County of Kern v. Tyler Technologies, Inc. ( 2020 )

1 EILEEN R. RIDLEY, CA Bar No. 151735 eridley@foley.com 2 ALAN R. OUELLETTE, CA Bar No. 272745 aouellette@foley.com 3 JAIME DORENBAUM, CA Bar No. 289555 jdorenbaum@foley.com 4 FOLEY & LARDNER LLP 555 CALIFORNIA STREET 5 SUITE 1700 SAN FRANCISCO, CA 94104-1520 6 TELEPHONE: 415.434.4484 FACSIMILE: 415.434.4507 7 MARGO A. RAISON, COUNTY COUNSEL 8 COUNTY OF KERN, STATE OF CALIFORNIA By: Andrew C. Thomson, Chief Deputy (SBN 149057) 9 Kern County Administrative Center 1115 Truxtun Avenue, Fourth Floor 10 Bakersfield, CA 93301 Telephone: 661.868.3800 11 Facsimile: 661-868-3805 12 Attorneys for Plaintiff County of Kern 13 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 COUNTY OF KERN, ) Case No: 1:20-cv-00853-HBK-JDP ) 18 PLAINTIFF, ) STIPULATED PROTECTIVE ORDER ) 19 V. ) ) 20 TYLER TECHNOLOGIES, INC., ) District Court Judge: Hon. Anthony W. Ishii ) Magistrate Judge: Hon. Helena M. Barch-Kuchta 21 DEFENDANT. ) ) 22 ) ) 23 ) ) 24 ) 25 26 27 28 1 Plaintiff and Counter-Defendant County of Kern (the “County” or “Plaintiff”) and Defendant and 2 Counter-Claimant Tyler Technologies, Inc. (“Tyler” or “Defendant”), by and through their undersigned 3 counsel, hereby stipulate as set forth below and respectfully request that the Court enter this Stipulated 4 Protective Order: 5 I. INTRODUCTION 6 A. PURPOSES AND LIMITATIONS 7 Discovery in this action is likely to involve production of confidential, proprietary, or private 8 information or items for which special protection from public disclosure and from use for any purpose 9 other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and 10 petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this 11 Order does not confer blanket protections on all disclosures or responses to discovery and that the 12 protection it affords from public disclosure and use extends only to the limited information or items that 13 are entitled to confidential treatment under the applicable legal principles. The parties further 14 acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle 15 them to file confidential information or items under seal; Civil Local Rules 140 and 141 set forth the 16 procedures that must be followed and the standards that will be applied when a party seeks permission 17 from the court to file material under seal. 18 B. GOOD CAUSE STATEMENT 19 This action is likely to involve confidential and/or proprietary information or items for which 20 special protection from public disclosure and from use for any purpose other than prosecution of this 21 action is warranted. Such confidential and/or proprietary information and items may consist of, among 22 other things, information regarding confidential business practices and information implicating the 23 privacy rights of third parties, information which is otherwise generally unavailable to the public, or which 24 may be privileged or otherwise protected from disclosure under state or federal statutes, court rules, case 25 decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt 26 resolution of disputes over confidentiality of discovery materials, to adequately protect information and 27 items the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable 28 1 the end of the litigation, and serve the ends of justice, a protective order for such information and items is 2 justified in this matter. It is the intent of the parties that information and items will not be designated as 3 confidential for tactical reasons and that nothing be so designated without a good faith belief that it has 4 been maintained in a confidential, non-public manner, and there is good cause why it should not be part 5 of the public record of this case. 6 II. DEFINITIONS 7 2.1 Action: the above-captioned pending federal lawsuit, styled County of Kern v. Tyler 8 Technologies, Inc., Eastern District of California, Case No. 1:20-CV-00853-AWI-HBK. 9 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or 10 items under this Order. 11 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, 12 stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 13 26(c), and as specified above in the Good Cause Statement. 14 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 15 2.5 Designating Party: a Party or Non-Party that designates information or items that it 16 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 17 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or 18 manner in which it is generated, stored, or maintained (including, among other things, testimony, 19 transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery 20 in this matter. 21 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the 22 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant 23 in this Action. 24 2.8 House Counsel: attorneys who are employees of a Party to this Action. House Counsel 25 does not include Outside Counsel of Record or any other outside counsel. 26 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity 27 not named as a Party to this action. 28 1 are retained to represent or advise a party to this Action and have appeared in this Action on behalf of that 2 Party or are affiliated with a law firm which has appeared on behalf of that party, and includes support 3 staff. 4 2.11 Party: the parties to this Action, Plaintiff and Counter-Defendant County of Kern and 5 Defendant and Counter-Claimant Tyler Technologies, Inc., including all of each such parties’ officers, 6 directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support 7 staffs). 8 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in 9 this Action. 10 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., 11 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or 12 retrieving data in any form or medium) and their employees and subcontractors. 13 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 14 “CONFIDENTIAL.” 15 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing 16 Party. 17 III. SCOPE 18 The protections conferred by this Stipulation and Order cover not only Protected Material (as 19 defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, 20 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or 21 presentations by Parties or their Counsel that might reveal Protected Material. 22 Any use of Protected Material at trial shall be governed by the orders of the trial judge. This Order 23 does not govern the use of Protected Material at trial. 24 IV. DURATION 25 Once a case proceeds to trial, all of the information and items that were designated as 26 “CONFIDENTIAL” or maintained pursuant to this protective order becomes public and will be 27 presumptively available to all members of the public, including the press, unless compelling reasons 28 1 the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) 2 (distinguishing “good cause” showing for sealing documents produced in discovery from “compelling 3 reasons” standard when merits-related documents are part of court record). Accordingly, the terms of this 4 protective order do not extend beyond the commencement of the trial. 5 Even after final disposition of this litigation, the confidentiality obligations imposed by this Order 6 shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise 7 directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this 8 Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of 9 all appeals, rehearings, remands, trials, or reviews of this Action, including the time limits for filing any 10 motions or applications for extension of time pursuant to applicable law. 11 V. DESIGNATING PROTECTED MATERIAL 12 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non- 13 Party that designates information or items for protection under this Order must take care to limit any such 14 designation to specific material that qualifies under the appropriate standards. The Designating Party must 15 designate for protection only those parts of material, documents, items, or oral or written communications 16 that qualify so that other portions of the material, documents, items, or communications for which 17 protection is not warranted are not swept unjustifiably within the ambit of this Order. 18 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be 19 clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber the 20 case development process or to impose unnecessary expenses and burdens on other parties) may expose 21 the Designating Party to sanctions. If it comes to a Designating Party’s attention that information or items 22 that it designated for protection do not qualify for protection, that Designating Party must promptly notify 23 all other Parties that it is withdrawing the inapplicable designation. 24 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., 25 second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery 26 Material that qualifies for protection under this Order must be clearly so designated before the material is 27 disclosed or produced. 28 1 (a) for information in documentary form (e.g., paper or electronic documents, but excluding 2 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix, at a 3 minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 4 contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, 5 the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 6 markings in the margins). 7 A Party or Non-Party that makes original documents available for inspection need not designate 8 them for protection until after the inspecting Party has indicated which documents it would like copied 9 and produced. During the inspection and before the designation, all of the material made available for 10 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 11 it wants copied and produced, the Producing Party must determine which documents, or portions thereof, 12 qualify for protection under this Order. Then, before producing the specified documents, the Producing 13 Party must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If only a 14 portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly 15 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 16 (b) for testimony given in depositions, that the Designating Party identify the Disclosure or 17 Discovery Material on the record, before the close of the deposition. 18 (c) for information produced in some form other than documentary and for any other tangible 19 items, that the Producing Party affix in a prominent place on the exterior of the container or containers in 20 which the information is stored the legend “CONFIDENTIAL.” If only a portion or portions of the 21 information warrants protection, the Producing Party, to the extent practicable, shall identify the protected 22 portion(s). 23 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 24 qualified information or items does not, standing alone, waive the Designating Party’s right to secure 25 protection under this Order for such material. Upon timely correction of a designation, the Receiving Party 26 must make reasonable efforts to assure that the material is treated in accordance with the provisions of 27 this Order. 28 1 VI. CHALLENGING CONFIDENTIALITY DESIGNATIONS 2 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 3 confidentiality at any time that is consistent with the Court’s Scheduling Order. 4 6.2 Meet and Confer. The Challenging Party shall initiate a meet and confer with the 5 Designating Party prior to presenting any challenge to a confidentiality designation to the Court. 6 6.3 Burden. The burden of persuasion in any such challenge proceeding shall be on the 7 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 8 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless 9 the Designating Party has waived or withdrawn the confidentiality designation, all parties shall continue 10 to afford the material in question the level of protection to which it is entitled under the Producing Party’s 11 designation until the Court rules on the challenge. 12 VII. ACCESS TO AND USE OF PROTECTED MATERIAL 13 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 14 produced by another Party or by a Non-Party in connection with this Action only for prosecuting, 15 defending, or attempting to settle this Action. Such Protected Material may be disclosed only to the 16 categories of persons and under the conditions described in this Order. When the Action has been 17 terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 18 DISPOSITION). 19 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure 20 manner that ensures that access is limited to the persons authorized under this Order. 21 7.2 Disclosure of Protected Material. Unless otherwise ordered by the court or permitted in 22 writing by the Designating Party, a Receiving Party may disclose Protected Material only to: 23 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees of 24 said Outside Counsel of Record to whom it is reasonably necessary to disclose the Protected Material for 25 this Action; 26 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party 27 to whom disclosure is reasonably necessary for this Action; 28 1 reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be 2 Bound” (Exhibit A); 3 (d) the court and its personnel; 4 (e) court reporters and their staff; 5 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom 6 disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and 7 Agreement to Be Bound” (Exhibit A); 8 (g) the author or recipient of a document containing the Protected Material or a custodian or 9 other person who otherwise possessed or knew the information contained in the Protected Material; 10 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom 11 disclosure is reasonably necessary. Unless otherwise agreed by the Designating Party or ordered by the 12 court, witnesses and attorneys for witnesses shall not be permitted to keep any Protected Material unless 13 they sign Exhibit A hereto. Pages of transcribed deposition testimony or exhibits to depositions that 14 reveal Protected Material may be separately bound by the court reporter and may not be disclosed to 15 anyone except as permitted under this Stipulated Protective Order; and 16 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon 17 by any of the parties engaged in settlement discussions. 18 VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 19 LITIGATION 20 If a Party is served with a subpoena or a court order issued in other litigation that compels 21 disclosure of any Protected Material, that Party must: 22 (a) promptly notify in writing the Designating Party. Such notification shall include a copy 23 of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 25 other litigation that some or all of the material covered by the subpoena or order is subject to this 26 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 27 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 28 1 If the Designating Party timely seeks a protective order, the Party served with the subpoena or 2 court order shall not produce any Protected Material before a determination by the court from which the 3 subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The 4 Designating Party shall bear the burden and expense of seeking protection in that court of its Protected 5 Material and nothing in these provisions should be construed as authorizing or encouraging a Receiving 6 Party in this Action to disobey a lawful directive from another court. 7 IX. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 8 LITIGATION 9 (a) The terms of this Order are applicable to information or items produced by a Non-Party 10 in this Action and designated as “CONFIDENTIAL.” Such information or items produced by Non- 11 Parties in connection with this litigation are protected by the remedies and relief provided by this Order. 12 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 13 protections. 14 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 15 Party’s Protected Material in its possession, and the Party is subject to an agreement with the Non-Party 16 not to produce the Non-Party’s Protected Material, then the Party shall: 17 (1) promptly notify in writing the Requesting Party and the Non-Party that some or 18 all of the information or items requested are subject to a confidentiality agreement with a Non- 19 Party; 20 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in 21 this Action, the relevant discovery request(s), and a reasonably specific description of the 22 information or items requested; and 23 (3) make the information or items requested available for inspection by the Non- 24 Party, if requested. 25 (c) If the Non-Party fails to seek a protective order from this court within 14 days of 26 receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s 27 Protected Material responsive to the discovery request. If the Non-Party timely seeks a protective order, 28 1 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 2 seeking protection in this court of its Protected Material. 3 X. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material 5 to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving 6 Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) 7 use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 8 persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such 9 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto 10 as Exhibit A. 11 XI. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 12 MATERIAL 13 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 14 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are 15 those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 16 whatever procedure may be established in an e-discovery order that provides for production without prior 17 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an 18 agreement on the effect of disclosure of a communication or information covered by the attorney-client 19 privilege or work product protection, the parties may incorporate their agreement in another stipulated 20 protective order submitted to the court. 21 XII. MISCELLANEOUS 22 11.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its 23 modification by the Court in the future. 24 11.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 25 Party waives any right it otherwise would have to object to disclosing or producing any information or 26 item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right 27 to object on any ground to use in evidence of any of the material covered by this Protective Order. 28 1 comply with Civil Local Rules 140 and 141. Protected Material may only be filed under seal pursuant to 2 a court order authorizing the sealing of the specific Protected Material at issue. If a Party's request to file 3 Protected Material under seal is denied by the court, then the Receiving Party may file the information in 4 the public record unless otherwise instructed by the court. 5 XIII. FINAL DISPOSITION 6 Within 60 days of the final disposition of this Action, as defined in paragraph 4, each Receiving 7 Party must return all Protected Material to the Producing Party or destroy such material. As used in this 8 subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other 9 format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel 10 are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 11 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 12 product, and consultant and expert work product, even if such materials contain Protected Material. Any 13 such archival copies that contain or constitute Protected Material remain subject to this Protective Order 14 as set forth in Section 4 (DURATION). 15 XIV. VIOLATIONS OF THIS ORDER 16 Any violation of this Order may be punished by any and all appropriate measures including, 17 without limitation, contempt proceedings and/or monetary sanctions. 18 DATED: November 30, 2020 FOLEY & LARDNER LLP EILEEN R. RIDLEY 19 ALAN R. OUELLETTE JAIME DORENBAUM 20 21 22 By:/s/ Eileen R. Ridley EILEEN R. RIDLEY 23 Attorneys for Plaintiff COUNTY OF KERN 24 25 MARGO A. RAISON, COUNTY COUNSEL ANDREW C. THOMSON, CHIEF DEPUTY Attorneys for Plaintiff 26 COUNTY OF KERN 27 28 1 |] DATED: November 30, 2020 K & L GATES BETH W. PETRONIO 2 JASON N. HAYCOCK JONATHAN THEONUGRAHA 3 4 5 By:/s/ Beth W. Petronio BETH W. PETRONIO 6 Attorneys for Defendant 5 TYLER TECHNOLOGIES, INC. 8 9 10 IT IS SO ORDERED. 11 OY, Dated: _ December 18, 2020 (hv. Th. Bareh fackte 12 HELENA M. BARCH-KUCHTA B UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 EXHIBIT A 16 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 17 18 I, [print or type full name], of 19 [print or type full address], declare under 20 penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was 21 issued by the United States District Court for the Eastern District of California on 22 ______________________________[date] in the case of County of Kern v. Tyler Technologies, Inc., 23 Eastern District of California, Case No. 1:20-CV-00853-AWI-HBK. I agree to comply with and to be 24 bound by all the terms of this Stipulated Protective Order, and I understand and acknowledge that failure 25 to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 26 promise that I will not disclose in any manner any information or item that is subject to this Stipulated 27 Protective Order to any person or entity except in strict compliance with the provisions of this Order. 28 1 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if 2 such enforcement proceedings occur after termination of this action. 3 4 Date: 5 City and State where sworn and signed: 6 Printed name: 7 Signature: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28