Morgan Hill Concerned Parents Association v. California Department of Education

Filing 60

STIPULATED PROTECTIVE ORDER signed by Judge Kimberly J. Mueller on 5/2/14 re 58 . The Parties in this matter shall be bound by the terms of this Stipulated Protective Order. (Meuleman, A)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 RONY SAGY (State Bar No. 112219) SAGY LAW ASSOCIATES 930 Montgomery Street, Suite 600 San Francisco CA 94133 Telephone: 415-986-0900 Fax: 415-956-3950 Email: rony.sagy@sagylaw.com STEPHEN A. ROSENBAUM (State Bar No. 98634) 1716 Milvia Street Berkeley, CA 94709 Telephone: 510-644-3971 Email: srosenbaum@law.berkeley.edu Attorneys for Plaintiffs MORGAN HILL CONCERNED PARENTS ASSOCIATION and CONCERNED PARENTS ASSOCIATION KAMALA D. HARRIS Attorney General of California 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 327-6749 Fax: (916) 324-5567 E-mail: Grant.Lien@doj.ca.gov Attorneys for Defendant CALIFORNIA DEPARTMENT OF EDUCATION IN THE UNITED STATES DISTRICT COURT 17 FOR THE EASTERN DISTRICT OF CALIFORNIA 18 SACRAMENTO DIVISION 19 20 21 22 MORGAN HILL CONCERNED PARENTS ASSOCIATION, an unincorporated association, and CONCERNED PARENTS ASSOCIATION, an unincorporated association, 25 26 27 STIPULATED PROTECTIVE ORDER Plaintiffs, 23 24 CASE NO. 2:11−CV−03471−KJM−AC v. CALIFORNIA DEPARTMENT OF EDUCATION, and DOES 1 through 5, Defendants. 28 SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 ADDITIONAL COUNSEL OF RECORD 2 BARBARA L. GATELY (State Bar No. 76497) SAGY LAW ASSOCIATES 3 930 Montgomery Street, Suite 600 San Francisco, CA 94133 4 Telephone: 415-986-0900 Facsimile: 415-956-3950 5 Email: barbara.gately@sagylaw.com 6 Attorneys for Plaintiffs MORGAN HILL CONCERNED PARENTS 7 ASSOCIATION and CONCERNED PARENTS ASSOCIATION 8 9 ISMAEL A. CASTRO (State Bar No. 85452) Supervising Deputy Attorney General 10 BRENDA A. RAY (State Bar No.164564) Deputy Attorney General 11 NIROMI W. PFEIFFER (State Bar No.154216) Supervising Deputy Attorney General 12 GRANT LIEN (State Bar No. 187250) Deputy Attorney General 13 R. MATTHEW WISE (State Bar No. 238485) Deputy Attorney General 14 1300 I Street, Suite125 P.O. Box 944255 15 Sacramento, CA 94244-2550 Telephone: 916-327-6749 16 Facsimile: 916-324-5567 Email: Grant.Lien@doj.ca.gov 17 Attorneys for Defendant 18 CALIFORNIA DEPARTMENT OF EDUCATION 19 20 21 22 23 24 25 26 27 28 -2SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER GOOD CAUSE STATEMENT 1 2 This is an action by two associations of parents of schoolchildren with disabilities who 3 seek to enjoin Defendant California Department of Education (CDE) from alleged violations of 4 the rights of these children to receive a "free and appropriate public education" consistent with 5 the mandates of the Individuals with Disabilities Education Improvement Act (IDEA). 6 Consequently, while Parties reserve the right to object to and/or challenge whether certain 7 information is confidential, proprietary, personal and/or private, the Parties believe that they, as 8 well as Non-Parties, may be required to produce or disclose information that is confidential, 9 proprietary, personal and/or private, particularly as it relates to individual schoolchildren. The 10 Parties believe that if such information is disclosed in this action without restriction on its use or 11 further disclosure, it may cause disadvantage, harm, or invade the privacy rights and any other 12 applicable rights of the disclosing Party or Non-Parties. 13 Therefore, believing that good cause exists, the Parties hereby stipulate and agree that, 14 subject to the Court’s approval, the following procedures shall be followed in this action to 15 facilitate the orderly and efficient discovery of relevant information while minimizing the 16 potential for unauthorized disclosure or use of personal, private, confidential, and/or proprietary 17 information. 18 1. PURPOSES AND LIMITATIONS 19 The Parties acknowledge that this Order does not confer blanket protections on all 20 disclosures or responses to discovery and that the protection it affords from public disclosure and 21 use extends only to the limited information or items that are entitled to protected treatment under 22 the applicable legal principles. The Parties further acknowledge, as set forth in Section 13.3 23 below, that this Stipulated Protective Order does not entitle them to file confidential information 24 under seal; Local Rules of Practice for the United States District Court, Eastern District of 25 California 140 and 141 set forth the procedures that must be followed and the standards that will 26 be applied when a Party seeks permission from the court to file material under seal. 27 2. DEFINITIONS 28 2.1 Challenging Party: a Party or Non-Party that challenges the designation of -3- SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 information or items as "Confidential" under this Order. 2 2.2 Confidential Information or Items: information (regardless of how it is 3 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 4 of Civil Procedure 26(c), as well as confidential, proprietary, personal and/or private information 5 including, but not limited to, the identity of schoolchildren whose records, including 6 Individualized Education Programs (IEPs), may be deemed relevant to the claims implicated in 7 this action. Confidential Information shall be used by the Parties solely for the purposes of the 8 litigation and not for any other purpose. 9 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 10 well as their support staff). 11 2.4 Designating Party: a Party or Non-Party that designates information or items that 12 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 13 2.5 Disclosure or Discovery Material: all items or information, regardless of the 14 medium or manner in which it is generated, stored electronically or in any other manner, or 15 maintained (including, among other things, deposition testimony, transcripts, and tangible 16 things), that are produced or generated in disclosures or responses to discovery requests in this 17 matter. 18 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent 19 to the litigation who has been retained by a Party, the Parties, or their respective counsel to serve 20 as an expert witness or as a consultant in this action. 21 2.7 House Counsel: attorneys who are employees of a party to this action. House 22 Counsel does not include Outside Counsel of Record or any other outside counsel. 23 2.8 Non-Party: any natural person, partnership, corporation, association, or other 24 legal entity not named as a Party to this action. 25 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 26 action but are retained to represent or advise a party to this action and have appeared in this 27 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 28 that party. -4SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 2.10 Party: any party to this action, including all of its officers, directors, employees, 2 consultants, retained Experts, and Outside Counsel of Record (and their support staffs). 3 2.11 Privileged Information: all items or information that are protected by the 4 attorney-client privilege or the attorney-work product doctrine. 5 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 6 Material in this action. 7 2.12 Professional Vendors: persons or entities that provide litigation support services 8 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 9 organizing, storing, or retrieving electronic and other data in any form or medium) and their 10 employees and subcontractors. 11 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 12 “Confidential” or “Privileged.” 13 2.1 Receiving Party: a Party that receives Disclosure or Discovery Material from a 14 Producing Party. 15 3. SUBSTANTIVE ISSUES 16 3.1 Plaintiffs: 17 Plaintiffs filed their April 2012 First Amended Complaint (FAC) alleging that the CDE 18 has been in systemic noncompliance with its statutory obligations under the Individuals with 19 Disabilities Education Improvement Act (IDEA), 20 U.S.C. sections 1400 et seq., and Section 20 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). Specifically, the FAC alleges that the 21 CDE has failed in its frontline responsibility, as the state educational agency (SEA), to ensure the 22 provision of a Free Appropriate Public Education (FAPE) to all children with special needs 23 throughout the State of California. 24 The IDEA tasks the SEAs with three fundamental obligations in ensuring the provision of 25 FAPE, the duty to: monitor the local education agencies (LEA), investigate complaints at every 26 level, and enforce the provisions of the IDEA. The FAC alleges that the CDE has failed to fulfill 27 any one of its three statutory obligations. In support of those allegations, Plaintiffs offer specific 28 examples of the CDE’s shortcomings, many of which are derived from the CDE’s own data. -5SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 For example, the FAC alleges that the CDE does not have a system in place to ensure the 2 integrity and accuracy of the data on which a finding of noncompliance rests. Thus, there is a 3 discrepancy between the data entered by the LEAs and the students’ actual schedules, the former 4 showing substantially higher compliance levels with the IDEA than the raw data reflects. 5 Likewise, the FAC alleges that the CDE routinely accepts the LEAs’ assurances that complaints 6 lodged by children and/or their parents are without substance without undertaking even 7 rudimentary investigations. Moreover, the CDE skews any genuine effort to enforce the 8 provision of FAPE by, e.g., alerting the LEAs as to which student records will be inspected. 9 Plaintiffs will establish by persuasive evidence that the CDE’s persistent failure to 10 monitor, investigate and enforce its statutory mandates has resulted in the systemic, statewide 11 denial of FAPE to California’s schoolchildren with special needs. Plaintiffs do not offer the 12 narratives of the 17 children discussed in the FAC’s Exhibit A as proof of the systematic denial of 13 FAPE; they are offered merely as examples. Plaintiffs’ proof will extend far beyond that narrow 14 sampling to statistically embrace the State of California as a whole. 15 Plaintiffs seek injunctive and declaratory relief to bring California’s special education 16 delivery system into compliance with the IDEA and Section 504. As a starting point, Plaintiffs 17 ask that the CDE be compelled to adopt and implement a statewide monitoring, investigative and 18 enforcement model that verifiably measures and ensures the provision of FAPE. As an ending 19 point, Plaintiffs asks that the children’s special needs are verifiably met. 20 3.2 Defendant: 21 The oversight of CDE’s monitoring system falls under the exclusive auspices of the 22 United States Department of Education (USDOE). Under the IDEA, USDOE has exclusive 23 responsibility for ensuring the SEA complies with its obligations. The SEA must have its State 24 Performance Plan (SPP) approved by the USDOE. The USDOE determines annually whether the 25 state has met the requirements of the IDEA. USDOE has enforcement authority over the SEA, 26 including the authority to withhold funding. Because USDOE approved the State of California’s 27 SPPs and did not find any systemic noncompliance with IDEA, Plaintiffs’ claims must fail. 28 Moreover, it would exceed Congressional intent and the Court’s discretion to usurp the role of the -6SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 USDOE with Plaintiffs’ opinion as to how CDE should meet its monitoring obligations under the 2 IDEA. 3 CDE also contends that Plaintiffs misunderstand and misconstrue CDE’s monitoring 4 system, including its collection and analysis of data, as well as the multiple methods employed to 5 monitor, develop, implement and verify corrective actions in those cases in which it identifies 6 LEA noncompliance. CDE will establish that its data collection and monitoring systems not only 7 meet, but actually exceed, federal requirements. In addition, CDE will show that Plaintiffs 8 misunderstand the nature and purpose of the statistics upon which they rely to support their 9 claims. In accordance with federal law and under the direction and with the approval of the 10 USDOE, as part of its State Performance Plan, CDE develops measurable rigorous targets for the 11 indicators established under priorities set by the USDOE. The statistics collected relative to the 12 targets pertain only to the targets themselves, and are not a measurement of the provision of 13 FAPE or other IDEA compliance. Plaintiffs also fail to understand the scope and magnitude of 14 the continuing interactive process between the USDOE and all SEAs, including CDE, as to the 15 content of their data collection and monitoring systems. 16 Moreover, CDE will demonstrate that Plaintiffs misunderstand and inaccurately describe 17 the CDE’s methods for monitoring LEAs, particularly with regard to self reviews and 18 verification reviews. Plaintiffs appear to recognize that CDE thoroughly and accurately identifies 19 instances of LEA noncompliance. Nevertheless, Plaintiffs are mistaken in their allegations as to 20 how CDE develops and verifies corrective actions, particularly as it pertains to on-site file 21 reviews for every area of noncompliance. Furthermore, CDE will establish that Plaintiffs 22 misunderstand and inaccurately describe CDE’s policies, practices and methods as applied to 23 compliance investigations. Plaintiffs also inaccurately describe CDE’s policies, procedures and 24 practices for enforcing corrective actions in self reviews, verification reviews and compliance 25 complaints. 26 4. SCOPE 27 The protections conferred by this Stipulation and Order cover not only Protected Material 28 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) -7SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 2 conversations, or presentations by Parties or their Counsel that might reveal Protected 3 Material. However, the protections conferred by this Stipulation and Order do not cover the 4 following information: (a) any information that is in the public domain at the time of 5 disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a 6 Receiving Party as a result of publication not involving a violation of this Order, including 7 becoming part of the public record through trial or otherwise; and (b) any information known 8 to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the 9 disclosure from a source who obtained the information lawfully and under no obligation of 10 confidentiality to the Designating Party. Any use of Protected Material at trial shall be 11 governed by a separate agreement or order. 12 5. DURATION 13 Even after final disposition of this litigation, the confidentiality obligations imposed by 14 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 15 order directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 16 defenses in this action, with or without prejudice; and (2) final judgment herein after the 17 completion and exhaustion of all appeals, re-hearings, remands, trials, or reviews of this action, 18 including the time limits for filing any motions or applications for extension of time pursuant to 19 applicable law. 20 6. DESIGNATING PROTECTED MATERIAL 21 6.1 Exercise of Restraint and Care in Designating Material for Protection. Each 22 Party or Non-Party that designates information or items for protection under this Order must take 23 care to limit any such designation to specific material that qualifies under the appropriate 24 standards. The Designating Party must designate for protection only those parts of material, 25 documents, items, or oral or written communications that qualify – so that other portions of the 26 material, documents, items, or communications for which protection is not warranted are not 27 within the ambit of this Order. 28 SAGY LAW ASSOCIATES If it comes to a Designating Party’s attention that information or items that it designated -8(C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 for protection do not qualify for protection that Designating Party must notify all other Parties 2 that it is withdrawing the mistaken designation within ten (10) days after the mistake comes to 3 the attention of the Designating Party. 4 6.2 Manner and Timing of Designations. Except as otherwise provided in this 5 Order (see, e.g., section 8, below), or as otherwise stipulated or ordered, Disclosure or Discovery 6 Material that qualifies for protection under this Order must be clearly so designated before the 7 material is disclosed or produced. 8 Designation in conformity with this Order requires: 9 (a) for information produced in electronic form (excluding transcripts of depositions or 10 other pretrial or trial proceedings), that the Producing Party ensure that the electronic documents 11 or information contain designations of “CONFIDENTIAL” pursuant to subparagraph 2.2 so that 12 if any electronic information is printed, the designation will appear on the printed copy. 13 (b) for information produced in hard-copy form (excluding transcripts of depositions or 14 other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” 15 to each page that contains protected material. If only a portion or portions of the material on a 16 page qualifies for protection, the Producing Party also must clearly identify the protected 17 portion(s) (e.g., by making appropriate markings in the margins). 18 (c) for testimony given in deposition or in other pretrial or trial proceedings, that the 19 Designating Party identify on the record, before the close of the deposition, hearing, or other 20 proceeding, all protected testimony. 21 (d) for information produced in some form other than documentary and for any other 22 tangible items, that the Producing Party affix in a prominent place on the exterior of the 23 container or containers in which the information or item is stored the legend 24 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 25 the Producing Party, to the extent practicable, shall identify the protected portion(s). 26 6.3 Inadvertent Failures to Designate. If timely corrected, that is, within ten (10) 27 days of discovery, but in no event later than one (1) year after the Parties’ initial designations, an 28 inadvertent failure to designate qualified information or items does not, standing alone, waive the -9SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 Designating Party’s right to secure protection under this Order for such material. If the 2 designation is timely corrected, the Receiving Party must make reasonable efforts to assure that 3 the material is treated in accordance with the provisions of this Order. 4 7. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 7.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 6 confidentiality at any time unless a prompt challenge to a Designating Party’s confidentiality 7 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 8 burdens, or a significant disruption or delay of the litigation. Where a prompt challenge is 9 necessary, as defined immediately above, the Party or Non-Party must challenge a designation of 10 Confidentiality within two (2) months of the designation. Where a prompt challenge is not 11 necessary, the Party or Non-Party does not waive its right to challenge a Confidentiality 12 designation by electing not to mount a challenge within two (2) months after the original 13 designation is disclosed. 14 7.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 15 process by providing written notice of each designation it is challenging and describing the basis 16 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 17 notice must recite that the challenge to Confidentiality is being made in accordance with this 18 Paragraph7.2 of the Protective Order. The parties shall attempt to resolve each challenge in good 19 faith and must begin the process by conferring directly (telephonically or face to face) within 10 20 calendar days of the date of service of notice. In conferring, the Challenging Party must explain 21 the basis for its belief that the Confidentiality designation was not proper and must give the 22 Designating Party an opportunity to review the designated material, to reconsider the 23 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 24 designation. A Challenging Party may proceed to the challenge process after it has engaged in a 25 meet and confer process, or if it establishes that the Designating Party is unwilling to participate 26 in a timely meet and confer process. 27 7.3 Judicial Intervention. If the Parties are unable to resolve a challenge without 28 court intervention, the Designating Party shall file and serve a motion to retain Confidentiality -10SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 under LR 141.1 within 21 days of the initial notice of challenge or within 14 days of the Parties 2 agreement that the meet and confer process will not resolve their dispute, whichever is later. 3 Each such motion must be accompanied by a competent declaration affirming that the movant 4 has complied with the meet and confer requirements. Failure by the Designating Party to make 5 such a motion including the required declaration within 21 days (or 14 days, if applicable) shall 6 automatically waive the confidentiality designation for each challenged designation. In addition, 7 the Challenging Party may file a motion challenging a confidentiality designation at any time, 8 following meet and confer, if there is good cause for doing so, including a challenge to the 9 designation of a deposition transcript or any portions thereof. The burden of persuasion in any 10 such challenge proceeding shall be on the Designating Party. 11 8. ACCESS TO, AND USE OF, PROTECTED MATERIAL 12 8.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 13 or produced by another Party or by a Non-Party in connection with this case only for 14 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 15 disclosed only to the categories of persons and under the conditions described in this Order. 16 When the litigation has been terminated, a Receiving Party must comply with the provisions of 17 section 13 below (FINAL DISPOSITION). Protected Material must be stored and maintained by 18 a Receiving Party at a location and in a secure manner that ensures that access is limited to the 19 persons authorized under this Order. 20 8.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 21 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 22 disclose any information or item designated “CONFIDENTIAL” only to: 23 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 24 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 25 for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that 26 is attached hereto as Exhibit A; 27 (b) the officers, directors, and employees (including House Counsel) of the Receiving 28 Party to whom disclosure is reasonably necessary for this litigation and who have signed the -11SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 “Acknowledgment and Agreement to Be Bound” (Exhibit A); with the exception articulated at 2 Paragraph 8.2(c), immediately below; 3 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 4 reasonably necessary for this litigation provided that each such expert shall execute a copy of the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A) (which shall be retained by counsel 6 for the Party disclosing the Confidential Information and made available for inspection by 7 opposing counsel during the pendency or after the termination of the action only upon good 8 cause shown and upon order of the Court) before being shown or given any Confidential 9 Information, and provided that if the party chooses an expert employed by an opposing Party, the 10 Party shall notify the Party disclosing the Confidential Information before disclosing it to that 11 individual and shall give the Disclosing Party an opportunity to move for a more specific 12 protective order preventing or limiting such disclosure; 13 (d) the court and its personnel; 14 (e) mediator(s) and their personnel; 15 (f) court reporters and their staff, professional jury or trial consultants, mock jurors, and 16 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 17 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (g) during their depositions, witnesses in the action to whom disclosure is reasonably 19 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 20 A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 21 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 22 separately bound by the court reporter and may not be disclosed to anyone except as permitted 23 under this Stipulated Protective Order; and 24 (h) the author or recipient of a document containing the information or a custodian or 25 other person who otherwise possessed or knew the information. 26 27 28 9. 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 -12- SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 2 Party must: 3 (a) promptly notify in writing the Designating Party. Such notification shall include a 4 copy of the subpoena or court order; 5 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 6 other litigation that some or all of the material covered by the subpoena or order is subject to this 7 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 8 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 9 Designating Party whose Protected Material may be affected. 10 If the Designating Party timely seeks a protective order, the Party served with the 11 subpoena or court order shall not produce any information designated in this action as 12 “Confidential” before a determination by the court from which the subpoena or order issued, 13 unless the Party has obtained the Designating Party’s permission. The Designating Party shall 14 bear the burden and expense of seeking protection in that court of its Confidential Information – 15 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 16 Party in this action to disobey a lawful directive from another court. 17 18 19 20 21 22 23 24 25 26 27 28 10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION The terms of this Order are applicable to information produced by a Non-Party in this action and designated as “CONFIDENTIAL.” 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. 11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, through inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of -13- SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 2 made of all the terms of this Order, and (d) request such person or persons to execute the 3 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 4 12. MISCELLANOUS 5 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 6 seek its modification by the court in the future, including the right to seek a modified protective 7 order that contains an “attorneys’ eyes only” provision. 8 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 9 Order no Party waives any right it otherwise would have to object to disclosing or producing any 10 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 11 no Party waives any right to object on any ground to use in evidence of any of the material 12 covered by this Protective Order. 13 12.3 Filing Protected Material. No document will be sealed, nor shall a redacted 14 document be filed, without the prior approval of the court. If a document for which sealing or 15 redaction is sought relates to the record on a motion to be decided by Judge Mueller, the request 16 to seal or redact should be directed to her and not the assigned Magistrate Judge. All requests to 17 seal or redact shall be governed by Local Rules 141 (sealing) and 140 (redaction); protective 18 orders covering the discovery phase of litigation shall not govern the filing of sealed or redacted 19 documents on the public docket. The court will only consider requests to seal or redact filed by 20 the proponent of sealing or redaction. If a party plans to make a filing that includes material an 21 opposing party has identified as confidential and potentially subject to sealing, the filing party 22 shall provide the opposing party with sufficient notice in advance of filing to allow for the 23 seeking of an order of sealing or redaction from the court. 24 13. FINAL DISPOSITION 25 Within 60 days after the final disposition of this action, as defined in Paragraph 5, each 26 Receiving Party must return all Protected Material to the Producing Party or destroy such 27 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 28 compilations, summaries, and any other format reproducing or capturing any of the Protected -14SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 2 submit a written certification to the Producing Party (and, if not the same person or entity, to the 3 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 4 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 5 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 6 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 7 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 8 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 9 product, and consultant and expert work product, even if such materials contain Protected 10 Material. Any such archival copies that contain or constitute Protected Material remain subject to 11 this Protective Order as set forth in Section 5 (DURATION). 12 14. ELECTRONICALLY STORED INFORMATION (ESI) 13 14.1 Cooperation 14 The Parties are aware of the importance the Court places on cooperation and commit to 15 cooperate in good faith throughout this matter. 16 14.2 Liaison 17 The Parties have identified liaisons to each other who are and will be knowledgeable 18 about and responsible for discussing their respective ESI. Each e-discovery liaison will be, or 19 have access to those who are, knowledgeable about the technical aspects of e-discovery, 20 including the location, nature, accessibility, format, collection, search methodologies, and production of ESI in this matter. The Parties will rely on the liaisons, as needed, to confer about 21 ESI and to help resolve disputes without court intervention. 22 14.3 Preservation 23 The Parties have discussed their preservation obligations and needs and agree that 24 preservation of potentially relevant ESI will be reasonable and proportionate. The Parties 25 understand and agree that the CDE began preserving evidence as of January 1, 2012. To reduce 26 the costs and burdens of preservation and to ensure that proper ESI is preserved, the Parties 27 agree that only ESI created or received between January 1, 2008 and the present will be 28 -15SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 preserved. 2 14.4 Search 3 The Parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if 4 appropriate, they will meet and confer about methods to search ESI in order to identify ESI that 5 is subject to production in discovery and filter out ESI that is not subject to discovery. 6 14.5 Production Formats 7 The Parties agree that they will produce documents according to the following protocol: 8 a) All documents will be produced with all metadata, if it exists, on CD-ROM disks, 9 through a cloud service, or through other mutually agreeable methods. The parties will provide 10 the following information, if it exists, about the documents: 11 (1) file name; 12 (2) file format; 13 (3) number of bytes; 14 (4) operating system and version; and 15 (5) translation tables for encoded fields. 16 Plaintiffs provisionally agree to this protocol based on Defendant’s counsel’s 17 representations that: first, “in many circumstances, data in native format is incomprehensible 18 and/or impossible to transfer in a reasonable manner;” and, second, “[i]nformation generated 19 from the [SESR, VR and CASEMIS] databases on or after January 1, 2008 to the present will be 20 produced this week [the week of April 28, 2014].” In the interests of removing any barriers to the 21 prompt production of responsive data, Plaintiffs have provisionally modified this subsection to 22 remove any reference to documents being produced in their native format and have accepted 23 Defendant’s modification of the requirement that all metadata be produced by inserting 24 “metadata, if it exists.” Plaintiffs, however, expressly reserve their right to seek the production of 25 materials in their native format with their metadata intact. Plaintiffs also reserve their right to 26 inquire and verify why “data in native format is incomprehensible and/or impossible to transfer in 27 a reasonable manner,” investigate the absence of metadata, and pursue its production if they 28 conclude that the metadata was improperly removed. -16SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 b) For ESI that exists only in proprietary software or in a format that is not readable by a 2 personal computer using commercially available software, the Parties will identify the specific 3 information, the software at issue and possible alternative electronic formats in which the 4 information could be produced such that the Parties can meet and confer respecting how best to 5 produce the specific information at issue with its metadata intact. 6 c) In producing responsive emails, the Parties will produce the emails without alteration of 7 any kind; in particular, threads, attachments, and metadata associated with the emails and 8 attachments should not be modified, deleted, or altered in any respect. 9 d) In producing responsive documents, the Parties agree that all documents available to, 10 or easily retrievable by, the producing party shall be produced regardless of whether such 11 documents are possessed directly by the producing party or its attorneys, agents, representatives 12 or investigators. e) In producing responsive documents, the Parties agree to identify to which request to 13 produce each document is responsive. 14 f) If any requested document cannot be produced in full with its metadata intact, the 15 Parties agree to produce the document to the extent possible, specifying the reason that the 16 producing party is unable to produce the remainder and will offer whatever information, 17 knowledge or belief the producing party has concerning the portions that could not be produced. 18 g) If the producing party becomes aware that any of the requested documents have been 19 destroyed or custody of the document has been transferred to any person or entity that is not 20 under the producing party’s control, the producing party will provide a statement setting forth 21 as to each such document: 22 (1) name(s) and job title(s) of the creator of the transferred or destroyed 23 document; 24 (2) name(s) and job title(s) of the person who transferred or destroyed the 25 document, or its metadata; 26 (3) name(s) and job title(s) of the recipient of the transferred document; 27 (4) date of the transferred or destroyed document; 28 -17SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 (5) date of destruction or transfer of the document; and 2 (6) the last known person(s) having custody or control of the document. 3 h) If any electronic document requested has been deleted or removed, in part or in 4 whole, the Parties will provide a legible recovered version of that document with its metadata 5 intact. All backup electronic documents (including electronic file fragments and slack) provided 6 pursuant to these requests must be in an uncompressed format. i) The Parties agree to produce each document in its entirety and with all of its 7 attachments. If the producing party has redacted any portion of a document, the producing party 8 agrees to type the word “redacted” on each page of the document from which information has 9 been redacted. 10 14.6 Phasing 11 When a Party propounds discovery requests pursuant to Fed. R. Civ. P. 34, the Parties 12 agree to phase the production of ESI as required or necessary. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 IT IS SO STIPULATED THROUGH COUNSEL OF RECORD. 2 DATED: April 30, 2014 3 4 SAGY LAW ASSOCIATES STEPHEN A. ROSENBAUM By 5 Rony Sagy Attorneys for Plaintiffs CONCERNED PARENTS ASSOCIATION and MORGAN HILL CONCERNED PARENTS ASSOCIATION 6 7 8 9 10 DATED: April 30, 2014 11 ATTORNEY GENERAL OF CALIFORNIA 12 By 13 14 Attorneys for Defendant CALIFORNIA DEPARTMENT OF EDUCATION 15 16 17 18 19 20 21 22 R. Matthew Wise ORDER Good cause appearing, the Court hereby approves this Order in its entirety. The Parties in this matter shall be bound by the terms of this Stipulated Protective Order. IT IS SO ORDERED. DATED: May 2, 2014 Ma 23 24 UNITED STATES DISTRICT JUDGE 25 26 27 28 -19SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I, _____________________________ [print or type full name], of ________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Eastern District of California on ______________ in the case of Concerned Parents Association, et al. v. California Department of Education, Case No. 2:11−CV−03471−KJM−AC, agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint __________________________ [print or type full name] of _______________________________________ [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. Date: ______________________ City and State where sworn and signed: _____________________ Printed name: ____________________________ Signature: 25 26 27 28 -20SAGY LAW ASSOCIATES (C:11-CV-03471-KJM-AC) PROTECTIVE ORDER

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