Balasquez et al v. City of Morgan Hill et al

Filing 34

STIPULATION AND ORDER re 32 Stipulation AS MODIFIED BY THE COURT, filed by City of Morgan Hill, Jerry Neumayer, Max Cervantez, Bruce Cummings, Brookman, Jeffrey Brandon, City of Morgan Hill Police Department, Joseph Burdick, Brandon Richards. Signed by Judge Paul S. Grewal on 9/28/2011. (psglc2, COURT STAFF) (Filed on 9/28/2011)

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GREGG A. THORNTON (SBN 146282)
DANIELLE K. LEWIS (SBN 218274)
SELMAN BREITMAN LLP
33 New Montgomery, Sixth Floor
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
City of Morgan Hill; City of
Morgan Hill Police Department;
Chief of Police Bruce Cumming;
Officer Brookman; Officer Max
Cervantez; Officer Joseph
Burdick; Officer Jerry Neumayer;
Officer Jeffrey Brandon; Det.
Brandon Richards
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ATTORNEYS AT LAW

Selman Breitman LLP

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Maria Jesus Balasquez, Rudy
Martinez and Rudy Balasquez
Martinez, Jr.,

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v.
City of Morgan Hill in its
official and Municipal Capacity,
City of Morgan Hill Police
Department in its corporate
capacity, Chief of Police Bruce
Cumming in his official and
individual capacity, Officers
Brookman in his official and
individual capacity, Max
Cervantez in his official and
individual capacity, Joseph
Burdick in his official and
individual capacity, Jerry
Neumeyer in his official and
individual capacity, Jeffrey
Brandon in his official and
individual capacity, Det.
Brandon Richards, in his
official and individual capacity
and Does 1-25, inclusive,
Defendants.

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230894.1 555.30271

CV 10 05206 LHK

ORDDER RE STIPULATION REGARDING
CONFIDENTIALITY AND FOR
PROTECTIVE ORDER
AS MODIFIED BY THE COURT

Plaintiffs,

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CASE NO.

/ / /
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STIPULATION REGARDING CONFIDENTIALITY AND FOR PROTECTIVE ORDER
CV 10 05206 LHK

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IT IS HEREBY STIPULATED by and between plaintiffs Maria

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Jesus Balasquez, Rudy Martinez and Rudy Balasquez Martinez, Jr.,

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and defendants City of Morgan Hill (erroneously sued herein as

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City of Morgan Hill Police Department), Chief Of Police Bruce

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Cumming, Officer Brookman, Officer Max Cervantez, Officer Joseph

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Burdick, Officer Jerry Neumayer, Jeffrey Brandon and Det. Brandon

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Richards, through their respective counsel of record, as follows:

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1.

Information and Matters Subject to this ORDER.

This

"CONFIDENTIAL INFORMATION" (as defined hereafter) and all

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information derived therefrom, including, but not limited to, all

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copies, excerpts or summaries thereof.

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"PARTIES" shall include plaintiffs Maria Jesus Balasquez, Rudy

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Martinez and Rudy Balasquez Martinez, and defendants City of

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Morgan Hill (erroneously sued herein as City of Morgan Hill

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Police Department), Chief Of Police Bruce Cumming, Officer

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Brookman, Officer Max Cervantez, Officer Joseph Burdick, Officer

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Jerry Neumayer, Jeffrey Brandon and Det. Brandon Richards and

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ATTORNEYS AT LAW

stipulation and order (hereafter "ORDER") shall govern all

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Selman Breitman LLP

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their respective counsel of record in the above-entitled action.

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2.

Definitions.

All references herein to

The following definitions shall apply in

the construction and application of this ORDER.
a.

The term "INFORMATION" means any materials, as defined

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by Federal Rule of Evidence 1001, or materials produced by the

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PARTIES or any person or entity subject to their employ or

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control in conjunction with this proceeding, including, but not

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limited to, (1) documents produced pursuant to requests under

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Federal Rule of Civil Procedure 34, (2) documents produced

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pursuant to subpoena, (3) documents produced voluntarily or in

230894.1 555.30271

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response to informal request, and (4) answers to deposition

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questions set forth in deposition transcripts.

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b.

The term "CONFIDENTIAL" means any INFORMATION designated

as CONFIDENTIAL by the PARTIES.

Only the following INFORMATION

may be so designated: pursuant to Fed. R. Civ. P. 26(c).
(1)

All INFORMATION regarding medical records, personnel

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records, employment files, performance evaluations,

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physical/mental evaluations, disciplinary action, citizen

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complaints, internal affairs investigations, and all other
employment-related writings regarding any employee of the City of

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Morgan Hill produced in this action;

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Selman Breitman LLP

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(2)

All INFORMATION regarding policies, procedures,

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manuals, and other documents regarding personnel practices of the

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City of Morgan Hill produced in this action; and

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(3)

Any other INFORMATION stipulated to by the PARTIES.

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C.

The term "QUALIFIED PERSONS" means (1) the Presiding

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Judge and any of his or her staff, (2) any referee appointed by a

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judge in this matter to preside over any hearings in this matter

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and any of his or her staff, (3) a jury empanelled for trial, (4)

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stenographic reporters engaged in these proceedings as are

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necessarily incident to the preparation for trial and/or trial of

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this action, (5) counsel for the PARTIES in this litigation, (6)

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paralegal, stenographic, clerical, and secretarial personnel

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employed by counsel for the PARTIES, (7) the PARTIES to these

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proceedings, including their officers, directors, agents, and

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employees, and (8) any person employed by counsel for the PARTIES

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in this proceeding to assist such counsel in this proceeding,

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such as experts or other consultants.

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d.

The term "DISCLOSE" or any version thereof means to

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show, give, make available, or communicate in any fashion to any

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person any CONFIDENTIAL INFORMATION, information concerning the

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existence or content of any CONFIDENTIAL INFORMATION, or any

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copy, portion, version, or summary of any CONFIDENTIAL

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INFORMATION.

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3.

Use of CONFIDENTIAL INFORMATION.

CONFIDENTIAL

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INFORMATION shall be used solely in connection with, and only as

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necessary to, this action and the preparation and trial of this

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appeal or writ, and not for any other purpose, including, without

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limitation, any civil, criminal, administrative, or personal

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purpose or function.

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DISCLOSED to anyone other than QUALIFIED PERSONS and shall not be

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DISCLOSED except in accordance with this ORDER.

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distribution of all CONFIDENTIAL INFORMATION shall be the

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responsibility of the attorneys of record and the PARTIES.
provisions of this ORDER, insofar as they restrict the

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communication and use of CONFIDENTIAL INFORMATION produced

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hereunder, copies of summaries thereof, or information obtained

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therefrom, shall continue to be binding after the conclusion of

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this action.

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action, or any related proceeding, including, but not limited to,

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4.

CONFIDENTIAL INFORMATION shall not be
Control and

Designation of INFORMATION as CONFIDENTIAL.

The

In the

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preparation for any trial of this proceeding, and any appeal or

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writ taken herein, CONFIDENTIAL INFORMATION shall be designated

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in the following manner:

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a.

INFORMATION shall be designated as CONFIDENTIAL only

after a bona fide and good faith determination by the producing
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The producing
party shall
exercise
restraint and
care in
designating
party that the material contains CONFIDENTIAL INFORMATION as information for
protection in
defined herein, the DISCLOSURE and use of which would be
conformity with
N.D. Cal. Model
detrimental to or invade the privacy of the producing party. Protective Order
Section 5.1.

b.

Any information sought to be protected is properly

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subject to protection under FRCP Rule 26(c), and PARTIES and

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counsel shall not designate any discovery material CONFIDENTIAL

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without first making a good faith determination that protection

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is warranted.

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c.

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Any party seeking protection under FRCP Rule 26(c) has

the burden of proof to show that such protection is warranted.
d.

The designation of INFORMATION as CONFIDENTIAL shall be

made, whenever possible prior to production, by placing or

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affixing on each page of such material in a manner that will not

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interfere with its legibility the words "CONFIDENTIAL," or by the

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designation of categories of documents as "CONFIDENTIAL."

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such designation is not possible prior to production, the

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designation must be made by the producing party within twenty

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(20) days after disclosure.

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CONFIDENTIAL until the twenty (20) days has elapsed.

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twenty (20)-day period, the disclosing party must notify all

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PARTIES in writing of the precise INFORMATION sought to be

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designated as CONFIDENTIAL.

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cannot be treated as CONFIDENTIAL.

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5.

If

The INFORMATION shall be treated as
Within such

Absent such notice, the INFORMATION

DISCLOSURE of CONFIDENTIAL INFORMATION.

Each counsel

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whose law firm are actual signatories to this ORDER, to whom

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CONFIDENTIAL INFORMATION is furnished, shown, or DISCLOSED,

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shall, prior to the time s/he receives access to such materials,

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be provided by counsel furnishing her/him such material a copy of

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this ORDER and agree to be bound by its terms, and shall certify

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that s/he has carefully read the ORDER and fully understands its

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terms.

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personal jurisdiction of the United States District Court,

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Northern District of California, with respect to any proceeding

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relating to enforcement of this ORDER, including any proceeding

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relating to contempt of court.

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form attached hereto.

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described herein shall retain the original executed copy of such

Selman Breitman LLP

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Such person must also consent to be subject to the

The certificate shall be in the

Counsel making DISCLOSURE to any person as

certificate until final termination of this case.
a.

DISCLOSURE During Depositions.

In the event that

CONFIDENTIAL INFORMATION is DISCLOSED, revealed, utilized,

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examined or referred to during depositions, then only QUALIFIED

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PERSONS, the deponent, and the court reporter shall be present.

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If CONFIDENTIAL INFORMATION is made exhibits to, or if

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CONFIDENTIAL INFORMATION is the subject of examination during, a

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deposition, then arrangements will be made with the court

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reporter to separately bind those exhibits and those portions of

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the transcript containing CONFIDENTIAL INFORMATION, and each page

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on which such CONFIDENTIAL INFORMATION appears shall be stamped

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with the word "CONFIDENTIAL."

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portions shall be placed in a sealed envelope or other

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appropriate sealed container on which shall be endorsed

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"Balasquez, et. al. v. City of Morgan Hill, et al., Confidential

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Pursuant to Order in Case No. CV 10 05206 LHK," and a statement

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substantially in the following form:

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230894.1 555.30271

Those exhibits and transcript

“THIS ENVELOPE IS SEALED PURSUANT TO STIPULATED PROTECTIVE
ORDER OF COURT, IN "Balasquez, et. al. v. City of Morgan Hill, et
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STIPULATION REGARDING CONFIDENTIALITY AND FOR PROTECTIVE ORDER
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al., UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF

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CALIFORNIA, CASE NO. CV 10 05206 LHK, AND CONTAINS CONFIDENTIAL

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DOCUMENTS PRODUCED OR GENERATED BY PARTIES TO THE PROCEEDING.

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IS NOT TO BE OPENED, OR THE CONTENTS THEREOF TO BE DISCLOSED,

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EXCEPT TO QUALIFIED PERSONS AS DEFINED BY SAID ORDER."

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IT

Each court reporter participating in any deposition

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involving CONFIDENTIAL INFORMATION shall be informed of and

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provided with a copy of this ORDER and exhibit hereto and shall

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be requested to sign a copy of said exhibit.

Furthermore, each

court reporter participating in any deposition involving

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CONFIDENTIAL INFORMATION shall show a copy of this ORDER to any

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Selman Breitman LLP

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other person participating in the preparation of any deposition

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transcript and shall have such person sign a copy of said

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exhibit.

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b.

Papers Filed in Court.

Counsel for plaintiffs and

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counsel for defendants are directed to place any documents to be

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filed under seal with the clerk of the court, pursuant to this

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ORDER, in an envelope containing the title of the document,

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marked "SEALED" and labeled:

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“THIS ENVELOPE IS SEALED PURSUANT TO STIPULATED PROTECTIVE

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ORDER OF COURT, IN "Balasquez, et. al. v. City of Morgan Hill, et

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al., UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF

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CALIFORNIA, CASE NO. CV 10 05206 LHK, AND CONTAINS CONFIDENTIAL

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DOCUMENTS.

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DISCLOSED, ABSENT FURTHER ORDER OF THE COURT."

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IT IS NOT TO BE OPENED, OR THE CONTENTS THEREOF TO BE

Documents to be filed under seal are to be filed directly

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with the supervisor of the filing window.

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filing party to so file a document under seal, the producing

230894.1 555.30271

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Upon failure of the

STIPULATION REGARDING CONFIDENTIALITY AND FOR PROTECTIVE ORDER
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party may do so.
c.

DISCLOSURE to Experts.

In case of any DISCLOSURE to an

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expert, consultant, or other QUALIFIED PERSON under paragraph

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2(c) above, counsel for the disclosing party shall make

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reasonable efforts to ensure that the CONFIDENTIAL INFORMATION

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DISCLOSED is not disseminated in any form to anyone by such

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expert, consultant, or other QUALIFIED PERSON and that said

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CONFIDENTIAL INFORMATION and any copies or summaries thereof are

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returned in their entirety to the disclosing party after they are

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no longer needed in this action.
6.

DISCLOSURE of CONFIDENTIAL INFORMATION to Other Than

QUALIFIED PERSONS.

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CONFIDENTIAL INFORMATION to be DISCLOSED, discussed, or made

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available to any person other than a QUALIFIED PERSON, such party

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shall submit to the opposing PARTY a written statement

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specifically identifying the CONFIDENTIAL INFORMATION to be

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DISCLOSED and the name, title, and business relationship of the

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persons with whom they wish to communicate.

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shall have fifteen (15) calendar days from the date notice was

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served to object to the DISCLOSURE to any person identified in

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the notice.

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conditions of the requested DISCLOSURE, it may be made only on

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such terms as the Court may provide.

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disclosure may file with the Court and personally serve on

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opposing PARTY a written motion for authority to make such

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DISCLOSURE.

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otherwise answer any such motion.

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230894.1 555.30271

a.

In the event that any party desires

The opposing PARTY

If the PARTIES are unable to agree on the terms and
The PARTY seeking

Ten (10) days shall be allowed to oppose or

Unless opposing PARTY responds timely in writing to the
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fifteen (15)-day notification provided for above, the persons

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named in the notice shall, subject to the terms and conditions of

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this ORDER, be entitled to receive only that CONFIDENTIAL

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INFORMATION specified in this notice.

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7.

DISCLOSURE to Author or Addressee.

Nothing in this

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ORDER shall preclude the DISCLOSURE of CONFIDENTIAL INFORMATION

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to any person who authored, prepared, was an addressee of,

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received a copy of, or participated in the preparation of such

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CONFIDENTIAL INFORMATION.

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The parties shall attempt to resolve each challenge in good faith
and must begin the process by conferring directly, in conformity
with N.D. Cal. Model Protective Order Section 6.2.

Objections To Designation.

Should any party to whom

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such materials, and should the PARTIES be unable to resolve the

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objection informally, then the objecting party ("the moving

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party") shall have the burden of moving forward and may move, at

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any time upon proper notice, for an order determining whether or

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not the materials are properly designated.

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filed and resolved by the Court, all materials designated
CONFIDENTIAL INFORMATION shall be treated as CONFIDENTIAL.

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the event such a motion is made, the party opposing the motion

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(the "opposing party") shall have the burden of providing and

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establishing that the INFORMATION is protected as privileged

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within the meaning of and under applicable federal laws and the

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laws of the State of California.

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opposing party, shall include, but shall not be limited to, the

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CONFIDENTIAL INFORMATION is disclosed object to classification of

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burden imposed on any party seeking a protective ORDER.

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9.

Until a motion is
In

This burden, imposed on the

Objections To Production.

Nothing in this ORDER shall

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be deemed to limit or waive any right of any party to object to

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discovery with respect to any INFORMATION which may be claimed to

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be outside the scope of discovery for any reason, privileged, or

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otherwise protected or protectable under applicable federal laws

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and the laws of the State of California

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10.

Further Protection.

Nothing contained in this ORDER

seeking and obtaining from the opposing party or the Court, on

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appropriate showing, a further protective ORDER relating to

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CONFIDENTIAL INFORMATION or relating to any discovery in this

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case, (b) to apply to the Court for an ORDER requiring the

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removal of the CONFIDENTIAL designation from any document

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pursuant to Paragraph 4 above; and (c) to apply to the Court for

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shall be deemed to preclude any party at any time (a) from

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any relief from a provision of this Stipulation and ORDER, upon

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good cause shown.

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preventing any party from making application to the Court for

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revision of the terms of this ORDER.

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Nothing in this ORDER shall be construed as

Contempt.

Any violation of the provisions set forth in

this ORDER is may be punishable as contempt of this Court.

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12.

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a.

General Provisions.
This ORDER is the result of negotiations by attorneys

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for the PARTIES and shall not be construed against any party or

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signatory to this ORDER because that PARTY or their counsel may

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have drafted this ORDER in whole or in part.

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construed and interpreted fairly in accordance with its purpose

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and plain meaning.

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b.

This ORDER shall be

This ORDER shall continue to be binding after the

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conclusion of this litigation, except that a party may seek

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written permission from the opposing PARTIES or further ORDER of

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the Court with respect to dissolution or modification of this

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ORDER.
c.

Within thirty (30) days after the conclusion of this

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case, any and all original, copy, portion, version, or summary of

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any CONFIDENTIAL INFORMATION materials in the possession, , other than the Court

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control, and/or custody of any QUALIFIED PERSON shall be

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returned.

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INFORMATION shall verify by declaration under oath that all such

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INFORMATION has been returned and that it has not retained any

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such INFORMATION or derivatives therefrom.

and court staff,

Counsel of record for a PARTY returning CONFIDENTIAL

Counsel may retain

copies of briefs filed with the Court and work product so long as

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it is maintained in accordance with this ORDER.

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d.

Disclosure of CONFIDENTIAL INFORMATION shall not

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constitute a waiver of the attorney-client privilege, work-

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product doctrine, or any other applicable rights or privilege.

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e.

Notices pursuant to this ORDER shall be sent to the

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attorneys for the PARTIES listed on the signature page of this

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ORDER unless notified in writing of a change.

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f.

This ORDER shall not be admissible at the time of trial

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and shall not constitute an admission by any of the PARTIES that

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INFORMATION identified as CONFIDENTIAL is in fact confidential or

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the subject of entitlement thereto.

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solely to expedite discovery and meet the respective concerns of

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the PARTIES.

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fact, nor shall it be considered an admission of validity to any

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claim of confidentiality hereunder except as is necessary to

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enforce the terms of the ORDER as provided herein.

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g.

This ORDER is entered into

This ORDER shall not be made known to any trier of

The Court’s jurisdiction to enforce the terms of this

order shall extend until six months after the final termination
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of this action.
The above is stipulated to by counsel for plaintiffs Maria

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Jesus Balasquez, Rudy Martinez and Rudy Balasquez Martinez, Jr.,

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and by counsel for defendants City of Morgan Hill (erroneously

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sued herein as City of Morgan Hill Police Department); Chief Of

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Police Bruce Cumming; Officer Brookman; Officer Max Cervantez;

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Officer Joseph Burdick; Officer Jerry Neumayer; Jeffrey Brandon;

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and Det. Brandon Richards as follows:

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DATED: August 23, 2011

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LAW OFFICE OF RONALD Z. BERKI
By:

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DATED: August 23, 2011

/s/ Ronald Z. Berki
RONALD Z. BERKI
Attorneys for Plaintiffs

SELMAN BREITMAN LLP
By:

/s/ Danielle K. Lewis
GREGG A. THORNTON
DANIELLE K. LEWIS
Attorneys for Defendants
City of Morgan Hill (erroneously
sued herein as City of Morgan
Hill Police Department); Chief Of
Police Bruce Cumming; Officer
Brookman; Officer Max Cervantez;
Officer Joseph Burdick; Officer
Jerry Neumayer; Jeffrey Brandon;
Det. Brandon Richards

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ORDER

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IT IS SO ORDERED.

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Dated: _9/28/2011______

By: ______________________________
Hon. Paul S. Grewal
United States Magistrate Judge
Northern District of California

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