Magee v. County of Tuolumne ( 2021 )

1 XAVIER BECERRA, State Bar No. 118517 LYNN A. GARCIA, State Bar No. 131196 Attorney General of California Spinelli, Donald, & Nott 2 WILLIAM C. KWONG, State Bar No. 168010 601 University Avenue, Suite 225 Supervising Deputy Attorney General Sacramento, CA 95825 3 JEFFREY T. FISHER, State Bar No. 303712 Telephone: (916) 448-7888 LUCIA Q. LI., State Bar No. 309355 Fax: (916) 448-6888 4 Deputy Attorney General E-mail: LynnG@sdnlaw.com 455 Golden Gate Avenue, Suite 11000 Attorneys for Defendant County of Tuolumne 5 San Francisco, CA 94102-7004 Telephone: (415) 510-3568 6 Fax: (415) 703-5843 Email: Jeffrey.Fisher@doj.ca.gov 7 Attorneys for Defendant D. Jordan-Curasi 8 BRIAN T. DUNN, State Bar No. 176502 ERIC DANIEL FARRAR, State Bar No. 155217 The Cochran Firm California Attorney at Law 9 4929 Wilshire Blvd., Suite 1010 600 East Main Suite 100 Los Angeles, CA 90010 Turlock, CA 95380 10 Telephone: (323) 435-8205 Telephone: (209) 634-5500 Fax: (323) 282-5280 Fax: (209) 634-5556 11 E-mail: BDunn@cochranefirm.com E-mail: Danlaw1@msn.com Attorneys for Plaintiffs Magee and Shaw Attorney for Defendant County of Stanislaus 12 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE EASTERN DISTRICT OF CALIFORNIA 15 FRESNO DIVISION 16 17 18 HOPE MAGEE, et al., 1:19-cv-01522-AWI-BAM 19 Plaintiff, STIPULATED PRETRIAL PROTECTIVE ORDER 20 v. 21 Judge: Hon. Anthony W. Ishii COUNTY OF TUOLUMNE, et al., Trial Date: November 16, 2021 22 Action Filed: October 28, 2019 Defendants. 23 24 25 1. PURPOSES AND LIMITATIONS 26 Disclosure and discovery activity in this action are likely to involve production of confidential, 27 proprietary, or private information for which special protection from public disclosure and from use for 28 any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby 1 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 2 acknowledge that this Order does not confer blanket protections on all disclosures or responses to 3 discovery and that the protection it affords from public disclosure and use extends only to the limited 4 information or items that are entitled to confidential treatment under the applicable legal principles. The 5 parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does 6 not entitle them to file confidential information under seal; Civil Local Rule 141 and the court’s standing 7 orders set forth the procedures that must be followed and the standards that will be applied when a party 8 seeks permission from the court to file material under seal. 9 10 2. DEFINITIONS 11 2.1 Challenging Party: a Party or Non-Party to the litigation that challenges the designation of 12 information or items under this Order. 13 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, 14 stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 15 26(c). 16 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as 17 their support staff). 18 2.4 Designating Party: a Party or Non-Party that designates information or items that it 19 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 20 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. 21 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or 22 manner in which it is generated, stored, or maintained (including, among other things, testimony, 23 transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in 24 this matter. 25 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 26 litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a 27 consultant in this action, (2) is not a past or current employee of a Party or of a Party’s competitor, and 28 (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party’s competitor. 1 2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items: 2 extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or Non- 3 Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. 4 2.8 House Counsel: attorneys who are employees of a party to this action. House Counsel 5 does not include Outside Counsel of Record or any other outside counsel. 6 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity 7 not named as a Party to this action. 8 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this action but 9 are retained to represent or advise a party to this action and have appeared in this action on behalf of that 10 party or are affiliated with a law firm which has appeared on behalf of that party. 11 2.11 Party: any party to this action, including all of its officers, directors, employees, 12 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 13 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in 14 this action. 15 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., 16 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or 17 retrieving data in any form or medium) and their employees and subcontractors. 18 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 19 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 20 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing 21 Party. 22 2.16 Related Case: a civil case that the court has related to this litigation under Eastern District 23 Local Rule 123 and the undersigned plaintiff’s counsel represents the plaintiff. 24 25 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as 26 defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, 27 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or 28 1 presentations by Parties or their Counsel that might reveal Protected Material. However, the protections 2 conferred by this Stipulation and Order do not cover the following information: (a) any information that is 3 in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain 4 after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, 5 including becoming part of the public record through trial or otherwise; and (b) any information known to 6 the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a 7 source who obtained the information lawfully and under no obligation of confidentiality to the Designating 8 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 9 10 4. DURATION 11 Even after final disposition of this litigation, the confidentiality obligations imposed by this Order 12 shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise 13 directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this 14 action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all 15 appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any 16 motions or applications for extension of time pursuant to applicable law. 17 18 5. DESIGNATING PROTECTED MATERIAL 19 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non- 20 Party that designates information or items for protection under this Order must take care to limit any such 21 designation to specific material that qualifies under the appropriate standards. To the extent it is practical 22 to do so, the Designating Party must designate for protection only those parts of material, documents, 23 items, or oral or written communications that qualify – so that other portions of the material, documents, 24 items, or communications for which protection is not warranted are not swept unjustifiably within the 25 ambit of this Order. 26 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be 27 clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or 28 retard the case development process or to impose unnecessary expenses and burdens on other parties) may 1 expose the Designating Party to sanctions. 2 If it comes to a Designating Party’s attention that information or items that it designated for 3 protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, 4 that Designating Party must promptly notify all other parties that it is withdrawing the mistaken 5 designation. 6 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., 7 second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery 8 Material that qualifies for protection under this Order must be clearly so designated before the material is 9 disclosed or produced. 10 Designation in conformity with this Order requires: 11 (a) for information in documentary form (e.g., paper or electronic documents, but 12 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix 13 the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or a 14 similarly clear designation, to each page that contains protected material. 15 A Party or Non-Party that makes original documents or materials available for inspection need not 16 designate them for protection until after the inspecting Party has indicated which material it would like 17 copied and produced. During the inspection and before the designation, all of the material made available 18 for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the 19 inspecting Party has identified the documents it wants copied and produced, the Producing Party must 20 determine which documents, or portions thereof, qualify for protection under this Order. Then, before 21 producing the specified documents, the Producing Party must affix the appropriate legend 22 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that 23 contains Protected Material. 24 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 25 Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding, 26 all protected testimony and specify the level of protection being asserted. When it is impractical to identify 27 separately each portion of testimony that is entitled to protection and it appears that substantial portions of 28 the testimony may qualify for protection, the Designating Party may invoke on the record (before the 1 deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific 2 portions of the testimony as to which protection is sought and to specify the level of protection being 3 asserted. Only those portions of the testimony that are appropriately designated for protection within the 4 21 days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating 5 Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 6 entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 7 EYES ONLY.” 8 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or other 9 proceeding to include Protected Material so that the other parties can ensure that only authorized 10 individuals who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present 11 at those proceedings. The use of a document as an exhibit at a deposition shall not in any way affect its 12 designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 13 Transcripts containing Protected Material shall have an obvious legend on the title page that the 14 transcript contains Protected Material, and the title page shall be followed by a list of all pages (including 15 line numbers as appropriate) that have been designated as Protected Material and the level of protection 16 being asserted by the Designating Party. The Designating Party shall inform the court reporter of these 17 requirements. Any transcript that is prepared before the expiration of a 21-day period for designation shall 18 be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 19 EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the transcript 20 shall be treated only as actually designated. 21 (c) for information produced in some form other than documentary and for any other 22 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 23 containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY 24 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information or 25 item warrant protection, the Producing Party, to the extent practicable, shall identify the protected 26 portion(s) and specify the level of protection being asserted. 27 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 28 qualified information or items does not, standing alone, waive the Designating Party’s right to secure 1 protection under this Order for such material. Upon timely correction of a designation, the Receiving Party 2 must make reasonable efforts to assure that the material is treated in accordance with the provisions of this 3 Order. 4 5 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 7 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation 8 is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant 9 disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality 10 designation by electing not to mount a challenge promptly after the original designation is disclosed. 11 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by 12 providing written notice of each designation it is challenging and describing the basis for each challenge. 13 To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the 14 challenge to confidentiality is being made in accordance with this specific paragraph of the Protective 15 Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by 16 conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 17 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its 18 belief that the confidentiality designation was not proper and must give the Designating Party an 19 opportunity to review the designated material, to reconsider the circumstances, and, if no change in 20 designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to 21 the next stage of the challenge process only if it has engaged in this meet and confer process first or 22 establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely 23 manner. 24 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, 25 the Challenging Party shall file and serve a motion to challenge confidentiality designation under Civil 26 Local Rule 230 (and in compliance with Civil Local Rule 141, if applicable) within 21 days of the initial 27 notice of challenge or within 14 days of the parties agreeing that the meet and confer process will not 28 resolve their dispute, whichever is earlier. Any motion brought pursuant to this provision must be 1 accompanied by a competent declaration affirming that the movant has complied with the meet and confer 2 requirements imposed by the preceding paragraph. 3 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. 4 Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary 5 expenses and burdens on other parties) may expose the Challenging Party to sanctions. All parties shall 6 continue to afford the material in question the level of protection to which it is entitled under the 7 Producing Party’s designation until the court rules on the challenge. 8 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, defending, 12 or attempting to settle this litigation or any Related Case. Such Protected Material may be disclosed only 13 to the categories of persons and under the conditions described in this Order. When the litigation has been 14 terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 15 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 information or 20 item designated “CONFIDENTIAL” only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 22 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this 23 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto 24 as Exhibit A; 25 (b) the officers, directors, and employees (including House Counsel) of the Receiving 26 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 28 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 1 reasonably necessary for this litigation 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, professional jury or trial consultants, and Professional 5 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 6 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 8 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 9 otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition 10 testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court 11 reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. 12 (g) the author or recipient of a document containing the information or a custodian or 13 other person who otherwise possessed or knew the information. 14 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information 15 or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 16 Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL – 17 ATTORNEYS’ EYES ONLY” only to: 18 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 19 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this 20 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto 21 as Exhibit A; 22 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this 23 litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) 24 as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed]; 25 (c) the court and its personnel; 26 (d) court reporters and their staff, professional jury or trial consultants, and Professional 27 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 28 “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 1 (e) the author or recipient of a document containing the information or a custodian or 2 other person who otherwise possessed or knew the information. 3 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – 4 ATTORNEYS’ EYES ONLY” Information or Items to Designated House Counsel or Experts. 5 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating 6 Party, a Party that seeks to disclose to Designated House Counsel any information or item that has been 7 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) 8 first must make a written request to the Designating Party that (1) sets forth the full name of the 9 Designated House Counsel and the city and state of his or her residence, and (2) describes the Designated 10 House Counsel’s current and reasonably foreseeable future primary job duties and responsibilities in 11 sufficient detail to determine if House Counsel is involved, or may become involved, in any competitive 12 decision-making. 13 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating 14 Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item that has 15 been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 16 7.3(c) first must make a written request to the Designating Party that (1) identifies the general categories 17 of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the Receiving Party 18 seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert and the city and state 19 of his or her primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the 20 Expert’s current employer(s), (5) identifies each person or entity from whom the Expert has received 21 compensation or funding for work in his or her areas of expertise or to whom the expert has provided 22 professional services, including in connection with a litigation, at any time during the preceding five years, 23 and (6) identifies (by name and number of the case, filing date, and location of court) any litigation in 24 connection with which the Expert has offered expert testimony, including through a declaration, report, or 25 testimony at a deposition or trial, during the preceding five years. 26 (b) A Party that makes a request and provides the information specified in the preceding 27 respective paragraphs may disclose the subject Protected Material to the identified Designated House 28 Counsel or Expert unless, within 14 days of delivering the request, the Party receives a written objection 1 from the Designating Party. Any such objection must set forth in detail the grounds on which it is based. 2 (c) A Party that receives a timely written objection must meet and confer with the 3 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within 4 seven days of the written objection. If no agreement is reached, the Party seeking to make the disclosure to 5 Designated House Counsel or the Expert may file a motion as provided in Civil Local Rule 230 (and in 6 compliance with Civil Local Rule 141, if applicable) seeking permission from the court to do so. Any such 7 motion must describe the circumstances with specificity, set forth in detail the reasons why the disclosure 8 to Designated House Counsel or the Expert is reasonably necessary, assess the risk of harm that the 9 disclosure would entail, and suggest any additional means that could be used to reduce that risk. In 10 addition, any such motion must be accompanied by a competent declaration describing the parties’ efforts 11 to resolve the matter by agreement (i.e., the extent and the content of the meet and confer discussions) and 12 setting forth the reasons advanced by the Designating Party for its refusal to approve the disclosure. 13 In any such proceeding, the Party opposing disclosure to Designated House Counsel or the Expert 14 shall bear the burden of proving that the risk of harm that the disclosure would entail (under the safeguards 15 proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its Designated House 16 Counsel or Expert. 17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 18 LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation that compels 20 disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY 21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 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 Designating Party whose Protected Material may be affected. 1 If the Designating Party timely seeks a protective order, the Party served with the subpoena or 2 court order shall not produce any information designated in this action as “CONFIDENTIAL” or 3 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the court from 4 which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The 5 Designating Party shall bear the burden and expense of seeking protection in that court of its confidential 6 material – and nothing in these provisions should be construed as authorizing or encouraging a Receiving 7 Party in this action to disobey a lawful directive from another court. 8 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 9 LITIGATION 10 (a) The terms of this Order are applicable to information produced by a Non-Party in 11 this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 12 EYES ONLY.” Such information produced by Non-Parties in connection with this litigation is protected 13 by the remedies and relief provided by this Order. Nothing in these provisions should be construed as 14 prohibiting a Non-Party from seeking additional protections. 15 (b) In the event that a Party is required, by a valid discovery request, to produce a 16 Non-Party’s confidential information in its possession, and the Party is subject to an agreement with the 17 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 18 1. promptly notify in writing the Requesting Party and the Non-Party that some or 19 all of the information requested is subject to a confidentiality agreement with a Non-Party; 20 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in 21 this litigation, the relevant discovery request(s), and a reasonably specific description of the information 22 requested; and 23 3. make the information requested available for inspection by the Non-Party. 24 (c) If the Non-Party fails to object or seek a protective order from this court within 14 25 days of receiving the notice and accompanying information, the Receiving Party may produce the Non- 26 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a 27 protective order, the Receiving Party shall not produce any information in its possession or control that is 28 subject to the confidentiality agreement with the Non-Party before a determination by the court. Absent a 1 court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this 2 court of its Protected Material. 3 4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material 6 to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving 7 Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use 8 its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 9 persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such 10 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto 11 as Exhibit A. 12 13 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 14 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 15 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are 16 those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 17 whatever procedure may be established in an e-discovery order that provides for production without prior 18 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an 19 agreement on the effect of disclosure of a communication or information covered by the attorney-client 20 privilege or work product protection, the parties may incorporate their agreement in the stipulated 21 protective order submitted to the court. 22 23 12. MISCELLANEOUS 24 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its 25 modification by the court in the future. 26 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 27 Party waives any right it otherwise would have to object to disclosing or producing any information or 28 1 item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right 2 to object on any ground to use in evidence of any of the material covered by this Protective Order. 3 12.3 Filing Protected Material. Without written permission from the Designating Party or a 4 court order secured after appropriate notice to all interested persons, a Party may not file in the public 5 record in this action any Protected Material. A Party that seeks to file under seal any Protected Material 6 must comply with Civil Local Rule 141 and the court’s standing orders. Protected Material may only be 7 filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. 8 Pursuant to Civil Local Rule 141 and the court’s standing orders, a sealing order will issue only upon a 9 request establishing that the Protected Material at issue is entitled to protection under the law. If a 10 Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 141(b) is 11 denied by the court, then the Receiving Party may file the Protected Material in the public record unless 12 otherwise instructed by the court. 13 14 13. FINAL DISPOSITION 15 Within 60 days after the final disposition, as defined in paragraph 4, of this action and all Related 16 Cases as defined in paragraph 2.18, each Receiving Party must return all Protected Material to the 17 Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all 18 copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the 19 Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 20 submit a written certification to the Producing Party (and, if not the same person or entity, to the 21 Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all the 22 Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained 23 any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the 24 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 25 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 26 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work 27 product, even if such materials contain Protected Material. Any such archival copies that contain or 28 constitute Protected Material remain subject to this Protective Order as set forth in Section 4 eee I I EEE IEE NINDS III III IE EEE EOIN (ISS AES SES Oe 1 | (DURATION). 2 3 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 . ea □ 6 | DATED ek ; | EEE > □□