Martinez et al v. City of Fremont et al

Filing 117

PROTECTIVE ORDER granting (110) Motion for Protective Order in case 8:10-cv-00270-LSC-FG3; granting (115) Motion for Protective Order in case 4:10-cv-03140-LSC-FG3. Member Cases: 8:10-cv-00270-LSC-FG3, 4:10-cv-03140-LSC-FG3 Ordered by Magistrate Judge F.A. Gossett. (TEL)

UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA

FRED H. KELLER, JR., et al.

)
)
Plaintiffs,
)
)
v.
)
)
CITY OF FREMONT,
)
)
Defendant.
)
___________________________________ )
MARIO MARTINEZ, JR., et al.
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF FREMONT, et al.
)
)
Defendants.
)

Civil Action No. 8:10-cv-270
PROTECTIVE ORDER

Civil Action No. 4:10-cv-3140
PROTECTIVE ORDER

This matter is before the Court on Keller and Martinez Plaintiffs’ Agreed Motion for
Joint Protective Order.

(Filing 115, Case No. 4:10CV3140; Filing 110, Case No.

8:10CV270.) Having considered the matter, the Court finds that the motion should be
granted and hereby enters a protective order as follows:
1.

This Stipulated Protective Order governs the designation and handling of

“confidential” documents that are filed with the Court as well as any “confidential”
information that is produced in the course of this litigation.
2.

The protections conferred by this Stipulated Protective Order apply not only

to documents filed in court and information revealed through discovery, but also to any
information that may be revealed by a party to another party through the course of this
litigation and any information copied or extracted therefrom. This includes copies, excerpts,
summaries, compilations, testimony, conversations, or presentations by parties or counsel
in court or in other settings that might reveal information protected by this order.

3.

If either the true name of any party who has been granted permission by the

Court to proceed under a pseudonym or any information designated by paragraph 6 of this
Order as “confidential” is to be filed with the Court or included in any filing with the Court,
the filing shall be made under seal in accordance with local rule NECivR 7.5.
4.

The parties shall not seek to use in open court, at any hearing or trial, the true

name of any party who has been granted permission by the Court to proceed under a
pseudonym, or any information designated by paragraph 6 of this Order as “confidential”
unless absolutely necessary. To the extent that any party in this case plans to use the true
name of any party who has been granted permission by the Court to proceed under a
pseudonym or any information designated in paragraph 6 as “confidential” in open court, at
any hearing or trial, the parties agree that the relevant portion of the proceeding shall be held
in camera. The party desiring to use the information shall inform the other parties in
advance of the specific information sought to be used and agrees to jointly request by motion
that the relevant portion of the proceeding be held in camera.
5.

To the extent that any brief, motion, or other pleading in this case refers to a

party who has been granted permission by the Court to proceed under pseudonym, such
reference shall be made solely by use of the party’s pseudonym. Briefs, motions, or other
pleadings shall not refer to any pseudonymous party’s true name.
6.

Information that is “confidential” is defined to include: a) any information

related to immigration or citizenship status when associated with the true name(s) of a
pseudonymous party and/or their family members and/or cohabitants ; b) the true name of
any family members and/or cohabitants of the pseudonymous parties; c) any immigration
record created or maintained by the Department of Homeland Security or the Department of
Justice relating to any individual or individuals participating in any manner in this litigation
and/or their family members and/or cohabitants; or d) any information containing a personal

2

identifier including, but not limited to, an address, specific name of apartment complex, alien
registration number (“A-Number”), social security number, or taxpayer identification
(“ITIN”) number; or (e) any other information that can reasonably be described as being
information that could be used, either standing alone or in conjunction with other
information, to identify any party in this litigation who has been granted permission by the
Court to proceed under a pseudonym.
7.

When a party designates information as “confidential,” each party agrees that

the information obtained may not be used for anything other than for the purpose of litigating
Keller, et al. v. City of Fremont, Civil Action No. 8:10-cv-00270 or Martinez, et al. v. City
of Fremont, Civil Action No. 4:10-cv-3140. “Confidential” information may not be used to
harass, intimidate, coerce, or cause harm to individuals. “Confidential” information may not
be shared with any law enforcement agencies.
8.

Any party may designate information “confidential” pursuant to this

Stipulated Protective Order prior to filing or producing the information. When a party
designates information “confidential,” the party is asserting in good faith to all other parties
that the information falls within the definition of that term in paragraph 6 and should not be
made available to the public or to anyone other than counsel in this litigation, unless
otherwise provided below in paragraph 13.
9.

Documents or things are designated “confidential” by stamping or marking

them “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in a size and location which
makes the designation readily apparent. A “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” designation shall be affixed to any documents produced or filed, including portions
of briefs, memoranda, or any writings filed with the court which mention, discuss or
comment upon any confidential information. Any information or data that is not reduced to

3

documentary, tangible or physical form, may be designated “confidential” by informing
counsel for the parties or the Court that it is “confidential.”
10.

A party may designate in writing, within ten days after receipt of a hearing or

deposition transcript, that specific pages of the transcript be “confidential.”
11.

An inadvertent failure to designate qualified information or documents as

“confidential” does not, standing alone, waive the designating party’s right to secure
protection under this order.
a. If any party fails to file protected documents or information under seal,
any party may request that the Court place the filing under seal. The
request to the Court must clearly identify the document or information
that should be deemed “confidential.”
b. If any party fails to designate “confidential” any information that is
produced but not filed with the court, that party may designate that
information “confidential” and must notify the other parties of the
designation in writing. The written notification must clearly identify the
document or information that should be deemed “confidential.”
12.

When any party does not agree that information revealed in this litigation

requires the designation or non-designation of “confidential,” the parties may seek the
following remedies (12a and 12b) to resolve the matter. All parties agree that they will use
good faith when seeking the following remedies:
a.

Meet and Confer: a party who elects to challenge the designation or

non-designation of confidentiality must do so in live voice to voice
communication. In conferring, the challenging party must explain the basis
for its belief that the designation is proper or improper and must give the
designating party an opportunity to review the designated information, to

4

reconsider the circumstances, and if no change is offered, to explain the basis
for the chosen designation. A challenging party may proceed to the next
stage of the challenge process only if it has engaged in the meet and confer
process.
b.

Judicial Intervention: A party that elects to press a challenge to a
confidentiality designation or non-designation after considering the

justification offered by the party may file a motion in this Court for an order
requiring the party to designate or not designate, as “confidential,” a
document or information.

The party that asserts confidentiality has the

burden to persuade the Court that the document merits the designation. In the
event of such motion, the information at issue may be submitted to the Court
for in camera inspection.
13.

All “confidential” information shall be controlled and maintained in a manner

that precludes access by any individual not entitled to access under this Stipulated Protective
Order. Individuals who have access to “confidential” information obtained through this
litigation must be informed of this protective order. Individuals entitled to access to such
“confidential” information are limited to:
a.

counsel for the parties to this action and counsel’s essential employees

(but not the parties themselves) only to the extent necessary for the
prosecution or defense of this litigation; and
b.

the Court; court personnel, court reporters, and foreign language

interpreters, as necessary for litigation.
14.

“Confidential” information may not be revealed to any person(s) not included

in paragraph 13, subsections a and b.

5

15.

Any party may request to disclose “confidential” information or documents

to any persons to whom disclosure is otherwise prohibited by submitting a written request
to the party who has designated the information “confidential.” The party to whom the
request is made shall respond within five business days. If the request is not answered within
five business days, it constitutes a refusal. Any refusal shall permit the party to move for an
order of the Court permitting the disclosure for good cause shown.
16.

If a party learns that, by inadvertence or otherwise, it has disclosed

“confidential” information to any person or in any circumstance not authorized under this
Stipulated Protective Order, the party must immediately notify in writing all parties and must
inform the person or persons to whom unauthorized disclosures were made that the
information is “confidential” and may not be revealed to any other person. The disclosing
party must use its best efforts to retrieve all copies of the disclosed information.
17.

At the conclusion of this case and any appeal, all “confidential” information

subject to this Stipulated Protective Order shall be destroyed or returned to counsel
producing the information. Any information that was obtained in this action shall never be
used adversely against an individual that has revealed “confidential” information even after
the termination of this action.
18.

Nothing in this Stipulated Protective Order abridges the right of any person

to seek modification of this order by the Court in the future.
19.

By stipulating to the entry of this protective order no party waives any right

it otherwise would have to object to disclosing or producing any information or item on any
ground not addressed in this Stipulated Protective Order.
20.

This Stipulated Protective Order does not affect the ability of a party or

witness to assert his or her rights under the 5th Amendment to the U.S. Constitution.

6

21.

No party waives any right to object on any ground to use in evidence of the

information covered by this Stipulated Protective Order.
22.

Nothing in this Stipulated Protective Order will preclude the disclosure of

discoverable information or otherwise affect the admissibility of evidence during trial.
Federal Rule of Civil Procedure 26(b), the Federal Rules of Evidence, and any applicable
legal authority will govern the disclosure and admissibility of evidence in this case.
DATED October 13, 2011.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

7