Haynes v. City and County of San Francisco et al

Filing 19

STIPULATION AND PROTECTIVE ORDER AS MODIFIED BY THE COURT re 18 Stipulation filed by Paulo Morgado, City and County of San Francisco, Heather Fong. Signed by Judge Phyllis J. Hamilton on 8/20/09. (nah, COURT STAFF) (Filed on 8/20/2009)

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

DENNIS J. HERRERA, State Bar #139669 City Attorney JOANNE HOEPER, State Bar #114961 Chief Trial Deputy SEAN F. CONNOLLY, State Bar #152235 Deputy City Attorney Fox Plaza 1390 Market Street, 6th Floor San Francisco, California 94102-5408 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO, ET AL. BENJAMIN NISENBAUM, State Bar # 222173 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Centre 7677 Oakport Street, Suite 1120 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] Attorneys for Plaintiff CHARLES HAYNES UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CHARLES HAYNES, Plaintiff, vs. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation; HEATHER FONG, in her capacity as Chief of Police for the CITY AND COUNTY OF SAN FRANCISCO; PAULO MORGADO, individually, and in his capacity as a police officer for the CITY AND COUNTY OF SAN FRANCISCO; and, San Francisco police officers DOES 1-25, inclusive, Defendants. Case No. C09-00174 PJH

STIPULATION AND [PROPOSED] PROTECTIVE ORDER AS MODIFIED BY THE COURT

Trial Date:

November 1, 2010

STIP. & [PROPOSED] PROTECTIVE ORDER CASE NO. C09-00174 PJH

1

n:\lit\li2009\090894\00574121.doc

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

STIPULATED PROTECTIVE ORDER Pursuant to Federal Rule of Civil Procedure 26(c) the parties have met and conferred and agree that the discovery of CONFIDENTIAL INFORMATION in this matter be made pursuant to the terms of this PROTECTIVE ORDER. GOOD CAUSE APPEARING, the parties stipulate, though their attorneys of record, to the entry of an order as follows: 1. CONFIDENTIAL INFORMATION, within the meaning of this PROTECTIVE

ORDER, shall include all documents containing official information privileged materials, criminal investigation materials and any other such documents that defendants in good faith have determined to be confidential. Defendants shall attempt to stamp "Confidential" on all such documents prior to production. In the event that any CONFIDENTIAL INFORMATION is inadvertently not stamped as "Confidential" by defendants, the party who notices this oversight shall immediately make it known to the other parties and the documents shall immediately be stamped as "Confidential" and treated as such, as per this order. 2. All documents, including, but not limited to, audiotapes, videotapes, photographs,

transcripts, etc., related to the criminal investigation incidental to the event forming the basis of this lawsuit shall be deemed CONFIDENTIAL INFORMATION, within the meaning of this stipulation. 3. Plaintiff may challenge defendants' designation of a particular document as

CONFIDENTIAL INFORMATION by filing an appropriate motion, under seal, with the Court. The parties agree that the prevailing party in a motion to remove the confidential designation shall waive any entitlement to monetary sanctions, including attorney's fees. 4. Unless disclosure is ordered by the Court, attorneys for defendants shall have the sole

authority to determine that documents subject to the PROTECTIVE ORDER are no longer considered CONFIDENTIAL INFORMATION and will advise counsel for plaintiff in writing if this determination is made. 5. Any CONFIDENTIAL INFORMATION that is disclosed or produced by any party or

non party in connection with this case may be used only for prosecuting, defending, or attempting to settle this litigation. CONFIDENTIAL INFORMATION may be disclosed only to the categories of
STIP. & [PROPOSED] PROTECTIVE ORDER CASE NO. C09-00174 PJH

2

n:\lit\li2009\090894\00574121.doc

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

persons and under the conditions described in this Order. When the litigation has been terminated, all parties or non parties that have received CONFIDENTIAL INFORMATION must comply with the provisions of section 12, below. All parties or non parties that have received CONFIDENTIAL INFORMATION must store and maintain it in a secure manner that ensures that access is limited to the persons authorized under this Order. 6. Plaintiff's Counsel may exhibit, discuss, and/or disclose CONFIDENTIAL

INFORMATION only to the following categories of person and no other unless authorized by order of the Court: a. b. Plaintiff's Counsel; Experts, investigators or consultants retained by Plaintiff's Counsel to assist in

the evaluation, preparation, or trial of this case; however, before any expert, investigator, or consultant is permitted to review the CONFIDENTIAL INFORMATION, such individual must agree to comply with the terms of this PROTECTIVE ORDER by executing the document attached as Exhibit A. Plaintiff's counsel shall file and serve that document upon its execution; however, Plaintiff's counsel shall not be required to file any Agreement to Comply any earlier than the date that Expert Disclosures are required to be made. Experts, investigators, and consultants shall not have any power to authorize further disclosure of CONFIDENTIAL INFORMATION to any other person. 7. Counsel for Plaintiff may not provide originals or copies of the CONFIDENTIAL

INFORMATION to any plaintiff absent the written agreement of counsel for the City or a court order, subject to the following: a. For purposes of evaluating the settlement value or potential jury verdict,

counsel for Plaintiff may discuss the general nature of the CONFIDENTIAL INFORMATION with plaintiffs without disclosing any identifying details about a specific witness or any documents. Plaintiffs' counsel may also review with a plaintiff any statement or interview given by that plaintiff. 8. Unless otherwise stipulated to by defendants, any use of CONFIDENTIAL

INFORMATION or comment on the substance of any CONFIDENTIAL INFORMATION in any papers or pleadings filed with the Court, shall be filed under seal pursuant to the Court's rules and procedures (see Northern District of California Civil Local Rule 79-5). The sealed envelopes shall
STIP. & [PROPOSED] PROTECTIVE ORDER CASE NO. C09-00174 PJH

3

n:\lit\li2009\090894\00574121.doc

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

be endorsed with the caption of this litigation, and an indication of the nature of the contents of the envelopes and a statement substantially in the following form: "This envelope contains documents that are filed in this case pursuant to a Protective Order and are not to be opened nor the contents thereof to be displayed or revealed except by further order of the Court or written consent of the City and County of San Francisco." 9. In the event any person desires to exhibit documents or disclose CONFIDENTIAL

INFORMATION covered under this stipulation during trial or pretrial proceedings, such person shall meet and confer with counsel for defendants to reach an agreement, in accordance with the Court's rules and procedures, on an appropriate method for disclosure, and if defendants do not agree to such disclosure, such CONFIDENTIAL INFORMATION shall not be disclosed unless authorized by order of the Court. Unless otherwise agreed, transcripts and exhibits that incorporate or reference CONFIDENTIAL INFORMATION covered under this stipulation shall be treated as CONFIDENTIAL INFORMATION that is subject to the provisions of this PROTECTIVE ORDER. The Court Reporter shall mark as "Confidential" any deposition or hearing transcript that contains any CONFIDENTIAL INFORMATION or any reference to CONFIDENTIAL INFORMATION. 10. If a party who has received CONFIDENTIAL INFORMATION learns that, by

inadvertence or otherwise, it has disclosed CONFIDENTIAL INFORMATION to any person or in any circumstance not authorized under this PROTECTIVE ORDER, the party must immediately (a) notify the San Francisco City Attorney's Office in writing of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the CONFIDENTIAL INFORMATION, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the document that is attached hereto as Exhibit A. 11. Any inadvertent disclosure made in violation of this PROTECTIVE ORDER shall be

immediately corrected by the offending party and does not constitute a waiver of the terms of this PROTECTIVE ORDER, except by written agreement of the parties, or further order of this Court. 12. All documents covered by this PROTECTIVE ORDER and copies thereof (including

those in the possession of experts, consultants, etc.) will be returned to the San Francisco City Attorney's Office at the termination of this litigation. On final disposition of this case, plaintiff's
STIP. & [PROPOSED] PROTECTIVE ORDER CASE NO. C09-00174 PJH

4

n:\lit\li2009\090894\00574121.doc

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

counsel shall within 30 days after the final disposition of this case, without request or further order of this Court, return all CONFIDENTIAL INFORMATION to the Deputy City Attorney of record in this matter. The provisions of this PROTECTIVE ORDER shall, without further order of the Court, continue to be binding after the conclusion of the action, and this Court will have jurisdiction to enforce the terms of this PROTECTIVE ORDER. 13. Should plaintiffs or plaintiffs' counsel fail to comply with this PROTECTIVE

ORDER, plaintiffs and plaintiffs' counsel shall be liable for all costs associated with enforcing this agreement, including but not limited to all attorney fees in amounts to be determined by the Court. Plaintiff and plaintiff's counsel may also be subject to additional sanctions or remedial measures, such as contempt, evidentiary or terminating sanctions. IT IS SO STIPULATED.

Dated: August 12, 2009 DENNIS J. HERRERA City Attorney JOANNE HOEPER Chief Trial Deputy SEAN F. CONNOLLY Deputy City Attorney By: s/Sean F. Connolly SEAN F. CONNOLLY Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO LAW OFFICES OF JOHN L. BURRIS Dated: August 12, 2009 By: s/Benjamin Nisenbaum BENJAMIN NISENBAUM, ESQ. Attorneys for Plaintiff CHARLES HAYNES

STIP. & [PROPOSED] PROTECTIVE ORDER CASE NO. C09-00174 PJH

5

n:\lit\li2009\090894\00574121.doc

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

EXHIBIT A

STIP. & [PROPOSED] PROTECTIVE ORDER CASE NO. C09-00174 PJH

6

n:\lit\li2009\090894\00574121.doc

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

AGREEMENT TO COMPLY WITH STIPULATED PROTECTIVE ORDER FOR CONFIDENTIAL AND HIGHLY CONFIDENTIAL INFORMATION I, , have read and understand the Court's Protective Order for

CONFIDENTIAL INFORMATION and HIGHLY CONFIDENTIAL INFORMATION. I agree to abide by all terms of the Order. In addition, I specifically understand and agree to the following: 1. I will not disclose any document designated "Confidential" or "Highly Confidential

Information ­ Attorney's Eyes Only" to any other person. 2. I understand that I have no power to authorize any other person to review any

document designated "Confidential" or "Highly Confidential Information ­ Attorney's Eyes Only." 3. I agree not to make copies of any document designated "Confidential" or "Highly

Confidential Information ­ Attorney's Eyes Only." 4. I agree to return all documents designated "Confidential" and "Highly Confidential

Information ­ Attorney's Eyes Only" to the counsel for the party that produced them, at or before the conclusion of this litigation.

AGREED:

DATE SIGNATURE PRINT NAME

STIP. & [PROPOSED] PROTECTIVE ORDER CASE NO. C09-00174 PJH

7

n:\lit\li2009\090894\00574121.doc

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
STIP. & [PROPOSED] PROTECTIVE ORDER CASE NO. C09-00174 PJH

ORDER BASED ON THE ABOVE ENTERED STIPULATION, IT IS SO ORDERED Dated: 8/20/09

UNIT ED

THE HONORABLE PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGEED

S

S DISTRICT TE C TA

RT U O

ER

N

F D IS T IC T O R

AS THE COURT DECLINES TO INDEPENDENTLY RESOLVE CHALLENGES TO THE PARTIES' CONFIDENTIALITY DESIGNATIONS WITH RESPECT TO PARTICULAR DOCUMENTS, EXCEPT INSOFAR AS SUCH RESOLUTION IS REQUIRED IN CONNECTION WITH DETERMINATION OF MOTIONS TO SEAL FILED TOGETHER WITH PAPERS OR PLEADINGS BEFORE THE COURT (PURSUANT TO LOCAL RULE 79-5), PARAGRAPH 3 OF THE STIPULATED PROTECTIVE ORDER IS STRICKEN.

8

n:\lit\li2009\090894\00574121.doc

A

C

LI

FO

Ju

llis J. H dge Phy

amilton

R NIA

OO IT IS S

RDER

NO

RT

H