Manzanillo v. Lewis et al

Filing 175

STIPULATION AND ORDER re 173 STIPULATION WITH PROPOSED ORDER FOR PROTECTIVE ORDER FOR HIGHLY SENSITIVE CONFIDENTIAL INFORMATION filed by Raymond J. Manzanillo. Signed by Judge Jon S. Tigar on January 14, 2016. (wsn, COURT STAFF) (Filed on 1/13/2016)

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1 2 3 4 5 6 7 SEYFARTH SHAW LLP Francis J. Ortman III (SBN 213202) fortman@seyfarth.com Aryeh M. Hersher (SBN 260321) ahersher@seyfarth.com Jason M. Allen (SBN 284432) jmallen@seyfarth.com Michael A. Wahlander (SBN 260781) mwahlander@seyfarth.com 560 Mission Street, 31st Floor San Francisco, California 94105 Telephone: (415) 397-2823 / Facsimile: (415) 397-8549 Attorneys for Plaintiff Raymond J. Manzanillo 10 McNAMARA, NEY, BEATTY, SLATTERY Peter Jon Hirsig (SBN 197993) peter.hirsig@mcnamaralaw.com William Lee McCaslin (SBN 249976) william.mccaslin@mcnamaralaw.com 639 Kentucky Street, 1st Floor Fairfield, California 94533 Telephone: (707) 427-3998 / Facsimile: (707) 427-0268 11 Attorneys for Defendant Naeem Brown 12 Kamala D. Harris Attorney General of California Marisa Y. Kirschenbauer Supervising Deputy Attorney General Michael J. Quinn (SBN 209542) Michael.quinn@doj.ca.gov Deputy Attorney General Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102 Telephone: (415) 703-5726 / Facsimile: (415) 703-5843 8 9 13 14 15 16 17 18 Attorneys for Defendants Gregory D. Lewis, J. Hallock, K. McGuyer, Matthew Cate and T. A. Wood 19 20 UNITED STATES DISTRICT COURT 21 NORTHERN DISTRICT OF CALIFORNIA 22 23 RAYMOND J. MANZANILLO, Plaintiff, 24 25 Case No. 3:12-cv-05983-JST STIPULATED PROTECTIVE ORDER FOR HIGHLY SENSITIVE CONFIDENTIAL INFORMATION v. 26 GREGORY D. LEWIS, et al., 27 Defendants. 28 1 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of confidential, 3 proprietary, or private information for which special protection from public disclosure and from use for 4 any purpose other than prosecuting this litigation may be warranted. Accordingly, the Parties hereby 5 stipulate to and petition the Court to enter the following Stipulated Protective Order. The Parties 6 acknowledge that this Order does not confer blanket protections on all disclosures or responses to 7 discovery and that the protection it affords from public disclosure and use extends only to the limited 8 information or items that are entitled to confidential treatment under the applicable legal principles. The 9 Parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order 10 does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the 11 procedures that must be followed and the standards that will be applied when a party seeks permission 12 from the court to file material under seal. 13 2. 2.1 14 15 DEFINITIONS Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 16 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, 17 stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 18 26(c). 19 2.3 Counsel of Record: attorneys who are retained to represent or advise a party to this action 20 and have appeared in this action on behalf of that party or are affiliated with a law firm which has 21 appeared on behalf of that party. 22 2.4 Designating Party: a Party or Non-Party that designates information or items that it 23 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 24 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 25 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or 26 manner in which it is generated, stored, or maintained (including, among other things, testimony, 27 transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery 28 in this matter. 2 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 2 litigation who (1) has been retained by a Party or his counsel to serve as an expert witness or as a 3 consultant in this action, (2) is not a past or current employee of a Party or of a Party’s competitor, and 4 (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party’s 5 competitor. This definition includes a professional jury or trial consultant retained in connection with 6 this litigation. 7 2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items: 8 extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or Non- 9 Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. 10 11 2.8 not named as a Party to this action. 12 13 2.9 Party: any party to this action, including all of his retained experts and Counsel of Record (and their support staffs). 14 15 Non-Party: any natural person, partnership, corporation, association, or other legal entity 2.10 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 16 2.11 Professional Vendors: persons or entities that provide litigation support services (e.g., 17 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or 18 retrieving data in any form or medium) and their employees and subcontractors. 19 20 2.12 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 21 2.13 22 Party. 23 3. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing 24 SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as 25 defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, 26 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or 27 presentations by Parties or their Counsel of Record that might reveal Protected Material. However, the 28 protections conferred by this Stipulation and Order do not cover the following information: (a) any 3 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of 2 the public domain after its disclosure to a Receiving Party as a result of publication not involving a 3 violation of this Order, including becoming part of the public record through trial or otherwise; and (b) 4 any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party 5 after the disclosure from a source who obtained the information lawfully and under no obligation of 6 confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a 7 separate agreement or order. 8 4. 9 DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 10 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 11 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 12 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and 13 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits 14 for filing any motions or applications for extension of time pursuant to applicable law. 15 5. 16 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non- 17 Party that designates information or items for protection under this Order must take care to limit any 18 such designation to specific material that qualifies under the appropriate standards. To the extent it is 19 practical to do so, the Designating Party must designate for protection only those parts of material, 20 documents, items, or oral or written communications that qualify – so that other portions of the material, 21 documents, items, or communications for which protection is not warranted are not swept unjustifiably 22 within the ambit of this Order. 23 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to 24 be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber 25 or retard the case development process or to impose unnecessary expenses and burdens on other parties) 26 expose the Designating Party to sanctions. 27 28 If it comes to a Designating 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 protection initially 4 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 asserted, that Designating Party must promptly notify all other parties that it is withdrawing the mistaken 2 designation. 3 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 4 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or 5 Discovery Material that qualifies for protection under this Order must be clearly so designated before 6 the material is disclosed or produced. 7 Designation in conformity with this Order requires: 8 9 (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix 10 the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to 11 each page that contains protected material. If only a portion or portions of the material on a page 12 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by 13 making appropriate markings in the margins) and must specify, for each portion, the level of protection 14 being asserted. 15 A Party or Non-Party that makes original documents or materials available for inspection need 16 not designate them for protection until after the inspecting Party has indicated which material it would 17 like copied and produced. During the inspection and before the designation, all of the material made 18 available for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 19 After the inspecting Party has identified the documents it wants copied and produced, the Producing 20 Party must determine which documents, or portions thereof, qualify for protection under this Order. 21 Then, before producing the specified documents, the Producing Party must affix the appropriate legend 22 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page 23 that contains Protected Material. If only a portion or portions of the material on a page qualifies for 24 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 25 appropriate markings in the margins) and must specify, for each portion, the level of protection being 26 asserted. 27 28 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding, 5 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 all protected testimony and specify the level of protection being asserted. When it is impractical to 2 identify separately each portion of testimony that is entitled to protection and it appears that substantial 3 portions of the testimony may qualify for protection, the Designating Party may invoke on the record 4 (before the deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to 5 identify the specific portions of the testimony as to which protection is sought and to specify the level of 6 protection being asserted. Only those portions of the testimony that are appropriately designated for 7 protection within the 21 days shall be covered by the provisions of this Stipulated Protective Order. 8 Alternatively, a Designating Party may specify, at the deposition or up to 21 days afterwards if that 9 period is properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or 10 11 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 12 other proceeding to include Protected Material so that the other parties can ensure that only 13 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 14 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 15 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 16 – ATTORNEYS’ EYES ONLY.” 17 Transcripts containing Protected Material shall have an obvious legend on the title page 18 that the transcript contains Protected Material, and the title page shall be followed by a list of all 19 pages (including line numbers as appropriate) that have been designated as Protected Material 20 and the level of protection being asserted by the Designating Party. The Designating Party shall 21 inform the court reporter of these requirements. Any transcript that is prepared before the 22 expiration of a 21-day period for designation shall be treated during that period as if it had been 23 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless 24 otherwise agreed. After the expiration of that period, the transcript shall be treated only as 25 actually designated. 26 (c) for information produced in some form other than documentary and for any other 27 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 28 containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY 6 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information or 2 item warrant protection, the Producing Party, to the extent practicable, shall identify the protected 3 portion(s) and specify the level of protection being asserted. 4 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 5 qualified information or items does not, standing alone, waive the Designating Party’s right to secure 6 protection under this Order for such material. Upon timely correction of a designation, the Receiving 7 Party must make reasonable efforts to assure that the material is treated in accordance with the 8 provisions of this Order. 9 6. 10 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 11 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 12 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or 13 a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 14 confidentiality designation by electing not to mount a challenge promptly after the original designation 15 is disclosed. 16 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by 17 providing written notice of each designation it is challenging and describing the basis for each challenge. 18 To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the 19 challenge to confidentiality is being made in accordance with this specific paragraph of the Protective 20 Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by 21 conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 22 14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for 23 its belief that the confidentiality designation was not proper and must give the Designating Party an 24 opportunity to review the designated material, to reconsider the circumstances, and, if no change in 25 designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed 26 to the next stage of the challenge process only if it has engaged in this meet and confer process first or 27 establishes that the Designating Party is unwilling to participate in the meet and confer process in a 28 timely manner. 7 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, 2 the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 3 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of 4 challenge or within 14 days of the parties agreeing that the meet and confer process will not resolve their 5 dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration 6 affirming that the movant has complied with the meet and confer requirements imposed in the preceding 7 paragraph. Failure by the Designating Party to make such a motion including the required declaration 8 within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for 9 each challenged designation. In addition, the Challenging Party may file a motion challenging a 10 confidentiality designation at any time if there is good cause for doing so, including a challenge to the 11 designation of a deposition transcript or any portions thereof. Any motion brought pursuant to this 12 provision must be accompanied by a competent declaration affirming that the movant has complied with 13 the meet and confer requirements imposed by the preceding paragraph. 14 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. 15 Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary 16 expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the 17 Designating Party has waived the confidentiality designation by failing to file a motion to retain 18 confidentiality as described above, all parties shall continue to afford the material in question the level 19 of protection to which it is entitled under the Producing Party’s designation until the court rules on the 20 challenge. 21 7. 22 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 23 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 24 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the 25 categories of persons and under the conditions described in this Order. When the litigation has been 26 terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 27 DISPOSITION). 28 Protected Material must be stored and maintained by a Receiving Party at a location and in a 8 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 2 secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the 3 court or permitted in writing by the Designating Party, a Receiving Party may disclose any information 4 or item designated “CONFIDENTIAL” only to: 5 (a) the Receiving Party’s Counsel of Record in this action, as well as employees of 6 said Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation 7 and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto as 8 Exhibit A; 9 (b) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 10 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to 11 Be Bound” (Exhibit A); 12 (c) the court and its personnel; 13 (d) court reporters and their staff, professional jury or trial consultants, and 14 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed 15 the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 16 (e) during their depositions, witnesses in the action to whom disclosure is reasonably 17 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 18 otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition 19 testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court 20 reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. 21 22 23 (f) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information 24 or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 25 Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL – 26 ATTORNEYS’ EYES ONLY” only to: 27 28 (a) the Receiving Party’s Counsel of Record in this action, as well as employees of said Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation 9 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto as 2 Exhibit A; 3 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for 4 this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 5 and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed]; 6 (c) the court and its personnel; 7 (d) court reporters and their staff, professional jury or trial consultants, and 8 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed 9 the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 10 11 (e) other person who otherwise possessed or knew the information. 12 13 the author or recipient of a document containing the information or a custodian or 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts. 14 (a) Unless otherwise ordered by the court or agreed to in writing by the Designating 15 Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item that 16 has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to 17 paragraph 7.3(c) first must make a written request to the Designating Party that (1) identifies the general 18 categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the 19 Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert and 20 the city and state of his or her primary residence, (3) attaches a copy of the Expert’s current resume, (4) 21 identifies the Expert’s current employer(s), (5) identifies each person or entity from whom the Expert 22 has received compensation or funding for work in his or her areas of expertise or to whom the expert has 23 provided professional services, including in connection with a litigation, at any time during the 24 preceding five years,1 and (6) identifies (by name and number of the case, filing date, and location of 25 26 27 28 1 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the Expert should provide whatever information the Expert believes can be disclosed without violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating Party regarding any such engagement. 10 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 court) any litigation in connection with which the Expert has offered expert testimony, including 2 through a declaration, report, or testimony at a deposition or trial, during the preceding five years. 3 (b) A Party that makes a request and provides the information specified in the 4 preceding respective paragraphs may disclose the subject Protected Material to the identified Expert 5 unless, within 14 days of delivering the request, the Party receives a written objection from the 6 Designating Party. Any such objection must set forth in detail the grounds on which it is based. 7 (c) A Party that receives a timely written objection must meet and confer with the 8 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement 9 within seven days of the written objection. If no agreement is reached, the Party seeking to make the 10 disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with 11 Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any such motion must 12 describe the circumstances with specificity, set forth in detail the reasons why the disclosure to the 13 Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and suggest any 14 additional means that could be used to reduce that risk. In addition, any such motion must be 15 accompanied by a competent declaration describing the parties’ efforts to resolve the matter by 16 agreement (i.e., the extent and the content of the meet and confer discussions) and setting forth the 17 reasons advanced by the Designating Party for its refusal to approve the disclosure. 18 In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden of 19 proving that the risk of harm that the disclosure would entail (under the safeguards proposed) outweighs 20 the Receiving Party’s need to disclose the Protected Material to his Expert. 21 8. 22 23 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that compels 24 disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must: 26 (a) promptly notify in writing the Designating Party. Such notification shall include a 27 copy of the subpoena or court order; 28 // 11 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 (b) promptly notify in writing the party who caused the subpoena or order to issue in 2 the other litigation that some or all of the material covered by the subpoena or order is subject to this 3 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 4 5 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 6 If the Designating Party timely seeks a protective order, the Party served with the subpoena or 7 court order shall not produce any information designated in this action as “CONFIDENTIAL” or 8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the court from 9 which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. 10 The Designating Party shall bear the burden and expense of seeking protection in that court of its 11 confidential material – and nothing in these provisions should be construed as authorizing or 12 encouraging a Receiving Party in this action to disobey a lawful directive from another court. 13 9. 14 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 15 (a) The terms of this Order are applicable to information produced by a Non-Party in 16 this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 17 EYES ONLY.” Such information produced by Non-Parties in connection with this litigation is protected 18 by the remedies and relief provided by this Order. Nothing in these provisions should be construed as 19 prohibiting a Non-Party from seeking additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, to produce a 21 Non-Party’s confidential information in its possession, and the Party is subject to an agreement with the 22 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 23 24 1. 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; 25 2. promptly provide the Non-Party with a copy of the Stipulated Protective 26 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the 27 information requested; and 28 3. make the information requested available for inspection by the Non-Party. 12 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 (c) If the Non-Party fails to object or seek a protective order from this court within 14 2 days of receiving the notice and accompanying information, the Receiving Party may produce the Non- 3 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a 4 protective order, the Receiving Party shall not produce any information in its possession or control that 5 is subject to the confidentiality agreement with the Non-Party before a determination by the court. 6 Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking 7 protection in this court of its Protected Material. 8 10. 9 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material 10 to any person or in any circumstance not authorized under this Stipulated Protective Order, the 11 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 12 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 13 inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, 14 and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 15 that is attached hereto as Exhibit A. 16 11. 17 18 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 19 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are 20 those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 21 whatever procedure may be established in an e-discovery order that provides for production without 22 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach 23 an agreement on the effect of disclosure of a communication or information covered by the attorney- 24 client privilege or work product protection, the parties may incorporate their agreement in the stipulated 25 protective order submitted to the court. 26 12. 27 28 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 13 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 2 Party waives any right it otherwise would have to object to disclosing or producing any information or 3 item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any 4 right to object on any ground to use in evidence of any of the material covered by this Protective Order. 5 12.3 Filing Protected Material. Without written permission from the Designating Party or a 6 court order secured after appropriate notice to all interested persons, a Party may not file in the public 7 record in this action any Protected Material. A Party that seeks to file under seal any Protected Material 8 must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a 9 court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local 10 Rule 79-5, a sealing order will issue only upon a request establishing that the Protected Material at issue 11 is privileged or otherwise entitled to protection under the law. If a Receiving Party’s request to file 12 Protected Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, then the 13 Receiving Party may file the Protected Material in the public record pursuant to Civil Local Rule 79- 14 5(e)(2) unless otherwise instructed by the court. 15 13. FINAL DISPOSITION 16 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 17 Receiving Party must return all Protected Material to the Producing Party or destroy such material. As 18 used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, 19 and any other format reproducing or capturing any of the Protected Material. Whether the Protected 20 Material is returned or destroyed, the Receiving Party must submit a written certification to the 21 Producing Party (and, if not the same person or entity, to the Designating Party) by the 60-day deadline 22 that (1) identifies (by category, where appropriate) all the Protected Material that was returned or 23 destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, 24 summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding 25 this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, 26 deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, 27 expert reports, attorney work product, and consultant and expert work product, even if such materials 28 contain Protected Material. Any such archival copies that contain or constitute Protected Material 14 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST 1 remain subject to this Protective Order as set forth in Section 4 (DURATION). 2 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 3 4 DATED: January 7, 2016 5 By: /s/ Michael A. Wahlander Michael A. Wahlander Attorneys for Plaintiff RAYMOND MANZANILLO 6 7 8 SEYFARTH SHAW LLP DATED: January 7, 2016 McNAMARA, NEY, BEATTY, SLATTERY 9 10 By: /s/ William Lee McCaslin William Lee McCaslin Attorney for Defendant NAEEM BROWN 11 12 13 DATED: January 7, 2016 ATTORNEY GENERAL OF CALIFORNIA 14 15 By: /s/ Michael J. Quinn Michael J. Quinn Attorney for Defendants GREGORY D. LEWIS, J. HALLOCK, K. MCGUYER, MATTHEW CATE AND T. A. WOOD 16 17 18 19 ATTESTATION PURSUANT TO LOCAL RULE 5-1(i)(3) 20 21 22 23 24 I, Michael A. Wahlander, attest that concurrence in the filing of this stipulation has been obtained from the signatories, William Lee McCaslin and Michael James Quinn, counsel for Defendants. Executed this 7th day of January, 2016, in San Francisco, California. 25 /s/ Michael A. Wahlander MICHAEL A. WAHLANDER 26 27 28 15 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST PURSUANT TO THE PARTIES’ STIPULATION, IT IS SO ORDERED. NO 7 RT ER H 8 n S. J u d ge J o 9 10 N 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23888124v.1 Ti ga r F D IS T IC T O R 11 16 R NIA 6 FO 5 _________________________________ THE HONORABLE JOND TIGAR E S. Judge, United StatesOV PPR District Court A Northern District of California LI DATED: January 13, 2016 UNIT ED 4 S DISTRICT TE C TA RT U O 3 S 2 A 1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST C 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ [print or 4 type full address], declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the Northern District 6 of California on [date] in the case of Manzanillo v. Lewis, et al., Case No. 3:12-cv-05983-JST. I agree to 7 comply with and to be bound by all the terms of this Stipulated Protective Order, and I understand and 8 acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of 9 contempt. I solemnly promise that I will not disclose in any manner any information or item that is 10 subject to this Stipulated Protective Order to any person or entity except in strict compliance with the 11 provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the Northern 13 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if 14 such enforcement proceedings occur after termination of this action. 15 I hereby appoint __________________________ [print or type full name] of 16 _______________________________________ [print or type full address and telephone number] as my 17 California agent for service of process in connection with this action or any proceedings related to 18 enforcement of this Stipulated Protective Order. 19 20 Date: _________________________________ 21 City and State where sworn and signed: _________________________________ 22 Printed name: ______________________________ [printed name] 23 24 25 Signature: __________________________________ [signature] 26 27 28 17 23888124v.1 STIPULATED PROTECTIVE ORDER; CASE NO. 3:12-CV-05983-JST

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