J. et al v. County of Alameda et al

Filing 36

ORDER by Judge Claudia Wilken Granting 34 STIPULATED PROTECTIVE ORDER. (ndr, COURT STAFF) (Filed on 2/21/2012)

1
2
3
4
5

Rebecca S. Widen, SBN 219207
Andrea A. Najor, SBN 221853
HAAPALA, THOMPSON & ABERN, LLP
1939 Harrison Street, Suite 800
Oakland, California 94612
Tel: [phone]
Fax: [phone]
Attorneys For Defendants
COUNTY OF ALAMEDA

6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA – OAKLAND

10

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Haapala, Thompson & Abern LLP

11
12
13
14
15
16
17

R.J.; N.J.; and N.J.; MINORS, BY AND
) Case No.: C11-04123 CW
THROUGH THEIR GUARDIAN AD LITEM )
CURTIS R. NAMBA,
) STIPULATED PROTECTIVE ORDER
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF ALAMEDA; ALAMEDA
)
COUNTY DEPARTMENT OF SOCIAL
)
SERVICES; WESTCOAST CHILDREN’S )
CLINIC; DOES 1 through 60, inclusive,
)
)
Defendants.
)
)

18

1. PURPOSES AND LIMITATIONS

19

Disclosure and discovery activity in this action are likely to involve production of

20

confidential, proprietary, or private information for which special protection from public

21

disclosure and from use for any purpose other than prosecuting this litigation would be warranted.

22

Accordingly, the parties hereby stipulate to and petition the Court to enter the following

23

Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket

24

protections on all disclosures or responses to discovery and that the protection it affords extends

25

only to the limited information or items that are entitled under the applicable legal principles to

26

treatment as confidential. The parties further acknowledge, as set forth in Section 10, below, that

27

this Stipulated Protective Order creates no entitlement to file confidential information under seal;

28

Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards
1
R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order

1

that will be applied when a party seeks permission from the Court to file material under seal.

2

2. DEFINITIONS

3

2.1

4
5

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and outside counsel (and their support staff).
2.2

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

6

medium or manner generated, stored, or maintained (including, among other things, testimony,

7

transcripts, or tangible things) that are produced or generated in disclosures or responses to

8

discovery in this matter.

9

2.3

“Confidential” Information or Items: information (regardless of how generated,

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

stored or maintained) or tangible things that qualify for protection under standards developed

11
Haapala, Thompson & Abern LLP

10

under F.R.Civ.P. 26(c).

12

2.4

13

Producing Party.

14

2.5

15
16
17
18
19
20
21

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

Producing Party: a Party or non-party that produces Disclosure or Discovery

Material in this action.
2.6

Designating Party: a Party or non-party that designates information or items that

it produces in disclosures or in responses to discovery as “Confidential.”
2.7

Protected Material: any Disclosure or Discovery Material that is designated as

“Confidential.”
2.8

Outside Counsel: attorneys who are not employees of a Party but who are

retained to represent or advise a Party in this action.

22

2.9

House Counsel: attorneys who are employees of a Party.

23

2.10

Counsel (without qualifier): Outside Counsel and House Counsel (as well as

24

their support staffs).

25

2.11

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

26

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

27

as a consultant in this action and who is not a past or a current employee of a Party.

28

2.12

Professional Vendors: persons or entities that provide litigation support services
2

R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order

1

(e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing,

2

storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.

3

3. SCOPE

4

The protections conferred by this Stipulation and Order cover not only Protected

5

Material (as defined above), but also any information copied or extracted therefrom, as well as

6

all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or

7

presentations by parties or counsel to or in court or in other settings that might reveal Protected

8

Material.

9
10

4. DURATION
Even after the termination of this litigation, the confidentiality obligations imposed by

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Haapala, Thompson & Abern LLP

11

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

12

order otherwise directs.

13

5. DESIGNATING PROTECTED MATERIAL

14

5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

15

Party or non-party that designates information or items for protection under this Order must take

16

care to limit any such designation to specific material that qualifies under the appropriate

17

standards. A Designating Party must take care to designate for protection only those parts of

18

material, documents, items, or oral or written communications that qualify - so that other

19

portions of the material, documents, items, or communications for which protection is not

20

warranted are not swept unjustifiably within the ambit of this Order.

21

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

22

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

23

unnecessarily encumber or retard the case development process, or to impose unnecessary

24

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

25

If it comes to a Party’s or a non-party’s attention that information or items that it

26

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

27

protection initially asserted, that Party or non-party must promptly notify all other parties that it

28

is withdrawing the mistaken designation.
3
R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order

1

5.2

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

2

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

3

material that qualifies for protection under this Order must be clearly so designated before the

4

material is disclosed or produced.

5

Designation in conformity with this Order requires:

6

(a) for information in documentary form (apart from transcripts of depositions or

7

other pretrial or trial proceedings), the Producing Party will designate that the documents are

8

produced are “CONFIDENTIAL”

9

A Party or non-party that makes original documents or materials available for

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

inspection need not designate them for protection until after the inspecting Party has indicated

11
Haapala, Thompson & Abern LLP

10

which material it would like copied and produced. During the inspection and before the

12

designation, all of the material made available for inspection shall be deemed

13

“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied

14

and produced, the Producing Party must determine which documents, or portions thereof,

15

qualify for protection under this Order, then, before producing the specified documents, the

16

Producing Party must designate that the documents produced are “CONFIDENTIAL.”

17

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

18

Party or non-party offering or sponsoring the testimony identify on the record, before the close

19

of the deposition, hearing, or other proceeding, all protected testimony, and further specify any

20

portions of the testimony that qualify as “CONFIDENTIAL.” When it is impractical to identify

21

separately each portion of testimony that is entitled to protection, and when it appears that

22

substantial portions of the testimony may qualify for protection, the Party or non-party that

23

sponsors, offers, or gives the testimony may invoke on the record (before the deposition or

24

proceeding is concluded) a right to have up to 30 days to identify the specific portions of the

25

testimony as to which protection is sought. Only those portions of the testimony that are

26

appropriately designated for protection within the 30 days shall be covered by the provisions of

27

this Stipulated Protective Order.

28

Transcript pages containing Protected Material must be separately bound by the
4
R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order

1

court reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” as

2

instructed by the Party or non-party offering or sponsoring the witness or presenting the

3

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

4
5

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

6

the container or containers in which the information or item is stored the legend

7

“CONFIDENTIAL.” If only portions of the information or item warrant protection, the

8

Producing Party, to the extent practicable, shall identify the protected portions.

9

5.3

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

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

designate qualified information or items as “Confidential” does not, standing alone, waive the

11
Haapala, Thompson & Abern LLP

10

Designating Party’s right to secure protection under this Order for such material. If material is

12

appropriately designated as “Confidential” after the material was initially produced, the

13

Receiving Party, on timely notification of the designation, must make reasonable efforts to

14

assure that the material is treated in accordance with the provisions of this Order.

15

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

16

6.1

Timing of Challenges. Unless a prompt challenge to a Designating Party’s

17

confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary

18

economic burdens, or a later significant disruption or delay of the litigation, a Party does not

19

waive its right to challenge a confidentiality designation by electing not to mount a challenge

20

promptly after the original designation is disclosed.

21

6.2

Meet and Confer. A Party that elects to initiate a challenge to a Designating

22

Party’s confidentiality designation must do so in good faith and must begin the process by

23

conferring directly (in voice to voice dialogue; other forms of communication are not sufficient)

24

with counsel for the Designating Party. In conferring, the challenging Party must explain the

25

basis for its belief that the confidentiality designation was not proper and must give the

26

Designating Party an opportunity to review the designated material, to reconsider the

27

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

28

designation. A challenging Party may proceed to the next stage of the challenge process only if
5
R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order

1
2

it has engaged in this meet and confer process first.
6.3

Judicial Intervention. A Party that elects to press a challenge to a confidentiality

3

designation after considering the justification offered by the Designating Party may file and

4

serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if

5

applicable) that identifies the challenged material and sets forth in detail the basis for the

6

challenge. Each such motion must be accompanied by a competent declaration that affirms that

7

the movant has complied with the meet and confer requirements imposed in the preceding

8

paragraph and that sets forth with specificity the justification for the confidentiality designation

9

that was given by the Designating Party in the meet and confer dialogue.

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

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

11
Haapala, Thompson & Abern LLP

10

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

12

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

13

7. ACCESS TO AND USE OF PROTECTED MATERIAL

14

7.1

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

15

or produced by another Party or by a non-party in connection with this case only for

16

prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

17

disclosed only to the categories of persons and under the conditions described in this Order.

18

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

19

section 11, below (FINAL DISPOSITION).

20

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

21

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

22

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

23

ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

24

disclose any information or item designated CONFIDENTIAL only to:

25

(a) the Receiving Party’s Outside Counsel of record in this action, as well as

26

employees of said Counsel to whom it is reasonably necessary to disclose the information for

27

this litigation and who have signed the “Agreement to Be Bound by Protective Order” that is

28

attached hereto as Exhibit A;
6
R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order

1

(b) experts (as defined in this Order) of the Receiving Party to whom disclosure is

2

reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by

3

Protective Order” (Exhibit A);

4

(c) the Court and its personnel;

5

(d) court reporters, their staffs, and professional vendors to whom disclosure is

6

reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by

7

Protective Order” (Exhibit A);

8
9

(e) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Agreement to Be Bound by Protective Order”

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

(Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal

11
Haapala, Thompson & Abern LLP

10

Protected Material must be separately bound by the court reporter and may not be disclosed to

12

anyone except as permitted under this Stipulated Protective Order.

13
14
15
16

(f) the author of the document or the original source of the information.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in other litigation that

17

would compel disclosure of any information or items designated in this action as

18

“CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in writing (by

19

fax, if possible) immediately and in no event more than three court days after receiving the

20

subpoena or order. Such notification must include a copy of the subpoena or court order.

21

The Receiving Party also must immediately inform in writing the Party who caused the

22

subpoena or order to issue in the other litigation that some or all the material covered by the

23

subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must

24

deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that

25

caused the subpoena or order to issue.

26

The purpose of imposing these duties is to alert the interested parties to the existence of

27

this Protective Order and to afford the Designating Party in this case an opportunity to try to

28

protect its confidentiality interests in the court from which the subpoena or order issued. The
7
R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order

1

Designating Party shall bear the burdens and the expenses of seeking protection in that court of

2

its confidential material - and nothing in these provisions should be construed as authorizing or

3

encouraging a Receiving Party in this action to disobey a lawful directive from another court.

4

9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

5

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

6

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

7

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

8

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

9

(c) inform the person or persons to whom unauthorized disclosures were made of all the terms

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

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

11
Haapala, Thompson & Abern LLP

10

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

12

10. FILING PROTECTED MATERIAL

13

Without written permission from the Designating Party or a court order secured after

14

appropriate notice to all interested persons, a Party may not file in the public record in this

15

action any Protected Material. A Party that seeks to file under seal any Protected Material must

16

comply with Civil Local Rule 79-5.

17

11. FINAL DISPOSITION

18

Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days

19

after the final termination of this action, each Receiving Party must return all Protected Material

20

to the Producing Party. As used in this subdivision, “all Protected Material” includes all copies,

21

abstracts, compilations, summaries or any other form of reproducing or capturing any of the

22

Protected Material. With permission in writing from the Designating Party, the Receiving Party

23

may destroy some or all of the Protected Material instead of returning it. Whether the Protected

24

Material is returned or destroyed, the Receiving Party must submit a written certification to the

25

Producing Party (and, if not the same person or entity, to the Designating Party) by the sixty day

26

deadline that identifies (by category, where appropriate) all the Protected Material that was

27

returned or destroyed and that affirms that the Receiving Party has not retained any copies,

28

abstracts, compilations, summaries or other forms of reproducing or capturing any of the
8
R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order

1

Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival

2

copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney

3

work product, even if such materials contain Protected Material. Any such archival copies that

4

contain or constitute Protected Material remain subject to this Protective Order as set forth in

5

Section 4 (DURATION), above.

6

12. MISCELLANEOUS

7

12.1

8
9

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the Court in the future.
12.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Order no Party waives any right it otherwise would have to object to disclosing or producing any

11
Haapala, Thompson & Abern LLP

10

information or item on any ground not addressed in this Stipulated Protective Order. Similarly,

12

no Party waives any right to object on any ground to use in evidence of any of the material

13

covered by this Protective Order.

14

Dated: February 7, 2012

DREYER BABICH BUCCOLA
CALLAHAM & WOOD, LLP

15
By:
16
17

*/s/ Robert Buccola
Robert Buccola
Attorneys For Plaintiffs
*Mr. Buccola provided his consent that
this document be electronically filed.

18
19

Dated: February 7, 2012

HAAPALA, THOMPSON & ABERN, LLP

20
By:
21
22
23

Dated: February 7, 2012

/s/ Rebecca S. Widen
Rebecca S. Widen
Attorneys For Defendant
COUNTY OF ALAMEDA

PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ, LLP

24
25
26
27

By:

*/s/ Anne C. D’Arcy
Anne C. D’Arcy
Attorneys For Defendant
WESTCOAST CHILDREN’S CLINIC
*Ms. D’Arcy provided her consent that
this document be electronically filed.

28
9
R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order

1

PURSUANT TO STIPULATION, IT IS SO ORDERED.

2
3
4

Honorable Claudia Wilken
Judge of the U. S. District Court

5
6
7
8
9
10

Attorneys At Law
Park Plaza Building
1939 Harrison St., Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: 510-273-8570

Haapala, Thompson & Abern LLP

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
R.J., et al. v. County of Alameda, et al. / Case #C11-04123 CW
Stipulated Protective Order