Jenkins et al v. County of Alameda et al

Filing 37

ORDER GRANTING 36 Stipulation RE PROTECTIVE ORDER. Signed by Judge JEFFREY S. WHITE on 5/25/11. (jjoS, COURT STAFF) (Filed on 5/25/2011)

Case3:10-cv-02800-JSW Document36

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Clyde A. Thompson, SBN 72920
Benjamin A. Thompson, SBN 236590
HAAPALA, THOMPSON & ABERN, LLP
1939 Harrison Street, Suite 800
Oakland, California 94612
Tel: [phone]
Fax: [phone]
Attorneys For Defendants
COUNTY OF ALAMEDA and SHERIFF GREGORY J. AHERN

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John L. Burris
Adanté D. Pointer
Law Offices of John L. Burris
7677 Oakport Street, Suite 1120
Oakland, California 94621-1939
Tel
510-839-5200
Fax: [phone]

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Attorneys for Plaintiffs

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Matthew M. Grigg
Maya Pri-Tal Ohana
Law Offices of Nancy E. Hudgins
565 Commercial Street, 4th Floor
San Francisco, California 94111
Tel: [phone]
Fax: [phone]

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Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Haapala, Thompson & Abern LLP

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Attorneys for Defendant
PRISON HEALTH SERVICES

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO

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JARIAHA JENKINS, individually and as
personal representative of the ESTATE OF
ALBERT R. JENKINS JR, the ESTATE OF
ALBERT R. JENKINS JR., and JARIAHA
JENKINS as Guardian ad Litem of minors,
S.J. and A.J.,
Plaintiffs,

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vs.

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COUNTY OF ALAMEDA, a governmental
entity; et al.

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Defendants.

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) Case No.: C10-2800 JSW
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) STIPULATED PROTECTIVE ORDER
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Jenkins v. County of Alameda, et a.,/Case #CV10-2800 JSW
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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation would be warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery, and that the protection it affords extends

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only to the limited information or items that are entitled under the applicable legal principles to

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treatment as confidential. The parties further acknowledge, as set forth in Section 10, below, that

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this Stipulated Protective Order creates no entitlement to file confidential information under seal;

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Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

1. PURPOSES AND LIMITATIONS

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Haapala, Thompson & Abern LLP

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Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards

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that will be applied when a party seeks permission from the court to file material under seal.

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2. DEFINITIONS

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2.1

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Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and outside counsel (and their support staff).
2.2

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner generated, stored, or maintained (including, among other things, testimony,

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transcripts, or tangible things) that are produced or generated in disclosures or responses to

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discovery in this matter.

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2.3

“Confidential” Information or Items: information (regardless of how generated,

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stored or maintained) or tangible things that qualify for protection under standards developed

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under F.R.Civ.P. 26(c).
Receiving Party: a Party that receives Disclosure or Discovery Material from a

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2.4

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Producing Party.

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2.5

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Producing Party: a Party or non-party that produces Disclosure or Discovery

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

it produces in disclosures or in responses to discovery as “Confidential.”
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Protected Material: any Disclosure or Discovery Material that is designated as

“Confidential.”
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Outside Counsel: attorneys who are not employees of a Party but who are

retained to represent or advise a Party in this action.

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House Counsel: attorneys who are employees of a Party.

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2.10

Counsel (without qualifier): Outside Counsel and House Counsel (as well as

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their support staffs).

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2.11

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Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Haapala, Thompson & Abern LLP

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Expert: a person with specialized knowledge or experience in a matter pertinent

to the litigation who has been retained by a Party or its counsel to serve as an expert witness or
as a consultant in this action and who is not a past or a current employee of a Party.
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Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing,

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storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.

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3. SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also any information copied or extracted therefrom, as well as

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all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or

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presentations by parties or counsel to or in court or in other settings that might reveal Protected

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Material.

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4. DURATION

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Even after the termination of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs.

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5. DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or non-party that designates information or items for protection under this Order must take

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care to limit any such designation to specific material that qualifies under the appropriate

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standards. A Designating Party must take care to designate for protection only those parts of
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material, documents, items, or oral or written communications that qualify - so that other

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portions of the material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process, or to impose unnecessary

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expenses and burdens on other parties), expose the Designating Party to sanctions.

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If it comes to a Party’s or a non-party’s attention that information or items that it
designated for protection do not qualify for protection at all, or do not qualify for the level of

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

protection initially asserted, that Party or non-party must promptly notify all other parties that it

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Haapala, Thompson & Abern LLP

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is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered,

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material that qualifies for protection under this Order must be clearly so designated before the

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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 or

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other pretrial or trial proceedings), that the Producing Party affix the legend

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“CONFIDENTIAL” at a conspicuous location on each page that contains protected material.

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A Party or non-party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has indicated

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which material it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed “Confidential.”

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After the inspecting Party has identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions thereof, qualify for protection

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under this Order, then, before producing the specified documents, the Producing Party must

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affix the appropriate legend “CONFIDENTIAL” at a conspicuous location on each page that

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contains Protected Material.
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(b) for testimony given in deposition or in other pretrial or trial proceedings that the

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Party or non-party offering or sponsoring the testimony identify on the record, before the close

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of the deposition, hearing, or other proceeding, all protected testimony, and further specify any

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portions of the testimony that qualify as “CONFIDENTIAL.” When it is impractical to identify

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separately each portion of testimony that is entitled to protection, and when it appears that

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substantial portions of the testimony may qualify for protection, the Party or non-party that

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sponsors, offers, or gives the testimony may invoke on the record (before the deposition or

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proceeding is concluded) a right to have up to 30 days to identify the specific portions of the

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testimony as to which protection is sought. Only those portions of the testimony that are

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

appropriately designated for protection within the 30 days shall be covered by the provisions of

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Haapala, Thompson & Abern LLP

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this Stipulated Protective Order.
(c) for information produced in some form other than documentary, and for any

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other tangible items, that the Producing Party affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend

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“CONFIDENTIAL.”

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items as “CONFIDENTIAL” does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such material. If material

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is appropriately designated as “CONFIDENTIAL” after the material was initially produced, the

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Receiving Party, on timely notification of the designation, must make reasonable efforts to

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assure that the material is treated in accordance with the provisions of this Order.

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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary

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economic burdens, or a later significant disruption or delay of the litigation, a Party does not

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waive its right to challenge a confidentiality designation by electing not to mount a challenge

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promptly after the original designation is disclosed.

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6.2

Meet and Confer. A Party that elects to initiate a challenge to a Designating
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Party’s confidentiality designation must do so in good faith and must begin the process by

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conferring directly (in voice to voice dialogue; other forms of communication are not sufficient)

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with counsel for the Designating Party. In conferring, the challenging Party must explain the

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basis for its belief that the confidentiality designation was not proper and must give the

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Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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designation. A challenging Party may proceed to the next stage of the challenge process only if

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it has engaged in this meet and confer process first.

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6.3

Judicial Intervention. A Party that elects to press a challenge to a confidentiality

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

designation after considering the justification offered by the Designating Party may file and

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Haapala, Thompson & Abern LLP

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serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if

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applicable) that identifies the challenged material and sets forth in detail the basis for the

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challenge. Each such motion must be accompanied by a competent declaration that affirms that

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the movant has complied with the meet and confer requirements imposed in the preceding

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paragraph and that sets forth with specificity the justification for the confidentiality designation

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that was given by the Designating Party in the meet and confer dialogue.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Until the court rules on the challenge, all parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing Party’s designation.

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7. ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed

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or produced by another Party or by a non-party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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When the litigation has been terminated, a Receiving Party must comply with the provisions of

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section 11, below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and

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in a secure manner that ensures that access is limited to the persons authorized under this Order.
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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any information or item designated CONFIDENTIAL only to:

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(a) the Receiving Party’s Outside Counsel of record in this action, as well as

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employees of said Counsel to whom it is reasonably necessary to disclose the information for

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this litigation;

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Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Haapala, Thompson & Abern LLP

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(b) experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this litigation;
(c) the Court and its personnel;
(d) court reporters, their staffs, and professional vendors to whom disclosure is
reasonably necessary for this litigation;

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(e) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary. Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order; and

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(f) the author of the document or the original source of the information.
8. 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

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would compel disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in writing (by

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email, if possible) immediately and in no event more than three court days after receiving the

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subpoena or order. Such notification must include a copy of the subpoena or court order.

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The Receiving Party also must immediately inform in writing the Party who caused the

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subpoena or order to issue in the other litigation that some or all the material covered by the

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subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must

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deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that

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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 of

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this Protective Order and to afford the Designating Party in this case an opportunity to try to

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protect its confidentiality interests in the court from which the subpoena or order issued. The

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Designating Party shall bear the burdens and the expenses of seeking protection in that court of

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its confidential material - and nothing in these provisions should be construed as authorizing or

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encouraging a Receiving Party in this action to disobey a lawful directive from another court.

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9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Order, the Receiving Party must immediately: (a) notify in writing the Designating Party of the

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Haapala, Thompson & Abern LLP

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unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material,

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and (c) inform the person or persons to whom unauthorized disclosures were made of all the

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terms of this Order.

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10. FILING PROTECTED MATERIAL

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Without written permission from the Designating Party or a court order secured after

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appropriate notice to all interested persons, a Party may not file in the public record in this

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action any Protected Material. A Party that seeks to file under seal any Protected Material must

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comply with Civil Local Rule 79-5.

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11. FINAL DISPOSITION

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Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days

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after the final termination of this action, each Receiving Party must return all Protected Material

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to the Producing Party. As used in this subdivision, “all Protected Material” includes all copies,

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abstracts, compilations, summaries or any other form of reproducing or capturing any of the

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Protected Material. With permission in writing from the Designating Party, the Receiving Party

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may destroy some or all of the Protected Material instead of returning it. Whether the Protected

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Material is returned or destroyed, the Receiving Party must submit a written certification to the

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Producing Party (and, if not the same person or entity, to the Designating Party) by the sixty day

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deadline that identifies (by category, where appropriate) all the Protected Material that was
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returned or destroyed and that affirms that the Receiving Party has not retained any copies,

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abstracts, compilations, summaries or other forms of reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival

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copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney-

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work product, even if such materials contain Protected Material. Any such archival copies that

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contain or constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION), above.

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12. MISCELLANEOUS

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Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Haapala, Thompson & Abern LLP

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Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the Court in the future.
12.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

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Order, no Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly,

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no Party waives any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: May 23, 2011

LAW OFFICES OF JOHN BURRIS
By:

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Dated: May 19, 2011

HAAPALA, THOMPSON & ABERN, LLP
By:

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Dated: May 19, 2011

/s/ Adanté D. Pointer
Adanté D. Pointer
Attorneys For Plaintiffs
*Mr. Pointer provided his verbal consent that
this stipulation be electronically filed.

/s/ Benjamin Thompson
Benjamin A. Thompson
Attorneys For Defendants
COUNTY OF ALAMEDA and
SHERIFF GREGORY J. AHERN

LAW OFFICES OF NANCY E. HUDGINS
By:

*/s/ Matthew Grigg
Matthew Grigg, Attorneys For Defendant
PRISON HEALTH SERVICES
*Mr. Grigg provided his consent that this
stipulation be electronically filed.
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: May 25, 2011

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Honorable Jeffrey S. White
United States Judge

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Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Haapala, Thompson & Abern LLP

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Jenkins v. County of Alameda, et a.,/Case #C10-2800 JSW
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