Bischoff, et al v. Brittain, et al

Filing 58

STIPULATION AND PROTECTIVE ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/28/15. (Kaminski, H)

1 Todd Espinosa (SBN 209591)
Law Office of Todd Espinosa
2 2000 Broadway Street, Suite 333
Redwood City, California 94063
3 650-241-3873 telephone
650-409-2550 facsimile
4 [e-mail]
Attorney for Plaintiffs Scott Bischoff,
5 Leron Dempsey and Project Sentinel, Inc.

David D. MacMillan
The Costa Law Firm
2489 Sunrise Boulevard, Suite A
Gold River, CA 95670
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorney for Defendants Sandra Brittain,
Keith Johnson, RZM Investments Enterprise,
LLC and J.A. Brittain, Limited

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT BISCHOFF; LERON DEMPSEY; and
PROJECT SENTINEL, INC.,

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Plaintiffs,

Case No. 2:14-cv-01970-KJM-CKD
STIPULATION AND PROTECTIVE
ORDER

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v.

Before: Hon. Carolyn K. Delaney

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SANDRA BRITTAIN; KEITH JOHNSON;
RZM INVESTMENTS ENTERPRISE, LLC;
and J.A. BRITTAIN, LIMITED,

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Defendants.
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BISCHOFF, et al. v. BRITTAIN, et al., CASE NO. 2:14-cv-01970-KJM-CKD
STIPULATION AND PROTECTIVE ORDER

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential or private information for which special protection from public disclosure and from

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use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the

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parties hereby stipulate to and petition the Court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from public disclosure and

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use extends only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge that this Stipulated

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Protective Order does not entitle them to file confidential information under seal. General Local

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Rules 140 and 141 and the Court’s Status (Pretrial Scheduling) Order (ECF No. 42) set forth the

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procedures that must be followed for the sealing and redaction of documents.

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2.

DEFINITIONS

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2.1

Challenging Party: a Party that challenges the designation of information or items

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under this Order.

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2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule

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of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff, employees and independent contractors).
2.4

Designating Party: a Party that designates information or items that it produces in

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disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY.”

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2.5

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

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.6

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

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the litigation who has been retained by a Party or Counsel to serve as an expert witness or as a

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consultant in this action.

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2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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Items: extremely sensitive “CONFIDENTIAL Information or Items,” disclosure of which to

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another Party or Non-Party would create a substantial risk of serious harm that could not be

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avoided by less restrictive means. “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” Information or Items should generally be limited to portions of documents, such as

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medical or health care records, credit check reports and background check reports, that contain

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extremely sensitive information pertaining to specifically identified natural persons or entities.

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2.8

House Counsel: attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.9

Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.
2.10

Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this

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action on behalf of that party or are affiliated with a law firm which has appeared on behalf of

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that party.

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2.11

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

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independent contractors, consultants, Experts, and Outside Counsel of Record (and their support

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staffs).

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2.12

Producing Party: a Party that produces Disclosure or Discovery Material in this

2.13

Professional Vendors: persons or entities that provide litigation support services

action.

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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2.14

Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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2.15

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

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Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2)

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

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

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a result of publication not involving a violation of this Order, including becoming part of the

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public record through trial or otherwise; (b) any information known to the Receiving Party prior

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to the disclosure or obtained by the Receiving Party after the disclosure from a source other than

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the Designating Party’s Protected Material; and (c) general or aggregated descriptions of

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

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agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice or (2) final judgment herein after the

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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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that designates information or items for protection under this Order must take care to limit any

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such designation to specific material that qualifies under the appropriate standards. To the extent

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it is practical to do so, the Designating Party must designate for protection only those parts of

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material, 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 is not

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warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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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 it designated

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for protection do not qualify for protection at all or do not qualify for the level of protection

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initially asserted, that Designating Party must promptly notify all other parties that it is

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withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” to each page that contains protected material. If only a portion or portions of the

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material 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 must specify, for

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each portion, the level of protection being asserted.

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(b) for testimony given in deposition or in other pretrial proceedings, that the

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Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony and specify the level of protection being asserted. When it is

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impractical to identify separately each portion of testimony that is entitled to protection and it

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appears that substantial portions of the testimony may qualify for protection, the Designating

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Party may invoke on the record (before the deposition, hearing, or other proceeding is

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concluded) a right to have up to 21 days to identify the specific portions of the testimony as to

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which protection is sought and to specify the level of protection being asserted. Only those

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portions of the testimony that are appropriately designated for protection within the 21 days shall

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be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating

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Party may specify, at the deposition or up to 21 days afterwards if that period is properly

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invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Parties shall give the other parties notice if they reasonably expect a deposition, hearing

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or other proceeding to include Protected Material so that the other parties can ensure that only

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authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition

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shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the title page

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that the transcript contains Protected Material, and the title page shall be followed by a list of all

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pages (including line numbers as appropriate) that have been designated as Protected Material

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and the level of 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

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expiration of a 21-day period for designation shall be treated during that period as if it had been

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless

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

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actually designated.

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

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other tangible items, that the Producing Party affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions

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of the information or item warrant protection, the Producing Party, to the extent practicable, shall

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identify the protected portion(s) and specify the level of protection being asserted.

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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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 material is

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treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party may challenge a designation of confidentiality

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at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is

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necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a

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significant disruption or delay of the litigation, a Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the original

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designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Protective Order. Counsel for the parties shall attempt to resolve each

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challenge in good faith and must begin the process by conferring in person or telephonically

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within 14 days of the date of service of notice. In conferring, the Challenging Party must explain

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

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

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

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

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it has engaged in this meet and confer process first or establishes that the Designating Party is

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unwilling to participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without Court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality under

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Civil Local Rule 251 (and in compliance with General Local Rules 140 or 141, if applicable)

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within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the

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meet and confer process will not resolve their dispute, whichever is earlier. Each such motion

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must be accompanied by a competent declaration affirming that the movant has complied with

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the meet and confer requirements imposed in the preceding paragraph. Failure by the

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Designating Party to make such a motion including the required declaration within 21 days (or

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14 days, if applicable) shall automatically waive the confidentiality designation for each

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challenged designation. In addition, the Challenging Party may file a motion challenging a

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confidentiality designation at any time if there is good cause for doing so, including a challenge

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to the designation of a deposition transcript or any portions thereof. Any motion brought

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pursuant to this provision must be accompanied by a competent declaration affirming that the

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

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paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the Designating
Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, all parties shall continue to afford the

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material 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.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed

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or produced by another Party in connection with this case only for prosecuting, defending,

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investigating, or attempting to settle this litigation. Such Protected Material may be disclosed

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only to the categories of persons and under the conditions described in this Order.
Protected Material must be stored and maintained by a Receiving Party in a secure

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manner that ensures that access is limited to the persons authorized under this Order.

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Transmission of Protected Material to a Professional Vendor for storage or delivery by that

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Professional Vendor shall not constitute disclosure to that Professional Vendor.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the Court or permitted in writing by the Designating Party, any information or item

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designated “CONFIDENTIAL” may be disclosed only to:

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(a) the Receiving Party;

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(b) Outside Counsel of Record in this action, as well as employees and

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independent contractors of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A;

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(c) the officers, directors, independent contractors, and employees (including

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House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

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litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) Experts to whom disclosure is reasonably necessary for this litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(e) the Court and its personnel;

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(f) court reporters and their staff, professional jury or trial consultants, mock

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jurors and Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal

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Protected Material must be separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Stipulated Protective Order.

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(h) the Designating Party and its officers, directors, independent contractors, and

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employees; the author or recipient of a document containing the information; a custodian or other

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person who otherwise possessed or knew the document or information; or a person or entity to

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whom the document or information pertains.

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7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the Court or permitted in writing by the

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Designating Party, any information or item designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” may be disclosed only to:

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(a) Outside Counsel of Record in this action, as well as employees and
independent contractors of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A;

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(b) House Counsel 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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(c) Experts 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 consultants, mock

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jurors 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); and

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(f) the Designating Party and its officers, directors, independent contractors, and

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employees; the author or recipient of a document containing the information; a custodian or other

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person who otherwise possessed or knew the document or information; or a person or entity to

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whom the document or information pertains.

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8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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Protected Material to any person or in any circumstance not authorized under this Stipulated

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Protective Order, the Receiving Party must immediately (a) notify in writing the Designating

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Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of

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the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms 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 hereto as Exhibit A.

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9.

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MISCELLANEOUS
9.1

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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9.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

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Order no Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly,

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no Party waives any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.

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9.3

Filing Protected Material. Requests for redaction or sealing shall be governed by

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General Local Rules 140 and 141 and the Court’s Status (Pretrial Scheduling) Order (ECF No.

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42). In accordance with the Court’s Status (Pretrial Scheduling) Order (ECF No. 42), this

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Protective Order shall not govern the filing of sealed or redacted documents on the public docket.

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10.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, each Receiving Party

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must return all Protected Material to the Producing Party or destroy such material. As used in

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this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries,

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and any other 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 written

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certification to the Producing Party by the 60-day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the

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Receiving Party has not retained any copies, abstracts, compilations, summaries or any other

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format reproducing or capturing any of the Protected Material. Notwithstanding this provision,

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Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition,

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and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

2

reports, attorney work product, and consultant and expert work product, even if such materials

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contain Protected Material. Any such archival copies that contain or constitute Protected

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Material remain subject to this Protective Order as set forth in Section 4 (DURATION).

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ________________________________________________ [print or type full name],

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of __________________________________ [print or type full address], declare under penalty

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of perjury that I have read in its entirety and understand the Stipulated Protective Order that was

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issued by the United States District Court for the Eastern District of California in the case of

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Bischoff, et al., v. Brittain, et al., No. 2:14-cv-01970-KJM-CKD. I agree to comply with and to

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be bound by all the terms of the Stipulated Protective Order and I understand and acknowledge

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that failure to so comply could expose me to sanctions and punishment in the nature of contempt.

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I solemnly promise that I will not disclose in any manner any information or item that is subject

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to this Stipulated Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective

15

Order, even if such enforcement proceedings occur after termination of this action.

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I hereby appoint ______________________________________ [print or type full name],

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of ___________________________________________ [print or type full address and telephone

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number], as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _________________________________

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Signature: _________________________________

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Respectfully submitted,

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Date: October 27, 2015
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/s/ Todd Espinosa
Todd Espinosa
Law Office of Todd Espinosa
2000 Broadway Street, Suite 333
Redwood City, California 94063
[e-mail]
650-241-3873 telephone
650-409-2550 facsimile
Attorney for Plaintiffs Scott Bischoff,
Leron Dempsey and Project Sentinel, Inc.

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Date: October 27, 2015

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/s/ David D. MacMillan
(as authorized on October 27, 2015)
David D. MacMillan
The Costa Law Firm
2489 Sunrise Boulevard, Suite A
Gold River, CA 95670
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants Sandra Brittain, Keith
Johnson, RZM Investments Enterprise, LLC and
J.A. Brittain, Limited

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BISCHOFF, et al. v. BRITTAIN, et al., CASE NO. 2:14-cv-01970-KJM-CKD
STIPULATION AND PROTECTIVE ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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Dated: October 28, 2015
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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BISCHOFF, et al. v. BRITTAIN, et al., CASE NO. 2:14-cv-01970-KJM-CKD
STIPULATION AND PROTECTIVE ORDER

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