Dowd et al v. Regents of the University of California et al

Filing 18

ORDER by Judge Haywood S. Gilliam, Jr. Granting 16 Stipulation FOR LITIGATION HIGHLY SENSITIVE CONFIDENTIAL INFORMATION. (ndrS, COURT STAFF) (Filed on 4/4/2017)

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LOUIS A. LEONE, ESQ, (SBN: 099874)
CLAUDIA LEED, ESQ. (SBN: 122676)
SETH L. GORDON, ESQ. (SBN: 262653)
LEONE & ALBERTS
A Professional Corporation
2175 N. California Blvd., Suite 900
Walnut Creek, CA 94596
Telephone: [phone]
Facsimile:
[phone]
E-Mail:
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
and CYRIACUS NZEREM
RAYMOND P. DOWD, PRO SE
LAURA E. LINSER, PRO SE
1770 Post Street # 334
San Francisco, CA 94115
Telephone: [phone] (DOWD)
Telephone: [phone] (LINSER)
E-Mail:
raydowd@,me.com
[e-mail]

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THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RAYMOND P. DOWD and LAURA E.
LINSER,

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STIPULATION AND PROTECTIVE
ORDER FOR LITIGATION HIGHLY
SENSITIVE CONFIDENTIAL
INFORMATION

Plaintiffs,

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Case No.: CV 17-181 HSG

vs.
UC REGENTS and CYRIACUS NZEREM
and Does 1-10 inclusive,
Defendants.

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1.

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LIMITATIONS
The parties hereby “stipulate” to and petition the court to enter the following

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

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blanket protections on all disclosures or responses to discovery and that the protection

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it affords from public disclosure and use extends only to the limited information or items

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

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parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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Protective Order does not entitle them to file confidential information under seal; Civil

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Local Rule 79-5 sets forth the procedures that must be followed and the standards that

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

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The parties believe that the information claimed by Defendants – or

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characterized by Defendants – as confidential, proprietary, or private information likely

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to be produced in this action consists of, among other things, records in police officer

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personnel files and internal affairs files relating to the individual Defendants.

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Defendants are unwilling to produce highly sensitive materials in their personnel files,

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nor information characterized by Defendants as “confidential official information”,

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without a protective order entered by this Court.

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The parties seek a counter-entered protective order governing the production of

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this confidential information. The production and handling of information produced

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pursuant to the Court’s order will be governed by the following terms of this protective

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order.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation

of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how it

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is generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House

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Counsel (as well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”.
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Disclosure or Discovery Material: all items or information, regardless of

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the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.6

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 an
expert witness or as a consultant in this action.
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Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a party

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to this action but are retained to represent or advise a party to this action and have

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appeared in this action on behalf of that party or are affiliated with a law firm which has

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appeared on behalf of that party.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.10

Producing Party: a Party or Non-Party that produces Disclosure or

Discovery Material in this action.
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Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium) and

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their employees and subcontractors.

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2.12

Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY.”
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2.13

Receiving Party: a person who receives Disclosure or Discovery Material

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from a Producing Party.

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

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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material. However, the protections conferred by

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this Stipulation and Order do not cover the following information: (a) any information

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that is in the public domain at the time of disclosure to a Receiving Party or becomes

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part of the public domain after its disclosure to a Receiving Party as a result of

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publication not involving a violation of this Order, including becoming part of the public

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record through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure or obtained by the Receiving Party after the disclosure from a

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source who obtained the information lawfully and under no obligation of confidentiality

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to the Designating Party. Any use of Protected Material at trial shall be governed by a

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separate agreement or order.

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DURATION
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.

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Final disposition shall be deemed to be the later of (1) dismissal of all claims

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and defenses in this action, with or without prejudice; and (2) final judgment herein

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after the completion and exhaustion of all appeals, re-hearings, remands, trials, or

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reviews of this action, including the time limits for filing any motions or applications for

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extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

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Each Party or Non-Party that designates information or items for protection

Exercise of Restraint and Care in Designating Material for Protection.

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under this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents, items,

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or communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this Order.

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

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are shown to be clearly unjustified or that have been made for an improper purpose

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(e.g., to unnecessarily encumber or retard the case development process or to impose

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unnecessary expenses and burdens on other parties) expose the Designating Party to

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sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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

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of protection initially asserted, that Designating Party must promptly notify all other

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parties that it is withdrawing the mistaken designation.

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5.2

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

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

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or ordered, Disclosure or Discovery Material that qualifies for protection under this

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Order must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each page

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that contains protected material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has
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indicated which material it would like copied and produced. During the inspection and

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

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

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wants copied and produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order. Then, before producing the

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specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to

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each page that contains Protected Material. If only a portion or portions of the material

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on a page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents or materials available for

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

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

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

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

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wants copied and produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order. Then, before producing the

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specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to

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each page that contains Protected Material. If only a portion or portions of the material

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on a page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins).

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

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proceedings, that the Designating Party (or the non-party offering or sponsoring the

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testimony) identify, within 30 business days of receipt of the deposition transcript, all

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portions of the testimony for which protection is sought. Testimony given in deposition

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shall be treated provisionally as “CONFIDENTIAL” from the time of the deposition

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through the earlier of (i) the Designating Party’s identification of the testimony to be

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protected; or (ii) 30 business days after the Designating Party’s receipt of the

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deposition transcript.
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(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL”. If only a portion or portions of the information or item

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warrant protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive the

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

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timely correction of a designation, the Receiving Party must make reasonable efforts to

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

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a Designating

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Party’s confidentiality designation is necessary to avoid foreseeable, substantial

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unfairness, unnecessary economic burdens, or a significant disruption or delay of the

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litigation, a Party does not waive its right to challenge a confidentiality designation by

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electing not to mount a challenge promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging and

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describing the basis for each challenge. To avoid ambiguity as to whether a challenge

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has been made, the written notice must recite that the challenge to confidentiality is

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being made in accordance with this specific paragraph of the Protective Order. The

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parties shall attempt to resolve each challenge in good faith and must begin the

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process by conferring directly (in voice to voice dialogue; other forms of communication

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are not sufficient) within 14 days of the date of service of notice. In conferring, the

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Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to
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review the designated material, to reconsider the circumstances, and, if no change in

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designation is offered, to explain the basis for the chosen designation. A Challenging

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Party may proceed to the next stage of the challenge process only if it has engaged in

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this meet and confer process first or establishes that the Designating Party is unwilling

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to participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Challenging Party may file a motion challenging a confidentiality

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designation at any time if there is good cause for doing so, including a challenge to the

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designation of a deposition transcript or any portions thereof. Any motion brought

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pursuant to this provision must be accompanied by a competent declaration affirming

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that the movant has complied with the meet and confer requirements imposed by the

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preceding paragraph.

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Until the Court rules on the challenge, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing

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Party’s designation.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. Protected Material must be stored and maintained by a

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Receiving Party at a location and in a secure manner that ensures that access is

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limited to the persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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may disclose any information or item designated “CONFIDENTIAL” only to:

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

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A;

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(b) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) the court and its personnel;

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(d) court reporters and their staff, professional jury or trial consultants,

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(e) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

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ordered by the Court. Pages of transcribed deposition testimony or exhibits to

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

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

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Protective Order.

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(f) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information.

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8.

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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

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order

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

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or order is subject to this Protective Order. Such notification shall include a copy of this

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Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with
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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive from another court.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION

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(a)

The terms of this Order are applicable to information produced by

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a Non-Party in this action and designated as “CONFIDENTIAL”. Such information

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produced by Non-Parties in connection with this litigation is protected by the remedies

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and relief provided by this Order. Nothing in these provisions should be construed as

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prohibiting a Non-Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request,

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to produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s confidential

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information, then the Party shall:

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1. promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement

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with a Non-Party;

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2. promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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3. make the information requested available for inspection by the
Non-Party.
(c)

If the Non-Party fails to object or seek a protective order from this

court within 14 days of receiving the notice and accompanying information, the
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Receiving Party may produce the Non-Party’s confidential information responsive to

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the discovery request. If the Non-Party timely seeks a protective order, the Receiving

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Party shall not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court.1

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Absent a court order to the contrary, the Non-Party shall bear the burden and expense

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of seeking protection in this court of its Protected Material.

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10.

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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

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

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the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d)

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request such person or persons to execute the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A.

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11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection, the

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obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). Nothing in this Order is intended to limit the application or

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scope of Federal Rule of Evidence 502.

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12.

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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.

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1 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of
a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.
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12.2

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

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any of the material covered by this Protective Order.

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12.3

Filing Protected Material. Without written permission from the Designating

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Party or a court order secured after appropriate notice to all interested persons, a Party

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may not file in the public record in this action any Protected Material. Protected

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Material may only be filed under seal. A Party that seeks to file under seal any

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Protected Material must comply with the applicable Local Rules, General Orders, and

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Judge’s individual rules/practices. If a Receiving Party's request to file Protected

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Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court,

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Receiving Party may file the Protected Material in the public record unless otherwise

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instructed by the court.

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13.

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FINAL DISPOSITION
Following the final disposition of this action, as defined in paragraph 4, each

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Receiving Party may return all Protected Material to the Producing Party, destroy such

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material, or retain such material. As used in this subdivision, “all Protected Material”

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includes all copies, abstracts, compilations, summaries, and any other format

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reproducing or capturing any of the Protected Material. Whether the Protected Material

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is returned, destroyed, or retained, the Receiving Party must submit a written

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certification to the Producing Party (and, if not the same person or entity, to the

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Designating Party) within 60-days of the final disposition of this action identifying (1)

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

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destroyed, or retained. Notwithstanding this provision, Counsel are entitled to retain an

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archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

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legal memoranda, correspondence, deposition and trial exhibits, expert reports,

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attorney work product, and consultant and expert work product, even if such materials
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contain Protected Material. Any such archival copies that contain or constitute

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Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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IT IS SO STIPULATED, THROUGH RAYMOND DOWD and LAURA LINSER
and THROUGH DEFENSE COUNSEL OF RECORD.

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Dated: March 31, 2017
By:

/s/ Raymond Dowd
RAYMOND DOWD, PRO SE

By:

/s/ Laura E. Linser
LAURA E. LINSER, PRO SE

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Dated: March 31, 2017

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Dated: March 31, 2017

LEONE & ALBERTS

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By:

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ORDER

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/s/ Claudia Leed, Esq.
LOUIS A. LEONE, ESQ.
CLAUDIA LEED, ESQ.
SETH L. GORDON, ESQ.
Attorneys for Defendants
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA and CYRIACUS NZEREM

PURSUANT TO THE STIPULATION OF THE PARTIES IT IS SO ORDERED.

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Dated: April 4, 2017
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_________________________________
HON. HAYWOOD S. GILLIAM, JR.
Judge of the District Court

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury that I

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have read in its entirety and understand the Stipulated Protective Order that was

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issued by the United States District Court for the Northern District of California on

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[date] in the case of Owen v. City of Pinole, et al, 16-cv-06131-SK, I agree to comply

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with and to be bound by all the terms of this Stipulated Protective Order and I

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understand and acknowledge that failure to so comply could expose me to sanctions

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and punishment in the nature of contempt. I solemnly promise that I will not disclose in

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any manner any information or item that is subject to this Stipulated Protective Order to

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any person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Northern District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this

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action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with this

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action or any proceedings related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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[printed name]

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Signature: __________________________________

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