Woodson v. Rodriguez et al

Filing 86

ORDER re 85 Granting Stipulated Protective Order Regarding Confidential Information. Signed by Judge Claudia Wilken on 7/1/2010. (ndr, COURT STAFF) (Filed on 7/1/2010)

Woodson v. Rodriguez et al

Doc. 86

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EDMUND G. BROWN, JR. Attorney General of California JAY C. RUSSELL (CA SBN 122626) Supervising Deputy Attorney General JOSE A. ZELIDON-ZEPEDA (CA SBN 227108) Deputy Attorney General [e-mail] NEAH HUYNH (CA SBN 235377) Deputy Attorney General [e-mail] 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-5781 Telephone: [phone] Facsimile: 415.703.5843 Attorneys for Defendants J. RODRIGUEZ, E. CAMARENA, J. PARRA, D. VEGA, and SERGEANT KIRCHER MATTHEW I. KREEGER (CA SBN 56398) [e-mail] CATHARINE B. BAKER (CA SBN 210011) [e-mail] JANELLE SAHOURIA (CA SBN 253699) [e-mail] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: 415.268.7522 Attorneys for Plaintiffs THOMAS RAY WOODSON UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION THOMAS RAY WOODSON, Plaintiff, v. J. RODRIGUEZ, et al., Defendants. Case No. 4:07-CV-04925-CW

STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION Judge: The Honorable Claudia Wilken

Complaint Filed: September 21, 2007 Trial Date: June 27, 2011

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Plaintiff Thomas R. Woodson ("Plaintiff") and Defendants J. Rodriguez, E. Camarena, J. Parra, D. Vega and Sergeant Kircher (collectively, "Defendants"), recognizing that the Parties or non-parties may have confidential or private information relevant to the subject matter of this lawsuit that would otherwise be subject to discovery, have agreed to this Order on the terms set forth below. It appearing to the Court that the Parties have agreed to the terms of an appropriate Order to govern discovery proceedings in this action, and good cause appearing, IT IS HEREBY ORDERED: PURPOSES AND LIMITATIONS Discovery activity in this action is likely to involve disclosures and production of confidential or private information requiring special protection from public disclosure and restricting its use solely to the litigation of this case, Thomas Ray Woodson v. J. Rodriguez, et al., Case No. 4:07-CV-04925-CW. 2. DEFINITIONS 2.1 Party: any Party to this action, including employees, consultants, retained experts,

and counsel for any Party. 2.2 Documents: all items or information, regardless of the medium or manner

generated, stored, or maintained, including but not limited to: written, recorded or graphic matter, whether in hard copy or electronic form; testimony or transcripts, whether in written or oral form; interrogatory answers, requests to admit and responses thereto in this action; designs, technical data, or drawings; any portion of any court paper filed in this action that quotes or summarizes any of these items; or any tangible things. 2.3 Disclosures or Discovery Material: all documents that are produced or generated

by the Parties or non-parties in disclosures or in response to any request for production, any interrogatory response, any response to a request for admission, or any response to a subpoena. 2.4 "Confidential" Information or Items: all documents that a Designating Party in

good faith believes contain confidential or personal information that is not publicly known, cannot be ascertained from an inspection of publicly available documents, includes an

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individual's private information, or qualifies for protection under standards developed under California or federal law. These items are to be marked "Confidential." 2.5 "Confidential - Attorneys' Eyes Only" Information or Items: all documents that a

Designating Party in good faith believes contain confidential or personal information, or an individual's private information that is not publicly known and cannot be ascertained from an inspection of publicly available documents, and whose disclosure to a Receiving Party or nonparty would create a substantial risk of injury to the Designating Party, Producing Party, or persons identified in the materials (including but not limited to impacting prison safety and security) that could not be avoided by less restrictive means. These items are to be marked "Confidential - Attorneys' Eyes Only." 2.6 Producing Party: a Party or non-party that produces Disclosures or Discovery

Material in this action. 2.7 Receiving Party: a Party that receives Disclosures or Discovery Material from a

Producing Party. 2.8 Designating Party: a Party or non-party that designates information or items that it

produces in disclosures or in responses to discovery as "Confidential" or "Confidential Attorneys' Eyes Only." 2.9 Protected Material: any Disclosure or Discovery Material that is designated as

"Confidential" or "Confidential - Attorneys' Eyes Only." 2.10 Expert: a person with specialized knowledge or experience in a matter pertinent to

the litigation who has been retained by a Party or its counsel to serve as a consultant or an expert witness in this action and who is not a past or a current employee of a Party and who, at the time of retention, is not, or is not anticipated to become, an employee of a Party. This definition includes a professional jury or trial consultant retained in connection with this litigation. 2.11 Professional Vendors: persons or entities providing litigation support services

(including, but not limited to, photocopying, videotaping, translating, preparing exhibits or demonstrations, organizing, storing, or retrieving data in any form or medium), and their employees and subcontractors.
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3.

DESIGNATING PROTECTED MATERIAL 3.1 If any Party or non-party to this action claims any document or other material

produced by such Party or non-party or any information contained in the document or material is confidential, then the Party or non-Party claiming confidentiality shall mark the document or other material with a stamp identifying it as "Confidential" or "Confidential - Attorneys' Eyes Only," in accordance with this Order. 3.2 Timing of Designations: Except as otherwise provided in this Order, or as

otherwise stipulated or ordered, material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. 3.3 Manner of Designations: Designation in conformity with this Order requires the

Producing Party to do the following: (a) Information in documentary form: (excluding testimony in pretrial or trial

proceedings), affix the legend "Confidential" or "Confidential - Attorneys' Eyes Only" on each page that contains protected material. If only a portion(s) of the material on a page qualifies for protection, the Producing Party must clearly identify the protected portion(s) and must specify the appropriate designation. In order to speed up the process of producing large volumes of Protected Material, for multi-page documents in which some, but not all, pages contain Protected Material, the Designating Party can mark every page of the document "Confidential" or "Confidential -- Attorneys' Eyes Only" and produce the document, and then have within ten (10) calendar days from production to de-designate specific pages, if any. Where it is not possible to affix a legend to particular Protected Material, the Producing Party shall take reasonable steps to give all Receiving Parties notice of the Protected Material's status as such. (b) Testimony given in pretrial or trial proceedings: identify on the record,

before the close of the deposition, hearing, or other proceeding, the question or the line of questioning the answer to which discloses confidential information or could lead to the disclosure of confidential information and identify its appropriate level of designation. When it is impractical to identify separately each portion of testimony entitled to protection, and when it appears that substantial portions of the testimony may qualify for protection, the Party or nonSTIPULATION AND [PROPOSED] PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION CASE NO. 4:07-CV-04925-CW sf-2859153

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party that sponsors, offers, or gives the testimony may invoke on the record before the deposition or proceeding is concluded a right to have up to ten (10) calendar days from receipt of a copy of the deposition transcript to identify the specific portions of the testimony to be protected and to specify its level of designation. Only those portions of the testimony that are appropriately designated for protection within the ten days shall be covered by the provisions of this Order. Transcript pages containing Protected Material shall be separately bound by the court reporter provided the reporter is given timely notice by the Designating Party before transcribing the deposition, who must affix to the top of each such page the legend "Confidential" or "Confidential - Attorneys' Eyes Only" as instructed by the Party or non-party offering or sponsoring the witness or presenting the testimony. Alternatively, the Party seeking such protection may notify the other Parties within such ten- (10) day period by letter of the pages to be deemed Protected Material. (c) Non-documentary and all other tangible items: affix in a prominent place

on the exterior of the container(s) in which the information or item is stored the appropriate designation. If only portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portions and the appropriate designation. Where a computer disk has been designated "Confidential" or "Confidential - Attorneys' Eyes Only" pursuant to this Order and the files on it are not individually stamped or identified as Protected Materials, all files contained on the disk shall be considered Protected Material in accordance with the Producing Party's designation of the disk. 3.4 Inadvertent Designation: If it comes to a Party's or a non-party's attention that

information or items that it designated for protection do not qualify for protection at all, or do not qualify for the level of protection initially asserted, that Party or non-party must notify, no later than ten (10) days from production or discovery of the inadvertent designation, whichever comes later, all other Parties that it is withdrawing the mistaken designation. 3.5 Inadvertent Failure to Designate: An inadvertent failure to designate qualified

information or items as "Confidential" or "Confidential - Attorneys' Eyes Only" does not, standing alone, waive the Designating Party's right to secure protection under this Order for such
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material, provided the Designating Party asserts such designation in writing to the Receiving Party within ten (10) calendar days of the Designating Party's discovery of such inadvertent failure to designate. If material is designated as "Confidential" or "Confidential - Attorneys' Eyes Only" after the material was initially produced, the Receiving Party, on timely notification of the designation, must make all reasonable efforts to assure that the material is treated in accordance with the provisions of this Order. 3.6 Redaction of Certain Personal Information: The following private personal

information of Defendants that is contained in the Confidential Material shall be redacted by the Producing Party: personal telephone numbers, home addresses, Social Security numbers, names of family members, and financial records. If the Receiving Party discovers such private personal information in the Confidential Material that should have been redacted in accordance with this order, the Receiving Party shall promptly notify the Producing Party and take immediate steps to maintain the strict confidentiality of such information. Upon producing documents with redacted information, the Producing Party shall also serve on the Receiving Party an index providing a description of the information redacted and the reason for the redaction. This index shall be produced as promptly as practicable but no later than 10 calendar days from the date on which production was due. 4. INADVERTENT PRODUCTION If the Producing Party inadvertently discloses information, including electronic documents, that is privileged (including, without limitation, information that is subject to the attorney-client or work product privileges), and the Producing Party discovers the inadvertent disclosure, the Producing Party shall promptly, but not later than ten (10) calendar days upon discovery of such disclosure, so advise the Receiving Party in writing and request that the item or items of information be returned; alternatively, if the Receiving Party discovers the inadvertent disclosure, the Receiving Party shall promptly, but not later than ten (10) calendar days upon discovery of such disclosure, so advise the Producing Party in writing and return the item or items. No Party to this action shall thereafter assert that such disclosure standing alone waived any privilege. It is further agreed that the Receiving Party shall return or destroy such privileged
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documents, and all copies thereof, within 10 calendar days of receiving a written request for the return of such item or items of information. To the extent such information is otherwise discoverable, the Receiving Party having returned such documents may thereafter, without asserting waiver because of inadvertent production, seek production of any such documents in accordance with the Federal Rules of Civil Procedure. 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5.1 Timing of Challenges: Unless a prompt challenge to a Designating Party's

confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary burdens, or a later significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. 5.2 Meet and Confer: A Party that elects to challenge a Designating Party's

confidentiality designation must do so in good faith and must begin the process by conferring directly with counsel for the Designating Party. The Receiving Party must explain in writing sent to counsel for the Designating Party the basis for its belief that the confidentiality designation was not proper and must give the Designating Party five (5) court days to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. The Receiving Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first. 5.3 Judicial Intervention: A Party that elects to press a challenge to a confidentiality

designation after considering the justification offered by the Designating Party may file and serve a motion that identifies the challenged material and sets forth in detail the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms that the movant has complied with the meet and confer requirements imposed in the preceding paragraph and that sets forth with specificity the justification for the confidentiality designation that was given by the Designating Party in the meet and confer dialogue. 5.4 Burden of Persuasion: In any such challenge proceeding, the burden shall be

allocated according to applicable law. Until the court rules on the challenge, all parties shall
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continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation. 6. ACCESS TO AND USE OF PROTECTED MATERIAL 6.1 Except as otherwise agreed upon by the Parties in writing, all Protected Material

produced in this litigation shall be used only by persons permitted access to it pursuant to this Order, and shall be used only for purposes of prosecuting, defending, or attempting to settle this action, and any appeal thereof, and may not be used for any other purposes. This limitation on usage is without prejudice to any subsequent agreement in writing between the Parties to permit use of Protected Material, or specific documents or portions thereof, in other actions. This limitation on usage is also without prejudice to the right of either Party to seek leave of court to permit use of Protected Material, or specific documents of portions thereof, in other actions. 6.2 Disclosure of "CONFIDENTIAL" Information or Items: Use of any information

and documents marked "Confidential," including all information derived therefrom, shall be restricted solely to the following persons, who agree to be bound by the terms of this Order, unless additional persons are stipulated by counsel or authorized by the Court. When this litigation has been terminated, a Receiving Party must comply with the provisions of section 10, below (entitled "FINAL DISPOSITION"): (a) Employers or employees of any Party for whom it is necessary for this

litigation to disclose the confidential information and documents; (b) Counsel of record for the Parties, including employees of said counsel to

whom it is reasonably necessary to disclose the information for this litigation; (c) Those representatives (including legal representatives) of the Parties

deemed necessary to aid counsel in the conduct of the action; (d) (e) Any and all individual Parties in this action; Unless otherwise agreed to by the parties, during their depositions,

witnesses (excluding inmates and parolees) in the action to whom disclosure is reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order" set forth in Exhibit A;
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6.3 information; this action;

(f)

Such consultants, experts and investigators (including their professional

staffs) retained by the Parties to whom disclosure is reasonably necessary for this action, provided that such individual has signed the "Agreement to Be Bound by Protective Order" set forth in Exhibit A; (g) (h) The Court, its personnel, and potential jurors and alternate jurors; Professional vendors and their staff to whom disclosure is reasonably

necessary for this litigation; (i) Court reporters and videographers used in connection with the conduct of

(j)

Any author or recipient of the document or the original source of the

(k)

Any person that may be liable to satisfy part or all of any judgment which

may be entered in the action or to indemnify or reimburse for payments made to satisfy a judgment; and (l) Any other persons as to whom the Parties in writing agree.

Disclosure of "CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information or

Items: Use of any information and documents designated "Confidential - Attorneys' Eyes Only," including all information derived therefrom, shall be restricted solely to the following persons, who agree to be bound by the terms of this Order, unless additional persons are stipulated by counsel or authorized by the Court: (a) Counsel representing either Party, including employees of said counsel to

whom it is reasonably necessary to disclose the information for this litigation; (b) Consultants, experts, and investigators (including their professional staffs)

retained by the Parties to whom disclosure is reasonably necessary for this litigation, provided that such individual signs the "Agreement to Be Bound by Protective Order" set forth in Exhibit A; (c) The Court, its personnel, jurors, and potential trial and alternate jurors;

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(d)

Professional vendors and their staff to whom disclosure is reasonably

necessary for this action; (e) Court reporters and videographers used in connection with the conduct of

(f)

The author or recipient of the document or the original source of the

(g)

Any person that may be liable to satisfy part or all of any judgment which

may be entered in the action or to indemnify or reimburse for payments made to satisfy a judgment; and (h) Any other persons as to whom the Parties in writing agree.

Storage of Protected Material: The Receiving Party of any Protected Material

shall maintain such information in a secure and safe area and shall use best efforts to maintain the confidentiality of such information and ensure that access to the Protected Materials is strictly limited to persons entitled to receive Protected Material in accordance with the provisions of this Order. 6.5 Disclosure of Protected Material at Deposition: No person shall attend portions of

depositions during which Protected Material is disclosed unless such person is an authorized recipient of Protected Material under the terms of this Order. If, during the course of a deposition, the response to a question would require the disclosure of Protected Material, the witness may refuse to answer or the Party whose Protected Material would be disclosed may instruct the witness not to answer or not to complete his answer, as the case may be, until any persons not authorized to receive Protected Material have left the room. 7. PROTECTED MATERIAL ORDERED PRODUCED IN OTHER LITIGATION If a Receiving Party is served with a subpoena or an order issued in other litigation that would compel disclosure of any information or items designated in this action as "Confidential" or "Confidential - Attorneys' Eyes Only," the Receiving Party must so notify the Designating Party, in writing immediately and in no event more than seven (7) calendar days after receiving the subpoena or order. Such notification must include a copy of the subpoena or court order.
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The Receiving Party also must immediately inform in writing the party who caused the subpoena or order to issue in the other litigation that some or all the material covered by the subpoena or order is subject to this Order. In addition, the Receiving Party must deliver a copy of this Order promptly to the party in the other action that caused the subpoena or order to issue. The purpose of imposing these duties is to alert the interested parties to the existence of this Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. The Designating Party shall bear the burdens and the expenses of seeking protection in that court of its confidential material. Nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court. The Party or nonparty receiving the subpoena or order shall be entitled to comply with it, except to the extent the Party or non-party asserting the confidential treatment under this Order has filed for or succeeded in obtaining an order modifying or quashing the subpoena or order. 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person(s) to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons execute an agreement to be bound by the Order as set forth in Exhibit A. 9. FILING PROTECTED MATERIAL Without prior written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party seeking to file under seal any Protected Material with the Court or include Protected Material in whole or in part in pleadings, motions, briefs, etc., must first comply with all applicable rules and procedures.

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In the event a Party inadvertently or otherwise files Protected Material in the public record without first obtaining written permission from the Designating Party or a court order authorizing public disclosure of the Protected Material, that Party shall immediately seek an expedited court order removing the Protected Material from the public record and placing the Protected Material conditionally under seal, and shall otherwise comply with the applicable rules and procedures for filing the Protected Material under seal. 10. FINAL DISPOSITION 10.1 Filed Documents: If portions of documents or other materials deemed

"Confidential" or "Confidential - Attorneys' Eyes Only" are filed with the Court, they shall be marked with the appropriate designation required by the local rules, placed under seal in compliance with all applicable rules and procedures, and not be opened nor the contents revealed except if necessary to be revealed to the Court, and then immediately resealed, by agreement of the Parties, or by prior order of the court. 10.2 Produced Documents: Within thirty (30) days after the entry of a final judgment

in this case, or the execution of any agreement between the Parties to amicably resolve and settle this case, all documents, transcripts, or other materials marked "Confidential" or "Confidential Attorneys' Eyes Only," including all copies, extracts, and complete or partial summaries thereof; shall either be destroyed or returned to counsel for the party whose confidential material constituted or was included within such documents, transcripts, or other materials at the option of the Designating Party. The Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the thirty-(30) day deadline that identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and that affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of reproducing or capturing of any of the Protected Material. This material shall be delivered to the respective counsel in sealed envelopes or packages marked "Confidential."

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11.

SCOPE The protections conferred by this Order cover not only Protected Material (as defined

above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof; plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Material. 12. DURATION Even after the termination of this litigation, including all appeals, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. 13. RIGHT TO OBJECT By stipulating to the entry of this Order, no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Order. Nothing in this Order shall be deemed to preclude any Party from seeking and obtaining, on appropriate showing, such additional protection with respect to Protected Material as that Party may consider appropriate. Similarly, nothing in this Order shall operate as an admission by any Party that any particular Document or information is or is not confidential, or as an admission by any Party that any particular Document or information is or is not subject to discovery or admissible in evidence at trial in this action. 14. RIGHT TO FURTHER RELIEF Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. The Court may modify this Order in the interests of justice or for public policy reasons. 15. RETENTION OF JURISDICTION The Parties and all persons subject to discovery in these proceedings or who receive a copy of this Order, hereby consent to the jurisdiction of this Court for the purpose of enforcement of the provisions of this Order. The Court hereby retains jurisdiction to interpret and enforce this

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Order during the pendency of this action and following dismissal, if any, and further retains jurisdiction to modify, amend or make additions to this Order as it may from time to time deem appropriate. Any violation of the terms of this Order may result in the imposition of such relief as the Court deems appropriate. Dated: June _____, 2010 Respectfully Submitted, MATTHEW I. KREEGER CATHARINE B. BAKER JANELLE SAHOURIA MORRISON & FOERSTER LLP By: CATHARINE B. BAKER Attorneys for Plaintiff THOMAS RAY WOODSON Dated: June _____, 2010 JOSE A. ZELIDON-ZEPEDA NEAH HUYNH CALIFORNIA ATTORNEY GENERAL'S OFFICE By: JOSE A. ZELIDON-ZEPEDA Attorneys for Defendants J. RODRIGUEZ, E. CAMARENA, J. PARRA, D. VEGA, AND SERGEANT KIRCHER

IT IS SO ORDERED. Dated: July 1, 2010 ________________________________________ HONORABLE CLAUDIA WILKEN United States District Court Judge

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EXHIBIT A AGREEMENT TO BE BOUND BY PROTECTIVE ORDER I, ____________________________, do solemnly swear or affirm that I have been provided with and have read the Stipulated Protective Order Regarding Confidential Information in Thomas Ray Woodson v. J. Rodriguez, et al., Case No. 4:07-CV-04925-CW. I understand the terms and effect of that Order. I expressly agree that I will not disclose any information received by me pursuant to the Order and I agree to be bound by its terms as ordered by the Court. I understand that if I violate the terms of the Order, I may be subject to an enforcement proceeding before the Court, and I will comply with and be bound by the terms and conditions of said Order unless and until modified by further order of the Court. I hereby consent to the jurisdiction of the United States District Court for the Northern District of California for purposes of enforcing this Order. Name: Dated: ___________________________ ___________________________

Address: ___________________________ ___________________________

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