Ainely, et al. v. City of South Lake Tahoe, et al.

Filing 34

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/21/2017. (Michel, G.)

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MICHAEL J. HADDAD (State Bar No. 189114)
JULIA SHERWIN (State Bar No. 189268)
T. KENNEDY HELM (State Bar No. 282319)
MAYA SORENSEN (State Bar No. 250722)
HADDAD & SHERWIN LLP
505 Seventeenth Street
Oakland, California 94612
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff Patrick Jackson
LAW OFFICES OF DALE K. GALIPO
DALE K. GALIPO (State Bar No. 144074)
TANYA SUKHIJA (State Bar No. 295589)
21800 Burbank Boulevard, Suite 310
Woodland Hills, California 91367
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiff Angela Ainley

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANGELA AINLEY, individually; PATRICK
JACKSON, individually; ANGELA AINLEY
and PATRICK JACKSON as joint personal
representatives of the Estate KRIS JACKSON;
the Estate of KRIS JACKSON,

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Plaintiffs,
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vs.
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CITY OF SOUTH LAKE TAHOE, a municipal )
corporation; JOSHUA KLINGE, individually
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and as a police officer for the city of South Lake )
Tahoe; BRIAN UHLER, individually and in his )
capacity as the CITY OF SOUTH LAKE
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TAHOE Chief of Police; and DOES 1
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THROUGH 25, inclusive,
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No: 2:16-CV-00049-TLN-CKD

STIPULATED PROTECTIVE ORDER
PURSUANT TO CIVIL LOCAL RULE
141.1

Defendants

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1.

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

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PURPOSES AND LIMITATIONS

proprietary, or private information for which special protection from public disclosure and from use
for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties
hereby 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 public disclosure and use extends only to the
limited information or items that are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated
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Protective Order does not entitle them to file confidential information under seal; Civil Local Rule
141 sets forth the procedures that must be followed and the standards that will be applied when a party
seeks permission from the court to file material under seal.
2.

DEFINITIONS

2.1

Challenging Party: a Party or Non-Party that challenges the designation of information or

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items under this Order.

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2.2

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stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil

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Procedure 26(c), and for which public disclosure is likely to result in particularized harm and violate

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privacy interests recognized by law. This information may include:

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

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a.

personnel file records of any peace officer;

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b.

medical records;

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c.

social security numbers and similar sensitive identifying information (unless

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redacted by order or by agreement of all parties).
Except by stipulation or order based on good cause, this information may not include

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records and information of foundational facts and investigation of the subject incident(s),

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specifically: the officer involved shooting of Kris Jackson on or about June 15, 2015.

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2.3

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support staff).

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2.4

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

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2.5

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

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

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discovery in this matter.

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2.6

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

Designating Party: a Party or Non-Party that designates information or items that it produces

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

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

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litigation who has been retained by a Party or its counsel to serve as an expert witness or as a

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consultant in this action.

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2.7

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.
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Non-Party: any natural person, partnership, corporation, association, or other legal entity not

named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a party to this action but are

retained to represent or advise a party to this action and have appeared in this action on behalf of that
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party or are affiliated with a law firm which has appeared on behalf of that party.
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2.10

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

retained experts, and Outside Counsel of Record (and their support staffs).
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Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this

action.
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Professional Vendors: persons or entities that provide litigation support services (e.g.,

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photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing,

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or retrieving data in any form or medium) and their employees and subcontractors.

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2.13

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“CONFIDENTIAL.”

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

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Party.

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

SCOPE

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

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defined above), but also (1) any information copied from Protected Material; (2) all copies, excerpts,

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summaries, or compilations of Protected Material that reveal the source of the Protected Material or

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that reveal specific information entitled to confidentiality as a matter of law; 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 Receiving

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

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publication not involving a violation of this Order, including becoming part of the public record
through trial or otherwise; and (b) any information known to the Receiving Party prior to the
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 Designating Party. Any use of
Protected Material at trial shall be governed by a separate agreement or order.
4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by this
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Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final 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 completion
and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time
limits for filing any motions or applications for extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

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

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

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designation to specific material that qualifies under the appropriate standards. The Designating Party

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must designate for protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents, items, or

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communications for which protection is not warranted are not swept unjustifiably within the ambit of

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this Order.

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

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

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or retard the case development process or to impose unnecessary expenses and burdens on other

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parties) expose the Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it designated for

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protection do not qualify for protection, that Designating Party must promptly notify all other Parties

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that it is withdrawing the mistaken designation.

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5.2

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Manner and Timing of Designations. 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

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legend “CONFIDENTIAL” to each page that contains 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 portion(s) (e.g., by making appropriate markings in the margins). 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 has indicated which material it would like copied and produced. During
the inspection and before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied

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and produced, the Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the Producing Party

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must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party also must

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

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

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

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protected testimony.

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

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that the Producing Party affix in a prominent place on the exterior of the container or containers in

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which the information or item is stored the legend “CONFIDENTIAL.” 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).

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5.3

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

qualified information 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 designation, the Receiving
Party must make reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1

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Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality

at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is
necessary to avoid foreseeable, substantial unfairness, unnecessary 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

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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite

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that the challenge to confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the

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process by conferring directly (in voice to voice dialogue; other forms of communication are not

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

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explain 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 circumstances,

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

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Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this

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meet and confer process first or establishes that the Designating Party is unwilling to participate in the

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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 Civil

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Local Rule 230 (and in compliance with Civil Local Rule 141, if applicable) within 21 days of the

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initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process

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will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a

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competent declaration affirming that 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 automatically waive
the confidentiality designation for each challenged designation. In addition, the Challenging Party
may file a motion challenging a confidentiality designation at any time if there is good cause for doing
so, 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 declaration affirming
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that the movant has complied with the meet and confer requirements imposed by the preceding
paragraph.
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 unnecessary
expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the

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Designating Party has waived the confidentiality designation by failing to file a motion to retain

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confidentiality as described above, all parties shall continue to afford the material in question the level

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of protection to which it is entitled under the Producing Party’s designation until the court rules on the

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challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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

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by another Party or by a Non-Party in connection with this case only for prosecuting, defending, or

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attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and 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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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the

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court or permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of said
Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this
litigation (counsel and law firms appearing in this action are deemed to have agreed to be bound by
this Protective Order);
(b) the officers, directors, and employees (including House Counsel) 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);
(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);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this litigation;

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(f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and

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

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agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or

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

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and may not be disclosed to anyone except as permitted under this Stipulated Protective Order or as

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agreed by the Designating Party.

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

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who otherwise possessed or knew the information.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure

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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 shall include a copy of the

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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

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litigation that some or all of the material covered by the subpoena or order is subject to this Protective
Order. Such notification shall include a copy of this Stipulated Protective Order; and
(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 with the subpoena or court
order shall not produce any information designated in this action as “CONFIDENTIAL” before a

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determination by the court from which the subpoena or order issued, unless the Party has obtained the
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Designating Party’s permission. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material – and nothing in these provisions should be
construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive
from another court.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION

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(a) The terms of this Order are applicable to information produced by a Non-Party in this action and

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designated as “CONFIDENTIAL.” Such information produced by Non-Parties in connection with this

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litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s

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confidential information in its possession, and the Party is subject to an agreement with the Non-Party

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not to produce the Non-Party’s confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party that some or all of the
information requested is subject to a confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this

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litigation, the relevant discovery request(s), and a reasonably specific description of the information

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requested; and

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(3) make the information requested available for inspection by the Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this court within 14 days of

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receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s

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confidential information responsive to the discovery request. If the Non-Party timely seeks a
protective order, the Receiving Party shall not produce any information in its possession or control
that is subject to the confidentiality agreement with the Non-Party before a determination by the court.
Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking
protection in this court of its Protected Material.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to
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any person or in any circumstance not authorized under this Stipulated Protective Order, the
Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
inform the person or persons to whom unauthorized disclosures were made of all the terms of this

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Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A.

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11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material

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is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those

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set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for production without

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prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties

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reach an agreement on the effect of disclosure of a communication or information covered by the

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attorney-client privilege or work product protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the court.

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12.

MISCELLANEOUS

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12.1

Right to Further Relief. Nothing in this Order abridges the right of any person to seek its

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modification by the court in the future.

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12.2

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waives any right it otherwise would have to object to disclosing or producing any information or item

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Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party

on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right
to object on any ground to use in evidence of any of the material covered by this Protective Order.
12.3

Filing Protected Material. Without written permission from the Designating Party or a court

order secured after appropriate notice to all interested persons, a Party may not file in the public
record in this action any Protected Material. A Party that seeks to file under seal any Protected
Material must comply with Civil Local Rule 141. Protected Material may only be filed under seal

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pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant to
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Civil Local Rule 141, a sealing order will issue only upon a request establishing that the Protected
Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection under
the law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local
Rule 141(b) is denied by the court, then the Receiving Party may file the information in the public
record pursuant to Civil Local Rule 141(e)(1) unless otherwise instructed by the court.

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13.

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Within 60 days after the final disposition of this action, as defined in paragraph 4, upon written

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notification served by Producing or Designating Party, each Receiving Party must return all Protected

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Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected

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Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or

FINAL DISPOSITION

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capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the

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Receiving Party must submit a written certification to the Producing Party (and, if not the same person

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or entity, to the Designating 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 format

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

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entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

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work product, and consultant and expert work product, even if such materials contain Protected

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Material. Any such archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: July 19, 2017

LAW OFFICES OF DALE K. GALIPO

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_/s/ Tanya Sukhija_______
Tanya Sukhija
Attorneys for Plaintiff Angela Ainley

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DATED: July 19, 2017

HADDAD & SHERWIN

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_/s/ Michael Haddad______
Michael J. Haddad
Attorneys for Plaintiff Patrick Jackson

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DATED: July 19, 2017

FERGUSON PRAET & SHERMAN

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_/s/ Bruce Praet___________
Bruce Praet
Attorneys for Defendants City of South Lake Tahoe
and Joshua Klinge

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: July 21, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________ [print or type

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full address], declare under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protective Order that was issued by the United States District Court for the Eastern District
of California on [date] __________________________ in the case of Ainley v. City of South Lake

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Tahoe, No. 2:16-cv-00049-TLN-CKD. I agree to comply with and to be bound by all the terms of this
Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose

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me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Stipulated Protective Order to any person

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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

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of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such
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enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone number] as

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my California agent for service of process in connection with this action or any proceedings related to

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enforcement of this Stipulated Protective Order.

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Date: ______________________________________
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City and State where sworn and signed: _________________________________
Printed name: _______________________________

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Signature: __________________________________

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No: 2:16-CV-00049-TLN-CKD: STIPULATED PROTECTIVE ORDER

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