Walker v. City of Hayward et al

Filing 56

STIPULATION AND ORDER for protection of documents and PROTECTIVE ORDER re: plaintiff's medical and psychological records. Signed by Judge Thelton E. Henderson on 11/06/08. (rbe, COURT STAFF) (Filed on 11/6/2008)

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JIVIKA CANDAPPA (SBN225919) Law office of Jivaka Candappa 46 Shattuck Square, Suite 15 Berkeley, California 94704 Telephone: [phone] Facsimile: [phone] Attorney for Plaintiff KEVIN WALKER

5 6 7 8 9 10 11 12 13 14 15 16 KEVIN WALKER, Plaintiff, 17 v. 18 CITY OF HAYWARD, et al., Defendants. 19 ___________________________________/ 20 Plaintiff Kevin Walker, and Defendants City of Hayward, Officer Art Thoms, Officer 21 Scott Lunger, Officer Zachary Hoyer, American Discount Security, and Daud Wardak through 22 their respective attorneys of record, stipulate to the following order: 23 1. PURPOSES AND LIMITATIONS 24 Disclosure and discovery activity in this action are likely to involve production of confidential, 25 proprietary, or private information for which special protection from public disclosure and from 26 use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the 27 parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. 28 Case No. C 07 06205 (TEH) STIPULATION FOR PROTECTION OF DOCUMENTS AND PROPOSED PROTECTIVE ORDER: PLAINTIFF'S MEDICAL AND PSYCHOLOGICAL RECORDS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA MICHAEL S. LAWSON (SBN 048172) City Attorney RANDOLPH S. HOM (SBN 152833) Assistant City Attorney CITY F HAYWARD 777 B Street Hayward, California 94541 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants CITY OF HAYWARD, ART THOMS, SCOTT LUNGER, AND ZACHARY HOYER

JAMES G. MURRAY (SBN 120049) Prindle, Decker, and Amaro, LLP 310 Golden Shore, Fourth Floor P.O. Box 22711 Long Beach, California 90801-5511 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants AMERICAN DISCOUNT SECURITY AND DAUD WARDAK

1 The parties acknowledge that this Order does not confer blanket protections on all disclosures or 2 responses to discovery and that the protection it affords extends only to the limited information or 3 items that are entitled under the applicable legal principles to treatment as confidential. The 4 parties further acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order 5 creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth 6 the procedures that must be followed and reflects the standards that will be applied when a party 7 seeks permission from the court to file material under seal. 8 9 2. DEFINITIONS 2.1 Party: any party to this action, including all of its officers, directors,

10 employees, consultants, retained experts, and outside counsel (and their support staff). 11 2.2 Disclosure or Discovery Material: all items or information, regardless of the

12 medium or manner generated, stored, or maintained (including, among other things, testimony, 13 transcripts, or tangible things) that are produced or generated in disclosures or responses to 14 discovery in this matter. 15 2.3 "Confidential" Information or Items: information (regardless of how generated,

16 stored, maintained, or whether or not marked as "CONFIDENTIAL" at the time of production to 17 Plaintiff and Defendants) or tangible things that qualify for protection under standards developed 18 under F.R.Civ.P. 26(c). This material includes but is not limited to the following categories of 19 documents: documents relating to plaintiff Kevin Walker's medical records and psychological 20 records including but not limited to admission records, vital signs, medical examination, 21 diagnosis, diagnostic tests, X-rays, lab work, prognosis, medical treatment, psychological 22 treatment, counseling, history, reports, notes, diagrams, instructions, physical therapy, discharge 23 records, prescriptions, insurance, and medical bills from any medical facility including but not 24 limited to St. Rose Hospital, Eden Hospital, San Leandro Hospital, Alameda County Medical 25 Center, and Highland Hospital. 26 2.4 "Highly Confidential ­ Attorneys' Eyes Only" Information or Items:

27 extremely sensitive "Confidential Information or Items" whose disclosure to another Party or 28 nonparty would create a substantial risk of serious injury that could not be avoided by less

1 restrictive means. 2 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a

3 Producing Party. 4 2.6 Producing Party: a Party or non-party that produces Disclosure or Discovery

5 Material in this action. 6 2.7. Designating Party: a Party or non-party that designates information or items

7 that it produces in disclosures or in responses to discovery as "Confidential" or "Highly 8 Confidential -- Attorneys' Eyes Only." 9 2.8 Protected Material: any Disclosure or Discovery Material that is designated as

10 "Confidential" or as "Highly Confidential ­ Attorneys' Eyes Only." 11 2.9. Outside Counsel: attorneys who are not employees of a Party but who are

12 retained to represent or advise a Party in this action. 13 14 2.10 House Counsel: attorneys who are employees of a Party. 2.11 Counsel (without qualifier): Outside Counsel and House Counsel (as well as

15 their support staffs). 16 2.12 Expert: a person with specialized knowledge or experience in a matter

17 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 18 witness or as a consultant in this action and who is not a past or a current employee of a Party or 19 of a competitor of a Party's and who, at the time of retention, is not anticipated to become an 20 employee of a Party or a competitor of a Party's. This definition includes a professional jury or 21 trial consultant retained in connection with this litigation. It also includes any of plaintiff Kevin 22 Walker's treating physicians, psychiatrists, psychologists, counselors or other medical staff related 23 to Walker's treatment or visit at a medical facility. 24 2.13 Professional Vendors: persons or entities that provide litigation support

25 services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; 26 organizing, storing, retrieving data in any form or medium; etc.) and their employees and 27 subcontractors. 28 ///

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3. SCOPE

2 The protections conferred by this Stipulation and Order cover not only Protected Material (as 3 defined above), but also any information copied or extracted therefrom, as well as all copies, 4 excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by 5 parties or counsel to or in court or in other settings that might reveal Protected Material. 6 4. DURATION

7 Even after the termination of this litigation, the confidentiality obligations imposed by this Order 8 shall remain in effect until a Designating Party agrees otherwise in writing or a court order 9 otherwise directs. 10 11 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party

12 or non-party that designates information or items for protection under this Order must take care to 13 limit any such designation to specific material that qualifies under the appropriate standards. A 14 Designating Party must take care to designate for protection only those parts of material, 15 documents, items, or oral or written communications that qualify ­ so that other portions of the 16 material, documents, items, or communications for which protection is not warranted are not 17 swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized 18 designations are prohibited. Designations that are shown to be clearly unjustified, or that have 19 been made for an improper purpose (e.g., to unnecessarily encumber or retard the case 20 development process, or to impose unnecessary expenses and burdens on other parties), expose 21 the Designating Party to sanctions. If it comes to a Party's or a non-party's attention that 22 information or items that it designated for protection do not qualify for protection at all, or do not 23 qualify for the level of protection initially asserted, that Party or non-party must promptly notify 24 all other parties that it is withdrawing the mistaken designation. 25 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order

26 (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, 27 material that qualifies for protection under this Order must be clearly so designated before the 28 material is disclosed or produced.

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Designation in conformity with this Order requires: (a) for information in documentary form (apart from transcripts of depositions

3 or other pretrial or trial proceedings), that the Producing Party affix the legend 4 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY" at the top 5 of each page that contains protected material. If only a portion or portions of the material on a 6 page qualifies for protection, the Producing Party also must clearly identify the protected 7 portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each 8 portion, the level of protection being asserted (either "CONFIDENTIAL" or "HIGHLY 9 CONFIDENTIAL ­ ATTORNEYS' EYES ONLY"). 10 A Party or non-party that makes original documents or materials available for

11 inspection need not designate them for protection until after the inspecting Party has indicated 12 which material it would like copied and produced. During the inspection and before the 13 designation, all of the material made available for inspection shall be deemed "HIGHLY 14 CONFIDENTIAL ­ATTORNEYS' EYES ONLY." 15 (b) for testimony given in deposition or in other pretrial or trial proceedings,

16 that the Party or non-party offering or sponsoring the testimony identify on the record, before the 17 close of the deposition, hearing, or other proceeding, all protected testimony, and further specify 18 any portions of the testimony that qualify as "HIGHLY CONFIDENTIAL ­ ATTORNEYS'

19 EYES ONLY." When it is impractical to identify separately each portion of testimony that is 20 entitled to protection, and when it appears that substantial portions of the testimony may qualify 21 for protection, the Party or non-party that sponsors, offers, or gives the testimony may invoke on 22 the record (before the deposition or proceeding is concluded) a right to have up to 20 days to 23 identify the specific portions of the testimony as to which protection is sought and to specify the 24 level of protection being asserted ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ­ 25 ATTORNEYS' EYES ONLY"). Only those portions of the testimony that are appropriately 26 designated for protection within the days shall be covered by the provisions of this Stipulated 27 Protective Order. Transcript pages containing Protected Material must be separately bound by the 28 court reporter, who must affix to the top of each such page the legend "CONFIDENTIAL" or

1 "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY," as instructed by the Party or 2 nonparty offering or sponsoring the witness or presenting the testimony. 3 (c) for information produced in some form other than documentary, and for

4 any other tangible items, that the Producing Party affix in a prominent place on the exterior of the 5 container or containers in which the information or item is stored the legend "CONFIDENTIAL" 6 or "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY." If only portions of the 7 information or item warrant protection, the Producing Party, to the extent practicable, shall 8 identify the protected portions, specifying whether they qualify as "Confidential" or as "Highly 9 Confidential ­ Attorneys' Eyes Only." 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

11 designate qualified information or items as "Confidential" or "Highly Confidential ­ Attorneys' 12 Eyes Only" does not, standing alone, waive the Designating Party's right to secure protection 13 under this Order for such material. If material is appropriately designated as "Confidential" or 14 "Highly Confidential ­ Attorneys' Eyes Only" after the material was initially produced, the 15 Receiving Party, on timely notification of the designation, must make reasonable efforts to assure 16 that the material is treated in accordance with the provisions of this Order. 17 18 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party's

19 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 20 economic burdens, or a later significant disruption or delay of the litigation, a Party does not 21 waive its right to challenge a confidentiality designation by electing not to mount a challenge 22 promptly after the original designation is disclosed. 23 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating

24 Party's confidentiality designation must do so in good faith and must begin the process by 25 conferring directly with counsel for the Designating Party. In conferring, the challenging Party 26 must explain the basis for its belief that the confidentiality designation was not proper and must 27 give the Designating Party an opportunity to review the designated material, to reconsider the 28 circumstances, and, if no change in designation is offered, to explain the basis for the chosen

1 designation. A challenging Party may proceed to the next stage of the challenge process only if it 2 has engaged in this meet and confer process first. 3 6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality

4 designation after considering the justification offered by the Designating Party may file and serve 5 a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) 6 that identifies the challenged material and sets forth in detail the basis for the challenge. Each 7 such motion must be accompanied by a competent declaration that affirms that the movant has 8 complied with the meet and confer requirements imposed in the preceding paragraph and that sets 9 forth with specificity the justification for the confidentiality designation that was given by the 10 Designating Party in the meet and confer dialogue. The burden of persuasion in any such 11 challenge proceeding shall be on the Designating Party. Until the court rules on the challenge, all 12 parties shall continue to afford the material in question the level of protection to which it is 13 entitled under the Producing Party's designation. 14 15 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed

16 or produced by another Party or by a non-party in connection with this case only for prosecuting, 17 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 18 the categories of persons and under the conditions described in this Order. When the litigation has 19 been terminated, a Receiving Party must comply with the provisions of section 11, below (FINAL 20 DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 21 location and in a secure manner that ensures that access is limited to the persons authorized under 22 this Order. 23 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise

24 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 25 disclose any information or item designated CONFIDENTIAL only to: 26 (a) the Receiving Party's Counsel of record in this action, as well as

27 employees of said Counsel to whom it is reasonably necessary to disclose the information for this 28 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached

1 hereto as Exhibit A; 2 (b) the officers, directors, and employees (including House Counsel) of the

3 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 4 signed the "Agreement to Be Bound by Protective Order" (Exhibit A); 5 (c) experts (as defined in this Order) of the Receiving Party to whom

6 disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be 7 Bound by Protective Order" (Exhibit A); 8 9 (d) the Court and its personnel; (e) court reporters, their staffs, and professional vendors to whom disclosure is

10 reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by 11 Protective Order" (Exhibit A); 12 (f) during their depositions, witnesses in the action to whom disclosure is

13 reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order" 14 (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal 15 Protected Material must be separately bound by the court reporter and may not be disclosed to 16 anyone except as permitted under this Stipulated Protective Order. In the event the parties cannot 17 agree upon whether disclosure is "reasonably necessary" said parties shall meet and confer on the 18 matter and if there is no resolution may seek relief from the Court; 19 (g) the author of the document or the original source of the information and who

20 have signed the "Agreement to Be Bound by Protective Order" (Exhibit A). 21 7.3 Disclosure of "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY"

22 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 23 Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY 24 CONFIDENTIAL ­ ATTORNEYS' EYES ONLY" only to: 25 (a) the Receiving Party's Counsel of record in this action, as well as

26 employees of said Counsel to whom it is reasonably necessary to disclose the information for this 27 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached 28 hereto as Exhibit A;

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(b) experts (as defined in this Order) (1) to whom disclosure is reasonably

2 necessary for this litigation, (2) who have signed the "Agreement to Be Bound by Protective 3 Order" (Exhibit A); 4 5 (c) the Court and its personnel; (d) court reporters, their staffs, and professional vendors to whom disclosure is

6 reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by 7 Protective Order" (Exhibit A); and 8 9 (e) the author of the document or the original source of the information; (f) during their depositions, witnesses in the action to whom disclosure is

10 reasonably necessary and who have signed the "Agreement to be Bound by Protective Order". 11 Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material 12 must be separately bound by the court reporter and may not be disclosed to anyone except as 13 permitted under this Stipulated Protective Order. In the event the parties cannot agree upon 14 whether disclosure is "reasonably necessary" said parties shall meet and confer on the matter and 15 if there is no resolution may seek relief from the Court. 16 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

17 LITIGATION. 18 If a Receiving Party is served with a subpoena or an order issued in other litigation

19 that would compel disclosure of any information or items designated in this action as 20 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY," the 21 Receiving Party must so notify the Designating Party, in writing (by fax, if possible) immediately 22 and in no event more than three court days after receiving the subpoena or order. Such notification 23 must include a copy of the subpoena or court order. 24 The Receiving Party also must immediately inform in writing the Party who caused the

25 subpoena or order to issue in the other litigation that some or all the material covered by the 26 subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must 27 deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that 28 caused the subpoena or order to issue.

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The purpose of imposing these duties is to alert the interested parties to the existence

2 of this Protective Order and to afford the Designating Party in this case an opportunity to try to 3 protect its confidentiality interests in the court from which the subpoena or order issued. The 4 Designating Party shall bear the burdens and the expenses of seeking protection in that court of its 5 confidential material ­ and nothing in these provisions should be construed as authorizing or 6 encouraging a Receiving Party in this action to disobey a lawful directive from another court. 7 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

8 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 9 Material to any person or in any circumstance not authorized under this Stipulated Protective 10 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 11 unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) 12 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 13 Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to 14 Be Bound" that is attached hereto as Exhibit A. 15 10. FILING PROTECTED MATERIAL. Without written permission from the Designating

16 Party or a court order secured after appropriate notice to all interested persons, a Party may not file 17 in the public record in this action any Protected Material. A Party that seeks to file under seal any 18 Protected Material must comply with Civil Local Rule 79-5. 19 11. FINAL DISPOSITION. Unless otherwise ordered or agreed in writing by the

20 Producing Party, within sixty days after the final termination of this action defined as the 21 dismissal or entry of judgment by the district court, or if an appeal is filed, the disposition of the 22 appeal, each Receiving Party must return all Protected Material to the Producing Party. As used in 23 this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries 24 or any other form of reproducing or capturing any of the Protected Material. With permission in 25 writing from the Designating Party, the Receiving Party may destroy some or all of the Protected 26 Material instead of returning it. Whether the Protected Material is returned or destroyed, the 27 Receiving Party must submit a written certification to the Producing Party (and, if not the same 28 person or entity, to the Designating Party) by the sixty day deadline that identifies (by category,

1 where appropriate) all the Protected Material that was returned or destroyed and that affirms that 2 the Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms 3 of reproducing or capturing any of the Protected Material. Notwithstanding this provision, 4 Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal 5 memoranda, correspondence or attorney work product, even if such materials contain Protected 6 Material. Any such archival copies that contain or constitute Protected Material remain subject to 7 this Protective Order as set forth in Section 4 (DURATION), above. 8 9 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person

10 to seek its modification by the Court in the future. 11 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective

12 Order no Party waives any right it otherwise would have to object to disclosing or producing any 13 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 14 Party waives any right to object on any ground to use in evidence of any of the material covered 15 by this Protective Order. 16 17 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 18 DATED: October 19 20 DATED: October 21 22 23 DATED: October 24 25 29 , 2008 29 , 2008 ____/s/_________________________________ Randolph S. Hom Attorneys for Defendants City of Hayward, Art Thoms, Scott Lunger, and Zachary Hoyer /s/ James Murray Attorney for Defendants American Discount Security and Daud Wardak IST
UNIT ED

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, 2008

____/s/_________________________________ Jivaka Candappa Attorneys for Plaintiff Kevin Walker

26 PURSUANT TO STIPULATION, IT IS SO ORDERED.

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11/06/08 27 DATED: ________________________ _____________________________________ The Honorable Thelton E. Henderson 28 United States District Court n enderso
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1 2 3 I, _____________________________ [print or type full name], of _________________ [print 4 or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Northern District of California on [date] in the case of Kevin Walker v. City of Hayward, et al. 7 United States District Court Case No. C07 06205 (TEH). I agree to comply with and to be bound 8 by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure 9 to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 10 promise that I will not disclose in any manner any information or item that is subject to this 11 Stipulated Protective Order to any person or entity except in strict compliance with the provisions 12 of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the Northern 14 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, 15 even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone number] 18 as my California agent for service of process in connection with this action or any proceedings 19 related to enforcement of this Stipulated Protective Order. 20 21 Date: _________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: ______________________________ 24 [printed name] 25 Signature: __________________________________ 26 [signature] 27 28 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND