiving the notice and accompanying information, the Receiving

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Party may produce the Non-Party’s confidential information responsive to the

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discovery request. If the Non-Party timely seeks a protective order, the Receiving

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Party shall not produce any information in its possession or control that is subject to

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

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Absent a court order to the contrary, the Non-Party shall bear the burden and expense

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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

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Protected Material to any person or in any circumstance not authorized under this

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Protective Order, the Receiving Party must immediately (a) notify in writing the

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Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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

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

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request such person or persons to execute the “Acknowledgment and Agreement to

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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

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

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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

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

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

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information covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order submitted to

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the court.

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12.

MISCELLANEOUS

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

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12.1

Right to Further Relief
Nothing in this Order abridges the right of any person to seek its modification

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by the court in the future.

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12.2. Right to Assert Other Objections

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

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

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any ground not addressed in this Protective Order. Similarly, no Party waives any right

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to object on any ground to use in evidence of any of the material covered by this

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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

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after appropriate notice to all interested persons, a Party may not file in the public

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record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with the applicable local rules. Protected Material may

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only be filed under seal pursuant to a court order authorizing the sealing of the specific

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

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

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

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

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the 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

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4, each Receiving Party must return all Protected Material to the Producing Party or

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destroy such material. As used in this subdivision, “all Protected Material” includes all

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copies, abstracts, compilations, summaries, and any other format reproducing or

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capturing any of the Protected Material. Whether the Protected Material is returned or

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

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

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

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that was returned or destroyed and (2) affirms that the Receiving Party has not

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retained any copies, abstracts, compilations, summaries or any other format

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

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

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

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and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such archival

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copies that contain or constitute Protected Material remain subject to this Protective

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Order as set forth in Section 4 (DURATION).

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Dated: February 19, 2019

GERAGOS & GERAGOS

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By:

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Dated: February 19, 2019

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Dated: February 19, 2019

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/s/ Brande L. Gustafson
James D. Weakley, Esq.
Brande L. Gustafson, Esq.
Attorneys for Defendant, Reyes Soberon, Jr.

MARGO A. RAISON, COUNTY COUNSEL
By: /s/ Marshall S. Fontes
Marshall S. Fontes, Deputy
Attorneys for Defendants,
County of Kern and David M. Kuge

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WEAKLEY & ARENDT
By:

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/s/ Noah Geldberg
Ben J. Meiselas, Esq.
Noah Geldberg, Esq.
Attorneys for Plaintiff, Kim Adams

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STIPULATION FOR PROTECTIVE ORDER; PROPOSED ORDER

[PROPOSED] ORDER

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Based on the stipulation of the parties, the court ORDERS:

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1.

The stipulated protective order is GRANTED.

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IT IS SO ORDERED.
Dated:

February 19, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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