Martin v. Evans et al

Filing 105

ORDER by Magistrate Judge Maria-Elena James granting 103 Stipulation regarding production of documents by non-party California Office of the Inspector General. (rmm2S, COURT STAFF) (Filed on 9/5/2012)

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SETH L. NEULIGHT, State Bar No. 184440
[e-mail]
MATHEW J. FRANKEL, State Bar No. 256633
[e-mail]
ALEXANDRA DEVENDRA, State Bar No. 278048
[e-mail]
NIXON PEABODY LLP
One Embarcadero Center, 18th Floor
San Francisco, California 94111-3600
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiff
RUSSELL MARTIN

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ROBERT A. BARTON, Inspector General
JAMES C. SPURLING, State Bar No. 109432
Chief Counsel
3927 Lennane Drive, Suite 220
P.O. Box 348780
Sacramento, CA 95834
Telephone: [phone]
Fax: [phone]
[e-mail]

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Attorney for Non-Party
CALIFORNIA OFFICE OF THE INSPECTOR GENERAL

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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RUSSELL MARTIN,

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Case No. C 08-4067 JW-MEJ
Plaintiff,

v.

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M. S. EVANS, et al.,

STIPULATION AND [PROPOSED]
ORDER REGARDING PRODUCTION
OF DOCUMENTS BY NON-PARTY
CALIFORNIA OFFICE OF THE
INSPECTOR GENERAL
[Local Rule 7-11; Fed. R. Civ. P. 26, 45.]

Defendants.

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Pursuant to Local Rule 7-11 and Rules 26 and 45 of the Federal Rules of Civil Procedure,

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Plaintiff Russell Martin (“Martin”) and non-party California Office of the Inspector General (“OIG”),

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by and through their respective counsel, hereby stipulate and request that the Court enter an order as

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follows:

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WHEREAS, on or about March 21, 2012, Martin, through counsel, issued a subpoena to OIG

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seeking certain categories of documents in connection with discovery in this litigation (the

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“Subpoena”);

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WHEREAS, on or about April 4, 2012, OIG served responses to that subpoena and objected

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to the production of documents based, inter alia, on grounds of confidentiality, official information,

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and California statutory protections for documents in OIG’s possession, and OIG produced a

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privilege log listing all responsive documents that were being withheld on these bases;

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WHEREAS, on May 23, 2012, the Court (Magistrate Judge James) entered a discovery order

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resolving disputes arising from Martin’s subpoena requests to non-party Salinas Valley State Prison

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(“SVSP”) that were substantially similar to the subpoena requests issued to OIG, which order held

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that the documents requested by Martin from SVSP were discoverable pursuant to a protective order

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containing terms agreed to by the counsel for the parties and as instructed by the Court;

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WHEREAS, on May 31, 2012, the parties, through counsel, submitted a compliant proposed

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stipulated protective order, and on June 5, 2012, the Court entered that protective order (“Protective

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Order”);

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WHEREAS, in light of these orders, on or about June 7, 2012, Martin’s counsel sent a letter

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to OIG’s counsel seeking to meet and confer about OIG’s production of documents responsive to

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Martin’s subpoena that had been withheld by OIG;

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WHEREAS, Martin’s counsel and OIG’s counsel discussed the issue by telephone on June

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15, 2012, and OIG’s counsel agreed that, in light of the May 23 discovery order, the OIG would be

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willing to produce them subject to the Protective Order and to entry of a separate stipulation by

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which:

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STIPULATION AND [PROPOSED] ORDER REGARDING PRODUCTION OF DOCUMENTS BY NONPARTY CALIFORNIA OFFICE OF THE INSPECTOR GENERAL

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(A)

OIG would reserve and not waive any and all rights to object to the disclosure

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or production of these or any other documents in its possession, custody, or control in

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connection with any other matter or proceeding;

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(B)

The documents responsive to the Subpoena would be produced only subject to

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the terms of the Protective Order, would not be disclosed or used outside of this litigation or

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for any purpose other than this litigation; and

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(C)

Production of the documents responsive to the Subpoena would occur only

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pursuant to entry of this stipulation as an order and that such production would not in the

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future be construed as a waiver of the OIG’s legal right and authority to conduct confidential

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reviews of the California Department of Corrections and Rehabilitation (“CDCR”) or its

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processes, policies, practices or procedures.

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THEREFORE, it is hereby stipulated and, subject to the Court’s approval, ORDERED that:

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1.

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OIG shall produce all documents in its possession, custody, or control that are

responsive to the Subpoena within fourteen (14) days of the date this order is entered.
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OIG’s production pursuant to paragraph 1, above, shall be subject to all terms and

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conditions of the Protective Order, including without limitation any confidentiality designation(s)

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OIG may make consistent with the Protective Order;

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3.

OIG’s production pursuant to paragraph 1, above, shall be without prejudice to its

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ability to object to the disclosure or production of the documents to be produced pursuant to

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paragraph 1, and/or any other documents, in connection with any other matter or proceeding. OIG

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expressly reserves any and all rights that it may have to refuse or object to production of documents

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except as expressly required by this order. OIG’s production of documents pursuant to this order

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shall not waive any objection or privilege it may assert in response to a request to produce or disclose

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of such documents, and/or any other documents, in connection with in any other matter or

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proceeding.

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4.

Documents produced by OIG pursuant to paragraph 1, above, shall not be disclosed or

used outside of this litigation or for any purpose other than this litigation.

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STIPULATION AND [PROPOSED] ORDER REGARDING PRODUCTION OF DOCUMENTS BY NONPARTY CALIFORNIA OFFICE OF THE INSPECTOR GENERAL

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5.

OIG’s production pursuant to paragraph 1, above, shall not be deemed or construed as

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a waiver of its legal right and authority to conduct confidential reviews of the CDCR or its processes,

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policies, practices or procedures.

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IT IS SO STIPULATED.

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Dated: August 29, 2012

NIXON PEABODY LLP

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By: /s/ Matthew J. Frankel

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Attorneys for Plaintiff
RUSSELL MARTIN

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Dated: August 29, 2012

ROBERT A. BARTON
INSPECTOR GENERAL

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By: /s/ James C. Spurling
Chief Counsel

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Attorneys for Non-Party
CALIFORNIA OFFICE OF THE
INSPECTOR GENERAL

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GENERAL ORDER 45 SUBSECTION (X)(B) ATTESTATION

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I hereby attest that concurrence in the filing of the document has been obtained from James C.
Spurling.
/s/ Matthew J. Frankel

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PURSUANT TO STIPULATION, AND GOOD CAUSE APPEARING, IT IS SO ORDERED.

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DATED:

September 5, 2012

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Hon. Maria-Elena James
Chief United States Magistrate Judge

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14043416.4

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STIPULATION AND [PROPOSED] ORDER REGARDING PRODUCTION OF DOCUMENTS BY NONPARTY CALIFORNIA OFFICE OF THE INSPECTOR GENERAL