Tucker v. Cystic Fibrosis Foundation

Filing 6

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/7/2018. (Zignago, K.)

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ROGER M. MANSUKHANI (SBN: 164463)
[e-mail]
BLAKE R. JONES (SBN: 211221)
[e-mail]
KARA D. KEISTER (SBN: 250260)
[e-mail]
GORDON REES SCULLY MANSUKHANI
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant/Cross-Complainant CYSTIC FIBROSIS FOUNDATION

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO

Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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PETER TUCKER,

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CASE NO. 2:18-cv-00528-MCE-CKD
Plaintiff,

STIPULATED PROTECTIVE ORDER

vs.
CYSTIC FIBROSIS FOUNDATION, and
Does 1 through 20, inclusive,

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Defendants.

Hon. Magistrate Judge Carolyn Delaney
Courtroom 24
Hon. District Judge Morrison C. England, Jr.
Courtroom 7

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AND RELATED CROSS-ACTIONS

Complaint Filed: October 16, 2017

IT IS HEREBY STIPULATED by and between Plaintiff/Cross-Defendant, PETER

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TUCKER (“Plaintiff”), and Defendant/Cross-Complainant CYSTIC FIBROSIS FOUNDATION

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(“Defendant”) through their respective attorneys of record, as follows:

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WHEREAS, the parties expect that discovery in this action will encompass confidential

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and proprietary documents and trade secrets of one or more parties, including without limitation

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employee personnel files; workers’ compensation files; human resources investigation

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documents; employee performance evaluations, letters of counseling, disciplinary proceedings,

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and related supporting documents; Plaintiff’s medical records and psychiatric records;

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communications between Plaintiff’s medical provider and Defendant; training manuals; business

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strategies, internal communications and/or processes or systems, and potentially other non-public

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information, such as medical or other confidential information of Plaintiff or witnesses.
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THEREFORE, it is hereby stipulated, and the parties hereby request, that the Court

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enter a protective order as follows:

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I.

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SCOPE:
A.

This Protective Order shall limit the use and/or disclosure of documents,

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deposition testimony, and related information which are, or which embody or disclose any

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information, designated hereunder as “CONFIDENTIAL” and shall apply to:

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1.

and all information contained therein;

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Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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2.

Portions of deposition testimony and transcripts and exhibits thereto which

include, refer, or relate to any designated “CONFIDENTIAL” information;

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All such documents so designated in accordance with this Protective Order

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All information, copies, extracts, and complete or partial summaries

prepared or derived from information that was designated “CONFIDENTIAL”;

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4.

Portions of briefs, memoranda, or any writing filed with or otherwise

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supplied to the Court under seal, which include or refer to any information designated

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“CONFIDENTIAL”; and

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5.

Any document exchange in connection with, or related to, any mediation,

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or proposed mediation.

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B.

Any person (i.e., any individual or entity) designating documents, testimony, or

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other information as “CONFIDENTIAL” hereunder asserts that he, she, or it believes in good

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faith that such material is his, her, or its Confidential Information which is not otherwise

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available to the public generally, or is Confidential Information which the person believes is or

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may be encompassed by a pre-existing confidentiality agreement with any other person.

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C.

“Confidential Information” is defined as documents, material, or testimony that is

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private or constitutes and/or relates to (a) trade secrets; (b) business strategies, (c) internal

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communications and/or processes or systems (d) employee personnel files; (e) workers’

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compensation files; (f) human resources investigation documents; (g) employee performance

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evaluations, letters of counseling, disciplinary proceedings, and related supporting documents;

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(h) Plaintiff’s medical records and psychiatric records; (i) communications between Plaintiff’s
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medical provider and Defendant; (j) training manuals; and (k) potentially other non-public

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information, such as medical or other confidential information of Plaintiff or witnesses.

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D.

Nothing in this Order and no party’s designation of any document as

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“CONFIDENTIAL” shall be construed to constrain, preclude, or otherwise affect the use

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(including the ability to include the document or information in papers not filed under seal) of

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another party’s documents which are duplicates of such designated documents provided that such

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duplicate documents were lawfully obtained by such party through means independent of the

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discovery process.

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E.

A party’s or a non-party’s failure to designate a document as its Confidential

Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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Information where the document was produced by another party and designated by the producing

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party as that party’s Confidential Information shall not be construed to waive the non-

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designating party’s claim, with respect to present and future litigation between these or other

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parties, that the document contains the non-designating party’s Confidential Information.

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Further, a party may later designate documents it has produced as CONFIDENTIAL even if

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previously not designated as such, so long as the party in good faith determines that such

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documents should have been designated as CONFIDENTIAL.

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II.

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DESIGNATION OF DOCUMENTS AND DEPOSITIONS AS “CONFIDENTIAL”:
A.

Designation of a document as “CONFIDENTIAL” by the producing party or non-

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party shall be made by conspicuously stamping or writing “CONFIDENTIAL” on each page

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thereof.

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B.

Designation of a deposition or other pretrial testimony, or portions thereof, as

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“CONFIDENTIAL” shall be made by a statement on the record by counsel for the party or other

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person making the claim of confidentiality at the time of such testimony. The portions of

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depositions so designated as “CONFIDENTIAL” shall be taken only in the presence of persons

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qualified to receive such information pursuant to the terms of this Protective Order, the court

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reporter, the deponent, and the deponent’s attorney. Failure of any person to comply with a

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request to leave the deposition room will constitute sufficient justification for the witness to

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refuse to answer any question calling for disclosure of Confidential Information so long as
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persons not entitled by this Protective Order to have access to such information are in attendance.

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Thereafter, any counsel may reopen the deposition into areas which the witness refused to

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answer after bringing a motion for protective order to resolve whether the person who refused to

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leave the deposition should be allowed to be present during questioning. After resolution of said

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motion, counsel shall be allowed to continue said deposition with respect to the questions, and

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lines of questioning, which the deponent refused to answer, though the court may order that the

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deposition continue outside the presence of the person who refused to leave the initial deposition.

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The applicable portions of such deposition transcripts shall be clearly marked

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“CONFIDENTIAL” on each page containing the Confidential Information.

Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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D.

Any party or non-party may designate documents or portions of deposition

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transcripts as containing Confidential Information even if not initially marked as

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“CONFIDENTIAL” or in accordance with the terms of this Protective Order by so advising

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counsel for each party in writing within twenty-one (21) calendar days of the receipt of the

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document or deposition transcript which he, she, or it wishes to designate as Confidential

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Information. Thereafter each such document or transcript shall be treated in accordance with the

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terms of this Protective Order. Any person served with written notice of any such designation of

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previously produced documents or deposition transcripts as containing Confidential Information

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shall thereafter treat such information as if it had been designated as “CONFIDENTIAL” at the

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time he, she, or it first received it in connection with this action and shall mark all copies of such

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documents in his, her, or its possession accordingly.

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III.

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LIMITATIONS ON DISCLOSURE OF CONFIDENTIAL INFORMATION:
A.

No Confidential Information shall be disclosed by anyone receiving such

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information to anyone other than those persons designated herein, and in no event shall

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Confidential Information be used, either directly or indirectly, by anyone receiving such

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information for any business, commercial or competitive purpose or for any purpose whatsoever

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other than the preparation for or trial of this action in accordance with the provisions of this

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Protective Order.

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B.

Confidential Information designated “CONFIDENTIAL” shall not be disclosed
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by any person who has received such information through discovery in this action to any other

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person except to:

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1.

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Counsel for any party to this action and their respective associates, clerks

and employees involved in the conduct of this litigation;

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2.

The parties hereto, and their present officers, directors and employees;

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3.

Outside experts and consultants retained by a party for the purpose of

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preparing or assisting in this litigation, and their respective clerks and employees

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involved in assisting them in this litigation, to the extent deemed necessary by counsel;

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4.

Any person who actually was involved in the preparation of the document

Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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or who appears on the face of the document as the author, addressee, or other recipient or

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currently is affiliated with the party that produced or appears to have prepared said

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document;

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5.

Court reporters and similar personnel, provided further that Confidential

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Information filed with the Clerk of the Court shall be sealed subject to release only by

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order of the Court or agreement of counsel;

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6.

Deponents with respect to whom the attorney for the examining party

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believes in good faith that disclosure of Confidential Information should be made in order

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to conduct relevant examination of such deponent on topics about which the attorney in

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good faith believes the deponent may have relevant information. In the case of a

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deponent who was not an author or recipient of the Confidential Information, and who

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has not previously agreed to be bound by the terms of this Order, the attorney conducting

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the examination shall limit disclosure of confidential information by any means

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practicable (i.e., redaction or severance of non-relevant portions) to only that which is in

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good faith required to conduct a meaningful examination of the witness, and shall show

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all counsel a copy of said redacted document before showing it to the witness. Any

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violation of this provision, or objection by counsel to showing the document to the

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witness, shall entitle the objecting party to suspend the deposition as to the Confidential

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Information at issue and any lines of questioning relating to the Confidential Information
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at issue, and to apply to the Court for a further Protective Order or other appropriate

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relief; and

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7.

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Any other person, either with the prior written consent of the party who

has designated such information as confidential or pursuant to a Court order.

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8.

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C.

The jury, judge and court personnel at time of trial.

Before any person described in paragraphs 3(b)(iii), 3(b)(vii), 3(c)(ii) or 3(c)(vi)

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receives or is shown any document or information which has been designated as confidential,

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such person shall be given a copy of this Protective Order and shall agree in writing, in the form

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of the “Agreement to be Bound By Terms Of The Protective Order” attached hereto as Exhibit

Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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A, to be bound by the terms hereof. The original of each such Acknowledgment and Agreement

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shall be maintained by counsel, and transmitted by facsimile to all other counsel of record. If

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any counsel objects to showing the signatory documents subject to this Order, the objecting party

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shall give facsimile notice of its objections and the grounds therefore and shall have five

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business days to file and serve a motion for protective order. If no objection is raised or no

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motion for protective order is filed and served within five days thereafter, all objections to

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showing the signatory documents shall be waived and the signatory may be shown the

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documents subject to this Order. If the person does not so agree, the person may not be shown

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the document until after a motion for protective order is brought and an order obtained

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preventing the person from misusing any information in the document.

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D.

Nothing in this Protective Order shall be construed to require execution of the

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written Acknowledgment and Agreement referred to in paragraph 3(d) above, or to prevent

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disclosure of Confidential Information, by the party producing and designating such Confidential

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Information, or by any employee of such party.

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IV.

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FILE UNDER SEAL:
All Confidential Information filed with the Court and any pleading or other paper

containing Confidential Information shall be filed under seal and marked:

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“CONFIDENTIAL INFORMATION. This envelope contains documents that are subject

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to a Protective Order of this Court and shall not be opened or unsealed by anyone except the
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Court or its staff, without the prior written consent of counsel for the parties hereto or pursuant to

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order of this Court. If the contents of this envelope are so unsealed, they shall thereafter be

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resealed.”

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The envelope shall not be opened without further order of the Court.

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Nothing shall be filed under seal, and the court shall not be required to take any action,

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without a separate prior order by the Judge before whom the hearing or proceeding will take

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place, after application by the affected party with appropriate notice to opposing counsel.

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V.

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CHALLENGE TO CONFIDENTIALITY DESIGNATION:
Any party who disagrees with the designation by a party of a document or other

Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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information as “CONFIDENTIAL” may bring a motion before the Court requesting that the

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Court find that the document or other information is, in fact, not confidential. Prior to bringing

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such motion, a party who objects to any other party’s designation of documents or other

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information as “CONFIDENTIAL” shall notify the other party in writing of the objection. The

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interested parties or other persons shall attempt to resolve such disagreements before submitting

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them to the Court. Pending resolution of any dispute concerning such designation, all parties and

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persons governed by this Protective Order shall treat as “CONFIDENTIAL” or all documents

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and information previously designated as “CONFIDENTIAL” under the terms of this Protective

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Order. If a motion challenging the confidentiality designation is brought, the party or person

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asserting that a document or other information is properly designated as “CONFIDENTIAL” or

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shall bear the burden of proving that the document or other information is Confidential

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Information.

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VI.

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SURVIVAL OF ORDER - RETURN OF DOCUMENTS:
A.

The provisions of this Order shall continue in effect until otherwise ordered by the

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Court after notice and an opportunity to be heard is afforded to the parties to this action. The

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final determination or settlement of this action shall not relieve any person who has received

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Confidential Information or agreed to be bound by the terms of this Protective Order of his, her,

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or its obligations hereunder. This Court shall retain jurisdiction after such final determination or

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settlement to enforce the provisions of this Order. Upon completion of the litigation, all
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documents (including copies of documents) containing Confidential Information shall be

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destroyed or returned to counsel for the producing party, except that the parties’ respective

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attorneys of record may retain one copy of each such document for use in connection with any

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disputes which may arise under the Court’s retention of jurisdiction as provided for herein.

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Within sixty days of the conclusion of this litigation, the attorneys for the receiving party shall

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notify the attorneys for the producing party that such return or destruction occurred.

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B.

Except as provided in Sections 4 or 7 hereof, documents or things containing the

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other party’s Confidential Information shall at all times be in the physical possession of those

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persons qualifying under Section 3 hereunder, or kept by counsel of record either at the premises

Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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regularly maintained by such counsel of record as and for their respective law offices, or

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otherwise in their sole custody or control.

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VII.

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USE OF OWN DOCUMENTS BY PRODUCING PARTY:
Nothing in this Protective Order shall limit the use by any party or other person of his,

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her or its own document(s) or information, or any other documents or information obtained

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independently of discovery, even if such document(s) or information have been designated as

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“CONFIDENTIAL.”

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VIII. APPLICATIONS TO COURT:

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A.

This Protective Order shall not preclude or limit any party’s right to oppose or

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object to discovery on any ground which otherwise would be available. This Protective Order

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shall not preclude or limit any party’s right to seek in camera review or to seek further and

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additional protection against or limitation upon production or dissemination of information

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produced in response to discovery, including documents and their contents.

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B.

Any person to or by whom disclosure or inspection is made in violation of this

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Protective Order, and who has knowledge of this Protective Order, shall be bound by the terms

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hereof.

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C.

The parties hereby, and all other persons who receive Confidential Information

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pursuant hereto, agree that any party or other person injured by a violation of this Order does not

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have an adequate remedy at law and that an injunction against such violation is an appropriate
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remedy. In the event any person shall violate or threaten to violate any terms of this Order, the

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parties agree that the aggrieved party may immediately apply to obtain injunctive relief against

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any such person. In the event the aggrieved party shall do so, the respondent person subject to

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the provisions of this Order shall not employ as a defense thereto the claim that the aggrieved

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party has an adequate remedy at law. Any persons subject to the terms of this Order agree that

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this Court shall retain jurisdiction over it and them for the purposes of enforcing this Order. The

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remedies set forth in this Section 8(c) are not exclusive to any other remedies that an aggrieved

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party may elect to pursue.

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IX.

Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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NO ADMISSIONS:
Neither entering into this Stipulation for Protective Order nor receiving any documents or

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other information designated as “CONFIDENTIAL” shall be construed as an agreement or

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admission (1) that any document or information designated as “CONFIDENTIAL” or” is in fact

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Confidential Information; (2) as to the correctness or truth of any allegation made or position

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taken relative to any matter designated as “CONFIDENTIAL”; or (3) as to the authenticity,

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competency, relevancy, or materiality of any information or document designated as

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“CONFIDENTIAL.” This Order is not intended to modify or waive the provisions of the

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Federal Rules of Civil Procedure or the Evidence Code. This Order does not require the

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production of documents or information that would otherwise be non-discoverable.

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X.

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SUBPOENA BY OTHER COURTS OR AGENCIES:
If another court or an administrative agency subpoenas or orders production of

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“CONFIDENTIAL” documents which a party has obtained under the terms of this Order, before

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complying with such subpoenas or orders, such party shall promptly notify the party or other

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person who designated the documents of the pendency of such subpoena or order.

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XI.

MODIFICATION - FURTHER AGREEMENTS:

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Nothing contained herein shall preclude any party from seeking from the Court

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modification of this Order upon proper notice or preclude the parties from entering into other

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written agreements designed to protect Confidential Information.

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Further, the Court may modify the protective order in the interests of justice or for public
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policy reasons.
XII. COUNTERPARTS:

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This Stipulation for Protective Order may be executed in counterparts, each of which
shall be deemed an original and which together shall constitute one instrument.

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I hereby consent to the form, substance of this agreement and consent to entry of this
agreement as an order.

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IT IS SO STIPULATED.

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Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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Dated: September 7, 2018

LAW OFFICES OF JAMES E. McGLAMERY

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By:
JAMES E. McGLAMERY
Attorneys for Plaintiff/Cross-Defendant
PETER TUCKER

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Dated: September 7, 2018

GORDON REES
SCULLY MANSUKHANI, LLP

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By:

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ROGER M. MANSUKHANI
BLAKE R. JONES
Attorneys for Defendant/Cross-Complainant
CYSTIC FIBROSIS FOUNDATION

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ORDER
In addition to the above Stipulation between the parties–which the Court adopts in its

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entirety–the Court further ORDERS parties seeking to file a document falling within this

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Protective Order to comply with Local Rule 141. Within five (5) days of filing of any

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confidential document under seal, the party shall file a redacted copy of the document so filed.

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The redactions shall be narrowly tailored to protect only the information that is confidential or

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was deemed confidential.

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IT IS SO ORDERED.

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Dated: September 7, 2018

Gordon & Rees Scully Mansukhani LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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1144342/40040740v.1

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