USA v. State of California et al

Filing 18

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Deborah Barnes on 8/8/18. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 JEFFREY H. WOOD Acting Assistant Attorney General ERIC GRANT (CA Bar No. 151064) Deputy Assistant Attorney General JUSTIN HEMINGER (DC Bar. No. 974809) STACY STOLLER (DC Bar No. 475035) PETER J. MCVEIGH (VA Bar No. 73211) (202) 514-4642 Attorneys Environment and Natural Resources Division U.S. Department of Justice 950 Pennsylvania Avenue N.W., Room 2630 Washington, D.C. 20530 XAVIER BECERRA Attorney General of California BENJAMIN M. GLICKMAN, State Bar No. 247907 Supervising Deputy Attorney General ANDREW M. VOGEL, State Bar No. 187312 Deputy Attorney General JOHN W. KILLEEN, State Bar No. 258395 Deputy Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-6045 Fax: (916) 324-8835 E-mail: Attorneys for the State Defendants 8 9 10 11 12 MCGREGOR W. SCOTT United States Attorney DAVID T. SHELLEDY Civil Chief, Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 (916) 554-2700 Attorneys for Plaintiff United States of America 13 14 15 IN THE UNITED STATES DISTRICT COURT 16 FOR THE EASTERN DISTRICT OF CALIFORNIA 17 18 19 UNITED STATES OF AMERICA, 20 21 No. 2:18-cv-00721 WBS DB Plaintiff, STIPULATED PROTECTIVE ORDER v. 22 23 24 25 STATE OF CALIFORNIA; and CALIFORNIA STATE LANDS COMMISSION, an agency of the State of California, Defendants. 26 27 28 1 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 2 1. PURPOSES AND LIMITATIONS Discovery in this action, including the Parties’ responses to written discovery and 3 accompanying document production and anticipated depositions, may involve production of 4 confidential, proprietary, for official use only, personally identifiable, or other private or legally 5 protected information for which special protection may be warranted. Accordingly, the Parties 6 hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The 7 Parties agree that this Stipulated Protective Order is consistent with Local Rule 141.1. It does not 8 confer blanket protection on all disclosures or responses to discovery, the protection it affords 9 from public disclosure and use extends only to the limited information or items that are entitled to 10 confidential treatment under applicable legal principles, and it does not presumptively entitle 11 parties to file Confidential Information under seal. 12 2. DEFINITIONS 13 2.1 “Confidential Information”: information (regardless of how it is generated, stored or 14 maintained) or tangible things that a Party in its reasonable and good faith judgment determines 15 includes confidential, proprietary, or other information for which special protection from public 16 disclosure is warranted and justified under Federal Rule of Civil Procedure 26(c); information 17 that is publicly available is not considered “Confidential Information.” 18 19 20 2.2 “Party”: any party to this action, including all of its officers, employees, and counsel. 3. SCOPE The protections afforded by this Stipulated Protective Order cover not only those portions of 21 any documents or other materials containing Confidential Information (as defined above), but 22 also (a) any information copied or extracted from those portions of any documents or other 23 materials containing Confidential Information; (b) all copies, excerpts, summaries, or 24 compilations of Confidential Information; and (c) any testimony, conversations, or presentations 25 by parties or their legal counsel that might contain or reveal Confidential Information. 26 4. ACCESS TO AND USE OF CONFIDENTIAL INFORMATION 27 28 4.1. Basic Principles. A receiving party may use Confidential Information that is disclosed or produced by another party or by a non-party in connection with this case only for prosecuting, 2 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 defending, or attempting to settle this litigation. Confidential Information may be disclosed only 2 to the categories of persons and under the conditions described in this Stipulated Protective Order. 3 Confidential Information must be stored and maintained by a receiving party at a location and in a 4 secure manner that ensures that access is limited to the persons authorized under this Stipulated 5 Protective Order. 6 4.2. Disclosure of “Confidential” Information or Items. Unless otherwise ordered by the Court 7 or permitted in writing by the designating party, a receiving party may disclose Confidential 8 Information only to: 9 (a) Counsel of Record in this action and any support staff and other employees with an 10 appropriate need to know. If any Counsel of Record, support staff, or other employees cease to 11 represent a party in this action for any reason, such persons shall no longer have access or be 12 authorized to receive any Confidential Information; 13 14 15 16 17 18 19 (b) Parties in this action, but only to the extent that such disclosure is reasonably deemed necessary by such Party’s counsel for the conduct of this litigation. (c) Any experts or consultants retained for this action by counsel to a party or support staff or employees for such an expert or consultant with an appropriate need to know; (d) Any other person mutually authorized by the Parties’ counsel to examine such information; (e) During their depositions, witnesses in this action with an appropriate need to know. Pages 20 of transcribed deposition testimony or exhibits to depositions that reveal Confidential Information 21 must be marked by the court reporter and may not be disclosed to anyone except as permitted 22 under this Stipulated Protective Order; 23 (f) The author or recipient of a document containing the Confidential Information or a 24 custodial or other person who otherwise was legally authorized to possess the information; 25 (g) Companies or contractors providing copying, imaging, e-discovery, or document 26 management services retained by counsel to assist in the duplication or management of material 27 containing or constituting Confidential Information, provided that counsel for the party retaining 28 each such company instructs the company not to disclose any Confidential Information to third 3 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 parties and to immediately return all originals and copies of any Confidential Material upon the 2 completion of the company’s services; and 3 (h) The Court and its personnel, including court reporters. 4 All persons listed in subparagraphs 4.2(c)-(g) to whom Confidential Information is disclosed 5 shall first be required to read the terms of this Stipulated Protective Order and sign a copy of the 6 Acknowledgment of Protective Order and Agreement to Be Bound form, attached hereto as 7 EXHIBIT A. Counsel for the party disclosing Confidential Information to such persons shall 8 retain the original signed Acknowledgment of Protective Order and Agreement to be Bound form 9 and shall provide a copy to counsel for the other Parties or to the signatory upon request. 10 4.3. Filing Confidential Information. A Party may not file in the public record in this action 11 any Confidential Information without first obtaining written permission from the designating 12 party or a court order, secured after appropriate notice to all interested persons. A party seeking to 13 file under seal any Confidential Information must comply with Local Rule 141. Confidential 14 Information may be filed under seal only pursuant to a court order that makes specific findings 15 that the relevant legal standards have been met. See Kamakana v. City and County of Honolulu, 16 447 F.3d 1172, 1176 (9th Cir. 2006), Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678-679 (9th 17 Cir. 2010). 18 If a receiving party’s request to file designated material under seal pursuant to Local Rule 141 19 is denied by the Court, then the receiving party may file the material in the public record unless 20 (1) the designating party seeks reconsideration within four days of the denial, or (2) as otherwise 21 instructed by the Court. 22 23 4.4. Filing Motions, Oppositions, and Replies Under Seal. In the event that either party files a motion, opposition, or reply under seal, the provisions of Local Rule 141 shall apply. 24 4.5. Use of Information Subject to Stipulated Protective Order. Use of any information or 25 documents subject to this Stipulated Protective Order, including all information within the scope 26 of Section 3, shall be restricted to use in this litigation (subject to the applicable rules of evidence 27 and subject to the confidentiality of such materials being maintained), and shall not be used by 28 anyone subject to the terms of this Stipulated Protective Order for any purpose outside of this 4 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 litigation or in any other proceeding between the Parties. Confidential Information is protected 2 from disclosure in response to requests under the Freedom of Information Act or the California 3 Public Records Act. Nothing in this Stipulated Protective Order shall limit or in any way restrict 4 the use of information obtained outside of this litigation that would merit designation of 5 Confidential Information had it been disclosed in discovery in this litigation. 6 5.1 DESIGNATION OF CONFIDENTIAL INFORMATION 7 5.1. Exercise of Restraint and Care in Designating Information for Protection. Each party or 8 non-party that designates information or items for protection as Confidential Information under 9 this Stipulated Protective Order must take care to limit any such designation to specific material 10 that qualifies under the appropriate standards. The designating party must designate for protection 11 as Confidential Information only those parts of material, documents, items, or oral or written 12 communications that qualify for such protection, so that other portions of the material, 13 documents, items, or communications for which protection is not warranted are not swept 14 unjustifiably within the ambit of this Stipulated Protective Order. Mass, indiscriminate, or 15 routinized designations are prohibited. Designations that are shown to be clearly unjustified or 16 that have been made for an improper purpose (e.g., to unnecessarily encumber or delay the case 17 development process or to impose unnecessary expenses and burdens on other parties) may 18 expose the designating party to sanctions. If it comes to a designating party’s attention that 19 information or items that it designated for protection as Confidential Information do not qualify 20 for such protection, the designating party must promptly notify all other parties that it is 21 withdrawing the designation. 22 5.2. Manner and Timing of Designations. Except as otherwise provided in this Stipulated 23 Protective Order or as otherwise stipulated by the Parties or ordered by the Court, disclosure of 24 discovery material that qualifies for protection as Confidential Information under this Stipulated 25 Protective Order must be clearly so designated before or when the material is disclosed or 26 produced. 27 28 (a) Information in documentary form (e.g., paper or electronic documents and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings): the 5 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 designating party must affix the word “CONFIDENTIAL” to each page that contains 2 Confidential Information. If only a portion of the material on a page qualifies for such protection, 3 the designating party also must clearly identify the protected portion(s) (e.g., by making 4 appropriate markings in the margins). 5 (b) Testimony given in deposition or in other pretrial or trial proceedings: the designating 6 party must identify on the record, during the deposition, hearing, or other proceeding, all 7 protected testimony, without prejudice to their right to so designate other testimony after 8 reviewing the transcript. Any party or non-party may, within ten days after receiving a deposition 9 transcript, designate portions of the transcript, or exhibits thereto, as Confidential Information. 10 (c) Other tangible items: the designating party must affix in a prominent place on the exterior 11 of the container or containers in which the item is stored the word “CONFIDENTIAL.” If only a 12 portion or portions of the information or item warrant protection, the designating party, to the 13 extent practicable, shall identify the protected portion(s). 14 5.3 Inadvertent Failures to Designate. If a party inadvertently fails to designate material as 15 Confidential Information at the time of production or disclosure, it shall take reasonable steps to 16 notify all receiving parties of its failure within five business days of discovering this inadvertent 17 failure. The designating party shall promptly supply all receiving parties with new copies of any 18 documents bearing corrected confidentiality designations, and the receiving parties shall (at the 19 option of the designating party) return to the designating party or destroy the original materials, 20 and in the latter case certify in writing to the designating party that such information has been 21 destroyed. 22 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23 6.1. Timing of Challenges. Any party or non-party may challenge the designation of 24 information or materials as Confidential Information at any time. Unless a prompt challenge to a 25 designating party’s confidentiality designation is necessary to avoid foreseeable and substantial 26 harm, unnecessary economic burdens, or a significant disruption or delay of the litigation, a party 27 does not waive its right to challenge a confidentiality designation by electing not to mount a 28 challenge promptly after the original designation is disclosed. 6 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 6.2. Challenge to Confidentiality Designation. The Parties reserve the right to file a motion to 2 unseal or unredact if either party believes that documents filed under seal or redacted: (a) do not 3 contain Confidential Information defined in Section 2 of this Stipulated Protective Order and/or 4 do not meet the applicable legal standard for sealing, and therefore should be neither sealed nor 5 redacted; or (b) do contain Confidential Information identified in Section 2 of this Stipulated 6 Order, but should be redacted rather than sealed, or redacted differently. The parties shall make a 7 good faith effort to meet and confer regarding any such proposed motion. 8 9 6.3. Meet and Confer. The parties must make every attempt to resolve any dispute regarding confidential designations without court involvement. Any motion regarding confidential 10 designations or for a protective order must include a certification, in the motion or in a declaration 11 or affidavit, that the movant has engaged in a good faith meet and confer conference with other 12 affected parties in an effort to resolve the dispute without court action. The certification must list 13 the date, manner, and participants to the conference. A good faith effort to confer requires a face- 14 to-face meeting or a telephone conference. 15 6.4. Judicial Intervention. If the parties cannot resolve a challenge without court intervention, 16 the following procedure shall be used: the party opposing designation of the material as 17 Confidential Information may make an application to this Court (to be lodged conditionally under 18 seal if necessary) for an Order that the material specifically identified not be treated as 19 Confidential Information. The designated material shall be treated as Confidential Information 20 until the issue is resolved by Order of this Court or by agreement of the Parties. 21 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 22 LITIGATION 23 If a receiving party is served with a subpoena or a court order issued in other litigation that 24 compels disclosure of any information or items designated in this action as “CONFIDENTIAL,” 25 that party must: 26 (a) Promptly notify the designating party or parties in writing and include a copy of the 27 subpoena or court order so that the designating party has sufficient time to commence an action in 28 the appropriate court to enjoin disclosure or seek other formal or informal relief. 7 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 (b) Promptly notify the party who caused the subpoena or order to issue in the other litigation 2 that some or all of the material covered by the subpoena or order is subject to this Stipulated 3 Protective Order and provide a copy of this Stipulated Protective Order with that notification; 4 (c) Cooperate, as permitted by applicable law, with respect to all reasonable procedures 5 sought to be pursued by the designating party or parties whose Confidential Information may be 6 affected, including objecting and seeking a protective order in the litigation in which the 7 subpoena or order issued; and 8 (d) Decline to produce the Confidential Information if an objection has been made until the 9 objection has been resolved unless disclosure, dissemination, or transmission is required by law 10 or court order. Any person, entity or organization who receives “Confidential Information” shall 11 abide by all terms and conditions set forth herein unless otherwise permitted by court order. 12 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 13 If a receiving party learns that, by inadvertence or otherwise, it has disclosed Confidential 14 Information to any person or in any circumstances not authorized under this Stipulated Protective 15 Order, the receiving party must immediately (a) notify in writing the designating party of the 16 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 17 protected material, (c) inform the person or persons to whom unauthorized disclosures were made 18 of all the terms of this Stipulated Protective Order, and (d) request that such person or persons 19 execute the “Acknowledgement of Protective Order and Agreement to Be Bound” that is attached 20 hereto as Exhibit A. In the event that such person or persons do not execute the 21 “Acknowledgement of Protective Order and Agreement to Be Bound” as requested, the receiving 22 party and/or designating party may apply to the Court for appropriate relief to remedy the 23 unauthorized disclosure. 24 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 25 MATERIAL 26 When a designating party gives notice to receiving parties that certain inadvertently produced 27 material is subject to a claim of privilege or other protection, the obligations of the receiving 28 parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). 8 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 2 3 4 10. USE OF CONFIDENTIAL MATERIAL The limitations and restrictions on “Confidential Information” in this Stipulated Protective Order shall not apply with respect to information: (a) If it is publicly available information, whether it becomes public before or after production 5 in this litigation, as a result of publication not involving a violation of this Stipulated Protective 6 Order. 7 (b) If the designating party is authorized to allow the nonconfidential treatment of the 8 information and releases any restrictions on confidentiality; this provision authorizes disclosure 9 by the receiving party only if the designating party’s counsel has stated in writing to the other 10 11 party that the information is no longer confidential. (c) If the parties have a dispute arising from the use of public information, the parties agree to 12 resolve the dispute pursuant to Section 6 of this Stipulated Order. 13 11. TERMINATION OF LITIGATION AND RETURN OR DESTRUCTION OF 14 DOCUMENTS 15 Anyone to whom Confidential Information has been disclosed in accordance with Section 4 of 16 this Stipulated Protective Order shall maintain Confidential Information pursuant to the terms of 17 this Protective Order, subject to further order by this Court (this provision does not apply to 18 Confidential Information disclosed to and maintained by the Court and its personnel, including 19 court reporters). 20 Within ten (10) days after the final disposition of this action, including any and all appeals, all 21 Confidential Information and copies thereof shall be returned to the party who produced or 22 disclosed it or destroyed, at the option of the party who produced or disclosed it, except as this 23 Court may otherwise order. If destroyed, the receiving party shall certify in writing to the 24 producing party that such information has been destroyed. 25 Notwithstanding this provision, counsel of record may maintain a complete set of written 26 discovery responses and deposition transcripts for their records through the final disposition of 27 this action, including any and all appeals or the time during which an appeal is possible, and for a 28 period of five (5) years after resolution of this case or after any judgment becomes final, 9 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 whichever is later, provided that such counsel maintain the confidential nature of these materials, 2 as set forth in this Stipulated Protective Order. Within ten (10) days after this time period, counsel 3 of record shall destroy all Confidential Information and copies thereof, except as this Court may 4 otherwise order. The receiving party shall certify in writing to the producing party that such 5 information has been destroyed. The confidentiality obligations imposed by this agreement shall 6 remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. 7 Nothing in this Section shall require counsel for either of the parties to destroy any materials that 8 constitute such counsel’s attorney work product that contains or references Confidential 9 Information. 10 12. MISCELLANEOUS 11 12.1. Enforceability Upon Signing. By signing the Stipulated Protective Order, the parties 12 agree to be bound by its terms unless and until those terms are modified by order of the Court. 13 14 15 12.2 Right to Further Relief. Nothing in this Order abridges the right of any party to seek its modification or amendment by the Court or by further stipulation of the Parties in the future. 12.3. Right to Assert Other Objections. By stipulating to entry of this Order, no party waives 16 any right it otherwise would have to object to disclosing or producing any information or item on 17 any ground not addressed in this Order, nor waives any claim or defense in this case. Similarly, 18 no party waives any right to object on any ground to use in evidence of any of the material 19 covered by this Order, and nothing herein shall be construed to affect in any way the evidentiary 20 admissibility of any document, testimony, or other matter at any proceeding related to this Action. 21 12.4. This order shall constitute a court order authorizing disclosure of information designated 22 as confidential, subject to the protections described herein, for purposes of the Privacy Act, 23 5 U.S.C. § 552a(b)(11) (authorizing disclosure pursuant to the order of a court of competent 24 jurisdiction) and any other state or federal statute or regulation that provides for disclosure 25 pursuant to court order. 26 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 27 28 10 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 Dated: July 27, 2018 Respectfully submitted, 2 XAVIER BECERRA Attorney General of California BENJAMIN M. GLICKMAN Supervising Deputy Attorney General 3 4 /s/ John W. Killeen JOHN W. KILLEEN Deputy Attorney General Attorneys for the State Defendants 5 6 7 MCGREGOR W. SCOTT United States Attorney DAVID T. SHELLEDY Civil Chief, Assistant United States Attorney 8 9 10 /s/ Stacy Stoller (signature used by permission granted July 27, 2018) JEFFREY H. WOOD Acting Assistant Attorney General ERIC GRANT Deputy Assistant Attorney General JUSTIN HEMINGER STACY STOLLER PETER J. MCVEIGH Attorneys Environment and Natural Resources Division U.S. Department of Justice Attorneys for Plaintiff, United States of America 11 12 13 14 15 16 17 18 19 ORDER 20 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 21 IT IS FURTHER ORDERED THAT: 22 1. Requests to seal documents shall be made by motion before the same judge who will 23 24 decide the matter related to that request to seal. 2. The designation of documents (including transcripts of testimony) as confidential 25 pursuant to this order does not automatically entitle the parties to file such a document with the 26 court under seal. Parties are advised that any request to seal documents in this district is governed 27 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 28 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 11 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 2 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 3 the requested duration, the identity, by name or category, of persons to be permitted access to the 4 document, and all relevant information.” L.R. 141(b). 5 3. A request to seal material must normally meet the high threshold of showing that 6 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially 7 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 8 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); 9 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 10 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of 11 certain documents, at any court hearing or trial – such determinations will only be made by the 12 court at the hearing or trial, or upon an appropriate motion. 13 5. With respect to motions regarding any disputes concerning this protective order which 14 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local 15 Rule 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex 16 parte basis or on shortened time. 17 6. The parties may not modify the terms of this Protective Order without the court’s 18 approval. If the parties agree to a potential modification, they shall submit a stipulation and 19 proposed order for the court’s consideration. 20 21 22 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement of the terms of this Protective Order after the action is terminated. 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 23 hereby DISAPPROVED. 24 Dated: August 8, 2018 25 26 27 28 DLB:6 DB\orders\orders.civil\ USvCalifornia0721.stip.prot.ord 12 Stipulated Protective Order (2:18-CV-00721-WBS-DB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 EXHIBIT A ACKNOWLEDGMENT OF PROTECTIVE ORDER AND AGREEMENT TO BE BOUND I, _____________________________ [print or type full name], of ____________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Eastern District of California on _______________ in the case of United States v. State of California, et al., No. 2:18-CV-00721-WBS-CV. 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 me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Stipulated Protective Order. I further agree to submit to the jurisdiction of the United States District Court for the Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. Date: _______________________ City and State where sworn and signed: ______________________________ Printed name: ____________________________ Signature: ______________________________________ 21 22 23 24 25 26 27 28 13 Stipulated Protective Order (2:18-CV-00721-WBS-DB)

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