Niederreuther v. City of Atwater

Filing 50

STIPULATED PROTECTIVE ORDER, signed by Magistrate Judge Barbara A. McAuliffe on 9/14/2020. (Martin-Gill, S)

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LAW OFFICE OF KEITH M. VELLECA
KEITH M. VELLECA (SBN 160746)
One Market Street, Suite 3600
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff,
THOMAS E. NIEDERREUTHER

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JACKSON LEWIS P.C.
MICHAEL J. CHRISTIAN (SBN 173727)
SHANE R. LARSEN (SBN 283966)
400 Capitol Mall, Suite 1600
Sacramento, California 95814
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendant,
CITY OF ATWATER

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION

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THOMAS E. NIEDERREUTHER,

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Plaintiff,
STIPULATED PROTECTIVE ORDER

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Case No. 1:19-CV-00779-DAD-BAM

v.
CITY OF ATWATER,

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Complaint Filed:
Trial Date:

June 3, 2019
September 1, 2021

Defendants.

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1.

PURPOSES AND LIMITATIONS

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

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confidential, proprietary, or private information, including but not limited privileged confidential

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investigation(s) related to peace officer personnel records, for which special protection from

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

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warranted. Accordingly, Plaintiff and Defendant (the “Parties”) hereby stipulate to and petition

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the court to enter the following Stipulated Protective Order. The Parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to discovery and that the
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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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

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items that are entitled to confidential treatment under the applicable legal principles. The Parties

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further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order

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does not entitle them to file confidential information under seal; Local Rule 141 sets forth the

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procedures that must be followed and the standards that will be applied when a Party seeks

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permission from the court to file material under seal. However, the Parties agree they will meet

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and confer about obtaining a sealing order before filing any confidential information.

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2.

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DEFINITIONS
2.1

Challenging Party:

a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

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

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

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of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or items that

it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5

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

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

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

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responses to discovery in this matter.

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2.6

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

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

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consultant in this action.

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2.7

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

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8

Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.
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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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2.9

Outside Counsel of Record: attorneys who are not employees of a Party to this

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action but are retained to represent or advise a Party to this action and have appeared in this

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action on behalf of that Party or are affiliated with a law firm which has appeared on behalf of

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that Party.

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2.10

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

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

2.11

Producing Party: 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 services

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

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

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subcontractors.

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2.13

Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”

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2.14

Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

SCOPE

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

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

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

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

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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

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a result of publication not involving a violation of this Order, including becoming part of the

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public record through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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obtained the information lawfully and under no obligation of confidentiality to the Designating

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Party. Any use of 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 imposed by

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

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

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

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

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

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applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

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

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or Non-Party that designates information or items for protection under this Order must take care

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

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

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

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

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unjustifiably within the ambit of this Order.

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

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

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unnecessarily encumber the case development process or to impose unnecessary expenses and

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burdens on other Parties) expose the Designating Party to sanctions.

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

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

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Parties that it is withdrawing the mistaken designation.

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5.2

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

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

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

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

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

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

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

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

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margins).

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A Party or Non-Party that makes original documents or materials available for inspection

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

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

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of the 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 Producing Party

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must determine which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or

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

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

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(b)

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

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

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proceeding, all protected testimony.

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(c)

for information produced in some form other than documentary and for any other

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

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

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

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

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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

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treated in accordance with the provisions of this Order. For purposes of this section, a correction

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made within a reasonable time of being put on notice of an inadvertent failure to designate shall

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constitute a timely correction.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each 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 with this

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specific paragraph of the Protective Order. The Parties shall attempt to resolve each challenge in

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good faith and must begin the process by conferring directly (in voice to voice dialogue; other

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forms of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to review the

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

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

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stage of the 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 process in

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a timely manner.
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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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6.3

Judicial Intervention.

If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality under

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Local Rules 141.1 and 251 within 21 days of the initial notice of challenge or within 14 days of

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the Parties agreeing that the meet and confer process will not resolve their dispute, whichever is

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earlier. Each such motion must be accompanied by a competent declaration affirming that the

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

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Failure by the Designating Party to make such a motion including the required declaration within

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21 days (or 14 days, if applicable) shall waive the confidentiality designation for each challenged

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designation. In addition, the Challenging Party may file a motion challenging a confidentiality

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designation at any time if there is good cause for doing so, including a challenge to the

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designation of a deposition transcript or any portions thereof. Any motion brought pursuant to this

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provision must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed by the preceding paragraph.

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

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

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

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, 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 until the court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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produced by 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 disclosed only to

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

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

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DISPOSITION).

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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

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in a secure manner that ensures that access is limited to the persons authorized under this Order.

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The Parties will seek to obtain a sealing order prior to filing any Confidential Information with

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the Court.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

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

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information or item designated “CONFIDENTIAL” only to:

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(a)

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

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

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

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Bound” that is attached hereto as Exhibit A;

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(b)

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

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

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

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(c)

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

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

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Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

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

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and Professional Vendors 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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(f)

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

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

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

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

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

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Stipulated Protective Order.

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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(g)

the author or recipient of a document containing the information or a custodian or

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other person who otherwise possessed or knew the information.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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

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

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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 issue in

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

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

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and

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(c)

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

Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” before a determination by the court from which the subpoena or order

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issued, unless 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 material –

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and nothing in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this action to disobey a lawful directive from another court.

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9.

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

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LITIGATION

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(a)

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

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

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

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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

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additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to produce a

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

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

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(1)

promptly notify in writing the Requesting Party and the Non-Party that

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

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Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated Protective

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

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the information requested; and

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(3)

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(c)

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

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

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

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

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

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

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

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

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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Material to any person or in any circumstance not authorized under this Stipulated Protective

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

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

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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

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

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

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

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order that provides for production without prior privilege review. The Parties’ Stipulated Rule

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502(d) Order is attached hereto as Exhibit B and incorporated herein by reference.

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12.

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MISCELLANEOUS
12.1

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

seek its modification by the court in the future.

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12.2

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

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

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the material covered

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by this Protective Order.

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12.3

Filing Protected Material. Without written permission from the Designating Party

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or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public 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 Local Rule 141. Protected Material may only be filed under

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seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue.

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Pursuant to Local Rule 141, a sealing order will issue only upon a request establishing that the

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Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to

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protection under the law. If a Receiving Party’s request to file Protected Material under seal

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pursuant to Local Rule 141 is denied by the court, then the Receiving Party may file the

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information in the public record pursuant to Local Rule 141 unless otherwise instructed by the

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court.

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

12.4

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The Parties’ duties described in this Protective Order to maintain the confidentiality

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of “CONFIDENTIAL” information and only use such material and information for purposes of

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this litigation shall commence upon execution of this document by their counsel regardless of

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when or if the terms herein become an order of the Court

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13.

FINAL DISPOSITION

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

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

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

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

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

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

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

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

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

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capturing any of the Protected Material.

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

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material. Any such

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archival 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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IT IS SO STIPULATED.

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Dated: September 4, 2020

LAW OFFICES OF KEITH M. VELLECA

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By:

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Attorneys for Plaintiff
THOMAS E. NIEDERREUTHER

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/s/ Keith M. Velleca [authorized on 9/04/20]
KEITH M. VELLECA

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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Date: September 4, 2020

JACKSON LEWIS P.C.

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By:

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/s/ Shane R. Larsen
MICHAEL J. CHRISTIAN
SHANE R. LARSEN
Attorneys for Defendant
CITY OF ATWATER

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Thomas Niederreuther v. City of Atwater
Joint Stipulation for Protective Order

USDC-Eastern Case No. 1:19-CV-00779-DAD-BAM

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

_____________________________

[print

or

type

full

name],

of

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________________________________________ [print or type full address], declare under

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penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order

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that was issued by the United States District Court for the Eastern District of California on

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_____________, 2020 in the case of Thomas Niederreuther v. City of Atwater, Case No.

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1:19-cv-00779-DAD-BAM. I agree to comply with and to be bound by all the terms of this

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Stipulated Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the provisions of this Order.

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

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Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective

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

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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EXHIBIT B

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STIPULATED ORDER REGARDING THE
DISCLOSURE OF PRIVILEGED INFORMATION
(Federal Rules of Evidence 502(d))

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The City of Atwater (“Defendant”) and Thomas Niederreuther (“Plaintiff”) (collectively

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the “Parties”), by and through their respective counsel, have jointly stipulated to the terms of

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Stipulated Order Governing the Disclosure of Privileged Information, and with the Court being

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fully advised as to the same, it is hereby ORDERED:

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I.

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APPLICABILITY
1.

This Order shall be applicable to and govern all deposition transcripts and/or

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videotapes, and documents produced in response to requests for production of documents,

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answers to interrogatories, responses to requests for admissions, affidavits, declarations and all

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other information or material produced, made available for inspection, or otherwise sub-mitted by

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any of the parties in this litigation as well as testimony adduced at trial or during any hearing

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(collectively "Information").

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II.

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PRODUCTION OF DISCOVERY MATERIALS CONTAINING POTENTIALLY
PRIVILEGED INFORMATION
1.

The production of any privileged or otherwise protected or exempted Information,

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as well as the production of Information without an appropriate designation of confidentiality,

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shall not be deemed a waiver or impairment of any claim of privilege or protection, including, but

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not limited to, the attorney-client privilege, the protection afforded to work-product materials, or

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the subject matter thereof, or the confidential nature of any such Information, as to the produced

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Information, or any other Information.

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2.

The production of privileged or work-product protected documents, electronically

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stored information ("ESP') or Information, whether inadvertent or otherwise, is not a waiver of

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the privilege or protection from discovery in this case or in any other federal or state proceeding.

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This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of

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Evidence 502(d).

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3.

The producing party must notify the receiving party promptly, in writing, upon

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discovery that a document has been produced. Upon receiving written notice from the producing

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party that privileged and/or work-product material has been produced, all such Information, and

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all copies thereof, shall be returned to the producing party within ten (10) business days of receipt

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of such notice and the receiving party shall not use such information for any purpose, except as

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provided in paragraph 5, until further Order of the Court. The receiving party shall also attempt,

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in good faith, to retrieve and return or destroy all copies of the documents in electronic format.

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4.

The receiving party may contest the privilege or work-product designation by the

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producing party, shall give the producing party written notice of the reason for said disagreement.

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However, the receiving party may not challenge the privilege or immunity claim by arguing that

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the disclosure itself is a waiver of any applicable privilege. In that instance, the receiving party

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shall, within fifteen (15) business days from the initial notice by the producing party, seek an

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Order from the Court compelling the production of the material.

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5.

Any analyses, memoranda or notes which were internally generated based upon

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such produced Information shall immediately be placed in sealed envelopes, and shall be

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destroyed in the event that (a) the receiving party does not con-test that the Information is

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privileged, or (b) the Court rules that the Information is privileged. Such analyses, memoranda or

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notes may only be removed from the sealed envelopes and returned to its intended purpose in the

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event that (a) the producing party agrees in writing that the Information is not privileged, or (b)

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the Court rules that the Information is not privileged.

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6.

Nothing contained herein is intended to or shall serve to limit a party's right to

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conduct a review of documents, ESI or Information (including metadata) for relevance,

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responsiveness and/or segregation of privileged and/or protected Information before production.

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STIPULATED AND AGREED TO on September 4, 2020.

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LAW OFFICE OF KEITH M. VELLECA

JACKSON LEWIS, P.C.

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By:

By:

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/s/ Keith M. Velleca [as Auth 9.4.20]
Keith M. Velleca

Attorneys for Plaintiff
THOMAS A. NIEDERREUTHER

/s/ Shane R. Larsen
Michael J. Christian
Shane R. Larsen

Attorneys for Defendant,
CITY OF ATWATER
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ORDER
The Court adopts the stipulated protective order submitted by the parties. The parties are

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advised that pursuant to the Local Rules of the United States District Court, Eastern District of

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California, any documents subject to this protective order to be filed under seal must be

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accompanied by a written request which complies with Local Rule 141 prior to sealing. The party

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making a request to file documents under seal shall be required to show good cause for

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documents attached to a non-dispositive motion or compelling reasons for documents attached to

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a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009).

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Within five (5) days of any approved document filed under seal, the party shall file a redacted

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copy of the sealed document. The redactions shall be narrowly tailored to protect only the

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information that is confidential or was deemed confidential. Additionally, the parties shall

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consider resolving any dispute arising under this protective order according to the Court’s

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informal discovery dispute procedures.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 14, 2020

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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