Vasquez v. County of Stanislaus ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 RICARDO VASQUEZ, et al., Case No. 1:19-cv-01610-AWI-SAB 11 Plaintiffs, ORDER ENTERING STIPULATED 12 PROTECTIVE ORDER v. 13 (ECF No. 25) COUNTY OF STANISLAUS, 14 Defendant. 15 16 17 STIPULATED PROTECTIVE ORDER 18 1. PURPOSES AND LIMITATIONS 19 Disclosure and discovery activity in this action are likely to involve production of 20 confidential, proprietary, or private information for which special protection from public 21 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 22 Accordingly, the parties hereby stipulate to and petition the court to enter the following 23 Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 24 protections on all disclosures or responses to discovery and that the protection it affords from 25 public disclosure and use extends only to the limited information or items that are entitled to 26 confidential treatment under the applicable legal principles. The parties further acknowledge, as 27 set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Local Rule 141 sets forth the procedures that must be 1 followed and the standards that will be applied when a party seeks permission from the court to 2 file material under seal. 3 2. DEFINITIONS 4 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or 5 items under this Order. 6 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, 7 stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil 8 Procedure 26(c). 9 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as 10 their support staff). 11 2.4 Designating Party: a Party or Non-Party that designates information or items that it 12 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 13 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or 14 manner in which it is generated, stored, or maintained (including, among other things, testimony, 15 transcripts, and tangible things), that are produced or generated in disclosures or responses to 16 discovery in this matter. 17 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 18 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 19 consultant in this action. 20 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel 21 does not include Outside Counsel of Record or any other outside counsel. 22 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity 23 not named as a Party to this action. 24 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action but 25 are retained to represent or advise a party to this action and have appeared in this action on 26 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 27 2.10 Party: any party to this action, including all of its officers, directors, employees, 1 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material 2 in this action. 3 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., 4 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 5 storing, or retrieving data in any form or medium) and their employees and subcontractors. 6 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 7 “CONFIDENTIAL.” 8 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 9 Producing Party. 10 3. SCOPE 11 The protections conferred by this Stipulation and Order cover not only Protected Material (as 12 defined above), but also (1) any information copied from Protected Material; (2) all copies, 13 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 14 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 15 However, the protections conferred by this Stipulation and Order do not cover the following 16 information: (a) any information that is in the public domain at the time of disclosure to a 17 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 18 a result of publication not involving a violation of this Order, including becoming part of the 19 public record through trial or otherwise; and (b) any information known to the Receiving Party 20 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 21 obtained the information lawfully and under no obligation of confidentiality to the Designating 22 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 23 4. DURATION 24 Even after final disposition of this litigation, the confidentiality obligations imposed by this 25 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 26 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 27 and defenses in this action, with or without prejudice; and (2) final judgment herein after the 1 including the time limits for filing any motions or applications for extension of time pursuant to 2 applicable law. 3 5. DESIGNATING PROTECTED MATERIAL 4 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 5 Non-Party that designates information or items for protection under this Order must take care to 6 limit any such designation to specific material that qualifies under the appropriate standards. The 7 Designating Party must designate for protection only those parts of material, documents, items, 8 or oral or written communications that qualify – so that other portions of the material, 9 documents, items, or communications for which protection is not warranted are not swept 10 unjustifiably within the ambit of this Order. 11 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 12 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 13 encumber or retard the case development process or to impose unnecessary expenses and 14 burdens on other parties) expose the Designating Party to sanctions. 15 If it comes to a Designating Party’s attention that information or items that it designated for 16 protection do not qualify for protection, that Designating Party must promptly notify all other 17 Parties that it is withdrawing the mistaken designation. 18 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 19 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure 20 or Discovery Material that qualifies for protection under this Order must be clearly so designated 21 before the material is disclosed or produced. 22 Designation in conformity with this Order requires: 23 (a) for information in documentary form (e.g., paper or electronic documents, but excluding 24 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the 25 legend “CONFIDENTIAL” to each page that contains Protected Material. If only a portion or 26 portions of the material on a page qualifies for protection, the Producing Party also must clearly 27 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 1 need not designate them for protection until after the inspecting Party has indicated which 2 material it would like copied and produced. During the inspection and before the designation, all 3 of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the 4 inspecting Party has identified the documents it wants copied and produced, the Producing Party 5 must determine which documents, or portions thereof, qualify for protection under this Order. 6 Then, before producing the specified documents, the Producing Party must affix the 7 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or 8 portions of the material on a page qualifies for protection, the Producing Party also must clearly 9 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 10 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 11 Designating Party identify on the record, before the close of the deposition, hearing, or other 12 proceeding, all protected testimony. 13 (c) for information produced in some form other than documentary and for any other 14 tangible items, that the Producing Party affix in a prominent place on the exterior of the 15 container or containers in which the information or item is stored the legend 16 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 17 the Producing Party, to the extent practicable, shall identify the protected portion(s). 18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 19 qualified information or items does not, standing alone, waive the Designating Party’s right to 20 secure protection under this Order for such material. Upon timely correction of a designation, the 21 Receiving Party must make reasonable efforts to assure that the material is treated in accordance 22 with the provisions of this Order. 23 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 24 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 25 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 26 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 27 economicburdens, or a significant disruption or delay of the litigation, a Party does not waive its 1 after the original designation is disclosed. 2 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by 3 providing written notice of each designation it is challenging and describing the basis for each 4 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 5 recite that the challenge to confidentiality is being made in accordance with this specific 6 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good 7 faith and must begin the process by conferring directly (in voice to voice dialogue; other forms 8 of communication are not sufficient) within 14 days of the date of service of notice. In 9 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 10 designation was not proper and must give the Designating Party an opportunity to review the 11 designated material, to reconsider the circumstances, and, if no change in designation is offered, 12 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 13 stage of the challenge process only if it has engaged in this meet and confer process first or 14 establishes that the Designating Party is unwilling to participate in the meet and confer process in 15 a timely manner. 16 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, 17 the Designating Party shall file and serve a motion to retain confidentiality under Local Rule 230 18 (and in compliance with Local Rule141, if applicable) within 21 days of the initial notice of 19 challenge or within 14 days of the parties agreeing that the meet and confer process will not 20 resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 21 competent declaration affirming that the movant has complied with the meet and confer 22 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such 23 a motion including the required declaration within 21 days (or 14 days, if applicable) shall 24 automatically waive the confidentiality designation for each challenged designation. In addition, 25 the Challenging Party may file a motion challenging a confidentiality designation at any time if 26 there is good cause for doing so, including a challenge to the designation of a deposition 27 transcript or any portions thereof. Any motion brought pursuant to this provision must be 1 and confer requirements imposed by the preceding paragraph. 2 The burden of persuasion in any such challenge proceeding shall be on the Designating 3 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 4 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 5 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 6 file a motion to retain confidentiality as described above, all parties shall continue to afford the 7 material in question the level of protection to which it is entitled under the Producing Party’s 8 designation until the court rules on the challenge. 9 7. ACCESS TO AND USE OF PROTECTED MATERIAL 10 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 11 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 12 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 13 to the categories of persons and under the conditions described in this Order. When the litigation 14 has been terminated, a Receiving Party must comply with the provisions of section 13 below 15 (FINAL DISPOSITION). 16 Protected Material must be stored and maintained by a Receiving Party at a location and in a 17 secure manner that ensures that access is limited to the persons authorized under this Order. 18 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the 19 court or permitted in writing by the Designating Party, a Receiving Party may disclose any 20 information or item designated “CONFIDENTIAL” only to: 21 (a) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 22 reasonably necessary for this litigation and who have signed the “Acknowledgment and 23 Agreement to Be Bound” (Exhibit A); 24 (b) the court and its personnel; 25 (c) court reporters and their staff, professional jury or trial consultants, mock jurors, and 26 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 27 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 2 A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 3 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 4 separately bound by the court reporter and may not be disclosed to anyone except as permitted 5 under this Stipulated Protective Order or as agreed by the Designating Party. 6 (e) the author or recipient of a document containing the information or a custodian or other 7 person who otherwise possessed or knew the information. 8 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 9 LITIGATION 10 If a Party is served with a subpoena or a court order issued in other litigation that compels 11 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 12 Party must: 13 (a) promptly notify in writing the Designating Party. Such notification shall include a copy 14 of the subpoena or court order; 15 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 16 other litigation that some or all of the material covered by the subpoena or order is subject to this 17 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 18 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 19 Designating Party whose Protected Material may be affected. 20 If the Designating Party timely seeks a protective order, the Party served with the 21 subpoena or court order shall not produce any information designated in this action as 22 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 23 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 24 shall bear the burden and expense of seeking protection in that court of its confidential material – 25 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 26 Party in this action to disobey a lawful directive from another court. 27 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 1 (a) The terms of this Order are applicable to information produced by a Non-Party in this 2 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 3 connection with this litigation is protected by the remedies and relief provided by this Order. 4 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 5 additional protections. 6 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 7 Party’s confidential information in its possession, and the Party is subject to an agreement with 8 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 9 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of the 10 information requested is subject to a confidentiality agreement with a Non-Party; 11 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 12 litigation, the relevant discovery request(s), and a reasonably specific description of the 13 information requested; and 14 (3) make the information requested available for inspection by the Non-Party. 15 (c) If the Non-Party fails to object or seek a protective order from this court within 14 days 16 of receiving the notice and accompanying information, the Receiving Party may produce the 17 Non-Party’s confidential information responsive to the discovery request. If the Non-Party 18 timely seeks a protective order, the Receiving Party shall not produce any information in its 19 possession or control that is subject to the confidentiality agreement with the Non-Party before a 20 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 21 burden and expense of seeking protection in this court of its Protected Material. 22 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 24 Material to any person or in any circumstance not authorized under this Stipulated Protective 25 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 26 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 27 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 1 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 3 PROTECTED MATERIAL 4 When a Producing Party gives notice to Receiving Parties that certain inadvertently 5 produced material is subject to a claim of privilege or other protection, the obligations of the 6 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 7 provision is not intended to modify whatever procedure may be established in an e-discovery 8 order that provides for production without prior privilege review. Pursuant to Federal Rule of 9 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 10 communication or information covered by the attorney-client privilege or work product 11 protection, the parties may incorporate their agreement in the stipulated protective order 12 submitted to the court. 13 12. MISCELLANEOUS 14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 15 its modification by the court in the future. 16 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 17 Party waives any right it otherwise would have to object to disclosing or producing any 18 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 19 no Party waives any right to object on any ground to use in evidence of any of the material 20 covered by this Protective Order. 21 12.3 Filing Protected Material. Without written permission from the Designating Party or a 22 court order secured after appropriate notice to all interested persons, a Party may not file in the 23 public record in this action any Protected Material. A Party that seeks to file under seal any 24 Protected Material must comply with Local Rule141. Protected Material may only be filed under 25 seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. 26 Pursuant to Local Rule141, a sealing order will issue only upon a request establishing that the 27 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 1 pursuant to Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the 2 information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed 3 by the court. 4 13. FINAL DISPOSITION 5 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 6 Receiving Party must return all Protected Material to the Producing Party or destroy such 7 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 8 compilations, summaries, and any other format reproducing or capturing any of the Protected 9 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 10 submit a written certification to the Producing Party (and, if not the same person or entity, to the 11 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 12 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 13 not retained any copies, abstracts, 14 compilations, summaries or any other format reproducing or capturing any of the Protected 15 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 16 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 17 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 18 consultant and expert work product, even if such materials contain Protected Material. Any such 19 archival copies that contain or constitute Protected Material remain subject to this Protective 20 Order as set forth in Section 4 (DURATION). 21 22 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 23 24 25 Date: September 28, 2020 RIVERA HEWITT PAUL LLP 26 27 /s/ Jonathan B. Paul 1 JONATHAN B. PAUL 2 Attorneys for Defendant 3 County of Stanislaus 4 5 6 Date: September 28, 2020 POINTER & BUELNA, LLP 7 8 /s/ Patrick Buelna 9 (As authorized on 09/28/20) 10 __________________________ 11 Patrick Buelna 12 Attorneys for Plaintiff 13 R.V. Ricardo Vasquez 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// wOow 4:40 VV VEY LUN OAD Gt PO ere POY VI te 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 Creditors 10 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 18 | Dated: _ September 28, 2020 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28