Coleman, et al v. Schwarzenegger, et al

Filing 7489

STIPULATED PROTECTIVE ORDER re Plaintiff-Intervenor Lipsey's Claim signed by Chief District Judge Kimberly J. Mueller on 03/07/22. (Benson, A.)

1
2
3
4
5
6
7

SHAWNA BALLARD, State Bar No. 155188
KATE FALKENSTIEN, State Bar No. 313753
Reichman Jorgensen Lehman & Feldberg LLP
100 Marine Parkway, Suite 300
Redwood Shores, CA 94065
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

BRIAN C. BARAN, State Bar No. 325939
Reichman Jorgensen Lehman & Feldberg LLP
1710 Rhode Island Ave NW, 12th Floor
Washington, DC 20036
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

Attorneys for Plaintiff-Intervenor
Christopher Lipsey

15
16

HANSON BRIDGETT LLP
PAUL B. MELLO, State Bar No. 179755
SAMANTHA D. WOLFF, State Bar No. 240280
LAUREL E. O’CONNOR, State Bar No. 305478
DAVID C. CASARRUBIAS, State Bar No. 321994
1676 N. California Boulevard, Suite 620
Walnut Creek, CA 94596
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

ROB BONTA, State Bar No. 202668
Attorney General of California
MONICA N. ANDERSON, State Bar No. 182970
Senior Assistant Attorney General
DAMON MCCLAIN, State Bar No. 209508
Supervising Deputy Attorney General
ELISE OWENS THORN, State Bar No. 145931
NAMRATA KOTWANI, State Bar No. 308741
Deputy Attorneys General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendants

8
9
10
11
12
13
14

17

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

18

FOR THE EASTERN DISTRICT OF CALIFORNIA

19

SACRAMENTO DIVISION

20
21
22

RALPH COLEMAN, et al.,

23
24
25
26
27

Case No. 2:90-cv-00520 KJM DB P
Plaintiffs, STIPULATED PROTECTIVE ORDER FOR
PLAINTIFF-INTERVENOR LIPSEY’S
CLAIM

v.

Judge:
Hon. Kimberly Mueller
Action Filed: April 23, 1990

GAVIN NEWSOM, et al.,
Defendants.

28
1
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity related to Plaintiff-Intervenor Christopher Lipsey’s

2
3

Complaint in Intervention in this action, ECF No. 6941, are likely to involve production of

4

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

5

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

6

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

7

Protective Order applicable to information produced by non-parties. This Stipulated Protective

8

order does not supersede existing Coleman protective orders applicable to the parties. The parties

9

acknowledge that this Order does not confer blanket protections on all disclosures or responses to

10

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

11

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

12

principles. The parties further acknowledge, as set forth in Section 12.3, below, that this

13

Stipulated Protective Order does not entitle them to file confidential information under seal; Civil

14

Local Rule 141 and the court’s standing orders set forth the procedures that must be followed and

15

the standards that will be applied when a party seeks permission from the court to file material

16

under seal.

17

2.

18
19
20

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

21

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

22

of Civil Procedure 26(c), excluding “confidential material” as defined in the Coleman Protective

23

Order, ECF No. 2109 (as amended by the February 25, 2020 order, ECF No. 6482), which shall

24

continue to be governed by the Coleman Protective Order, as modified.

25
26
27
28

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” or “HIGHLY
2
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1
2

CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.
2.5

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

3

the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or

4

as a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s

5

competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party

6

or of a Party’s competitor.

7

2.6

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

8

Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another

9

Party or Non-Party would create a substantial risk of serious harm that could not be avoided by

10
11
12
13

less restrictive means.
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

Intervenor Claim Disclosure or Discovery Material: all items or information,

14

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

15

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

16

disclosures or responses to discovery regarding Lipsey’s Complaint in Intervention.

17
18
19

2.9

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

entity not named as a Party to this action.
2.10

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

20

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

21

on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

22
23
24
25
26

2.11

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

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.12

Producing Party: a Party or Non-Party that produces Intervenor Claim Disclosure

or Discovery Material in this action.
2.13

Professional Vendors: persons or entities that provide litigation support services

27

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

28

organizing, storing, or retrieving data in any form or medium) and their employees and
3
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

subcontractors.

2

2.14

Protected Material: any Intervenor Claim Disclosure or Discovery Material that is

3

designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

4

ONLY.”

5
6

2.15

Receiving Party: a Party that receives Intervenor Claim Disclosure or Discovery

Material from a Producing Party.

7

2.16

Related Case: a civil case that the court has related to this litigation under Eastern

8

District Local Rule 123 and in which the undersigned plaintiff-intervenor’s counsel represents the

9

plaintiff.

10

3.

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.

23

4.

DURATION

24

Even after final disposition of this litigation, the confidentiality obligations imposed by

25

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

26

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

27

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

28

the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
4
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

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

2

applicable law.

3

5.

4

DESIGNATING PROTECTED MATERIAL
5.1

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

5

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

6

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

7

To the extent it is practical to do so, the Designating Party must designate for protection only

8

those parts of material, documents, items, or oral or written communications that qualify – so that

9

other portions of the material, documents, items, or communications for which protection is not

10

warranted are not swept unjustifiably within the ambit of this Order.

11

Mass, indiscriminate, or routinized designations are prohibited.

12

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

13

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

14

initially asserted, that Designating Party must promptly notify all other parties that it is

15

withdrawing the mistaken designation.

16

5.2

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

17

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

18

Intervenor Claim Disclosure or Discovery

19
20
21
22

Material that qualifies for protection under this Order must be clearly so designated before
the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but

23

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

24

Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

25

EYES ONLY” to each page that contains protected material. If only a portion or portions of the

26

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

27

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

28

each portion, the level of protection being asserted.
5
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

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

2

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

3

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

4

of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

5

ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

6

copied and produced, the Producing Party must determine which documents, or portions thereof,

7

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

8

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

9

CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected

10

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

11

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

12

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

13

asserted.

14

Notwithstanding the process identified in the preceding paragraph, to the extent any party

15

to this action deems a produced document confidential under one or more of the standing

16

protective orders in this action, that party may designate the documents as confidential and

17

protected under this Order by giving written notice of the designation to the Producing Party.

18

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

19

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

20

proceeding, all protected testimony and specify the level of protection being asserted. When it is

21

impractical to identify separately each portion of testimony that is entitled to protection and it

22

appears that substantial portions of the testimony may qualify for protection, the Designating

23

Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded)

24

a right to have up to 21 days to identify the specific portions of the testimony as to which

25

protection is sought and to specify the level of protection being asserted. Only those portions of

26

the testimony that are appropriately designated for protection within the 21 days shall be covered

27

by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may

28

specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the
6
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

2

ATTORNEYS’ EYES ONLY.”

3

Parties shall give the other parties notice if they reasonably expect a deposition, hearing or

4

other proceeding to include Protected Material so that the other parties can ensure that only

5

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

6

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition

7

shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY

8

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

9

Transcripts containing Protected Material shall have an obvious legend on the title page

10

that the transcript contains Protected Material, and the title page shall be followed by a list of all

11

pages (including line numbers as appropriate) that have been designated as Protected Material and

12

the level of protection being asserted by the Designating Party. The Designating Party shall

13

inform the court reporter of these requirements. Any transcript that is prepared before the

14

expiration of a 21-day period for designation shall be treated during that period as if it had been

15

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless

16

otherwise agreed. After the expiration of that period, the transcript shall be treated only as

17

actually designated.

18

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

19

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

20

container or containers in which the information or item is stored the legend “CONFIDENTIAL”

21

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of

22

the information or item warrant protection, the Producing Party, to the extent practicable, shall

23

identify the protected portion(s) and specify the level of protection being asserted.

24

5.3

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

25

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

26

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

27

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

28

treated in accordance with the provisions of this Order.
7
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1
2

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

3

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

4

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

5

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

6

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

7

original designation is disclosed.

8
9

6.2

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

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

a timely manner.

22

6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

23

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

24

Civil Local Rule 230 (and in compliance with Civil Local Rule 141, if applicable) within 21 days

25

of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer

26

process will not resolve their dispute, whichever is earlier. Each such motion must be

27

accompanied by a competent declaration affirming that the movant has complied with the meet

28

and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to
8
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

make such a motion including the required declaration within 21 days (or 14 days, if applicable)

2

shall automatically waive the confidentiality designation for each challenged designation. In

3

addition, the Challenging Party may file a motion challenging a confidentiality designation at any

4

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

5

transcript or any portions thereof. Any motion brought pursuant to this provision must be

6

accompanied by a competent declaration affirming that the movant has complied with the meet

7

and confer requirements imposed by the preceding paragraph.

8

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

9

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

10

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

11

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

12

file a motion to retain confidentiality as described above, all parties shall continue to afford the

13

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

14

designation until the court rules on the challenge.

15

7.

16

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

17

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

18

defending, or attempting to settle this litigation or any Related Case. Such Protected Material may

19

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

20

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

21

section 15 below (FINAL DISPOSITION).

22

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

23

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

24

7.2

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

25

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

26

information or item designated “CONFIDENTIAL” only to:

27
28

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
9
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

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

2

Bound” that is attached hereto as Exhibit A;

3

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

4

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

5

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

6

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

7

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

8

Agreement to Be Bound” (Exhibit A);

9

(d) the court and its personnel;

10

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

11

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

12

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

13

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

14

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

15

(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

16

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

17

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

18

under this Stipulated Protective Order.

19
20
21

(g) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

22

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

23

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

24

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

25

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

26

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

27

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

28

Bound” that is attached hereto as Exhibit A;
10
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

(b) Experts of the Receiving Party to whom disclosure is reasonably necessary for

2

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

3

(Exhibit A);

4

(c) the court and its personnel;

5

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

6

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

7

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

8
9
10

(e) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
7.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

11

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Designated House

12

Counsel.

13

(a) Unless otherwise ordered by the court or agreed to in writing by the

14

Designating Party, a Party that seeks to disclose to Designated House Counsel any information or

15

item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

16

pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that (1)

17

sets forth the full name of the Designated House Counsel and the city and state of his or her

18

residence, and (2) describes the Designated House Counsel’s current and reasonably foreseeable

19

future primary job duties and responsibilities in sufficient detail to determine if House Counsel is

20

involved, or may become involved, in any competitive decision-making.

21

(b) A Party that makes a request and provides the information specified in the

22

preceding respective paragraph may disclose the subject Protected Material to the identified

23

Designated House Counsel unless, within 14 days of delivering the request, the Party receives a

24

written objection from the Designating Party. Any such objection must set forth in detail the

25

grounds on which it is based.

26

(c) A Party that receives a timely written objection must meet and confer with the

27

Designating Party (through direct voice to voice dialogue) to try to resolve the matter by

28

agreement within seven days of the written objection. If no agreement is reached, the Party
11
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

seeking to make the disclosure to Designated House Counsel may file a motion as provided in

2

Civil Local Rule 230 (and in compliance with Civil Local Rule 141, if applicable) seeking

3

permission from the court to do so. Any such motion must describe the circumstances with

4

specificity, set forth in detail the reasons why the disclosure to Designated House Counsel is

5

reasonably necessary, assess the risk of harm that the disclosure would entail, and suggest any

6

additional means that could be used to reduce that risk. In addition, any such motion must be

7

accompanied by a competent declaration describing the parties’ efforts to resolve the matter by

8

agreement (i.e., the extent and the content of the meet and confer discussions) and setting forth

9

the reasons advanced by the Designating Party for its refusal to approve the disclosure.

10

In any such proceeding, the Party opposing disclosure to Designated House Counsel shall

11

bear the burden of proving that the risk of harm that the disclosure would entail (under the

12

safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to

13

its Designated House Counsel.

14

8.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that

compels disclosure of any information or items designated in this action as “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue
in the other litigation that some or all of the material covered by the subpoena or order is subject
to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;
and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
12
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a

2

determination by the court from which the subpoena or order issued, unless the Party has obtained

3

the Designating Party’s permission. The Designating Party shall bear the burden and expense of

4

seeking protection in that court of its confidential material – and nothing in these provisions

5

should be construed as authorizing or encouraging a Receiving Party in this action to disobey a

6

lawful directive from another court.

7

9.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a)

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

Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with
this litigation is protected by the remedies and relief provided by this Order. Nothing in these
provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b)

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

produce a Non-Party’s confidential information in its possession, and the Party is subject to an
agreement with the Non-Party not to produce the Non-Party’s confidential information, then the
Party shall:
1. promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement with a NonParty;
2. promptly provide the Non-Party with a copy of the Stipulated Protective
Order in this litigation, the relevant discovery request(s), and a reasonably specific description of
the information requested; and
3. make the information requested available for inspection by the Non-Party.
(c)

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

within 14 days of receiving the notice and accompanying information, the Receiving Party may
produce the Non-Party’s confidential information responsive to the discovery request. If the NonParty timely seeks a protective order, the Receiving Party shall not produce any information in its
13
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

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

2

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

3

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

4

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

11.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure
26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in
an e-discovery order that provides for production without prior privilege review. Pursuant to
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of
disclosure of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated protective order
submitted to the court.
12.

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.
12.2

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

Order no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
14
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

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

2

by this Protective Order.

3

12.3

Filing Protected Material. Without written permission from the Designating Party

4

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

5

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

6

Protected Material must comply with Civil Local Rule 141 and the court’s standing orders.

7

Protected Material may only be filed under seal pursuant to a court order authorizing the sealing

8

of the specific Protected Material at issue. Pursuant to Civil Local Rule 141 and the court’s

9

standing orders, a sealing order will issue only upon a request establishing that the Protected

10

Material at issue is entitled to protection under the law. If a Receiving Party's request to file

11

Protected Material under seal pursuant to Civil Local Rule 141(b) is denied by the court, then the

12

Receiving Party may file the Protected Material in the public record unless otherwise instructed

13

by the court.

14

13.

15

FINAL DISPOSITION
Within 60 days after the final disposition, as defined in paragraph 4, of this action and all

16

Related Cases as defined in paragraph 2.16, each Receiving Party must return all Protected

17

Material to the Producing Party or destroy such material. As used in this subdivision, “all

18

Protected Material” includes all copies, abstracts, compilations, summaries, and any other format

19

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

20

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

21

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

22

(1) identifies (by category, where appropriate) all the Protected Material that was returned or

23

destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,

24

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

25

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

26

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

27

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

28

consultant and expert work product, even if such materials contain Protected Material. Any such
15
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1

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

2

Order as set forth in Section 4 (DURATION).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: March 1, 2022

Respectfully submitted,

/s/ Brian C. Baran

/s/ Namrata Kotwani (as authorized on 3/1/22)

REICHMAN JORGENSEN
LEHMAN & FELDBERG LLP
Shawna L. Ballard (SBN 155188)
Kate Falkenstien (SBN 313753)
100 Marine Parkway, Suite 300
Redwood Shores, California 94065
Telephone: [phone]
Fax: [phone]
[e-mail]

ROB BONTA
Attorney General of California
DAMON MCCLAIN
Supervising Deputy Attorney General
NAMRATA KOTWANI
Deputy Attorney General
Attorneys for Defendants

REICHMAN JORGENSEN
LEHMAN & FELDBERG LLP
Brian C. Baran (SBN 325939)
1710 Rhode Island Ave NW, 12th
Floor
Washington, DC 20036
Telephone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiff-Intervenor
Christopher Lipsey
PURSUANT TO STIPULATION, IT IS SO ORDERED.

20
21
22

DATED: March 7, 2022.

23
24
25
26
27
28
16
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)

1
2
3

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _________________

4

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

5

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

6

the Eastern District of California on ___________[date] in the case of Coleman v. Newsom, Case

7

No. 2:90-cv-00520 KJM DB P. I agree to comply with and to be bound by all the terms of this

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

_______________________________________ [print or type full address and telephone

17

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

18

proceedings related to enforcement of this Stipulated Protective Order.

19
20

Date: _________________________________

21

City and State where sworn and signed: _________________________________

22

Printed name: ______________________________
[printed name]

23
24
25

Signature: __________________________________
[signature]

26
27
28
17
Stipulated Protective Order for Plaintiff-Intervenor Lipsey’s Claim (2:90-cv-00520 KJM DB P)