Gamino v. Yosemite Community College District ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 TAYLOR GAMINO, Case No. 1:18-cv-00391-SAB 10 Plaintiff, ORDER RE STIPULATED PROTECTIVE 11 ORDER v. 12 (ECF No. 42) YOSEMITE COMMUNITY COLLEGE 13 DISTRICT, et al., 14 Defendants. 15 STIPULATED PROTECTIVE ORDER 16 17 1. PURPOSES AND LIMITATIONS 18 Disclosure and discovery activity in this action are likely to involve production of 19 confidential, proprietary, or private information for which special protection from public 20 disclosure and from use for any purpose other than prosecuting this litigation may be 21 warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the 22 following Stipulated Protective Order. The parties acknowledge that this Order does not confer 23 blanket protections on all disclosures or responses to discovery and that the protection it 24 affords from public disclosure and use extends only to the limited information or items that 25 are entitled to confidential treatment under the applicable legal principles. The parties further 26 acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not 27 entitle them to file confidential information under seal; Local Rule 141 sets forth the 1 procedures that must be followed and the standards that will be applied when a party seeks 2 permission from the court to file material under seal. 3 2. DEFINITIONS 4 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 5 information or items under this Order. 6 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 7 generated, stored or maintained) or tangible things that qualify for protection under Federal 8 Rule of Civil Procedure 26(c). 9 10 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 11 well as their support staff). 12 2.4 Designating Party: a Party or Non-Party that designates information or items 13 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 14 2.5 Disclosure or Discovery Material: all items or information, regardless of the 15 medium or manner in which it is generated, stored, or maintained (including, among other 16 things, testimony, transcripts, and tangible things), that are produced or generated in 17 disclosures or responses to discovery in this matter. 18 19 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 20 witness or as a consultant in this action. 21 22 2.7 House Counsel: attorneys who are employees of a party to this action. House 23 Counsel does not include Outside Counsel of Record or any other outside counsel. 24 2.8 Non-Party: any natural person, partnership, corporation, association, or other 25 legal entity not named as a Party to this action. 26 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 27 action but are retained to represent or advise a party to this action and have appeared in this 1 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 2 that party. 3 2.10 Party: any party to this action, including all of its officers, directors, employees, 4 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 5 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 6 Material in this action. 7 8 2.12 Professional Vendors: persons or entities that provide litigation support 9 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, 10 and organizing, storing, or retrieving data in any form or medium) and their employees and 11 subcontractors. 12 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 13 “CONFIDENTIAL.” 14 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 15 Producing Party. 16 17 3. SCOPE 18 The protections conferred by this Stipulation and Order cover not only Protected 19 Material (as defined above), but also (1) any information copied or extracted from Protected 20 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) 21 any testimony, conversations, or presentations by Parties or their Counsel that might reveal 22 Protected Material. However, the protections conferred by this Stipulation and Order do not 23 cover the following information: (a) any information that is in the public domain at the time of 24 disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a 25 Receiving Party as a result of publication not involving a violation of this Order, including becoming part of the public record through trial or otherwise; and (b) any information known 26 to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the 27 disclosure from a source who obtained the information lawfully and under no obligation of 1 confidentiality to the Designating Party. Any use of Protected Material at trial shall be 2 governed by a separate agreement or order. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations imposed by 5 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a 6 court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal 7 of all claims and defenses in this action, with or without prejudice; and (2) final judgment 8 herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or 9 reviews of this action, including the time limits for filing any motions or applications for 10 extension of time pursuant to applicable law. 11 5. DESIGNATING PROTECTED MATERIAL 12 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 13 Party or Non-Party that designates information or items for protection under this Order must 14 take care to limit any such designation to specific material that qualifies under the appropriate 15 standards. The Designating Party must designate for protection only those parts of material, 16 documents, items, or oral or written communications that qualify – so that other portions of 17 the material, documents, items, or communications for which protection is not warranted are 18 not swept unjustifiably within the ambit of this Order. 19 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 20 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 21 unnecessarily encumber or retard the case development process or to impose unnecessary 22 expenses and burdens on other parties) expose the Designating Party to sanctions. 23 If it comes to a Designating Party’s attention that information or items that it designated for 24 protection do not qualify for protection, that Designating Party must promptly notify all other 25 Parties that it is withdrawing the mistaken designation. 26 5.2 Manner and Timing of Designations. Except as otherwise provided in this 27 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 1 ordered, Disclosure or Discovery Material that qualifies for protection under this Order must 2 be clearly so designated before the material is disclosed or produced. 3 Designation in conformity with this Order requires: 4 (a) for information in documentary form (e.g., paper or electronic documents, but 5 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 6 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only 7 a portion or portions of the material on a page qualifies for protection, the Producing Party 8 also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 9 margins). 10 A Party or Non-Party that makes original documents or materials available for 11 inspection need not designate them for protection until after the inspecting Party has 12 indicated which material it would like copied and produced. During the inspection and before 13 the designation, all of the material made available for inspection shall be deemed 14 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied 15 and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the 16 Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected 17 Material. If only a portion or portions of the material on a page qualifies for protection, the 18 Producing Party also must clearly identify the protected portion(s) (e.g., by making 19 appropriate markings in the margins). 20 21 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 22 Designating Party identify on the record, before the close of the deposition, hearing, or other 23 proceeding, all protected testimony. 24 (c) for information produced in some form other than documentary and for any other 25 tangible items, that the Producing Party affix in a prominent place on the exterior of the 26 container or containers in which the information or item is stored the legend 27 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant 1 protection, the Producing Party, to the extent practicable, shall identify the protected 2 portion(s). 3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 4 designate qualified information or items does not, standing alone, waive the Designating 5 Party’s right to secure protection under this Order for such material. Upon timely correction of 6 a designation, the Receiving Party must make reasonable efforts to assure that the material is 7 treated in accordance with the provisions of this Order. 8 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 9 10 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 11 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 12 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 13 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the 14 original designation is disclosed. 15 16 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 17 process by providing written notice of each designation it is challenging and describing the 18 basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the 19 written notice must recite that the challenge to confidentiality is being made in accordance 20 with this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in voice to voice 21 dialogue; other forms of communication are not sufficient) within 14 days of the date of 22 service of notice. In conferring, the Challenging Party must explain the basis for its belief that 23 the confidentiality designation was not proper and must give the Designating Party an 24 opportunity to review the designated material, to reconsider the circumstances, and, if no 25 change in designation is offered, to explain the basis for the chosen designation. A Challenging 26 Party may proceed to the next stage of the challenge process only if it has engaged in this meet 27 1 and confer process first or establishes that the Designating Party is unwilling to participate in 2 the meet and confer process in a timely manner. 3 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 4 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 5 Local Rule 230 (and in compliance with Local Rule 141, if applicable) within 21 days of the 6 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer 7 process will not resolve their dispute, whichever is earlier. Each such motion must be 8 accompanied by a competent declaration affirming that the movant has complied with the 9 meet and confer requirements imposed in the preceding paragraph. Failure by the Designating 10 Party to make such a motion including the required declaration within 21 days (or 14 days, if 11 applicable) shall automatically waive the confidentiality designation for each challenged 12 designation. In addition, the Challenging Party may file a motion challenging a confidentiality 13 designation at any time if there is good cause for doing so, including a challenge to the 14 designation of a deposition transcript or any portions thereof. Any motion brought pursuant to 15 this provision must be accompanied by a competent declaration affirming that the movant has 16 complied with the meet and confer requirements imposed by the preceding paragraph. 17 The burden of persuasion in any such challenge proceeding shall be on the Designating 18 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or 19 impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 20 to sanctions. Unless the Designating Party has waived the confidentiality designation by 21 failing to file a motion to retain confidentiality as described above, all parties shall continue to 22 afford the material in question the level of protection to which it is entitled under the Producing Party’s designation until the court rules on the challenge. 23 24 7. ACCESS TO AND USE OF PROTECTED MATERIAL 25 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 26 or produced by another Party or by a Non-Party in connection with this case only for 27 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 1 disclosed only to the categories of persons and under the conditions described in this Order. 2 When the litigation has been terminated, a Receiving Party must comply with the provisions of 3 section 13 below (FINAL DISPOSITION). 4 Protected Material must be stored and maintained by a Receiving Party at a location 5 and in a secure manner that ensures that access is limited to the persons authorized under this 6 Order. 7 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 8 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 9 disclose any information or item designated “CONFIDENTIAL” only to: 10 11 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 12 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation and who have signed the “Acknowledgment and Agreement 13 to Be Bound” that is attached hereto as Exhibit A; 14 15 (b) the officers, directors, and employees (including House Counsel) of the Receiving 16 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 19 reasonably necessary for this litigation and who have signed the “Acknowledgment and 20 Agreement to Be Bound” (Exhibit A); 21 (d) the court and its personnel; 22 23 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, 24 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and 25 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 26 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 27 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 1 A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 2 transcribed deposition testimony or exhibits to depositions that reveal Protected Material 3 must be separately bound by the court reporter and may not be disclosed to anyone except as 4 permitted under this Stipulated Protective Order. 5 (g) the author or recipient of a document containing the information or a custodian or 6 other person who otherwise possessed or knew the information. 7 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 8 OTHER LITIGATION 9 10 If a Party is served with a subpoena or a court order issued in other litigation that 11 compels disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party must: 12 13 (a) promptly notify in writing the Designating Party. Such notification shall include a 14 copy of the subpoena or court order; 15 (b) promptly notify in writing the party who caused the subpoena or order to issue in 16 the other litigation that some or all of the material covered by the subpoena or order is subject 17 to this Protective Order. Such notification shall include a copy of this Stipulated Protective 18 Order; and 19 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 20 Designating Party whose Protected Material may be affected. 21 22 If the Designating Party timely seeks a protective order, the Party served with the 23 subpoena or court order shall not produce any information designated in this action as 24 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 25 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burden and expense of seeking protection in that court of its confidential 26 material – and nothing in these provisions should be construed as authorizing or encouraging 27 a Receiving Party in this action to disobey a lawful directive from another court. 1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 2 THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by a Non-Party in 4 this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties 5 in connection with this litigation is protected by the remedies and relief provided by this 6 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from 7 seeking additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to produce a 9 Non-Party’s confidential information in its possession, and the Party is subject to an 10 agreement with the Non-Party not to produce the Non-Party’s confidential information, then 11 the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non-Party that 13 some or all of the information requested is subject to a confidentiality agreement with 14 a Non-Party; 15 16 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 17 Order in this litigation, the relevant discovery request(s), and a reasonably specific 18 description of the information requested; and 19 (3) make the information requested available for inspection by the Non-Party. 20 (c) If the Non-Party fails to object or seek a protective order from this court within 14 21 days of receiving the notice and accompanying information, the Receiving Party may produce 22 the Non-Party’s confidential information responsive to the discovery request. If the Non-Party 23 timely seeks a protective order, the Receiving Party shall not produce any information in its 24 possession or control that is subject to the confidentiality agreement with the Non-Party 25 before a determination by the court. Absent a court order to the contrary, the Non-Party shall 26 bear the burden and expense of seeking protection in this court of its Protected Material. 27 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 2 Protected Material to any person or in any circumstance not authorized under this Stipulated 3 Protective Order, the Receiving Party must immediately (a) notify in writing the Designating 4 Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized 5 disclosures were made of all the terms of this Order, and (d) request such person or persons to 6 execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 7 A. 8 9 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 10 PROTECTED MATERIAL 11 When a Producing Party gives notice to Receiving Parties that certain inadvertently 12 produced material is subject to a claim of privilege or other protection, the obligations of the 13 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 14 provision is not intended to modify whatever procedure may be established in an e-discovery 15 order that provides for production without prior privilege review. Pursuant to Federal Rule of 16 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 17 of a communication or information covered by the attorney-client privilege or work product 18 protection, the parties may incorporate their agreement in the stipulated protective order 19 submitted to the court. 20 12. MISCELLANEOUS 21 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person 22 to seek its modification by the court in the future. 23 24 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 25 Order no Party waives any right it otherwise would have to object to disclosing or producing 26 any information or item on any ground not addressed in this Stipulated Protective Order. 27 Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. 1 12.3 Filing Protected Material. Without written permission from the Designating 2 Party or a court order secured after appropriate notice to all interested persons, a Party may 3 not file in the public record in this action any Protected Material. A Party that seeks to file 4 under seal any Protected Material must comply with Local Rule 141. Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific 5 Protected Material at issue. Pursuant to Local Rule 141, a sealing order will issue only upon a 6 request establishing that the Protected Material at issue is privileged, protectable as a trade 7 secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file 8 Protected Material under seal pursuant to Local Rule 141 is denied by the court, then the 9 Receiving Party may file the information in the public record pursuant to Local Rule 141 10 unless otherwise instructed by the court. 11 13. FINAL DISPOSITION 12 13 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 14 Receiving Party must return all Protected Material to the Producing Party or destroy such 15 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 16 compilations, summaries, and any other format reproducing or capturing any of the Protected 17 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 18 submit a written certification to the Producing Party (and, if not the same person or entity, to 19 the Designating Party) by the 60 day deadline that (1) identifies (by category, where 20 appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the 21 Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this 22 provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, 23 deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial 24 exhibits, expert reports, attorney work product, and consultant and expert work product, even 25 if such materials contain Protected Material. Any such archival copies that contain or 26 constitute Protected Material remain subject to this Protective Order as set forth in Section 4 27 (DURATION). 1 2 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 3 4 5 DATED: February 25, 2020 6 7 /s/ Jane Brunner (as authorized on 2/25/20) 8 Attorneys for Attorneys for Plaintiff 9 Taylor Gamino 10 11 12 DATED: February 25, 2020 13 14 /s/ Kellie Murphy (as authorized on 2/25/20) 15 Attorney for Defendants 16 Yosemite Community College, Et Al 17 18 19 20 21 22 23 24 25 26 27 1 2 EXHIBIT A 3 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 4 5 I, _____________________________ [print or type full name], of 6 _________________ [print or type full address], declare under penalty of perjury that I 7 have read in its entirety and understand the Stipulated Protective Order that was issued by the 8 United States District Court for the Eastern District of California on [date] in the case of 9 Gamino v. Yosemite Community College District, et al. Case No.: 1:18-cv-00391-LJO-SAB. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I 10 understand and acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not disclose in any 12 manner any information or item that is subject to this Stipulated Protective Order to any 13 person or entity except in strict compliance with the provisions of this Order. 14 15 I further agree to submit to the jurisdiction of the United States District Court for the 16 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. 17 18 I hereby appoint __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with this action 21 or any proceedings related to enforcement of this Stipulated Protective Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 25 Printed name: _______________________________ 26 Signature: __________________________________ 27 1 ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The above stipulated protective order is entered; 4 2. The parties are advised that pursuant to the Local Rules of the United States 5 District Court, Eastern District of California, any documents which are to be filed 6 under seal will require a written request which complies with Local Rule 141; 7 3. The party making a request to file documents under seal shall be required to show 8 good cause for documents attached to a nondispositive motion or compelling 9 reasons for documents attached to a dispositive motion. Pintos v. Pacific 10 Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009); and 11 4. If a party’s request to file Protected Material under seal is denied by the Court, 12 then the previously filed material shall be immediately accepted by the court and 13 become information in the public record and the information will be deemed filed 14 as of the date that the request to file the Protected Information under seal was 15 made. 16 17 IT IS SO ORDERED. OF. ee 1g | Dated: _February 27, 2020 _ Oe 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28