Singh et al v. Livingston Community Health, et al.,

Filing 43

ORDER ENTERING 42 Stipulated Protective Order, signed by Magistrate Judge Stanley A. Boone on 5/10/2022. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:18-cv-01126-JLT-SAB

TARLOCHAN SINGH, et al.,

ORDER ENTERING STIPULATED
PROTECTIVE ORDER

Plaintiffs,
v.

(ECF No. 42)

LIVINGSTON COMMUNITY HEALTH, et
al.,
Defendants.

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STIPULATED PROTECTIVE ORDER

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1.

PURPOSES AND LIMITATIONS
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 would be warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated

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Protective Order. The parties acknowledge that this Order does not confer blanket protections on

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all disclosures or responses to discovery and that the protection it affords extends only to the

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limited information or items that are entitled under the applicable legal principles to treatment as
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confidential. The parties further acknowledge, as set forth in Section 10, below, that this

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Stipulated Protective Order creates no entitlement to file confidential information under seal;

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Local Rule 141 and Federal Rules of Civil Procedure §5.2 and 26 sets forth the procedures that

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must be followed and reflects the standards that will be applied when a party seeks permission

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from the court to file material under seal.

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2.

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DEFINITIONS
2.1

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

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employees, consultants, retained experts, and outside counsel (and their support staff and

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contractors).

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2.2

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

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the medium or manner generated, stored, or maintained (including, among other things,

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testimony, transcripts, or tangible things) that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.3

“Confidential” Information or Items: information (regardless of how

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

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Law.

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2.4

“Highly Confidential – Attorneys’ Eyes Only” Information or Items:

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extremely sensitive “Confidential Information or Items” whose disclosure to another Party or

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nonparty would create a substantial risk of serious injury that could not be avoided by less

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restrictive means. Current/former employee payroll and time records (including, but not limited

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to, contact information) shall not be deemed “Highly Confidential – Attorneys’ Eyes Only.”

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2.5

Receiving Party: a Party that receives Disclosure or Discovery Material

from a Producing Party.

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2.6

Producing Party: a Party or non-party that produces Disclosure or

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Discovery Material in this action.

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2.7

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 “Confidential” or “Highly

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Confidential - Attorneys’ Eyes Only.”
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2.8

is designated as “Confidential” or as “Highly Confidential - Attorneys’ Eyes Only.”

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Protected Material: any Disclosure or Discovery Material that

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Outside Counsel: attorneys who are not employees of a Party but who are

retained to represent or advise a Party in this action.

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2.10

House Counsel: attorneys who are employees of a Party.

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Counsel (without qualifier): Outside Counsel and House Counsel (as well

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as their support staffs and contractors).

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2.12

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

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

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witness or as a consultant in this action and who is not a past or a current employee of a Party or

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of a competitor of a Party’s and who, at the time of retention, is not anticipated to become an

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employee of a Party or a competitor of a Party’s. This definition includes a professional jury or

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trial consultant retained in connection with this litigation.

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2.13

Professional Vendors: persons or entities that provide litigation support

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

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organizing, storing, retrieving data in any form or medium, mailhouse, claims administrator, etc.)

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and their employees and subcontractors.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also any information copied or extracted there from, as well as

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all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or

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presentations by parties or counsel to or in court or in other settings that might reveal Protected

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Material.

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4.

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DURATION
Even after the termination of this litigation, the confidentiality obligations imposed

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

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court order otherwise directs.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or non-party that designates information or items for protection under this Order must take

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

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standards. A Designating Party must take care to 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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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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

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unnecessarily encumber or retard the case development process, or to impose unnecessary

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expenses and burdens on other parties), expose the Designating Party to sanctions.

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If it comes to a Party’s or a non-party’s attention that information or items that it

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designated for protection do not qualify for protection at all, or do not qualify for the level of

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protection initially asserted, that Party or non-party must promptly notify all other parties that it is

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withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered,

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material that qualifies for protection under this Order must be clearly so designated before the

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material is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (apart from transcripts of

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” at the top

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of each page that contains protected material. If only a portion or portions of the material on a

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page qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each

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portion, the level of protection being asserted (either “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL - ATTORNEYS’ EYES ONLY”).
A Party or non-party that makes original documents or materials available for

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

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

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

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CONFIDENTIAL - ATTORNEYS' EYES ONLY.” After the inspecting Party has identified the

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

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or portions thereof, qualify for protection under this Order, then, before producing the specified

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documents, the Producing Party must affix the appropriate legend (“CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY”) at the top of each page that

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contains 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., by making

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appropriate markings in the margins) and must specify, for each portion, the level of protection

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being asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’

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EYES ONLY”).

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(b)

for testimony given in deposition or in other pretrial or trial

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proceedings, that the Party or non-party designating the testimony as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” identify on the record, before the

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close of the deposition, hearing, or other proceeding, all protected testimony, and further specify

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any portions of the testimony that qualify as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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- ATTORNEYS’ EYES ONLY”. When it is impractical to identify separately each portion of

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testimony that is entitled to protection, and when it appears that substantial portions of the

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testimony may qualify for protection, the Party or non-party that sponsors, offers, or gives the

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testimony may invoke on the record (before the deposition or proceeding is concluded) a right to

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have up to 20 days to identify the specific portions of the testimony as to which protection is

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sought and to specify the level of protection being asserted (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL ATTORNEYS’ EYES ONLY”). Only those portions of the testimony that are

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appropriately designated for protection within the 20 days shall be covered by the provisions of
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this Stipulated Protective Order.

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Transcript pages containing Protected Material must be separately bound by the

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court reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” as instructed by the Party or

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nonparty making the confidentiality designation.

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(c)

for information produced in some form other than documentary,

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and for any other tangible items, that the Producing Party affix in a prominent place on the

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” If only

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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 portions, specifying whether they qualify as

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“Confidential” or as “Highly Confidential - Attorneys’ Eyes Only.”

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5.3

Inadvertent Failures to Designate. If timely conceded, an inadvertent

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failure to designate qualified information or items as “Confidential” or “Highly Confidential -

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Attorneys’ Eyes Only” does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. If material is appropriately designated as

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“Confidential” or “Highly Confidential Attorneys’ Eyes Only” after the material was initially

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produced, the Receiving Party, on timely notification of the designation, 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
6.1

Timing of Challenges. Unless a prompt challenge to a Designating Party’

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confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary

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economic burdens, or a later significant disruption or delay of the litigation, a Party does not

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waive its right to challenge a confidentiality designation by electing not to mount a challenge

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promptly after the original designation is disclosed.

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6.2

Meet and Confer. A Party that elects to initiate a challenge to a Designating

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Party’s confidentiality designation must do so in good faith and must begin the process by

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conferring directly with counsel for the Designating Party. 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 and reasonable period of time to review the designated

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material, to reconsider the circumstances, and, if no change in designation is offered, to explain

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the basis for 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.

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6.3

Judicial Intervention. After engaging in the meet and confer process and, if

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that process fails to resolve the dispute, the Designating Party may file and serve a motion with

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the Court that identifies the challenged material and sets forth in detail the basis for the challenge.

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Each such motion must be accompanied by a competent declaration that affirms that the movant

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has complied with the meet and confer requirements imposed in the preceding paragraph and that

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sets forth with specificity the justification for the confidentiality designation that was given by the

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Designating Party in the meet and confer dialogue. All parties agree that this motion can be heard

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on shortened time. The parties also agree to make all reasonable efforts to ensure that this motion

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is heard as quickly as the Court’s calendar will allow, including, but not limited to, stipulating to

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having the motion heard on shortened time.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Until the court rules on the challenge, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party’s

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designation.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a non-party in connection with this case only for

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

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

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When the litigation has been terminated, a Receiving Party must comply with the provisions of

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section 11, below (FINAL DISPOSITION). Protected Material must be stored and maintained by

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a Receiving Party at a location and in a secure manner that ensures that access is limited to the

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persons authorized under this Order. This Order has no effect upon, and its scope shall not extend
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to, any party’s use or disclosure of its own confidential information for purposes not in any way

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related to this litigation..

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

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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

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well as employees and agents of said Counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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(b)

the parties to this action;

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(c)

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

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

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signed the “Agreement to Be Bound by Protective Order”

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(d)

experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be

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Bound by Protective Order” (Exhibit A);

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(e)

the Court and its personnel, subject to the provisions of Section 10

of this protective order;
(f)

those present in the Courtroom during the trial of this matter,

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including all pre-trial and motion hearings, and during presentation/argument of this evidence

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unless the Court orders otherwise;

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(g)

court reporters and their staffs;

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(h)

professional vendors to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Agreement to Be Bound by Protective Order”;
(i)

deponents and/or witnesses to whom counsel for the parties believe

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in good faith it is necessary, for assistance in their representation in the above-captioned matter,

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to disclose specific documents, and who have signed the “Agreement to Be Bound by Protective

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Order” (Exhibit A); provided, however, that this execution requirement is waived where an

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individual is given Confidential Information in the presence of opposing counsel on the record
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while testifying as a deponent or in a court of law, so long as the Confidential Information is not

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retained by the individual after such testimony. Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material must he separately bound by the court

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

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Order;

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(j)

(k)

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any other person as to whom the parties in writing agree and who

information; and

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the author of the document or the original source of the

have signed the “Agreement to Be Bound by Protective Order.”
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.” Information or Items. Unless otherwise ordered by the court or permitted in writing by

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

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“HIGHLY CONFIDENTIAL – ATTORNEYS` EYES ONLY” only to:

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(a)

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

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well as employees and agents of said Counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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(b)

the parties to this action;

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(c)

House Counsel of a Receiving Party (1) who has no involvement in

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competitive decision-making or in patent prosecutions, (2) to whom disclosure is reasonably

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necessary for this litigation, and (3) who has signed the “Agreement to Be Bound by Protective

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Order” (Exhibit A);

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(d)

Experts (as defined in this Order) (1) to whom disclosure is

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reasonably necessary for this litigation, (2) who have signed the “Agreement to Be Bound by

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Protective Order” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4,

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below, have been followed;

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(e)

the Court and its personnel, subject to the provisions of Section 10

of this protective order;
(f)

those present in the Courtroom during the trial of this matter,
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including all pre-trial and motion hearings, and during presentation/argument of this evidence

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unless the Court orders otherwise;

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(g)

court reporters and their staffs;

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(h)

professional vendors to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Agreement to Be Bound by Protective Order”;

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(i)

deponents and/or witnesses to whom counsel for the parties believe

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in good faith it is necessary, for assistance in their representation in the above-captioned matter,

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to disclose specific documents, and who have signed the “Agreement to Be Bound by Protective

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Order” (Exhibit A); provided, however, that this execution requirement is waived where an

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individual is given Highly Confidential Information – Attorneys’ Eyes Only in the presence of

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opposing counsel on the record while testifying

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as a deponent or in a court of law, so long as the Highly Confidential Information – Attorneys’

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Eyes Only is not retained by the individual after such testimony;

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(j)

(k)

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any other person as to whom the parties in writing agree and who

information; and

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the author of the document or the original source of the

have signed the “Agreement to Be Bound by Protective Order.”
7.4

Procedures for Approving Disclosure of "HIGHLY CONFIDENTIAL -

ATTORNEYS' EYES ONLY" Information or Items to "Experts"
(a)

Unless otherwise ordered by the Court or agreed in writing by the

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Designating Party, a Party that seeks to disclose to an “Expert” (as defined in this Order) any

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information or item that has been designated “HIGHLY CONFIDENTIAL - ATTORNEYS’

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EYES ONLY” first must send a letter to the Designating Party that (1) identifies the specific

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HIGHLY CONFIDENTIAL information that the Receiving Party seeks to disclose to the Expert,

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and (2) sets forth the full name of the Expert and the city and state of his or her primary residence.

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(b)

A Party that makes a request and provides the information specified

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in the preceding paragraph may disclose the subject Protected Material to the identified Expert

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unless, within seven (7) court days of delivering the request, the Party receives a written objection
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from the Designating Party. Any such objection must set forth in detail the grounds on which it is

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based.

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(c)

A Party that receives a timely written objection must meet and

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confer with the Designating Party to try to resolve the matter by agreement. If no agreement is

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reached the Party seeking to make the disclosure may disclose the subject Protected Material to

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the identified Expert unless, within ten (10) court days of sending a written objection to the

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disclosure, the Designating Party files a motion with the Court seeking to prevent the disclosure

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to the identified expert. Any such motion must describe the circumstances with specificity, set

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forth in detail the reasons why the requested disclosure to the Expert should not be permitted,

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assess the risk of harm that the disclosure would entail and suggest any additional means that

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might be used to reduce that risk. In any such proceeding the Party opposing disclosure to the

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Expert shall bear the burden of proving that the risk of harm that the disclosure would entail

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(under the safeguards proposed) outweighs the Receiving Party's need to disclose the Protected

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Material to its Expert.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” the

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Receiving Party must so notify the Designating Party, in writing (by fax, if possible) immediately

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and in no event more than five court days after receiving the subpoena or order. Such notification

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must include a copy of the subpoena or court order.

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The purpose of imposing these duties is to afford the Designating Party in this case an

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opportunity to try to protect its confidentiality interests in the court in which the subpoena or

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order issued. The Designating Party shall bear the burdens and the expenses of seeking protection

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in that 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.

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 Stipulated

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

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

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

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terms of this Order, and (d) request such

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

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hereto as Exhibit A.

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Nothing herein shall be deemed to waive any applicable privilege or work product

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protection, or to affect the ability of a party to seek relief for any inadvertent disclosure of

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material protected by privilege or work product protection. In the event that any material covered

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by any applicable privilege, including the attorney-client privilege or work product protection, in

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inadvertently produced to the other party, a party may make a request for return of that

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information or document, which items shall be returned no later than 15 days of the date of the

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demand or the party in possession of said information or document shall file a motion seeking to

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have it adjudicated whether or not the document is subject to the asserted privilege or work

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product production. Furthermore, this stipulation and protective order in no way waives the

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parties’ rights to use the “clawback procedure” provided for in Code of Civil Procedure

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§2031.285, which specifically allows for the handling of the inadvertent production of attorney-

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client privileged or attorney work product documents in large volumes of electronically-stored

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information.

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10.

FILING PROTECTED MATERIAL
All Protected Materials filed with the Court, and any pleadings, motions or other

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papers disclosing any Protected Materials shall be filed or lodged under seal consistent with

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Local Rule 141 and Federal Rules of Civil Procedure §5.2 and 26. Only portions of filings with

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the Court containing Protected Materials need be filed under seal. The parties agree to

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cooperate with each other in a good faith attempt to file the Protected Materials under seal, but
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will not be precluded from filing documents containing Protected Materials in the ordinary

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course after a good faith effort to file the document under seal is denied by the Court. To the

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extent that filing under seal is not permitted by the Court, no party will file any Protected

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Materials with the Court without providing at least 5 court days advance notice to the other

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parties.

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11.

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FINAL DISPOSITION.
Within 45 days of termination of this case, counsel for the parties shall assemble

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and return to each other all documents, material and deposition transcripts designated as

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“Confidential” information and “Highly Confidential” information and all copies of same in their

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possession or the possession of their employees and/or agents, as well as all documents created,

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produced, reproduced, and any notes, transcripts or other written documents derived from

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“Confidential” and “Highly Confidential” documents or containing information derived from

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such “Confidential” and “Highly Confidential” documents, or shall certify the destruction

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thereof, with certification and notice sent to counsel for opposing parties. Notwithstanding this

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

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transcripts, legal memoranda, correspondence or attorney work product, even if such materials

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

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

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12.

MISCELLANEOUS
12.1

Right to Further Relief. Nothing in this Order abridges the right of any

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person to seek its modification by the Court in the future or to compel discovery or seek sanctions

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from the Court.

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12.2

Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to disclosing or

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producing any information or item on any ground not addressed in this Stipulated Protective

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

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the material covered by this Protective Order.

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12.3. If any term of this Stipulation and Order conflicts with the requirements set
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forth in Local Rule 141 and Federal Rules of Civil Procedure §5.2 and 26, the terms of those

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Rules of Court shall supersede the terms of this Stipulation and Order.

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EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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I, ______________________ [print or type full name], of

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______________________________________________________________________________

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__________________________________________________________________ [print or type

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full address and/or name of company], declare under penalty of perjury that I have read in its

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entirety and understand the Stipulated Protective Order that was issued by the U.S. District Court,

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Eastern District of California in the case of Tarlochan Singh, DDS, et al. v. Livingston

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Community Health, U.S. District Court, Eastern District of California Case No. 1:18-cv-1126-

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NONE-SAB.

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I agree to be bound by the Stipulation and Protective Order and will not reveal the

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“Confidential” or “Highly Confidential” Information to anyone, except as allowed by the

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Stipulation and Protective Order. I will maintain all such “Confidential” and “Highly

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Confidential” Information -- including copies, notes, or other transcriptions; made there from -- in

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a secure manner to prevent unauthorized access to it. No later than thirty (45) days after the

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conclusion of this action, including any and all appeals, I will return the Confidential and Highly

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Confidential Information -- including copies, notes, or other transcriptions made there from -- to

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the counsel who provided me with the information.

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I further agree to submit to the jurisdiction of the U.S District Court, Eastern

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

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

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Date: _______________

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Printed Name: _____________________________

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Signature: _________________________________

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COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER

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Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY

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ORDERED that:

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1.

The above stipulated protective order is ENTERED;

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2.

The parties are advised that pursuant to the Local Rules of the United States

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District Court, Eastern District of California, any documents which are to be filed

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under seal will require a written request which complies with Local Rule 141;

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3.

The party making a request to file documents under seal shall be required to show

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either good cause or compelling reasons to seal the documents, depending on the

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type of filing, Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir.

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2009); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir.

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2016); and

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4.

If a party’s request to file Protected Material under seal is denied by the Court,

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then the previously filed material shall be immediately accepted by the court and

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become information in the public record and the information will be deemed filed

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as of the date that the request to file the Protected Information under seal was

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made.

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IT IS SO ORDERED.
Dated:

May 10, 2022
UNITED STATES MAGISTRATE JUDGE

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