Benko et al v. Contra Costa Community College District

Filing 25

STIPULATION AND ORDER REGARDING CONFIDENTIALITY OF DOCUMENTS. Signed by Judge Joseph C. Spero on 4/27/11. (klhS, COURT STAFF) (Filed on 4/28/2011)

Case3:10-cv-04943-JCS Document24

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Filed04/26/11 Page1 of 5

Eugene B. Elliot, SBN 111475
Michael C. Wenzel, SBN 215388
BERTRAND, FOX & ELLIOT
The Waterfront Building
2749 Hyde Street
San Francisco, California 94109
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
CONTRA COSTA COMMUNITY COLLEGE DISTRICT

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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)
)
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Plaintiff,
)
vs.
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CONTRA COSTA COMMUNITY COLLEGE )
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DISTRICT,
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Defendant.
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)
PETER BENKO and DANIEL CRUZ,

Case No.: CV-10-04943 JCS
STIPULATION REGARDING
CONFIDENTIALITY OF DOCUMENTS;
[PROPOSED] ORDER THEREON

The parties to the above-entitled action, by and through their counsel of record, hereby
stipulate as follows:

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1.

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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 would 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 extends only to the limited information or

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items that are entitled under the applicable legal principles to treatment as confidential. The parties

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further acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates no

PURPOSES AND LIMITATIONS

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1

STIPULATION RE CONFIDENTIALITY OF DOCUMENTS; [PROPOSED] ORDER THEREON
Benko/Cruz v. Contra Costa Community College District
U.S.D.C. Northern District of CA Case No. CV-10-04943 JCS

Case3:10-cv-04943-JCS Document24

Filed04/26/11 Page2 of 5

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entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures

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that must be followed and reflects the standards that will be applied when a party seeks permission

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from the court to file material under seal.

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The materials included in the above-mentioned stipulation are as follows:

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a.

Employee records relating to the Physical Education Department;

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b.

Student complaints against plaintiff CRUZ;

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c.

Other materials that the parties agree in writing are to be covered by this

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Stipulation.

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All "confidential material" shall be designated by stamping or otherwise marking each such
document as follows: "CONFIDENTIAL"

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2.

Confidential material shall be used solely in connection with the preparation and

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litigation of the case in the within action (CV-10-04943 JCS) or in any related appellate proceeding,

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and not for any other purpose, including any other litigation, without the express approval of the

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opposing party or Court Order.

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3.

Confidential material may not be disclosed, except as is provided in paragraph 4,

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Confidential material may be disclosed only to the following persons: (a) parties and

below.

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counsel for any party to this litigation; (b) paralegal, stenographic, clerical, and secretarial personnel

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regularly employed by counsel for the parties in this litigation; (c) court personnel, including

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stenographic reporters engaged in such proceedings as are necessarily incidental to preparation for

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trial in this action; (d) any outside expert or consultant retained by any party to the action in

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connection with the action, and not otherwise employed by either party; (e) any "in-house" expert

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designated by any party to testify at trial in this matter; and (f) during their depositions, witnesses in

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the action to whom disclosure is reasonably necessary. Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material must be separately bound by the court reporter

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and may not be disclosed to anyone except as permitted under this Stipulated Protective Order

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Nothing in this paragraph (4) is intended to prevent officials or employees of the DISTRICT,

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or other authorized government officials, from having access to the documents so designated if they
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STIPULATION RE CONFIDENTIALITY OF DOCUMENTS; [PROPOSED] ORDER THEREON
Benko/Cruz v. Contra Costa Community College District
U.S.D.C. Northern District of CA Case No. CV-10-04943 JCS

Case3:10-cv-04943-JCS Document24

Filed04/26/11 Page3 of 5

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would have such access in the normal course of their job duties. Furthermore, nothing herein

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prevents any witness from disclosing events or activities personal to him or her, that is, a witness may

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disclose to others, without restriction under this order, information previously given to the DISTRICT

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with respect to what he or she saw, heard, or otherwise sensed.

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5.

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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 care

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to limit any such designation to specific material that qualifies under the appropriate standards. A

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Designating Party must take care to designate for protection only those parts of material, documents,

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

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

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unjustifiably within the ambit of this Order.

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

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

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encumber or retard the case development process, or to impose unnecessary expenses and burdens on

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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

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for protection do not qualify for protection at all, or do not qualify for the level of protection initially

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asserted, that Party or non-party must promptly notify all other parties that it is withdrawing the

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mistaken designation

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6.

Each person to whom disclosure is made, with the exception of counsel, who are

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presumed to know the contents of this protective order, shall be provided by the person furnishing

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him or her "confidential material," as designated hereunder, with a copy of this stipulation, and shall

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agree on the record, or in writing, that he or she has read this stipulation and consents to it. Unless

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such agreement is made on the record in this litigation, counsel making the disclosure to any person

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described above shall retain the original executed copy of said written agreement until final

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termination of this litigation.

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3

STIPULATION RE CONFIDENTIALITY OF DOCUMENTS; [PROPOSED] ORDER THEREON
Benko/Cruz v. Contra Costa Community College District
U.S.D.C. Northern District of CA Case No. CV-10-04943 JCS

Case3:10-cv-04943-JCS Document24

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Filed04/26/11 Page4 of 5

Any refusal to consent to this stipulation by a witness in the context of a deposition or at trial

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shall not prevent any attorney from disclosing the material or information at issue to that witness at

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deposition or at trial. However, no copies of documents containing confidential material shall be

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provided to any person who refuses to consent to this stipulation.

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7.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

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 waive its

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right to challenge a confidentiality designation by electing not to mount a challenge promptly after

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the original designation is disclosed.

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7.2

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 conferring

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directly 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 Designating

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Party an opportunity to review the designated material, to reconsider the circumstances, and, if no

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change in designation is offered, to explain the basis for the chosen designation. The next stage of

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the challenge process may proceed only if the parties have engaged in this meet and confer process

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first.

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7.3

Judicial Intervention. If the parties’ meet and confer efforts do not resolve

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any dispute regarding the confidential designation of material pursuant to this Order, the parties agree

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to jointly submit the matter to the court for determination within 10 court days of the conclusion of

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meet and confer discussions pursuant to paragraph 6.2. The Designating Party shall provide a first

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draft of the joint submission to the challenging Party within five (5) court days of the conclusion of

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meet and confer discussions pursuant to paragraph 6.2.

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

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

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

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STIPULATION RE CONFIDENTIALITY OF DOCUMENTS; [PROPOSED] ORDER THEREON
Benko/Cruz v. Contra Costa Community College District
U.S.D.C. Northern District of CA Case No. CV-10-04943 JCS

Case3:10-cv-04943-JCS Document24

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8.

Filed04/26/11 Page5 of 5

At the conclusion of the trial in this matter, and of any appeal, or upon the termination

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of this action by any other means, all confidential material received under the provisions of this order,

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including any copies made thereof, shall be tendered back to the appropriate parties or their attorneys.

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9.

The foregoing is without prejudice to the right of any party to this action: (a) to apply

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to the court for a protective order relating to any confidential material or relating to discovery in this

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litigation; or (b) to apply to the court for an order compelling production of documents or for

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modification of this stipulation or for any order permitting disclosure of confidential material beyond

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the terms of this stipulation.

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Counsel for the parties to this action hereby declare that they have read the foregoing, that

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they approve thereof as to form and content, and that, on behalf of their clients in this action, they

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stipulate thereto.

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SO STIPULATED.
Dated: April 27, 2011

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SUNDEEN, SALINAS & PYLE
By:

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/s/ Hunter Pyle
Hunter Pyle
Emily Bolt
Attorneys for Plaintiffs
PETER BENKO and DANIEL CRUZ

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Dated: April ____, 2011

BERTRAND, FOX & ELLIOT

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By:

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/s/ Michael Wenzel
Eugene Elliot
Michael Wenzel
Attorneys for Defendant
CONTRA COSTA
COMMUNITY COLLEGE DISTRICT

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S

R NIA

Dated: April 27, 2011

______________________________
pero
The Honorable Joseph C. S C. Spero
Judge Joseph
U.S. District Court Magistrate Judge
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Good cause appearing, the stipulation is so ordered.
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STIPULATION RE CONFIDENTIALITY OF DOCUMENTS; [PROPOSED] ORDER THEREON
Benko/Cruz v. Contra Costa Community College District
U.S.D.C. Northern District of CA Case No. CV-10-04943 JCS