United States of America v. Pacific Gas and Electric Company

Filing 28

PROTECTIVE ORDER re: 27 Stipulated Protective Order, signed by Magistrate Judge Edmund F. Brennan on 4/12/11. (Kastilahn, A)

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MARK H. PENSKAR (SBN 77725)
[e-mail]
PACIFIC GAS AND ELECTRIC COMPANY
Law Department, 77 Beale Street, B30A
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
PACIFIC GAS AND ELECTRIC COMPANY

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SEDGWICK LLP
GAYLE L. GOUGH (SBN 154398)
[e-mail]
GREGORY C. READ (SBN 49713)
[e-mail]
MARK J. HANCOCK (SBN 160662)
[e-mail]
PETER J. MESSROBIAN (SBN 168554)
[e-mail]
One Market Plaza
Steuart Tower, 8th Floor
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
PACIFIC GAS AND ELECTRIC COMPANY

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,

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Case No. . 2:09-CV-02877-GEB-EFB
(Consolidated with Case No. 2:10-cv-01875)

v.

STIPULATED PROTECTIVE ORDER

PACIFIC GAS AND ELECTRIC COMPANY,
Defendant.

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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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WESTERN ENVIRONMENTAL
CONSULTANTS, INC.,

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Defendant.
2:09-CV-02877-GEB-EFB

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STIPULATED PROTECTIVE ORDER

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WHEREAS disclosure and discovery activity in this Action are likely to involve

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

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public disclosure and from use for any purpose other than prosecuting litigation related to the

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Sims Fire would be warranted.

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WHEREAS the Parties hereby stipulate to and petition the Court to enter the following
Stipulated Protective Order.
WHEREAS the Parties acknowledge that this Stipulated Protective Order does not confer

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blanket protections on all disclosures or responses to discovery and that the protection it affords

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extends only to the limited information or items that are entitled under the applicable legal

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principles to treatment as confidential.

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WHEREAS the Parties, by and through their respective undersigned counsel, HEREBY

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STIPULATE, AGREE, and REQUEST that the Court enter the following Order with respect to

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this Action:

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1.

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This Stipulated Protective Order shall govern any document, information or other thing

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furnished by any Party, or any person, including third persons, to any other Party in connection

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with the consolidated discovery and pretrial phase of the Action. The information protected

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includes, but is not limited to, responses to requests to produce documents or other things,

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responses to interrogatories, responses to requests for admissions, deposition testimony and all

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copies, extracts, summaries, compilations, designations and portions thereof.

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Proceedings and Information Governed.

This Stipulated Protective Order does not govern proceedings during trial nor does it

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prohibit any Party from seeking a protective order to govern proceedings during trial. The Parties

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reserve for future agreement the procedure to be followed in using “Confidential Information”

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(defined below) at trial.

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2.

Definitions.

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2.1

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

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consultants, retained Experts, and Outside Counsel (and their support staff) (more than one Party

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collectively referred to as “Parties”).

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2.2

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

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

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

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discovery in this matter.

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2.3

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Producing Party.

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2.4

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

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

Material in this Action.
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Designating Party: a Party or non-party that designates information or items that it

produces in disclosures or in responses to discovery as “Confidential.”
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Outside Counsel: attorneys who are not employees of a Party but who are retained

to represent or advise a Party in this Action.

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2.7

House Counsel: attorneys who are employees of a Party.

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2.8

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

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support staffs).
2.9

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

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a consultant in this Action. This definition includes a professional jury or trial consultant retained

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in connection with this litigation.

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2.10

Action: the above-captioned matter, designated as United States of America v.

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Pacific Gas and Electric Company, Case No. 2:09-CV-02877-GEB-EFB, and the consolidated

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matter designated as United States of America v. Western Environmental Consultants, Inc., Case

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No. 2:10-cv-01875

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3.

Designation of Information for Protection Under This Stipulated Protective Order.

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Any Disclosure or Discovery Material produced in this Action that is reasonably believed

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by any party to be nonpublic and/or proprietary and/or confidential and/or contain/constitute

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trade secrets may be designated as “Confidential Information” as described more fully in

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paragraph 4, below. Such designation may be made by labeling or otherwise clearly marking the

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material as “Confidential” in such a manner as will not interfere with the legibility thereof. In the

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case of written material, documents or tangible items, the designation shall be made, to the extent

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possible, at the time the copy of the writing or thing is produced. In the case of materials

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produced by a non-party or any other Party, the designation may be made by any Party within

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ninety (90) days following the date the Designating Party receives a copy of the documents so

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produced. In the case of deposition testimony, a Party seeking to invoke the protections of this

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Stipulated Protective Order shall give notice thereof as set forth in paragraph 9, below.

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4.

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Confidential Information may be disclosed and disseminated by the Receiving Party only

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Disclosure of Confidential Information.

to:

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(a)

The Parties and their officers, directors and employees;

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(b)

The attorneys of record in the Action, and their respective associates, clerks and

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legal assistants, and any organizations retained by such attorneys to provide litigation support

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services in the Action and the employees of said organizations;
(c)

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Independent consultants and Expert witnesses retained in the Action by the

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attorneys of record, and the employees of such consultants and Expert witnesses who are

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assisting them;
(d)

The Court and its administrative staff, including law clerks and the jury at trial (if

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(e)

Stenographic reporters engaged in deposition proceedings; and

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(f)

Such other persons as hereafter may be designated by written agreement of all

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any);

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Parties in the Action or by order of the Court, such order obtained on noticed motion (or on

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shortened time as the Court may allow), permitting such disclosure.

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5.

Unauthorized Disclosure of Confidential Information.

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

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Confidential Information to any person or in any circumstance not authorized under this

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Stipulated Protective Order, that Party must immediately (a) notify in writing the Producing

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

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copies of the Confidential Information, and (c) inform the person or persons to whom

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unauthorized disclosures were made of all the terms of this Stipulated Protective Order.

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6.

Use.

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Except as otherwise provided by this Stipulated Protective Order or by further order of

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the Court, documents or testimony designated as Confidential Information, and all information

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contained therein, shall not be used for any purpose other than in connection with prosecution of

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the Action or any other action arising out of the Sims Fire, and any appellate proceeding

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concerning the same.1 No person who is furnished Confidential Information shall disclose or

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disseminate it to any person not entitled under this Stipulated Protective Order to receive and

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review it.
To the extent Confidential Information is used in an action arising out of the Sims Fire

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other than this Action, the parties shall follow the procedures that have been agreed upon or are

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otherwise required in such other actions for filing such materials.
No duplicates, copies, reproductions, or reprints of any Confidential Information, or any

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parts thereof, shall be made unless reasonably necessary.
If there is a disclosure or utilization of Confidential Information in violation of the terms

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of this Stipulated Protective Order, the Party who becomes aware of such disclosure or

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utilization shall promptly notify the attorneys of record for the other Parties. In addition to any

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other remedy the Court may order, the Party making the disclosure shall be obligated to take all

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reasonable steps to limit further utilization or dissemination of Confidential Information in

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violation of this Stipulated Protective Order.

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7.

Challenging Confidentiality Designations.

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7.1

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

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confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary

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

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In the event a party attempts to use Confidential Information in litigation arising out of the Sims
Fire other than the Action, the provisions set forth in paragraph 7 shall not be construed as a
waiver or admission that said Confidential Information is legally admissible in that litigation.
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waive its right to challenge a confidentiality designation by electing not to mount a challenge

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promptly after the original designation is disclosed.

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7.2

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

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

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conferring with counsel for the Designating Party. In conferring, the challenging Party must

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

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

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

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

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has engaged in this meet and confer process first.

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7.3

Judicial Intervention. A Party that elects to press a challenge to a confidentiality

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designation after considering the justification offered by the Designating Party may file and

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serve a motion under Local Rules 230 and 251 (and in compliance with Local Rule 141, if

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applicable) that identifies the challenged material and sets forth in detail the basis for the

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challenge. Each such motion must be accompanied by a competent declaration that affirms that

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

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paragraph and that sets forth with specificity the justification for the confidentiality designation

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that was given by the Designating Party in the meet and confer dialogue.

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8.

Disclosure to Author or Addressee.

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Nothing herein shall prohibit a Party or Party’s attorney from disclosing a document

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which has been designated as Confidential Information to the person the document identifies as

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an author or addressee of such document.

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9.

Party’s Own Information.

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The restrictions on the use of Confidential Information established herein are applicable

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only to the use by a Party of Confidential Information received from another Party or any

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nonparty.

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This Stipulated Protective Order shall not restrict a Party’s use of such documents,

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information and other things which that Party possessed before the commencement of this

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Action or acquired after the commencement of this Action through informal means not involving

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discovery or other compulsory process.

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10.

No Waiver.

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Neither the taking of nor the failure to take any Action to enforce the provisions of this

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Protective Order, nor the failure to object to any designation or any such Action or omission,

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shall constitute a waiver of any right to seek and obtain protection or relief other than as

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specified herein of any claim or defense in the Action or any other Action including, but not

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limited to, the claim or defense that any information is or is not proprietary to any Party, is or is

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not entitled to particular protections or that such information embodies trade secrets of any Party.

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The procedures set forth herein shall not affect the rights of the Parties to object to

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discovery on grounds other than those related to trade secrets or proprietary information claims,

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nor shall it relieve a Party of the necessity of proper response to discovery devices.

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11.

No Probative Value.

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This Stipulated Protective Order shall not abrogate or diminish any contractual, statutory

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or other legal obligation or right of any Party or person with respect to any Confidential

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Information. The fact that information is designated “Confidential Information” under this

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Stipulated Protective Order shall not be deemed to be determinative of what a trier of fact may

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determine to be confidential or proprietary. This Stipulated Protective Order shall be without

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prejudice to the right of any Party to bring before the Court the question of: (i) whether any

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particular material is or is not confidential; (ii) whether any particular information or material is

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or is not entitled to a greater or lesser degree of protection than provided hereunder; (iii) whether

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any particular information or material is or is not relevant to any issue of this case, or (iv) how to

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provide reasonable protection for Confidential Information during any trial or other public legal

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proceeding in this matter, provided that in doing so the Party complies with the foregoing

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procedures.

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Absent a stipulation of all Parties, the fact that information has been designated

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Confidential under this Stipulated Protective Order shall not be admissible during the trial of the

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Action, nor shall the jury be advised of such designation. The fact that any information is

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disclosed, used or produced in discovery or trial herein shall not be construed admissible, or

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offered in any Action or proceeding before any court, agency or tribunal as evidence of or

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concerning whether or not such information is confidential or proprietary.

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12.

Return of Confidential Information.

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At the conclusion of the Action, all Confidential Information and all documents which

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repeat such information, including all copies, extracts and summaries thereof, shall, upon the

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request of the Party furnishing such Confidential Information, be delivered to that Party.

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Alternatively, Counsel may certify in writing to the Party furnishing the Confidential

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Information that all such Confidential Information, together with all copies, extracts and

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summaries thereof, have been destroyed and that no additional copies are known to exist.

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Court’s Jurisdiction.

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The Court retains jurisdiction to make such amendments, modifications, deletions and

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additions to this Stipulated Protective Order as the Court may from time to time deem

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appropriate. This Stipulated Protective Order shall remain in effect for the duration of the

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litigation unless terminated by agreement executed by Counsel of record for the Parties or

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pursuant to an order of the Court. The provisions of this Stipulated Protective Order regarding

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the use and/or disclosure of Confidential Information shall survive the termination of the Action,

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and the Court shall retain jurisdiction with respect to this Stipulated Protective Order.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: April 8, 2011

U.S. ATTORNEY’S OFFICE

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By: /s/ Richard M. Elias
Richard M. Elias
Attorneys for Plaintiff
UNITED STATES OF AMERICA

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SF/2129690v1

DATED: April 8, 2011

MATHENY SEARS LINKERT & JAIME LLP
By: /s/ Richard S. Linkert
Richard S. Linkert
Attorneys for Defendant
WESTERN ENVIRONMENTAL CONSULTANTS,
INC.
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DATED: April 8, 2011

SEDGWICK LLP

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By: /s/ Gregory C. Read
Gayle L. Gough
Gregory C. Read
Mark J. Hancock
Peter J. Messrobian
Attorneys for Defendant
PACIFIC GAS AND ELECTRIC COMPANY

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IT IS SO ORDERED:

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DATED: April 12, 2011

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