Freeman v. Rohnert Park Department of Public Safety et al
Filing
64
ORDER by Judge Haywood S. Gilliam, Jr. Granting 63 Stipulated Protective Order. (ndrS, COURT STAFF) (Filed on 10/9/2019)
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Gregory M. Fox, State Bar No. 070876
Joanne Tran, State Bar No. 294402
BERTRAND, FOX, ELLIOT, OSMAN & WENZEL
The Waterfront Building
2749 Hyde Street
San Francisco, California 94109
Telephone: (415) 353-0999
Facsimile: (415) 353-0990
Email:
gfox@bfesf.com
jtran@bfesf.com
Attorneys for Defendants
CITY OF ROHNERT PARK,
ROHNERT PARK DEPARTMENT
OF PUBLIC SAFETY, DAVID
SUTTER, and BRIAN MASTERSON
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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HUEDELL FREEMAN,
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Plaintiff,
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Case No. 4:18-cv-07661-HSG
v.
CITY OF ROHNERT PARK, a government
agency, ROHNERT PARK DEPARTMENT
OF PUBLIC SAFETY; a government agency,
BRANDON “JACY” TATUM, an individual;
JOSEPH HUFFAKER, an individual; DAVID
SUTTER, an individual; BRIAN
MASTERSON an individual; and DOES 1-25
inclusive,
STIPULATED PROTECTIVE ORDER
Defendants.
Hon. Haywood S. Gilliam, Jr.
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STIPULATED PROTECTIVE ORDER
Freeman. v. City of Rohnert Park. U.S.D.C. Northern District of California Case No. 4:18-cv-07661-HSG
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Plaintiff HUEDELL FREEMAN (“FREEMAN”), Defendant CITY OF ROHNERT PARK,
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(“CITY”), Defendant ROHNERT PARK DEPARTMENT OF PUBLIC SAFETY (“RPDPS”),
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Defendant DAVID SUTTER (“SUTTER”), Defendant BRIAN MASTERSON (“MASTERSON”),
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Defendant
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(“HUFFAKER”), hereby stipulate to the following proposed protective order, which is based, with no
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deviations, on the Northern District’s model protective order for standard litigation.
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1.
BRANDON
“JACY”
TATUM
(“TATUM”),
Defendant
JOSEPH
HUFFAKER
PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in this action are likely to involve production of confidential,
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proprietary, or private information for which special protection from public disclosure and from use for
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any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby
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stipulate to and petition the court to enter the following Stipulated Protective Order. The parties
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acknowledge that this Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords from public disclosure and use extends only to the limited
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information or items 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 Protective Order does
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not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the
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procedures that must be followed and the standards that will be applied when a party seeks permission
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from the court to file material under seal.
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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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2.2
“CONFIDENTIAL” Information or Items: information (regardless of how it is generated,
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stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure
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26(c).
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2.3
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their support staff).
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2.4
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Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as
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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2.5
Disclosure or Discovery Material: all items or information, regardless of the medium or
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manner in which it is generated, stored, or maintained (including, among other things, testimony,
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transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery
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in this matter.
2.6
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Expert: a person with specialized knowledge or experience in a matter pertinent to the
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litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant
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in this action.
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does not include Outside Counsel of Record or any other outside counsel.
2.8
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House Counsel: attorneys who are employees of a party to this action. House Counsel
Non-Party: any natural person, partnership, corporation, association, or other legal entity
not named as a Party to this action.
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2.9
Outside Counsel of Record: attorneys who are not employees of a party to this action but
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are retained to represent or advise a party to this action and have appeared in this action on behalf of that
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party or are affiliated with a law firm which has appeared on behalf of that party.
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2.10
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11
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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.
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2.12
Professional Vendors: persons or entities that provide litigation support services (e.g.,
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photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or
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retrieving data in any form or medium) and their employees and subcontractors.
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2.13
Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL.”
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Party.
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3.
Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing
SCOPE
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The protections conferred by this Stipulation and Order cover not only Protected Material (as
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defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies,
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excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or
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presentations by Parties or their Counsel that might reveal Protected Material. However, the protections
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conferred by this Stipulation and Order do not cover the following information: (a) any information that
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is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public
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domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this
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Order, including becoming part of the public record through trial or otherwise; and (b) any information
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known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the
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disclosure from a source who obtained the information lawfully and under no obligation of
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confidentiality 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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4.
DURATION
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Even after final disposition of this litigation, the confidentiality obligations imposed by this Order
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shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise
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directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this
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action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all
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appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any
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motions or applications for extension of time pursuant to applicable law.
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5.
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DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-
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Party that designates information or items for protection under this Order must take care to limit any such
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designation to specific material that qualifies under the appropriate standards. The Designating Party
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must designate for 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, or
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communications for which protection is not warranted are not swept unjustifiably within the ambit of this
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Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be
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clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or
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retard the case development process or to impose unnecessary expenses and burdens on other parties)
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expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it designated for
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protection do not qualify for protection, that Designating Party must promptly notify all other Parties that
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it is withdrawing the mistaken designation.
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5.2
Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g.,
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second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery
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Material that qualifies for protection under this Order must be clearly so designated before the material is
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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 documents, but excluding
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transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend
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“CONFIDENTIAL” to each page that contains protected material. If only a portion or portions of the
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material on a page 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 inspection need not
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designate them for protection until after the inspecting Party has indicated which material it would like
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copied and produced. During the inspection and before the designation, all of the material made available
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for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the
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documents it 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 specified documents,
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the Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected
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Material. If only a portion or portions of the material on a page qualifies for protection, the Producing
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Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
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margins).
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(b)
for testimony given in deposition or in other pretrial or trial proceedings, that the
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Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding,
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all protected testimony.
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(c)
for information produced in some form other than documentary and for any other tangible
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items, that the Producing Party affix in a prominent place on the exterior of the container or containers in
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which the information or item is stored the legend “CONFIDENTIAL.” If only a portion or portions of
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the information or item warrant protection, the Producing Party, to the extent practicable, shall identify
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the protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate
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qualified information or items does not, standing alone, waive the Designating Party’s right to secure
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protection under this Order for such material. Upon timely correction of a designation, the Receiving
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Party must make reasonable efforts to assure that the material is treated in accordance with the provisions
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of this Order.
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6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a designation of
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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a
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significant disruption or delay of the litigation, a Party does not waive its right to challenge a
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confidentiality designation by electing not to mount a challenge promptly after the original designation is
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disclosed.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution process by
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providing written notice of each designation it is challenging and describing the basis for each challenge.
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To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the
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challenge to confidentiality is being made in accordance with this specific paragraph of the Protective
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Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by
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conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within
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14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its
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belief that the confidentiality designation was not proper and must give the Designating Party an
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opportunity to 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 Party may proceed
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to the next stage of the challenge process only if it has engaged in this meet and confer process first or
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establishes that the Designating Party is unwilling to participate in the meet and confer process in a
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STIPULATED PROTECTIVE ORDER
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timely manner.
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6.3
Judicial Intervention. If the Parties cannot resolve a challenge without court intervention,
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the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and
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in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge
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or within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute,
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whichever is earlier. Each such motion must be accompanied by a competent declaration affirming that
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the movant has complied with the meet and confer requirements imposed in the preceding paragraph.
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Failure by the Designating Party to make such a motion including the required declaration within 21 days
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(or 14 days, if applicable) shall automatically waive the confidentiality designation for each challenged
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designation. In addition, 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 designation of a
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deposition transcript or any portions thereof. Any motion brought pursuant to this provision must be
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accompanied by a competent declaration affirming that the movant has complied with the meet and
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confer requirements imposed by the preceding paragraph. The burden of persuasion in any such
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challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an
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improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
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expose the Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality
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designation by failing to file a motion to retain confidentiality as described above, all parties shall
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continue to afford the material in question the level of protection to which it is entitled under the
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Producing Party’s designation until the court rules on the challenge.
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7.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the
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categories of persons and under the conditions described in this Order. When the litigation has been
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terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
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DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a location and in a
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secure manner that ensures that access is limited to the persons authorized under this Order.
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7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the
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court or permitted in writing by the Designating Party, a Receiving Party may disclose any information
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or item designated “CONFIDENTIAL” only to:
(a)
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the Receiving Party’s Outside Counsel of Record in this action, as well as employees of
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said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this
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litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached
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hereto as Exhibit A;
(b)
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the officers, directors, and employees (including House Counsel) of the Receiving Party to
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whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment
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and Agreement to Be Bound” (Exhibit A);
(c)
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Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably
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necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A);
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(d)
the court and its personnel;
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(e)
court reporters and their staff, professional jury or trial consultants, mock jurors, and
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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed
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the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f)
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during their depositions, witnesses in the action to whom disclosure is reasonably
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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
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otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition
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testimony or exhibits to 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 Protective Order.
(g)
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the author or recipient of a document containing the information or a custodian or other
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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 that compels
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disclosure of any information or items designated in this action as “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;
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(b)
promptly notify in writing the party who caused the subpoena or order to issue in the other
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litigation that some or all of the material covered by the subpoena or order is subject to this Protective
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Order. Such notification shall include a copy of this 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.
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If the Designating Party timely seeks a protective order, the Party served with the subpoena or
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court order shall not produce any information designated in this action as “CONFIDENTIAL” before a
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determination by the court from which the subpoena or order issued, unless the Party has obtained the
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Designating Party’s 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 should be construed
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as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another
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court.
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9.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a)
The terms of this Order are applicable to information produced by a Non-Party in this
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action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in connection
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with this litigation is protected by the remedies and relief provided by this Order. Nothing in these
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provisions should be construed as 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, to produce a Non-
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Party’s confidential information in its possession, and the Party is subject to an agreement with the Non-
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Party not to produce the Non-Party’s confidential information, then the Party shall:
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(1)
promptly notify in writing the Requesting Party and the Non-Party that some or all
of the information requested is subject to a confidentiality agreement with a Non-Party;
(2)
promptly provide the Non-Party with a copy of the Stipulated Protective Order in this
litigation, the relevant discovery request(s), and a reasonably specific description of the information
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Freeman. v. City of Rohnert Park. U.S.D.C. Northern District of California Case No. 4:18-cv-07661-HSG
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(3)
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(c)
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make the information requested available for inspection by the Non-Party.
If the Non-Party fails to object or seek a protective order from this court within 14 days of
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receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s
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confidential information responsive to the discovery request. If the Non-Party timely seeks a protective
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order, the Receiving Party shall not produce any information in its possession or control that is subject to
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the confidentiality agreement with the Non-Party before a determination by the court. Absent a court
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order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court
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of its Protected Material.
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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material
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to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving
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Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b)
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use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
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persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such
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person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto
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as Exhibit A.
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11.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain inadvertently produced
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material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are
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those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
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whatever procedure may be established in an e-discovery order that provides for production without prior
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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an
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agreement on the effect of disclosure of a communication or information covered by the attorney-client
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privilege or work product protection, the parties may incorporate their agreement in the stipulated
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protective order submitted to the court.
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12.
12.1
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MISCELLANEOUS
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
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Right to Assert Other Objections. By stipulating to the entry of this Protective Order no
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Party waives any right it otherwise would have to object to disclosing or producing any information or
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item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any
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right to object on any ground to use in evidence of any of the material covered by this Protective Order.
12.3
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Filing Protected Material. Without written permission from the Designating Party or a
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court order secured after appropriate notice to all interested persons, a Party may not file in the public
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record in this action any Protected Material. A Party that seeks to file under seal any Protected Material
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must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a
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court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local
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Rule 79-5, a sealing order will issue only upon a request establishing that the Protected Material at issue
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is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a
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Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is
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denied by the court, then the Receiving Party may file the information in the public record pursuant to
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Civil Local Rule 79-5(e) unless otherwise instructed by the court.
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13.
FINAL DISPOSITION
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Within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving
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Party must return all Protected Material to the Producing Party or destroy such material. As used in this
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subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any
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other format reproducing or capturing any of the Protected Material. Whether the Protected Material is
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returned or destroyed, the Receiving Party must submit a written certification to the Producing Party
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(and, if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
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(by category, where appropriate) all the Protected Material that was returned or destroyed and (2) affirms
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that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other
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format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel
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are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
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STIPULATED PROTECTIVE ORDER
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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
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product, and consultant and expert work product, even if such materials contain Protected Material. Any
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such archival copies that contain or constitute Protected Material remain subject to this Protective Order
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as set forth in Section 4 (DURATION).
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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Respectfully submitted,
Dated: October 9, 2019
ANDRIAN & GALLENSON
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By:
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/s/ Jane Gaskell
Stephen M. Gallenson
Jane Gaskell
Attorneys for Plaintiff
HUEDELL FREEMAN
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Dated: October 9, 2019
BERTRAND, FOX, ELLIOT, OSMAN & WENZEL
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By:
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/s/ Gregory M. Fox
Gregory M. Fox
Joanne Tran
Attorneys for Defendants
CITY OF ROHNERT PARK, ROHNERT
PARK DEPARTMENT OF PUBLIC SAFETY,
DAVID SUTTER, and BRIAN MASTERSON
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Dated: October 9, 2019
ALLEN, GLAESSNER, HAZELWOOD & WERTH
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By:
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/s/ Patrick D. Moriarty
Dale L. Allen, Jr.
Kevin Patrick Allen
Patrick D. Moriarty
Attorneys for Defendant
JOSEPH HUFFAKER
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STIPULATED PROTECTIVE ORDER
Freeman. v. City of Rohnert Park. U.S.D.C. Northern District of California Case No. 4:18-cv-07661-HSG
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Dated: October 9, 2019
ANGELO, KILDAY & KILDUFF
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By:
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/s/ Derick E. Konz
Bruce A. Kilday
Derick E. Konz
Attorneys for Defendant
BRANDON “JACY” TATUM
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ATTORNEY ATTESTATION
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I, Gregory M. Fox, am the ECF user whose identification and password are being used to file the
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foregoing documents. Pursuant to Civil Local Rule 5.1(i), I hereby attest that concurrence in the filing of
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these documents has been obtained from each of its Signatories.
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Dated: October 9, 2019
By:
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/s/ Gregory M. Fox
Gregory M. Fox
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ORDER
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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DATED:
10/9/2019
HAYWOOD S. GILLIAM, JR.
UNITED STATES DISTRICT JUDGE
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STIPULATED PROTECTIVE ORDER
Freeman. v. City of Rohnert Park. U.S.D.C. Northern District of California Case No. 4:18-cv-07661-HSG
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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 issued by the United
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States District Court for the Northern District of California on ___________________ [date] in the case
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of ____________________________________________ [insert formal name of the case and the number
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and initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of this
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Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me
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to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any
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manner any information or item that is subject to this Stipulated Protective Order to any person or entity
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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 Northern
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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if
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such enforcement proceedings occur after termination of this action.
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I
hereby
appoint
__________________________
[print
or
type
full
name]
of
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_______________________________________________ [print or type full address and telephone
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number] as my California agent for service of process in connection with this action or any proceedings
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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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Signature: __________________________________
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STIPULATED PROTECTIVE ORDER
Freeman. v. City of Rohnert Park. U.S.D.C. Northern District of California Case No. 4:18-cv-07661-HSG
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