Hall v. City of Oakland et al

Filing 21

STIPULATED PROTECTIVE ORDER. Signed by Judge Maxine M. Chesney on February 8, 2010. (mmclc1, COURT STAFF) (Filed on 2/8/2010)

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1 JOHN A. RUSSO, City Attorney - SB#129729 RANDOLPH W. HALL, Chief Assistant City Attorney - SB#080142 2 WILLIAM E. SIMMONS, Supervising Trial Attorney - SB#121266 ARLENE M. ROSEN, Senior Deputy City Attorney - SB#100160 3 One Frank H. Ogawa Plaza, 6th Floor 4 Oakland, California 94612 Telephone: (510) 238-6392 Fax: (510) 238-6500 5 27049/635364 6 John J. Verber, Attorney ­ SB#139917 BURNHAM BROWN 7 A Professional Law Corporation 8 P.O. Box 119 Oakland, CA 94604 9 Telephone: 510-444-6800 Facsimile: 510-835-6666 10 11 Attorneys for Defendants CITY OF OAKLAND and RAMON ALCANTAR 12 13 14 15 LORENZO HALL, 16 17 18 CITY OF OAKLAND, a municipal corporation; 19 RAMON ALCANTAR, individually, and in his capacity as a police officer for the CITY OF 20 OAKLAND; and, Oakland police officers DOES 21 1-25, inclusive, 22 23 24 Plaintiff LORENZO HALL ("Plaintiff", individually and by and through the LAW Defendants. v. Plaintiff, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. C-09-01047-MMC STIPULATED PROTECTIVE ORDER 25 OFFICES OF JOHN L. BURRIS and DEFENDANTS CITY OF OAKLAND, AND RAMON 26 ALCANTAR ("Defendants"), by and through their respective attorneys, the OFFICE OF STIPULATED PROTECTIVE ORDER C-09-01047-MMC 1 2 3 4 5 THE CITY ATTORNEY OF OAKLAND, and BURNHAM BROWN hereby stipulate to the following protective order: 1. DEFINITIONS 1.1 Party: any party to this action, including all of its officers, directors, 6 employees, consultants, retained experts, and outside counsel (and their support staff). 7 1.2 Disclosure or Discovery Material: all items or information, regardless of 8 the medium or manner generated, stored, or maintained (including, among other things; 9 10 11 12 13 14 15 16 a) Copies of certain personnel files for RAMON ALCANTAR for a period covering the dates of his employment with the Oakland Police Department from June 23, 2001 through June 23, 2006. b) Copies of certain Internal Affairs files pertaining to complaints 1.3 "Confidential" Information or Items: information (regardless of how generated, stored or maintained) or tangible things qualify for protection under standards developed under F.R.Civ. P. 26(c). This material includes, but is not limited to: 17 to the Oakland Police Department regarding performance of duty and/or false arrest for 18 RAMON ALCANTAR for a period from June 23, 2001 through June 23, 2006. 19 c) Any Internal Affairs files pertaining to the incident which is 20 alleged in the Second Amended Complaint on file in this action. 21 22 23 24 25 26 extremely sensitive "Confidential Information or Items" whose disclosure to another Party or non-party would create a substantial risk of serious injury that could not be avoided by less restrictive means. 1.4 "Highly Confidential-Attorneys' Eyes Only" Information or Items: 2 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 1.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 1.6 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 1.7 Designating Party: a Party or non-party that designates information or 7 items that it produces in disclosures or in responses to discovery as "Confidential" or 8 "Highly Confidential-Attorneys Eyes Only." 9 1.8 Protected Material: any Disclosure or Discovery Material that is 10 designated as "Confidential" or as "Highly Confidential-Attorneys' Eyes Only." 11 12 13 14 15 1.10 1.11 House Counsel: attorneys who are employees of a Party. Counsel (without qualifier): Outside Counsel and House Counsel (as 1.9 Outside Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action. 16 well as their support staffs). 17 1.12 Expert: a person with specialized knowledge or experience in a 18 matter pertinent to the litigation who has been retained by a Party or its counsel to serve 19 as an expert witness or as an consultant n this action and who is not a past or a current 20 employee of a Party and who, at the time of retention, is not anticipated to become an 21 employee of a Party. This definition includes a professional jury or trial consultant retained 22 in connection with this litigation. 23 24 25 26 1.13 Professional Vendors: person or entities that provide litigation support services (e.g., photocopying: videotaping; translating; preparing exhibits or 3 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their employees and subcontractors. 2. SCOPE The protections conferred by this Stipulation and Order cover not only Protected 6 Material (as defined above), but also any information copied or extracted therefrom, as 7 well as all copies, excerpts, summaries, or compilations thereof, plus testimony, 8 conversations, or presentations by parties or counsel to or in court or in other settings that 9 might reveal Protected Material. 10 11 12 13 14 15 16 4. DESIGNATING PROTECTED MATERIAL 4.1 F.R.Civ. P. 26(c). The information sought to be protected must be 3. DURATION Even after the termination of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or court order otherwise directs. 17 properly qualified for protection under F.R.Civ. P. 26(c). Counsel shall not designate any 18 discovery material "CONFIDENTIAL" without first making a good faith determination that 19 protection is warranted. 20 4.2 Manner and Timing of Designations. Except as otherwise provided in 21 this Order (see, e.g., second paragraph of section 4.2(a), below), or as otherwise 22 stipulated or ordered, material that qualified for protection under the Order must be clearly 23 so designated before the material is disclosed or produced. 24 25 26 Designation in conformity with this Order requires: 4 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 (a) for information in documentary form (apart from transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" at the top of each page that contains protected material. A Party or non-party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY." After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order, then, before producing the specified documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY") at the top of each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must 17 clearly identify the protected portion(s) (e.g., by making appropriate markings in the 18 margins) and must specify, for each portion, the level of protection being asserted (either 19 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY"). 20 (b) for testimony given in deposition or in other pretrial or trial proceedings, 21 that the Party or non-party offering or sponsoring the testimony identify on the record, 22 before the close of the deposition, hearing, or other proceeding, all protected testimony, 23 and further specify any portions of the testimony that qualify as "HIGHLY 24 CONFIDENTIAL--ATTORNEYS' ONLY." When it is impractical to identify separately each 25 portion of testimony that is entitled to protection, the Party or non-party that sponsors, 26 offers, or gives the testimony may invoke on the record (before the deposition or 5 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 7 8 9 10 11 12 proceeding ins concluded) a right to have up to 20 days to identify the specify the level of protection being asserted ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY"). Only those portions of the testimony that are appropriately designated for protection within the 20 days shall be covered by the provisions of this Stipulated Protective Order. Transcript pages containing Protected Material must be separately bound by the court reporter, who must affix to the top of each such page the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," as instructed by the Party or non-party offering or sponsoring the witness or presenting the testimony. ( c) for information produced in some form other than documentary, and for 13 any other tangible items, that the Producing Party affix in a prominent place on the exterior 14 of the container or containers in which the information or item is stored the legend 15 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY." 16 4.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 17 failure to designate qualified information or items as "Confidential" or "Highly Confidential-- 18 Attorneys' Eyes Only" does not, standing alone, waive the Designating Party's right to 19 secure protection under this Order for such material. If material is appropriately designated 20 as "Confidential" or "Highly Confidential--Attorneys' Eyes Only" after the material was 21 initially produced, the Receiving Party, on timely notification of the designation, must make 22 reasonable efforts to assure that the material is treated in accordance with the provisions of 23 the Order. 24 25 26 /// /// 6 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 7 8 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5.1 Timing of Challenges. Unless a proper challenge to a Designating Party's confidentially designation is necessary to avoid foreseeable substantial unfairness, unnecessary economic burden, or a later significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. 5.2 Meet and Confer. A Party that elects to initiate a challenge to a 9 Designating Party's confidentiality designation must do so in good faith and must begin the 10 process by conferring directly (in voice to voice dialogue; other forms of communication are 11 not sufficient) with counsel for the Designating Party. In conferring, the challenging Party 12 must explain the basis for its belief that the confidentiality designation was not proper and 13 must give the Designating Party an opportunity to review the designated material, to 14 reconsider the circumstances, and, if no change in designation is offered, to explain the 15 basis for the chose designation. A challenging Party may proceed to the next stage of the 16 challenge process only if it has engaged in this meet and confer process first. 17 5.3 Judicial Intervention. A Party that elects to press a challenge to a 18 confidentiality designation after considering the justification offered by the Designating 19 Party may file and serve a motion under Civil Rule 7 (and in compliance with Civil Local 20 Rule 79-5, if applicable) that identifies the challenged material and sets forth in detail the 21 basis for the challenge. Each such motion must be accompanied by a competent 22 declaration that affirms that the movant has complied with the meet and confer 23 requirements imposed in the preceding paragraph and that sets forth with specificity the 24 justification for the confidentiality designation that was given by the Designating Party in the 25 meet and confer dialogue. 26 7 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 7 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Until the court rules on the challenge, all parties shall continue to afford the material in question the level of protection tow which it is entitled under the Producing Party's designation. 6. ACCESS TO AND USE OF PROTECTED MATERIAL 6.1 Basic Principles. A Receiving Party may use Protected Material that is 8 disclosed or produced by another Party or by a non-party in connection with this case only 9 for prosecuting, defending, or attempting to settle this litigation. Such Protected material 10 may be disclosed only to the categories of persons and under the conditions described in 11 this Order. When the litigation has terminated, a Receiving Party must comply with the 12 provisions of section 10, below (FINAL DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a 14 location and in a secure manner that ensures that access is limited to the persons 15 authorized under this Order. 16 17 18 19 20 21 22 23 (a) employees of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); (b) experts (as defined in this Order) of the Receiving Party to whom 6.2 Disclosure of "CONFIDENTIAL: Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated CONFIDENTIAL only to: 24 disclosure is reasonably necessary for this litigation and who have signed the "Agreement 25 to Be Bound by Protective Order" (Exhibit A); 26 (c) the Court and its personnel; 8 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 7 8 9 10 11 (d) court reporters, their staffs, and professional venders to whom disclosure is reasonably necessary for this litigation and who have sighed the "Agreement to Be Bound by Protective Order" (Exhibit A); (e) during their deposition, witnesses in the action to whom disclosure is reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. (f) the author the document or the original source of the information. 6.3 Disclosure of "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES 12 ONLY" Information or Items. Unless otherwise ordered by the court or permitted in writing 13 by the Designating Party, Receiving Party may disclose any information or item designated 14 "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY" only to: 15 16 17 18 19 20 (b) (c) the Court and it's personnel; court reporters, their staffs, and professional vendors to whom (a) Experts (as defined in this Order) (1) to whom disclosure is reasonably necessary for this litigation, who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); 21 disclosure is reasonably necessary for this litigation and who have sighed the "Agreement 22 to Be Bound by Protective Order" (Exhibit A); and 23 24 information. 25 26 (d) the author of the document or the original source of the 9 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 7 8 9 10 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION________________ If a Receiving Party is served with a subpoena or an order issued in other litigation that would compel disclosure of any information or items designated in this action as "CONFIDENTIAL" or HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," the Receiving Party must so notify the Designating Party, in writing (by fax, if possible) immediately and in no event more than three court days after receiving the subpoena or order. Such notification must include a copy of the subpoena or court order. The Receiving Party also must immediately inform in writing the Party who 11 caused the subpoena or order to issue in the other litigation that some or all the material 12 covered by the subpoena or order is the subject of this Protective Order. In addition, the 13 Receiving Party must deliver a copy of this Stipulated Protective Order promptly to the 14 Party in the other action that caused the subpoena or order to issue. 15 The purpose of imposing these duties is to alert the interested parties to the 16 existence of this Protective Order and to afford the Designation Party in this case an 17 opportunity to try to protect its confidentiality interests in the court from which the 18 subpoena or order issued. The Designating Party shall bear the burdens and the 19 expenses of seeking protection in that court of its confidential material--and nothing in 20 these provisions should be construed as authorizing or encouraging a Receiving Party in 21 this action to disobey a lawful directive from another court. 22 23 24 25 26 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 10 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 7 8 this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all of the terms of this Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A. 9. FILING PROTECTED MATERIAL. Without written permission form the 9 Designating Party or a court order secured after appropriate notice to all interested 10 persons, a Party may not in the public record in this action any Protected material. A 11 Party that seeks to file under seal any Protected Material must comply with Civil Local 12 Rule 79-5. In addition to placing the documents in a sealed envelope with instructions that 13 the envelope is not to be opened absent further order of the court, the envelope should be 14 labeled to identify title of the case, the case number, and the title of the document. 15 10. FINAL DISPOSITION. Unless otherwise ordered or agreed in writing by the 16 Producing Party, within sixty days after the final termination of this action, each Receiving 17 Party must return all Protected Material to the Producing Party, as used in this subdivision, 18 "all Protected Material" includes all copies, abstracts compilations, summaries or any other 19 form of reproducing or capturing any of the Protected Material. With permission in writing 20 from the Designating Party, the Receiving Party may destroy some or all of the Protected 21 Material instead or returning it. Whether the Protected Material is returned or destroyed, 22 the Receiving Party must submit a written certification to the Producing Party (and, if not 23 the same person or entity, to the Designating Party) by the sixty day deadline that 24 identifies (by category, where appropriate) all the Protected Material that was returned or 25 destroyed and that affirms that the Receiving Party has not retained any copies, abstracts, 26 compilations, summaries or other forms of reproducing or capturing any of the Protected 11 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 7 8 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION), above. 11. MISCELLANEOUS Right to Further Relief. Nothing in this Order abridges the right of any 9 person to seek its modification by the Court in the future. 10 12. JURISDICTION. Any matter covered by this Stipulation and Order shall be 11 referred to and/or overseen by a United States Magistrate Judge for 24 months after the 12 final termination of this action. 13 THE PARTIES HEREBY STIPULATE TO THE TERMS OF THE PROTECTIVE ORDER AS SET FORTH ABOVE. 14 15 DATED: February 3, 2010 16 17 18 19 20 21 22 23 24 25 26 By: //s// ARLENE M. ROSEN______ ARLENE M. ROSEN Attorneys for Defendant City of Oakland DATED: February 3, 2010 OFFICE OF THE CITY ATTORNEY LAW OFFICES OF JOHN L. BURRIS By:_//s//BENJAMIN NISENBAUM___ BENJAMIN NISENBAUM Attorneys for Plaintiff Lorenzo Hall 12 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 DATED: February 3, 2010 2 3 4 5 BURNHAM BROWN By: //s// JOHN J. VERBER____________ JOHN J. VERBER Attorneys for Defendant Ramon Alcantar 6 PURSUANT TO STIPULATION, IT IS SO ORDERED. 7 February 8, 20 8 DATED:____________10 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ___________________________________ SAUNDRA B. ARMSTRONG United States District Judge MAXINE M. CHESNEY 13 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 2 3 4 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, __________________________[print or type full name], of 5 ________________________________[print or type full address], declare under penalty 6 of perjury that I have read in its entirety and understand the Stipulated Protective Order 7 8 9 10 Case No. C-09-01047 MMC. I agree to comply with and be bound by all the terms of this that was issued by the United States Court for the Northern District of California on ______________________[date] in the case of Lorenzo Hall v. City of Oakland, et al. 11 Stipulated Protective Order and I understand and acknowledge that failure to so comply 12 could expose me to sanctions and punishment in the nature of contempt. I solemnly 13 promise that I will not disclose in any manner any information or item that is subject to this 14 Stipulated Protective Order to any person or entity except in strict compliance with the 15 16 I further agree to submit to the jurisdiction of the United States District for the 17 18 Northern District of California for the purpose of enforcing the terms of this Stipulated provisions of this Order. 19 Protective Order, even if such enforcement proceedings occur after termination of this 20 action. 21 22 23 24 25 26 this action or any proceedings related to enforcement of this Stipulated Protective Order. I hereby appoint_______________________________[print or type full name] of ___________________________________________[print or type full address and telephone number] as my California agent for service of process in connection with 14 C-09-01047-MMC STIPULATED PROTECTIVE ORDER 1 Date:_____________________ 2 City and State where sworn and signed:___________________________ 3 Printed name:_______________________________ [printed name] 4 5 6 Signature:_________________________________ [signature] 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 15 C-09-01047-MMC STIPULATED PROTECTIVE ORDER

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