Fitzgerald v. County of El Dorado et al

Filing 26

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 9/17/13. (Kaminski, H)

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JILL P. TELFER (SBN 145450)
LAW OFFICES OF JILL P. TELFER
331 J Street, Suite 200
Sacramento, California 95814
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorney for Plaintiff: RICHARD FITZGERALD

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C. CHRISTINE MALONEY (SBN 226575)
FOSTER EMPLOYMENT LAW
3000 Lakeshore Avenue
Oakland, California 94610
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Defendant: COUNTY OF EL DORADO

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MICHAEL W. POTT (SBN 186156)
JEREMY P. EHRLICH (SBN 284656)
PORTER SCOTT
350 University Ave., Suite 200
Sacramento, California 95825
Telephone: [phone]
Facsimile: [phone]
Emails: [e-mail], [e-mail]

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Attorneys for Defendants: SHERIFF JOHN D’AGOSTINI and UNDERSHERIFF RICH WILLIAMS

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No.

RICHARD FITZGERALD,

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2:12-cv-02932-MCE-KJN

STIPULATED PROTECTIVE ORDER

Plaintiff,
vs.

Date Action Filed: 12/4/2012
Trial Date: February 2, 2015

EL DORADO COUNTY; SHERIFF JOHN
D’AGOSTINI; UNDERSHERIFF RICH
WILLIAMS; and DOES 1 through 20,
inclusive,

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Defendants.

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Stipulated Protective Order

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I.

INTRODUCTION

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WHEREAS, Plaintiff Richard Fitzgerald (“Plaintiff”) and Defendants El Dorado County,

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Sheriff John D’Agostini and Undersheriff Rich Williams, (collectively hereafter “Defendants”),

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and Plaintiff and Defendants referred to jointly as the “Parties”, in good faith believe that certain

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discoverable documents and deposition testimony in the above-referenced case contains

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information that is (a) confidential, sensitive, or potentially invasive of an individual’s privacy

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interests; (b) not generally known; and/or (c) not normally revealed to the public or third parties

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or, if disclosed to third parties, would require such third parties to maintain the information in

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confidence.
WHEREAS, the Parties acknowledge that there are likely to be documents and other

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material in existence which touch upon a number of sensitive matters and which may invade the

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right of privacy not only of the parties, but of non-parties employed in the law enforcement

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community, private citizens, minors and victims of crime and/or which may compromise law

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enforcement activities including without limitation pending criminal investigations. Without a

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protective order in place, if such information is required to be produced in discovery, it may run

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afoul of privacy rights guaranteed by several sources of law including without limitation the

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United States Constitution, and Article I, Section I of the California Constitution, and the

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California Police Officer’s Bill of Rights.

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II.

STIPULATION

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1.

Agreement to Be Bound. The Parties stipulate and agree that access to and use of

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Confidential Information, as defined herein, shall be governed by the provisions of this Stipulated

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Protective Order and shall apply to all copies, extracts, and summaries of such designated

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information. The Parties stipulate and agree that, by entering into this Stipulated Protective Order,

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they are not waiving any privileges or objections to the admissibility or discoverability of

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information produced hereunder.

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2.

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“Confidential Information” shall mean information which is (a) confidential, sensitive, or
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Stipulated Protective Order
Case No. 2:12-cv-02932-MCE-KJN

Confidential Information Defined. For purposes of this Stipulated Protective Order,

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potentially invasive of an individual’s privacy interests; (b) not generally known; and/or (c) not
normally revealed to the public or third parties. Confidential Information may include documents,
things, or information produced pursuant to Rules 34 and 45 of the Federal Rules of Civil
Procedure, responses to requests for admissions and interrogatories, deposition testimony, and all
other such information that may be disclosed in the course of discovery in this action, and any
copies, extracts, compilations, or summaries thereof.
3.

Designation of Confidential Information. Documents or writings which contain

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Confidential Information shall have the legend “CONFIDENTIAL— SUBJECT TO

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PROTECTIVE ORDER” affixed to each page that contains Confidential Information at the time

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the material is disclosed or produced. Testimony given at a deposition or other pretrial proceeding
that contains Confidential Information must be identified as “CONFIDENTIAL—SUBJECT TO

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PROTECTIVE ORDER” on the record, before the close of the deposition or hearing. Within 30

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calendar days of receipt of the transcript of such deposition or hearing, the designating party must
specify those page and line numbers that contain the designated Confidential Information and
notify all other parties in writing of such specific designation. Upon being informed of the
specific portions of a transcript designated as Confidential Information, each party shall promptly
stamp “CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER” on each designated page of
each transcript copy in their custody or control. If any party intends to publicly file and/or use
portions of a transcript for which the 30 day period has not yet expired, the parties shall attempt in
good faith to reach agreement on shortening the deadline.
4.

Any party may designate a document as “CONFIDENTIAL—SUBJECT TO

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PROTECTIVE ORDER” upon a good faith determination by a party that the document contains

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information that is (a) confidential, sensitive, or potentially invasive of an individual’s privacy

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interests; (b) not generally known; and/or (c) not normally revealed to the public or third parties

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and by stamping or affixing the words “CONFIDENTIAL—SUBJECT TO PROTECTIVE

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ORDER” on the face of the document. Tangible things other than documents (e.g., audio tapes,

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products, computer disks, etc.) may be designated by stamping or affixing the designation to the

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Stipulated Protective Order

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item or its container, as appropriate.
5.

The Parties may designate material as “CONFIDENTIAL—SUBJECT TO PROTECTIVE

ORDER” after production under the following circumstances:

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a.
b.

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Advise the party who received such documents in writing of the new designation;
The new designation applies only as of the date and time of receipt of notice by the

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party notified;

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c.

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to the producing party, and the producing party must provide the other party with

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another copy of the documents that bears the new and correct designation;

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d.

by this Protective Order to receive such information, and obtain an agreement from

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the persons to whom such disclosure was made to be bound by this Protective

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The party who received the non-designated documents must make a good faith
effort to immediately retrieve any information disclosed to persons not authorized

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The party who received the non-designated documents must return the documents

Order.
6.

Challenging a Confidential Designation. If a party believes that a document or other

information which designated as Confidential Information should not have such designation, that
party must notify the designating party of its disagreement and the basis therefore. Counsel for the
Parties shall then meet and confer within 14 days of such notice and endeavor to reach an
agreement concerning the protected status of the document or information. If the Parties cannot
resolve a challenge without court intervention, the party seeking to designate the information as
confidential shall file a motion for designation with the Court. Until the Court resolves the
motion, the document or information shall be treated as Confidential Information subject to this
Stipulated Protective Order.
7.

Access to and Use of Confidential Information. A party receiving Confidential

Information under this Stipulated Protective Order may use such information only in the
prosecution, defense or attempted settlement of this litigation. A party receiving Confidential
Information may only disclose such information to the following persons:

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Stipulated Protective Order

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a.

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whom disclosure is reasonably necessary for this litigation;

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b.

The receiving party to whom disclosure is reasonably necessary for this litigation;

c.

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Retained experts and consulting experts of the receiving party to whom disclosure

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is reasonably necessary for this litigation;

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d.

The Court and its personnel;

e.

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Court reporters and their staff and other professional vendors to whom disclosure is

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reasonably necessary for this litigation and whom have signed the

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

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f.

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Witnesses testifying in deposition to whom disclosure is reasonably necessary and
who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit

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The receiving party’s attorneys of record, as well as the attorneys’ support staff to

A).
8.

Unauthorized Disclosure of Confidential Information. If a receiving party learns that, by

inadvertence or otherwise, it has disclosed Confidential Information to any person or in any
circumstance not authorized under this Stipulated Protective Order, the receiving party must
immediately: (1) notify in writing the designating party of the unauthorized disclosures; (b) use its
best efforts to retrieve all unauthorized copies of Confidential Information; (c) inform the person
or persons to whom unauthorized disclosures were made of all the terms of this Stipulated

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Protective Order; and (d) request such person or persons to execute the “Acknowledgement and

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Agreement to Be Bound.” (Exhibit A.)

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9.

Filing Confidential Information. The Parties agree to follow the procedure outlined in

Local Rule 141 for lodging and filing documents under seal with regard to any item containing
information designated as Confidential under this Stipulated Protective Order. The Parties agree
that an election not to seek an order placing specific documents under seal does not constitute a
waiver of this Stipulated Protective Order. Furthermore, any documents which the Court declines
to order sealed do not lose their status as Confidential Information under this Stipulated Protective
Order as a result thereof.

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Stipulated Protective Order

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10.

Return of Confidential Information. Within 60 days after the final disposition of this

action (including any appeal, writ, review or rehearing), the receiving party must return all
Confidential Information, including any copies, extracts, or any other format reproducing or
capturing Confidential Information, to the designating party. The receiving party must also submit
a written certification to the designating party by the 60-day deadline that (1) identifies by
category all of the Confidential Information that was returned and (2) affirms that the receiving
party has not retained any copies, abstracts, compilations, summaries or other format reproducing
or capturing any of the Confidential Information. Notwithstanding this provision, counsel for the
Parties are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports,
attorney work product, and consultant and expert work product, even if such materials contain
Confidential Information. Any such archival copies that contain or constitute Confidential
Information shall remain subject to the confidentiality obligations of this Stipulated Protective
Order.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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8/28/13
Date

/s/ Jill P. Telfer
Jill P. Telfer
Attorney for Plaintiff
RICHARD FITZGERALD

8/28/13
Date

/s/ Michael W. Pott
Michael W. Pott/Jeremy Ehrlich
Attorneys for Defendants
SHERIFF JOHN D’AGOSTINI and
UNDERSHERIFF RICH WILLIAMS

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Stipulated Protective Order

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9/4/13
Date

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/s/ C. Christine Maloney
C. CHRISTINE MALONEY
Attorneys for Defendant
COUNTY OF EL DORADO

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III.

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Pursuant to the Stipulation of the parties and good cause appearing therefore, IT IS SO

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ORDERED.

ORDER

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Dated: September 17, 2013
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Stipulated Protective Order

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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 [date] in the case of Fitzgerald v. El Dorado County, Sheriff John
D’Agostini, Undersheriff Rich Williams and Does 1 through 20, Case: 2:12-cv-02932-MCE-KJN .
I 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.

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Date: ______________________________________
City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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Stipulated Protective Order

Case No. 2:12-cv-02932-MCE-KJN