Saling v. Royal, et al

Filing 107

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Edmund F. Brennan on 04/16/18. (Benson, A.)

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Patrick H. Dwyer, SBN 137743
P.O. Box 1705
Penn Valley, CA 95946
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for Plaintiff Tammy Saling

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

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Tammy Saling, an individual,

CASE NO. 2:13-CV-001039 TLN EFB

Plaintiff

Keith Royal, Sheriff Nevada County,
California; and
Gayle Satchwell, Director Human

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Resources, Nevada County, California,

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

v.

Defendants.

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1.

Purposes and Limitations
Disclosure and discovery activity in this action are likely to involve

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

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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective
Order. The parties acknowledge that this Order does not confer blanket protections
on all disclosures or responses to discovery and that the protection it affords from
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public disclosure and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal principles. The parties
further acknowledge, as set forth in Section 14.4, below, that this Stipulated

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

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Civil Local Rule 141 sets forth the procedures that must be followed and the

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

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material under seal.
2.

Definitions
2.1

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
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"CONFIDENTIAL" Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c).
2.3

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

or items that it produces in disclosures or in responses to discovery as
"CONFIDENTIAL".
2.4

Disclosure or Discovery Material: all items or information, regardless

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

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

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or generated in disclosures or responses to discovery in this matter.
2.5

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

pertinent to the litigation who (1) has been retained by a Party or its counsel to
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serve as an expert witness or as a consultant in this action, (2) is not a past or
current employee of a Party and (3) at the time of retention, is not anticipated to
become an employee of a Party.
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or other legal entity not named as a Party to this action.

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has appeared on behalf of that party.
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staffs).
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demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
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Protected Material: any Disclosure or Discovery Material that is

designated as "CONFIDENTIAL".

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Professional Vendors: persons or entities that provide litigation

support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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

Discovery Material in this action.

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

employees, consultants, retained experts, and Counsel of Record (and their support

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Counsel of Record: attorneys who have appeared in this action on

behalf of that party or are affiliated with a law firm or governmental entity which

Non-Party: any natural person, partnership, corporation, association,

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Receiving Party: a Party that receives Disclosure or Discovery Material

from a Producing Party.
3.

Scope
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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel of Record that might reveal Protected

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Material. However, the protections conferred by this Stipulation and Order do not

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cover the following information: (a) any information that is in the public domain at
the time of disclosure to a Receiving Party or becomes part of the public domain
after its disclosure to a Receiving Party as a result of publication not involving a

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violation of this Order, including becoming part of the public record through trial or

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otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source who
obtained the information lawfully and under no obligation of confidentiality to the

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Designating Party. Any use of Protected Material at trial shall be governed by a

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separate agreement or order.

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4.

Duration
Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until: (1) a Designating Party agrees

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otherwise in writing; (2) a court order otherwise directs; or (3) there is a complete

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return or demolition of all Protected Material pursuant to Section 12. Final

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disposition shall be deemed to be the later of (1) dismissal of all claims and defenses
in this action, with or without prejudice; and (2) final judgment herein after the
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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of

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this action, including the time limits for filing any motions or applications for

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extension of time pursuant to applicable law.
5.

Designating Protected Material

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5.1

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Each Party or Non-Party that designates information or items for protection

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Exercise of Restraint and Care in Designating Material for Protection

under this Order must take care to limit any such designation to specific material
that qualifies under the appropriate standards. To the extent it is practical to do so,
the Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify - so that other

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portions of the material, documents, items, or communications for which protection

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is not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose

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(e.g., to unnecessarily encumber or retard the case development process or to

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impose unnecessary expenses and burdens on other parties) expose the Designating
Party to sanctions.

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

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it designated for protection do not qualify for protection at all or do not qualify for

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the level of protection initially asserted, that Designating Party must promptly

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notify all other parties that it is withdrawing the mistaken designation.
5.2

Manner and Timing of Designations
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Except as otherwise provided in this Order (see, e.g., second paragraph of
section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery
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 excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix the legend "CONFIDENTIAL" to each
page that contains protected material. If only a portion or portions of the material

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

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

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must specify, for each portion, the level of protection being asserted. Alternatively,
the Producing Party may designate an entire production or storage device (such as

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CD or flash drive) as confidential by including notice of such designation or

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including "CONFIDENTIAL" in the title of each designated file.

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A Party or Non-Party that makes original documents or materials available for
inspection need not designate them for protection until after the inspecting Party

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has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed "CONFIDENTIAL". After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must
determine which documents, or portions thereof, qualify for protection under this
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Order. Then, before producing the specified documents, the Producing Party must

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affix the appropriate legend "CONFIDENTIAL" to each page that contains

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Protected Material. If only a portion or portions of the material on a page qualifies
for protection, the Producing Party also must clearly identify the protected

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

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for each portion, the level of protection being asserted.

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(b) for testimony given in deposition or in other pretrial or trial
proceedings, that the Designating Party identify on the record, before the close of
the deposition, hearing, or other proceeding, or in a writing to all parties within 30

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business days of receipt of the deposition or hearing transcript, all protected

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testimony and specify the level of protection being asserted. A Designating Party

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may specify, at the deposition or up to 30 days afterwards, that the entire transcript
shall be treated as "CONFIDENTIAL".
Parties shall give the other parties notice if they reasonably expect a
deposition, hearing or other proceeding to include Protected Material so that the
other parties can ensure that only authorized individuals who have signed the
"Acknowledgment and Agreement to Be Bound" (Exhibit A) are present at those

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proceedings. The use of a document as an exhibit at a deposition shall not in any

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way affect its designation as "CONFIDENTIAL".

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Transcripts containing Protected Material shall have an obvious
legend on the title page that the transcript contains Protected Material, and the
title page shall be followed by a list of all pages (including line numbers as
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appropriate) that have been designated as Protected Material and the level of

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

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inform the court reporter of these requirements. Any transcript that is prepared
before the expiration of a 30-day period for designation shall be treated during that

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period as if it had been designated "CONFIDENTIAL" in its entirety unless

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

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only as actually designated.

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

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for any other tangible items, that the Producing Party affix in a prominent place on

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the exterior of the container or containers in which the information or item is stored

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the legend "CONFIDENTIAL". If only a portion or portions of the information or

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item warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s) and specify the level of protection being asserted.

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5.3

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If timely corrected, an inadvertent failure to designate qualified information

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Inadvertent Failures to Designate

or items does not, standing alone, waive the Designating Party's right to secure
protection under this Order for such material. Upon timely correction of a

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

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material is treated in accordance with the provisions of this Order.

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6.

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Challenging Confidentiality Designations
6.1

Timing of Challenges

Any Party or Non-Party may challenge a designation of confidentiality at any
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time. Unless a prompt challenge to a Designating Party's confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary

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economic burdens, or a significant disruption or delay of the litigation, a Party does
not waive its right to challenge a confidentiality designation by electing not to
mount a challenge promptly after the original designation is disclosed.
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 for each challenge. To avoid ambiguity as to whether a challenge has been

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made, the written notice must recite that the challenge to confidentiality is being

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made in accordance with this specific paragraph of the Protective Order. The

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parties shall attempt to resolve each challenge in good faith and must begin the
process by conferring directly (in voice to voice dialogue; other forms of

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

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

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confidentiality designation was not proper and must give the Designating Party an
opportunity to review the designated material, to reconsider the circumstances,

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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

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process only if it has engaged in this meet and confer process first or establishes

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that the Designating Party is unwilling to participate in the meet and confer
process in a timely manner.
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6.3

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If the Parties cannot resolve a challenge without court intervention, the

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Judicial Intervention

Designating Party shall file and serve a motion to retain confidentiality within 21
days of the initial notice of challenge or within 14 days of the parties agreeing that

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the meet and confer process will not resolve their dispute, whichever is earlier.

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

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the movant has complied with the meet and confer requirements imposed in the
preceding paragraph. Failure by the Designating Party to make such a motion
including the required declaration within 21 days (or 14 days, if applicable) shall

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automatically waive the confidentiality designation for each challenged designation.

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

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designation at any time if there is good cause under FRCP 26(c), including a
challenge to the designation of a deposition transcript or any portions thereof. Any

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motion brought pursuant to this provision must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer

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requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has

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waived the confidentiality designation by failing to file a motion to retain
confidentiality as described above, all parties shall continue to afford the material
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in question the level of protection to which it is entitled under the Producing Party's

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designation until the court rules on the challenge.

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7.

Access to and Use of Protected Material
7.1

Basic Principles

A Receiving Party may use Protected Material that is disclosed or produced
by another Party or by a Non-Party in connection with this case only for
prosecuting, defending, or attempting to settle this litigation. Such Protected
Material may be disclosed only to the categories of persons and under the conditions
described in this Order. When the litigation has been terminated, a Receiving Party

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must comply with the provisions of section 15 below (FINAL DISPOSITION).

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

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

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7.2

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Unless otherwise ordered by the court or permitted in writing by the

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Disclosure of "CONFIDENTIAL" Information or Items

Designating Party, a Receiving Party may disclose any information or item
designated "CONFIDENTIAL" only to:
(a) the Receiving Party's Counsel of Record in this action, as well as

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

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the information for this litigation;

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(b) the officers, directors, and employees of the Receiving Party to
whom disclosure is reasonably necessary for this litigation and who have signed the
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"Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
"Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(d) the court and its personnel;

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

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consultants, and Professional Vendors to whom disclosure is reasonably necessary
for this litigation and who have signed the "Acknowledgment and Agreement to Be
Bound" (Exhibit A);

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

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is reasonably necessary and who have signed the "Acknowledgment and Agreement

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to Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party or
ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or

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a custodian or other person who otherwise possessed or knew the information.

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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" that Party must:
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(a) promptly notify in writing the Designating Party. Such notification

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shall include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or
order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall include

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a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served

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with the subpoena or court order shall not produce any information designated in

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this action as "CONFIDENTIAL" before a determination by the court from which

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the subpoena or order issued, unless the Party has obtained the Designating Party's
permission. The Designating Party shall bear the burden and expense of seeking

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

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

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to disobey a lawful directive from another court.
9.

Unauthorized Disclosure of Protected Material

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

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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notify in writing the Designating Party of the unauthorized disclosures, (b) use its
best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
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the person or persons to whom unauthorized disclosures were made of all the terms

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

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"Acknowledgment and Agreement to Be Bound" that is attached as Exhibit A.
10.

When a Producing Party gives notice to Receiving Parties that certain

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Inadvertent Production of Privileged or Otherwise Protected Material

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

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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11.

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Miscellaneous
11.1

Right to Further Relief

Nothing in this Order abridges the right of any person to seek its
modification by the court in the future.

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By stipulating to the entry of this Protective Order no Party waives any right

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Right to Assert Other Objections

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

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material covered by this Protective Order.

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Without written permission from the Designating Party or a court order

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Filing Protected Material

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secured after appropriate notice to all interested persons, a Party may not file in the

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

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seal any Protected Material must comply with Civil Local Rule 141. Protected
Material may only be filed under seal pursuant to a court order authorizing the
sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 141,

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

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

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protection under the law.
12.

Final Disposition
Within 60 days after the final disposition of this action, as defined in

paragraph 4, each Receiving Party must return all Protected Material to the
Producing Party or destroy such material. As used in this subdivision, "all Protected
Material" includes all copies, abstracts, compilations, summaries, and any other

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

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Protected Material is returned or destroyed, the Receiving Party must submit a

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

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the Designating Party) by the 60-day deadline that (1) identifies (by category, where
appropriate) all the Protected Material that was returned or destroyed and (2)
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affirms that the Receiving Party has not retained any copies, abstracts,

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

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Protected Material. Notwithstanding this provision, Counsel of Record are entitled
to retain an archival copy of all pleadings, motion papers, trial, deposition, and

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hearing transcripts, legal memoranda, correspondence, deposition and trial

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exhibits, expert reports, attorney work product, and consultant and expert work

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product, even if such materials contain Protected Material. Any such archival copies
that contain or constitute Protected Material remain subject to this Protective
Order as set forth in Section 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: April 5, 2018

By: /s/_Patrick H. Dwyer
Patrick H. Dwyer, SBN 137743
P.O. Box 1705; 17318 Piper Lane
Penn Valley, CA 95946
Tel: [phone];Fax: [phone]
Attorney for Plaintiff Tammy Saling

Dated: April 5, 2018

By: /s/ Amanda Uhrhammer
Assistant County Counsel, County of Nevada
950 Maidu Avenue, Suite 240
Nevada City, CA 95959
Tel.: [phone]; Fax: [phone]
Attorney for Defendants

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: April 16 , 2018

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EXHIBIT A

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Acknowledgment and Agreement to Be Bound

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I,

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[print or type full name], of

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

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entirety and understand the Stipulated Protective Order that was issued by the

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United States District Court for the Eastern District of California on

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2018 in the case of Tammy Saling v. Keith Royal, et al., Case No. 2:13-CV-001039. I
agree to comply with and to be bound by all the terms of this Stipulated Protective

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Order and I understand and acknowledge that failure to so comply could expose me

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

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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.

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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

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[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
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Date:

Signature

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this Stipulated Protective Order.

City and State where
signed:

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