Hernandez v. Contra Costa
Filing
20
ORDER by Judge Kandis A. Westmore granting 16 Stipulated Protective Order for Standard Litigation. (kawlc1, COURT STAFF) (Filed on 6/21/2018)
1
2
3
4
5
6
7
8
9
SHARON L. ANDERSON (SBN 94814)
County Counsel
DYLAN RADKE (SBN 207757)
Deputy County Counsel
COUNTY OF CONTRA COSTA
651 Pine Street, Ninth Floor
Martinez, California 94553
Telephone: (925) 335-1800
Facsimile: (925) 335-1866
Electronic Mail: dylan.radke@cc.cccounty.us
Attorneys for Defendant
COUNTY OF CONTRA COSTA
10
UNITED STATES DISTRICT COURT
11
NORTHERN DISTRICT OF CALIFORNIA
12
FELIPE HERNANDEZ, an individual,
No. C18-00267 KAW
13
Plaintiff,
14
15
v.
16
COUNTY OF CONTRA COSTA, a
municipal corporation; and DOES 1-50,
inclusive,
Defendants.
STIPULATED PROTECTIVE ORDER
17
18
Crtrm: 4, 3rd Floor
Judge: Hon. Kandis A. Westmore, Presiding
Date Action Filed: January 11, 2018
Trial Date: None Assigned
19
20
1.
PURPOSES AND LIMITATIONS
21
Disclosure and discovery activity in this action are likely to involve production of
22
confidential, proprietary, or private information for which special protection from public
23
disclosure and from use for any purpose other than prosecuting this litigation may be
24
warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the
25
following Stipulated Protective Order. The parties acknowledge that this Order does not
26
confer blanket protections on all disclosures or responses to discovery and that the protection
27
it affords from public disclosure and use extends only to the limited information or items that
28
are entitled to confidential treatment under the applicable legal principles. The parties further
Stipulated Protective Order - Case No. C18-00267 KAW
1
1
acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not
2
entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the
3
procedures that must be followed and the standards that will be applied when a party seeks
4
permission from the court to file material under seal.
5
2.
6
7
8
9
10
11
12
13
14
15
DEFINITIONS
2.1
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.2
“CONFIDENTIAL” Information or Items: information (regardless of how it is
generated, stored or maintained) or tangible things that qualify for protection under Federal
Rule of Civil Procedure 26(c).
2.3
Counsel (without qualifier): Outside Counsel of Record and House 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.”
2.5
Disclosure or Discovery Material: all items or information, regardless of the
16
medium or manner in which it is generated, stored, or maintained (including, among other
17
things, testimony, transcripts, and tangible things), that are produced or generated in
18
disclosures or responses to discovery in this matter.
19
2.6
Expert: a person with specialized knowledge or experience in a matter pertinent
20
to the litigation who has been retained by a Party or its counsel to serve as an expert witness or
21
as a consultant in this action.
22
23
24
25
26
27
2.7
House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8
Non-Party: any natural person, partnership, corporation, association, or other
legal entity not named as a Party to this action.
2.9
Outside Counsel of Record: attorneys who are not employees of a party to this
action but are retained to represent or advise a party to this action and have appeared in this
28
Stipulated Protective Order - Case No. C18-00267 KAW
2
1
action on behalf of that party or are affiliated with a law firm which has appeared on behalf of
2
that party.
2.10
3
4
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11
5
6
Party: any party to this action, including all of its officers, directors, employees,
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
2.12
7
Professional Vendors: persons or entities that provide litigation support services
8
(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
9
organizing, storing, or retrieving data in any form or medium) and their employees and
10
subcontractors.
2.13
11
12
Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL.”
2.14
13
Receiving Party: a Party that receives Disclosure or Discovery Material from a
14
Producing Party.
15
3.
16
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected
17
Material (as defined above), but also (1) any information copied or extracted from Protected
18
Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3)
19
any testimony, conversations, or presentations by Parties or their Counsel that might reveal
20
Protected Material. However, the protections conferred by this Stipulation and Order do not
21
cover the following information: (a) any information that is in the public domain at the time of
22
disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a
23
Receiving Party as a result of publication not involving a violation of this Order, including
24
becoming part of the public record through trial or otherwise; and (b) any information known
25
to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the
26
disclosure from a source who obtained the information lawfully and under no obligation of
27
confidentiality to the Designating Party. Any use of Protected Material at trial shall be
28
governed by a separate agreement or order.
Stipulated Protective Order - Case No. C18-00267 KAW
3
1
4.
DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by
2
3
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a
4
court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal
5
of all claims and defenses in this action, with or without prejudice; and (2) final judgment
6
herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or
7
reviews of this action, including the time limits for filing any motions or applications for
8
extension of time pursuant to applicable law.
9
5.
10
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each
11
Party or Non-Party that designates information or items for protection under this Order must
12
take care to limit any such designation to specific material that qualifies under the appropriate
13
standards. The Designating Party must designate for protection only those parts of material,
14
documents, items, or oral or written communications that qualify – so that other portions of
15
the material, documents, items, or communications for which protection is not warranted are
16
not swept unjustifiably within the ambit of this Order.
17
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
18
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
19
unnecessarily encumber or retard the case development process or to impose unnecessary
20
expenses and burdens on other parties) expose the Designating Party to sanctions.
21
If it comes to a Designating Party’s attention that information or items that it designated for
22
protection do not qualify for protection, that Designating Party must promptly notify all other
23
Parties that it is withdrawing the mistaken designation.
24
5.2
Manner and Timing of Designations. Except as otherwise provided in this
25
Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
26
ordered, Disclosure or Discovery Material that qualifies for protection under this Order must
27
be clearly so designated before the material is disclosed or produced.
28
Designation in conformity with this Order requires:
Stipulated Protective Order - Case No. C18-00267 KAW
4
(a) for information in documentary form (e.g., paper or electronic documents,
1
2
but excluding transcripts of depositions or other pretrial or trial proceedings), that the
3
Producing Party affix the legend “CONFIDENTIAL” to each page that contains protected
4
material. If only a portion or portions of the material on a page qualifies for protection, the
5
Producing Party also must clearly identify the protected portion(s) (e.g., by making
6
appropriate markings in the margins). A Party or Non-Party that makes original documents or
7
materials available for inspection need not designate them for protection until after the
8
inspecting Party has indicated which material it would like copied and produced. During the
9
inspection and before the designation, all of the material made available for inspection shall be
10
deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
11
copied and produced, the Producing Party must determine which documents, or portions
12
thereof, qualify for protection under this Order. Then, before producing the specified
13
documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that
14
contains Protected Material. If only a portion or portions of the material on a page qualifies for
15
protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by
16
making appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings,
17
18
that the Designating Party identify on the record, before the close of the deposition, hearing, or
19
other proceeding, all protected testimony.
20
(c) for information produced in some form other than documentary and for any
21
other tangible items, that the Producing Party affix in a prominent place on the exterior of the
22
container or containers in which the information or item is stored the legend
23
“CONFIDENTIAL.” If only a portion or portions of the information or item warrant
24
protection, the Producing Party, to the extent practicable, shall identify the protected
25
portion(s).
26
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
27
designate qualified information or items does not, standing alone, waive the Designating
28
Party’s right to secure protection under this Order for such material. Upon timely correction of
Stipulated Protective Order - Case No. C18-00267 KAW
5
1
a designation, the Receiving Party must make reasonable efforts to assure that the material is
2
treated in accordance with the provisions of this Order.
3
6.
4
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a designation of
5
confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
6
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
7
burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
8
challenge a confidentiality designation by electing not to mount a challenge promptly after the
9
original designation is disclosed.
10
6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution
11
process by providing written notice of each designation it is challenging and describing the
12
basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the
13
written notice must recite that the challenge to confidentiality is being made in accordance
14
with this specific paragraph of the Protective Order. The parties shall attempt to resolve each
15
challenge in good faith and must begin the process by conferring directly (in voice to voice
16
dialogue; other forms of communication are not sufficient) within 14 days of the date of
17
service of notice. In conferring, the Challenging Party must explain the basis for its belief that
18
the confidentiality designation was not proper and must give the Designating Party an
19
opportunity to review the designated material, to reconsider the circumstances, and, if no
20
change in designation is offered, to explain the basis for the chosen designation. A
21
Challenging Party may proceed to the next stage of the challenge process only if it has
22
engaged in this meet and confer process first or establishes that the Designating Party is
23
unwilling to participate in the meet and confer process in a timely manner.
24
6.3
Judicial Intervention. If the Parties cannot resolve a challenge without court
25
intervention, the Designating Party shall file and serve a motion to retain confidentiality under
26
Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21
27
days of the initial notice of challenge or within 14 days of the parties agreeing that the meet
28
and confer process will not resolve their dispute, whichever is earlier. Each such motion must
Stipulated Protective Order - Case No. C18-00267 KAW
6
1
be accompanied by a competent declaration affirming that the movant has complied with the
2
meet and confer requirements imposed in the preceding paragraph. Failure by the Designating
3
Party to make such a motion including the required declaration within 21 days (or 14 days, if
4
applicable) shall automatically waive the confidentiality designation for each challenged
5
designation. In addition, the Challenging Party may file a motion challenging a confidentiality
6
designation at any time if there is good cause for doing so, including a challenge to the
7
designation of a deposition transcript or any portions thereof. Any motion brought pursuant to
8
this provision must be accompanied by a competent declaration affirming that the movant has
9
complied with the meet and confer requirements imposed by the preceding paragraph.
10
The burden of persuasion in any such challenge proceeding shall be on the Designating
11
Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
12
unnecessary expenses and burdens on other parties) may expose the Challenging Party to
13
sanctions. Unless the Designating Party has waived the confidentiality designation by failing
14
to file a motion to retain confidentiality as described above, all parties shall continue to afford
15
the material in question the level of protection to which it is entitled under the Producing
16
Party’s designation until the court rules on the challenge.
17
7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
18
Basic Principles. A Receiving Party may use Protected Material that is disclosed
19
or produced by another Party or by a Non-Party in connection with this case only for
20
prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
21
disclosed only to the categories of persons and under the conditions described in this Order.
22
When the litigation has been terminated, a Receiving Party must comply with the provisions
23
of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location
24
25
and in a secure manner that ensures that access is limited to the persons authorized under this
26
Order.
27
//
28
//
Stipulated Protective Order - Case No. C18-00267 KAW
7
7.2
1
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
2
ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
3
disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
4
5
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose
6
the information for this litigation and who have signed the “Acknowledgment and Agreement
7
to Be Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the
8
9
10
Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure
11
12
is reasonably necessary for this litigation and who have signed the “Acknowledgment and
13
Agreement to Be Bound” (Exhibit A);
14
(d) the court and its personnel;
15
(e) court reporters and their staff, professional jury or trial consultants, mock
16
jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation
17
and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
18
(f) during their depositions, witnesses in the action to whom disclosure is
19
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
20
Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.
21
Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
22
Material must be separately bound by the court reporter and may not be disclosed to anyone
23
except as permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a
24
25
custodian or other person who otherwise possessed or knew the information.
26
//
27
//
28
//
Stipulated Protective Order - Case No. C18-00267 KAW
8
1
8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
2
OTHER LITIGATION
3
If a Party is served with a subpoena or a court order issued in other litigation that
4
compels disclosure of any information or items designated in this action as
5
“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
6
7
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to
8
9
issue in the other litigation that some or all of the material covered by the subpoena or order is
10
subject to this Protective Order. Such notification shall include a copy of this Stipulated
11
Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by
12
13
the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
14
15
subpoena or court order shall not produce any information designated in this action as
16
“CONFIDENTIAL” before a determination by the court from which the subpoena or order
17
issued, unless the Party has obtained the Designating Party’s permission. The Designating
18
Party shall bear the burden and expense of seeking protection in that court of its confidential
19
material – and nothing in these provisions should be construed as authorizing or encouraging a
20
Receiving Party in this action to disobey a lawful directive from another court.
21
9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION
22
(a) The terms of this Order are applicable to information produced by a Non-
23
24
Party in this action and designated as “CONFIDENTIAL.” Such information produced by
25
Non-Parties in connection with this litigation is protected by the remedies and relief provided
26
by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party
27
from seeking additional protections.
28
//
Stipulated Protective Order - Case No. C18-00267 KAW
9
(b) In the event that a Party is required, by a valid discovery request, to produce
1
2
a Non-Party’s confidential information in its possession, and the Party is subject to an
3
agreement with the Non-Party not to produce the Non-Party’s confidential information, then
4
the Party shall:
5
(1) promptly notify in writing the Requesting Party and the Non-Party
6
that some or all of the information requested is subject to a confidentiality agreement with a
7
Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated
8
9
10
Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and
(3) make the information requested available for inspection by the Non-
11
12
Party.
13
(c) If the Non-Party fails to object or seek a protective order from this court
14
within 14 days of receiving the notice and accompanying information, the Receiving Party
15
may produce the Non-Party’s confidential information responsive to the discovery request. If
16
the Non-Party timely seeks a protective order, the Receiving Party shall not produce any
17
information in its possession or control that is subject to the confidentiality agreement with the
18
Non-Party before a determination by the court. Absent a court order to the contrary, the Non-
19
Party shall bear the burden and expense of seeking protection in this court of its Protected
20
Material.
21
10.
22
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
23
Material to any person or in any circumstance not authorized under this Stipulated Protective
24
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
25
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
26
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
27
made of all the terms of this Order, and (d) request such person or persons to execute the
28
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
Stipulated Protective Order - Case No. C18-00267 KAW
10
1
11.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
2
MATERIAL
3
When a Producing Party gives notice to Receiving Parties that certain inadvertently
4
produced material is subject to a claim of privilege or other protection, the obligations of the
5
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
6
provision is not intended to modify whatever procedure may be established in an e-discovery
7
order that provides for production without prior privilege review. Pursuant to Federal Rule of
8
Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
9
of a communication or information covered by the attorney-client privilege or work product
10
protection, the parties may incorporate their agreement in the stipulated protective order
11
submitted to the court.
12
12.
13
14
15
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.
12.2
Right to Assert Other Objections. By stipulating to the entry of this Protective
16
Order no Party waives any right it otherwise would have to object to disclosing or producing
17
any information or item on any ground not addressed in this Stipulated Protective Order.
18
Similarly, no Party waives any right to object on any ground to use in evidence of any of the
19
material covered by this Protective Order.
20
12.3
Filing Protected Material. Without written permission from the Designating
21
Party or a court order secured after appropriate notice to all interested persons, a Party may
22
not file in the public record in this action any Protected Material. A Party that seeks to file
23
under seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material
24
may only be filed under seal pursuant to a court order authorizing the sealing of the specific
25
Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only
26
upon a request establishing that the Protected Material at issue is privileged, protectable as a
27
trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to
28
file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court,
Stipulated Protective Order - Case No. C18-00267 KAW
11
1
then the Receiving Party may file the information in the public record pursuant to Civil Local
2
Rule 79-5(e) unless otherwise instructed by the court.
3
13.
FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each
4
5
Receiving Party must return all Protected Material to the Producing Party or destroy such
6
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
7
compilations, summaries, and any other format reproducing or capturing any of the Protected
8
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
9
submit a written certification to the Producing Party (and, if not the same person or entity, to
10
the Designating Party) by the 60 day deadline that (1) identifies (by category, where
11
appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the
12
Receiving Party has not retained any copies, abstracts, compilations, summaries or any other
13
format reproducing or capturing any of the Protected Material. Notwithstanding this provision,
14
Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial,
15
deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial
16
exhibits, expert reports, attorney work product, and consultant and expert work product, even
17
if such materials contain Protected Material. Any such archival copies that contain or
18
constitute Protected Material remain subject to this Protective Order as set forth in Section 4
19
(DURATION).
20
//
21
//
22
//
23
//
24
//
25
//
26
//
27
//
28
//
Stipulated Protective Order - Case No. C18-00267 KAW
12
1
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
2
LAW OFFICES OF JOHN L. BURRIS
3
4
DATED: June 13, 2018
5
6
By: ___________/s/____________________
BEN NISENBAUM
JAMES COOK
Attorneys for Plaintiff
FELIPE HERNANDEZ
7
8
SHARON L. ANDERSON
COUNTY COUNSEL
9
10
DATED: June 13, 2018
11
12
13
By: ___________/s/___________________
DYLAN RADKE
Deputy County Counsel
Attorneys for Defendants
COUNTY OF CONTRA COSTA
14
15
PURSUANT TO STIPULATION, IT IS SO ORDERED.
16
17
18
6/21/18
DATED: __________________
_____________________________________
Hon. Kandis A. Westmore,
United States Magistrate Judge
19
20
21
22
23
24
25
26
27
28
Stipulated Protective Order - Case No. C18-00267 KAW
13
1
EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, _____________________________ [print or type full name], of _________________ [print
4
or type full address], declare under penalty of perjury that I have read in its entirety and
5
understand the Stipulated Protective Order that was issued by the United States District Court
6
for the Northern District of California on [date] in the case of ___________ [insert formal
7
name of the case and the number and initials assigned to it by the court]. I agree to
8
comply with and to be bound by all the terms of this Stipulated Protective Order and I
9
understand and acknowledge that failure to so comply could expose me to sanctions and
10
punishment in the nature of contempt. I solemnly promise that I will not disclose in any
11
manner any information or item that is subject to this Stipulated Protective Order to any
12
person or entity except in strict compliance with the provisions of this Order.
13
I further agree to submit to the jurisdiction of the United States District Court for the
14
Northern District of California for the purpose of enforcing the terms of this Stipulated
15
Protective Order, even if such enforcement proceedings occur after termination of this action.
16
I hereby appoint __________________________ [print or type full name] of
17
_______________________________________ [print or type full address and telephone
18
number] as my California agent for service of process in connection with this action or any
19
proceedings related to enforcement of this Stipulated Protective Order.
20
Date: ______________________________________
21
City and State where sworn and signed: _________________________________
22
Printed name: _______________________________
23
24
Signature: __________________________________
25
26
27
28
Stipulated Protective Order - Case No. C18-00267 KAW
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?