Hernandez et al v. Vilsack

Filing 26

STIPULATION AND PROTECTIVE ORDER. Signed by Judge Thelton E. Henderson on 05/12/2011. (tmi, COURT STAFF) (Filed on 5/12/2011)

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MELINDA HAAG (CSBN 132612)
United States Attorney
JOANN M. SWANSON (CSBN 88143)
Chief, Civil Division
ANN MARIE REDING (CSBN 226864)
Assistant United States Attorney

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450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]

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Attorneys for Defendant
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MURLENE J. RANDLE, State Bar #098124
Law Offices of Murlene J. Randle
235 Montgomery Street, Suite 716
San Francisco, California 94104
Telephone:[phone]
Facsimile: [phone]
E-Mail: [e-mail]
Attorney for Plaintiffs

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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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RAQUEL HERNANDEZ and CARLOS
HERNANDEZ,

)
)
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Plaintiffs,
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v.
)
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THOMAS VILSACK, Secretary of the U.S. )
Department of Agriculture,
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Defendant.
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No. C 10-4198 TEH
STIPULATION TO PROTECTIVE
ORDER; PROPOSED ORDER

PURPOSES AND LIMITATIONS

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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 disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,

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the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
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Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures

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or responses to discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment under the

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applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that

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this Stipulated Protective Order does not entitle them to file confidential information under seal;

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

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

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2.

DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it

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is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule

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of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel

(as well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or items

that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5

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

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.6

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

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness

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or as a consultant in this action.

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2.7

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House Counsel: attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8

Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
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2.9

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Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this action

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on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
2.10

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employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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Party: any party to this action, including all of its officers, directors

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.
2.12

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Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.
2.13

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Protected Material: any Disclosure or Discovery Material that is designated

as “CONFIDENTIAL.”
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a Producing Party.

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3.

Receiving Party: a Party that receives Disclosure or Discovery Material from

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 (1) any information copied or extracted from Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any

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testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected

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Material. However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time of disclosure to

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a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

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a result of publication not involving a violation of this Order, including becoming part of the public

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record through trial or otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the

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information lawfully and under no obligation of confidentiality to the Designating Party. Any use

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of Protected Material at trial shall be governed by a separate agreement or order.
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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed

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

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the

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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
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 standards.

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The Designating Party must designate for protection only those parts of material, documents, items,

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or oral or written communications that qualify – so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept unjustifiably within

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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 expenses

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

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must promptly notify

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all other Parties that it is withdrawing the mistaken designation.

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5.2

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

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

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party

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affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion

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or portions of the material on a page qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in the margins).

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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 which

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material it would like copied and produced. During the inspection and before the designation, all

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of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the

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

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must determine which documents, or portions thereof, qualify for protection under this Order. Then,

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before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL”

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legend to each page that contains Protected Material. If only a portion or portions of the material on

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a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

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Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony.

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(c) for information produced in some form other than documentary and for any other

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

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or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a

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portion or portions of the information or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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5.3

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

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to designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is treated

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in accordance with the provisions of this Order.
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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation

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of confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,

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or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the original

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designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis for

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each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice

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must recite that the challenge to confidentiality is being made in accordance with this specific

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paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith

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and must begin the process by conferring directly (in voice to voice dialogue; other forms of

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communication are not sufficient) within 14 days of the date of service of notice. In conferring, the

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Challenging Party must explain the basis for its belief that the confidentiality designation was not

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proper and must give the Designating Party an opportunity to review the designated material, to

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

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chosen designation. A Challenging Party may proceed to the next stage of the challenge process only

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if it has engaged in this meet and confer process first or establishes that the Designating Party is

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unwilling to participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil

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Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the

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initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process

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will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and confer requirements

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imposed in the preceding paragraph. Failure by the Designating Party to make such a motion

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including the required declaration within 21 days (or 14 days, if applicable) shall automatically
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waive the confidentiality designation for each challenged designation. In addition, the Challenging

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Party may file a motion challenging a confidentiality designation at any time if there is good cause

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for doing so, including a challenge to the designation of a deposition transcript or any portions

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thereof. Any motion brought pursuant to this provision must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer requirements imposed

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by the preceding paragraph.

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

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass

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or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to file

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a motion to retain confidentiality as described above, all parties shall continue to afford the material

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

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the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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disclosed 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. When

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the litigation has been terminated, a Receiving Party must comply with the provisions of section 13

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below (FINAL DISPOSITION).

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

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and in a secure manner that ensures that access is limited to the persons authorized under this Order.

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7.2

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 disclose

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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 Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and Agreement to Be
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Bound” that is attached hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the Receiving

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Party to whom disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) the Plaintiffs, Raquel Hernandez and Carolos Hernandez, after they have signed

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A);

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(e) the court and its personnel;

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(f) court reporters and their staff, professional jury or trial consultants, mock jurors,

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material must be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order.
(h) the author or recipient of a document containing the information or a custodian

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or other person who otherwise possessed or knew the information.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this action as “CONFIDENTIAL,” that

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Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall include
a copy of the subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or order to issue in

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the other litigation that some or all of the material covered by the subpoena or order is subject to this

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Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the

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Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” before a determination by the court from which the subpoena or order issued,

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unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear

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the burden and expense of seeking protection in that court of its confidential material – and nothing

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in these provisions should be construed as authorizing or encouraging a Receiving Party in this

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action to disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN

THIS LITIGATION
(a)

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The terms of this Order are applicable to information produced by a Non-Party

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in this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in

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connection with this litigation is protected by the remedies and relief provided by this Order. Nothing

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in these provisions should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b)

In the event that a Party is required, by a valid discovery request, to produce

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a Non-Party’s confidential information in its possession, and the Party is subject to an agreement

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with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

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promptly notify in writing the Requesting Party and the Non-Party that

some or all of the information requested is subject to a confidentiality agreement with a Non-Party;
2.

promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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3.

make the information requested available for inspection by the

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Non-Party.
(c)

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If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request. If the

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Non-Party timely seeks a protective order, the Receiving Party shall not produce any information in

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its possession or control that is subject to the confidentiality agreement with the Non-Party before

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a determination by the court.1 Absent a court order to the contrary, the Non-Party shall bear the

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burden and expense of seeking protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made

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of all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision

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is not intended to modify whatever procedure may be established in an e-discovery order that

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provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d)

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and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the parties may

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The purpose of this provision is to alert the interested parties to the existence of
confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its
confidentiality interests in this court.
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incorporate their agreement in the stipulated protective order submitted to the court.

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12.

12.1

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MISCELLANEOUS
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

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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, no

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Party waives any right to object on any ground to use in evidence of any of the material covered by

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this Protective Order.
12.3

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Filing Protected Material. Without written permission from the Designating

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Party or a court order secured after appropriate notice to all interested persons, a Party may not file

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in the public record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

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under seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue.

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Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that

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the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to

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protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant

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to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information

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in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.

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13.

FINAL DISPOSITION. Within 60 days after the final disposition of this action, as

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defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing

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Party or destroy such material. As used in this subdivision, “all Protected Material” includes all

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copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the

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Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party

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must submit a written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all

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the Protected Material that was returned or destroyed and (2)affirms that the Receiving Party has not
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retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing

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any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

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archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this Protective Order

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as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: May 9, 2011

Respectfully submitted,
MELINDA HAAG
United States Attorney

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/s/
ANN MARIE REDING2
Assistant United States Attorney
Attorneys for Defendant

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Dated: May 9, 2011

/s/
MURLENE J. RANDLE
Attorney for Plaintiffs

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S DISTRICT
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PURSUANT TO STIPULATION, IT IS SO ORDERED. A
C
T
05/12/2011
Dated: ________________________
_____________________________________
THELTON E. HENDERSON
United States District Judge

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helton E
Judge T

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I, Ann Marie Reding, hereby attest that I obtained the concurrence in the filing of this
document of all signatories whose signatures are represented by an /s/.
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States District Court for

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the Northern District of California on ___________________ [date] in the case of Hernandez, et al.

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v. Vilsack, C 10-4198 TEH. I agree to comply with and to be bound by all the terms of this

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Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose

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me to sanctions and punishment in the nature of contempt. I hereby consent to the jurisdiction of

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the Northern District of California if any such action is brought against me. I solemnly promise that

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I will not disclose in any manner any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Northern District of California for the purpose of enforcing the terms of this Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone number]

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as my California agent for service of process in connection with this action or any proceedings

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related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________
[printed name]

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Signature: __________________________________
[signature]

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