Duarte Nursery Inc. et al v. United States Army Corps of Engineers et al

Filing 74

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Dale A. Drozd on 5/15/15. (Manzer, C) Modified on 5/18/2015 (Manzer, C).

1
2
3
4
5
6
7
8
9
10
11

JOHN C. CRUDEN
Assistant Attorney General
ANDREW J. DOYLE (FL Bar No. 84948)
JOHN THOMAS H. DO (CA Bar No. 285075)
United States Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, DC 20044 / [phone] or 514-2593
Attorneys for Defendant and Counterclaim-Plaintiff
M. REED HOPPER (CA Bar No. 131291)
ANTHONY L. FRANÇOIS (CA Bar No. 184100)
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814 / [phone]
Attorneys for Plaintiffs and Counterclaim-Defendants
(See infra for additional counsel of record.)

12
UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14
15

16

DUARTE NURSERY, INC., a California
Corporation; and JOHN DUARTE, an
individual,

No. 2:13-cv-02095 KJM DAD

Plaintiffs,

17
18

v.

19

UNITED STATES ARMY CORPS OF
ENGINEERS,

20
21
22

Defendant.
__________________________________
UNITED STATES OF AMERICA,

23
24

STIPULATION AND
PROTECTIVE ORDER

Counterclaim- Plaintiff,
v.

25
26
27
28

DUARTE NURSERY, INC., a California
Corporation; and JOHN DUARTE, an
individual,
Counterclaim- Defendants.

Stipulation/Proposed Confidentiality Order

No. 2:13-CV-02095-KJM-DAD

1

Pursuant to Federal Rule of Civil Procedure 26(c) and the Court’s Status (Pretrial

2

Scheduling) Order of April 29, 2015 (ECF No. 69), the Parties to this action -- i.e., Plaintiffs and

3

Counterclaim-Defendants Duarte Nursery, Inc. and John Duarte (collectively, “Duarte”) and

4

Defendant United States Army Corps of Engineers and Counterclaim-Plaintiff United States of

5

America (collectively, “United States”) -- hereby enter into the following stipulation and request

6

that the Court approve it as an Order (“Stipulation and Confidentiality Order”).

7

1.

The term “confidential document” herein means all documents, or parts thereof,

8

which are designated as confidential by the person producing them consistent with the

9

requirements of this stipulation. The designation shall be made at the time of production by

10

placing: (a) the words “CONTAINS CONFIDENTIAL INFORMATION, PRODUCED BY”

11

and the name of the producing person on the first page of the each document; and (b) the word

12

“CONFIDENTIAL” on each confidential page of such document. Such designation shall

13

constitute a certification by the attorney of record for the producing person that the document so

14

designated, or parts thereof, is in good faith claimed to be confidential because of its private

15

personal financial information. In addition, such designation shall constitute a certification by

16

the attorney of record for the producing person that all of the following are true to the best of his

17

or her knowledge after a reasonable inquiry:

18
19
20

a.

the producing person has taken reasonable measures to protect the

confidentiality of the document and intends to continue to take such measures;
b.

the document is not required to be disclosed, or otherwise made available,

21

to the general public or to any federal, state, or local governmental body or agency under federal

22

or state law, unless the document is a tax return which is required to be so disclosed but may be

23

designated as confidential under this Stipulation and Confidentiality Order nevertheless;

24
25
26
27

c.

unlimited disclosure of the document is likely to cause substantial harm to

the privacy of the producing person;
d.

the document was not previously provided to the producing person from a

third party with a lawful right to it; and

28

Stipulation/Proposed Confidentiality Order

No. 2:13-CV-02095-KJM-DAD
1

1

e.

2

2.

the document is not already or was not in the public domain.1

The receiving party may challenge the producing person’s designation, but unless

3

and until such designation is overturned by the Court (or otherwise resolved) the document shall

4

remain a “confidential document.” The burden of establishing the confidentiality of any

5

document shall be on the person favoring confidentiality.

6

3.

No confidential document shall be disclosed to any person for any purpose other

7

than the prosecution, defense, appeal, or settlement of the above-entitled action. In addition,

8

disclosure may only be made to the persons identified in paragraph 4 below and only in the

9

manner provided in this Stipulation and Confidentiality Order, or as necessary for pretrial or trial

10

proceedings, unless otherwise provided by further Order of this Court, by further stipulation, or

11

by order or subpoena of any court of competent jurisdiction.

12
13

4.

The following persons may have access to any confidential document for

purposes of the prosecution, defense, appeal, or settlement of the above-entitled action:

14

a.

the Parties and their employees working on the above-entitled action;

15

b.

the attorneys representing the Parties and supervisors and personnel of the

16

attorneys’ law firms and agencies as necessary for the attorneys to perform their work in

17

connection with the above-entitled action;

18

c.

the Court, employees of the Court assigned to the above-entitled action,

19

and Court stenographic reporter, outside photocopying organization, or other litigation support

20

provided, engaged, or retained by counsel for a party;

21

d.

deposition court reporters, transcribers, or their assistants;

22
23

1

“In the public domain” means, and the confidentiality requirements set forth herein shall not

24

apply to, documents to the extent that they: (a) are already public knowledge, i.e., demonstrably

25

obtainable from public sources through legitimate means; (b) have become public knowledge

26

(other than as a result of an improper disclosure by a receiving party in the above-entitled

27

action); or (c) have or shall come into the receiving party’s legitimate possession independently

28

of the producing person.

Stipulation/Proposed Confidentiality Order

No. 2:13-CV-02095-KJM-DAD
2

1

e.

persons (and their assistants) not employed by a party but retained to assist

2

in the above-entitled action, such as experts or consultants, with disclosure only to the extent

3

necessary to perform such work (such as an expert report);

4
5

f.

material itself in that it is either to, from, or copied to such persons;

6
7

g.

10

h.

13

persons involved in one or more aspects of filing, organizing, coding,

converting, photocopying, storing, retrieving, or designing programs for handling data connected
with the above-entitled action; and

11
12

any person whose testimony is to be taken, to the extent necessary for the

preparation or perpetuation of that testimony or potential testimony;

8
9

persons who have access to the confidential document as evidenced by the

i.

other persons qualified to have access to any confidential document by

agreement of the producing party or by further Order of the Court.
5.

Any party affirmatively disclosing any confidential document to any person

14

enumerated in paragraph 3 above shall make such person aware of this Stipulation and

15

Confidentiality Order, and such person shall agree not to disclose any confidential document to

16

any other person except in conformance with this Stipulation and Confidentiality Order.

17

6.

In connection with the issuance of process to compel attendance of a witness at a

18

deposition or other testimonial proceeding, such process may include a notice specifying that one

19

or more confidential document disclosed at such deposition or other proceeding is protected

20

pursuant to the terms of this Stipulation and Confidentiality Order, in which event the witness,

21

who shall be served with a copy of this Stipulation and Confidentiality Order along with the

22

notice of deposition or subpoena, shall be deemed fully apprised and bound by the terms of this

23

Stipulation and Order.

24

7.

Any party who has designated a document as confidential may designate

25

deposition or other testimony of any person related to that document as confidential, by making

26

the designation on the record and specifically identifying the document’s production number or,

27

if a document is not numbered, its date, author, recipients, and subject matter, to the extent

28

possible. If any confidential document is used during the testimony, portions of the transcript

Stipulation/Proposed Confidentiality Order

No. 2:13-CV-02095-KJM-DAD
3

1

referring to such confidential document shall themselves be deemed confidential and subject to

2

the terms and restrictions of this Stipulation and Confidentiality Order. In all other respects, the

3

transcript shall not be treated as confidential.

4

8.

Any Party may file, proffer into evidence, or address orally or in writing the

5

contents of, any confidential document with the Court, provided that the Party provides the

6

opposing Party sufficient notice in advance to allow for the seeking of an Order of seal or

7

redaction. If a sealing or redaction Order issues, the Parties shall follow the Court’s ECF

8

procedures for sealing and redaction, Local Rules 140 and 141, and the Court’s April 28, 2015

9

Status (Pretrial Scheduling) Order (ECF No. 69), unless the Court Orders otherwise.

10

9.

Nothing in this Stipulation and Confidential Order shall prevent or otherwise

11

restrict any counsel from rendering advice to his or her client and, in the course thereof, relying

12

on the examination of any confidential document.

13

10.

Any party wishing to designate a document as confidential must do so no later

14

than 30 days before the deadline for the exchange of trial exhibits. Any party wishing to

15

challenge a confidential document designation must do so no later than 10 days prior to the date

16

on which Parties must exchange trial exhibits.

17
18
19

11.

Nothing in this Stipulation and Confidentiality Order shall prevent the Parties

from seeking modification of it or from objecting to discovery or evidence on other grounds.
12.

Nothing in this Stipulation and Confidentiality Order shall modify those

20

provisions of Local Rule 140(a) relating to omission or redaction or personal data identifiers, or

21

those provisions of Local Rule 140(b) relating to the seeking of a protective order or order

22

authorizing redaction before protected information is submitted.

23

Respectfully submitted,

24

JOHN C. CRUDEN
Assistant Attorney General
/s Andrew J. Doyle
ANDREW J. DOYLE (FL Bar No.84948)
JOHN THOMAS H. DO (CA Bar No. 285075)
Trial Attorneys
United States Department of Justice
Environment and Natural Resources Division

25

Dated: May 6, 2015

26
27
28

Stipulation/Proposed Confidentiality Order

No. 2:13-CV-02095-KJM-DAD
4

P.O. Box 7611
Washington, DC 20044
[phone] (p) (Doyle)
[phone] (p) (Do)
[phone] (f)
[e-mail]
[e-mail]

1
2
3
4
5

BENJAMIN B. WAGNER
United States Attorney
GREGORY T. BRODERICK (CA Bar No. 220871)
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
[phone] (p)
[phone] (f)
[e-mail]

6
7
8
9
10
11

Attorneys for Defendant and Counterclaim-Plaintiff

12
13
14

Dated: May 6, 2015

15

16
17
18
19
20

/s Peter Prows
DAVID M. IVESTER (CA Bar No. 76863)
PETER PROWS (CA Bar No. 257819)
Briscoe Ivester & Bazel LLP
155 Sansome Street, Seventh Floor
San Francisco, CA 94104
[phone] (p)
[phone] (f)
[e-mail]
[e-mail]
M. REED HOPPER (CA Bar No. 131291)
ANTHONY L. FRANÇOIS (CA Bar No. 184100)
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814
[phone] (p)
[phone] (f)
[e-mail]
[e-mail]

21
22
23
24
25
26

GERALD E. BRUNN (CA Bar No. 107004)
Law Offices of Brunn & Flynn
928 12th Street, Suite 200
Modesto, CA 95354

27
28

Stipulation/Proposed Confidentiality Order

No. 2:13-CV-02095-KJM-DAD
5

[phone] (p)
[phone] (f)
[e-mail]

1
2
3

Attorneys for Plaintiffs and CounterclaimDefendants

4
5
6
7

ORDER

8
9
10

Pursuant to the parties’ stipulation, IT IS SO ORDERED.
Dated: May 15, 2015

11
12
13
14
15

16

Ddad1\orders.civil
duarte2095.stip.prot.ord.docx

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

Stipulation/Proposed Confidentiality Order

No. 2:13-CV-02095-KJM-DAD
6