Garcia v. County of Stanislaus ( 2021 )

1 Sanjay S. Schmidt (SBN 247475) LAW OFFICE OF SANJAY S. SCHMIDT 2 1388 Sutter Street, Suite 810 San Francisco, CA 94109 3 T: (415) 563-8583 F: (415) 223-9717 4 ss@sanjayschmidtlaw.com 5 T. Kennedy Helm, IV (SBN 282319) 6 HELM LAW OFFICE, PC 644 40th Street, Suite 305 7 Oakland, CA 94609 T: (510) 350-7571 8 F: (510) 350-7359 kennedy@helmlawoffice.com 9 10 Attorneys for Plaintiff, JOSE ALBERTO GARCIA 11 12 UNITED STATES DISTRICT COURT 13 EASTERN DISTRICT OF CALIFORNIA 14 FRESNO DIVISION 15 JOSE ALBERTO GARCIA, ) Case No. 1:21-cv-00331-NONE-SAB 16 ) Plaintiff, ) STIPULATION AND (PROPOSED) 17 ) PROTECTIVE ORDER FOR vs. ) CONFIDENTIAL DOCUMENTS 18 ) ) COUNTY OF STANISLAUS, a municipal 19 corporation; Stanislaus County Sheriff’s ) ) 20 Deputies RICHARD JOHNSON, ) individually, JESSUE CORRAL, ) 21 individually, and WADE CARR, ) individually; Stanislaus County Sheriff’s ) 22 Sergeants JOSHUA SANDOVAL, ) ) individually, and THOMAS LETRAS, 23 ) individually; and, DOES 1–30, Jointly and ) 24 Severally, ) ) 25 Defendants. ) ) 26 27 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 7 all disclosures or responses to discovery and that the protection it affords from public disclosure 8 and use extends only to the limited information or items that are entitled to confidential treatment 9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, 10 below, that this Stipulated Protective Order does not entitle them to file confidential information 11 under seal; Civil Local Rule 141.1 sets forth the procedures that must be followed and the standards 12 that will be applied when a party seeks permission from the court to file material under seal. 13 2. DEFINITIONS 14 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 15 information or items under this Order. 16 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 18 of Civil Procedure 26(c). It encompasses information where public disclosure is likely to result 19 in particularized harm, or where public disclosure would violate privacy interests recognized by 20 law. Examples of confidential information include, but are not limited to, the following: 21 a. personnel file records of any peace officer; 22 b. medical records; 23 c. social security numbers and similar sensitive identifying information (unless 24 redacted by order or by agreement of all parties). 25 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 26 as their support staff). 27 2.4 Designating Party: a Party or Non-Party that designates information or items that it 1 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 2 or manner in which it is generated, stored, or maintained (including, among other things, 3 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 4 responses to discovery in this matter. 5 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 6 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 7 consultant in this action. 8 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel 9 does not include Outside Counsel of Record or any other outside counsel. 10 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 11 entity not named as a Party to this action. 12 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 13 but are retained to represent or advise a party to this action and have appeared in this action on 14 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 15 2.10 Party: any party to this action, including all of its officers, directors, employees, 16 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 17 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 18 Material in this action. 19 2.12 Professional Vendors: persons or entities that provide litigation support services 20 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 21 organizing, storing, or retrieving data in any form or medium) and their employees and 22 subcontractors. 23 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 24 “CONFIDENTIAL.” 25 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 26 Producing Party. 27 3. SCOPE 1 The protections conferred by this Stipulation and Order cover not only Protected Material 2 (as defined above), but also (1) any information copied from Protected Material; (2) all copies, 3 excerpts, summaries, or compilations of Protected Material that reveal the source of the 4 Protected Material or that reveal specific information, i.e., the raw data gleaned from protected 5 documents, entitled to confidentiality under this stipulated order; and (3) any testimony, 6 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 7 However, the protections conferred by this Stipulation and Order do not cover the following 8 information: (a) any information that is in the public domain at the time of disclosure to a 9 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 10 a result of publication not involving a violation of this Order, including becoming part of the 11 public record through trial or otherwise; and (b) any information known to the Receiving Party 12 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 13 obtained the information lawfully and under no obligation of confidentiality to the Designating 14 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 15 4. DURATION 16 Even after final disposition of this litigation, the confidentiality obligations imposed by 17 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 18 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 19 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 20 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 21 action, including the time limits for filing any motions or applications for extension of time 22 pursuant to applicable law. 23 5. DESIGNATING PROTECTED MATERIAL 24 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 25 Non-Party that designates information or items for protection under this Order must take care to 26 limit any such designation to specific material that qualifies under the appropriate standards. The 27 Designating Party must designate for protection only those parts of material, documents, items, 1 documents, items, or communications for which protection is not warranted are not swept 2 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are 3 prohibited. Designations that are shown to be clearly unjustified or that have been made for an 4 improper purpose (e.g., to unnecessarily encumber or retard the case development process or to 5 impose unnecessary expenses and burdens on other parties) expose the Designating Party to 6 sanctions. 7 If it comes to a Designating Party’s attention that information or items that it designated 8 for protection do not qualify for protection, that Designating Party must promptly notify all other 9 Parties that it is withdrawing the mistaken designation. 10 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 11 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure 12 or Discovery Material that qualifies for protection under this Order must be clearly so designated 13 before the material is disclosed or produced. Designation in conformity with this Order requires: 14 (a) for information in documentary form (e.g., paper or electronic documents, but 15 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 16 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 17 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 18 identify the protected portion(s) (e.g., by making appropriate markings in the margins). A Party or 19 Non-Party that makes original documents or materials available for inspection need not designate 20 them for protection until after the inspecting Party has indicated which material it would like 21 copied and produced. During the inspection and before the designation, all of the material made 22 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 23 identified the documents it wants copied and produced, the Producing Party must determine which 24 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 25 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 26 that contains Protected Material. If only a portion or portions of the material on a page qualifies 27 for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by 1 (b) for testimony given in deposition or in other pretrial or trial proceedings, that 2 the Designating Party identify on the record, before the close of the deposition, hearing, or other 3 proceeding, all protected testimony, if it is practicable to do so; otherwise, it must be so designated 4 during the “review and sign” period under Rule 30 of the Federal Rules of Civil Procedure, unless 5 the parties agree to extend the time for designation. 6 (c) for information produced in some form other than documentary and for any 7 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 8 container or containers in which the information or item is stored the legend “CONFIDENTIAL.” 9 If only a portion or portions of the information or item warrant protection, the Producing Party, to 10 the extent practicable, shall identify the protected portion(s). 11 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 12 designate qualified information or items does not, standing alone, waive the Designating Party’s 13 right to secure protection under this Order for such material. Upon timely correction of a 14 designation, the Receiving Party must make reasonable efforts to assure that the material is 15 treated in accordance with the provisions of this Order. 16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 18 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 19 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 20 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 21 challenge a confidentiality designation by electing not to mount a challenge promptly after the 22 original designation is disclosed. 23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 24 by providing written notice of each designation it is challenging and describing the basis for each 25 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 26 recite that the challenge to confidentiality is being made in accordance with this specific 27 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good 1 of communication are not sufficient) within 14 days of the date of service of notice. In 2 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 3 designation was not proper and must give the Designating Party an opportunity to review the 4 designated material, to reconsider the circumstances, and, if no change in designation is offered, 5 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 6 stage of the challenge process only if it has engaged in this meet and confer process first or 7 establishes that the Designating Party is unwilling to participate in the meet and confer process in 8 a timely manner. 9 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 10 intervention, the Designating Party shall file and serve a motion to retain confidentiality (and in 11 compliance with Civil Local Rule 141.1, if applicable) within 21 days of the initial notice of 12 challenge or within 14 days of the parties agreeing that the meet and confer process will not 13 resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 14 competent declaration affirming that the movant has complied with the meet and confer 15 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such 16 a motion including the required declaration within 21 days (or 14 days, if applicable) shall 17 automatically waive the confidentiality designation for each challenged designation. In addition, 18 the Challenging Party may file a motion challenging a confidentiality designation at any time if 19 there is good cause for doing so, including a challenge to the designation of a deposition 20 transcript or any portions thereof. Any motion brought pursuant to this provision must be 21 accompanied by a competent declaration affirming that the movant has complied with the meet 22 and confer requirements imposed by the preceding paragraph. 23 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. 24 Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 25 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 26 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 27 file a motion to retain confidentiality as described above, all parties shall continue to afford the 1 material in question the level of protection to which it is entitled under the Producing Party’s 2 designation until the court rules on the challenge. 3 7. ACCESS TO AND USE OF PROTECTED MATERIAL 4 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 5 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 6 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 7 to the categories of persons and under the conditions described in this Order. When the litigation 8 has been terminated, a Receiving Party must comply with the provisions of section 13 below 9 (FINAL DISPOSITION). 10 Protected Material must be stored and maintained by a Receiving Party at a location and in a 11 secure manner that ensures that access is limited to the persons authorized under this Order. 12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 13 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 14 information or item designated “CONFIDENTIAL” only to: 15 (a) Experts (as defined in this Order), as well as other consultants, including legal consultants, of 16 the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 17 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (b) the court and its personnel; (c) court reporters and their staff, professional jury or trial 19 consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary 20 for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” 21 (Exhibit A); (d) during their depositions, witnesses in the action to whom disclosure is 22 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 23 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 24 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 25 separately bound by the court reporter and may not be disclosed to anyone except as permitted 26 under this Stipulated Protective Order or as agreed by the Designating Party; or (e) the author or 27 recipient of a document containing the information or a custodian or other person who otherwise 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 2 LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation that compels 4 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 5 Party must: 6 (a) promptly notify in writing the Designating Party. Such notification shall include a 7 copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 9 other litigation that some or all of the material covered by the subpoena or order is subject to this 10 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 11 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 12 Designating Party whose Protected Material may be affected. 13 If the Designating Party timely seeks a protective order, the Party served with the subpoena or 14 court order shall not produce any information designated in this action as “CONFIDENTIAL” 15 before a determination by the court from which the subpoena or order issued, unless the Party 16 has obtained the Designating Party’s permission. The Designating Party shall bear the burden 17 and expense of seeking protection in that court of its confidential material – and nothing in these 18 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 19 disobey a lawful directive from another court. 20 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 21 LITIGATION 22 (a) The terms of this Order are applicable to information produced by a Non-Party in this 23 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 24 connection with this litigation is protected by the remedies and relief provided by this Order. 25 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 26 additional protections. 27 1 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 2 Party’s confidential information in its possession, and the Party is subject to an agreement with 3 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 4 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of the 5 information requested is subject to a confidentiality agreement with a Non-Party; 6 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 7 litigation, the relevant discovery request(s), and a reasonably specific description of the 8 information requested; and 9 (3) make the information requested available for inspection by the Non-Party. 10 (c) If the Non-Party fails to object or seek a protective order from this court within 14 days 11 of receiving the notice and accompanying information, the Receiving Party may produce the Non- 12 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks 13 a protective order, the Receiving Party shall not produce any information in its possession or 14 control that is subject to the confidentiality agreement with the Non-Party before a 15 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 16 burden and expense of seeking protection in this court of its Protected Material. 17 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 19 Material to any person or in any circumstance not authorized under this Stipulated Protective 20 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 21 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 22 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 23 made of all the terms of this Order, and (d) request such person or persons to execute the 24 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 25 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 26 MATERIAL 27 When a Producing Party gives notice to Receiving Parties that certain inadvertently 1 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 2 provision is not intended to modify whatever procedure may be established in an e-discovery 3 order that provides for production without prior privilege review. Pursuant to Federal Rule of 4 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 5 communication or information covered by the attorney-client privilege or work product 6 protection, the parties may incorporate their agreement in the stipulated protective order 7 submitted to the court. 8 12. MISCELLANEOUS 9 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 10 seek its modification by the court in the future. 11 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 12 no Party waives any right it otherwise would have to object to disclosing or producing any 13 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 14 Party waives any right to object on any ground to use in evidence of any of the material covered 15 by this Protective Order. 16 12.3 Filing Protected Material. Without written permission from the Designating Party, a 17 court order secured after appropriate notice to all interested persons, or a change in the status of 18 designated material after the procedures for challenging a designation in Section 6, above, have 19 been employed, a Party may not file in the public record in this action any Protected Material. A 20 Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 141. 21 Protected Material may only be filed under seal pursuant to a court order authorizing the sealing 22 of the specific Protected Material at issue. Pursuant to Civil Local Rule 141, a sealing order will 23 issue only upon a request establishing that the Protected Material at issue is privileged, 24 protectable as a trade secret, or otherwise entitled to protection under the law. 25 13. FINAL DISPOSITION 26 Within 60 days after the final disposition of this action, as defined in paragraph 4, upon 27 written notification served by Producing or Designating Party, each Receiving Party must return 1 “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other 2 format reproducing or capturing any of the Protected Material. Whether the Protected Material is 3 returned or destroyed, the Receiving Party must submit a written certification to the Producing 4 Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that 5 (1) identifies (by category, where appropriate) all the Protected Material that was returned or 6 destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, 7 compilations, summaries or any other format reproducing or capturing any of the Protected 8 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 9 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 10 correspondence, deposition and trial exhibits, videos, photographs, and other objective evidence – 11 as well as reports – reflecting, directly concerning, or arising out of the incident giving rise to the 12 litigation, expert reports, attorney work product, and consultant and expert work product, even if 13 such materials contain Protected Material. Any such archival copies that contain or constitute 14 Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION). 15 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 16 Respectfully Submitted, 17 18 Dated: July 2, 2021 LAW OFFICE OF SANJAY S. SCHMIDT -and- 19 HELM LAW OFFICE, PC 20 /s/ T. Kennedy Helm, IV 21 By: T. KENNEDY HELM, IV Attorneys for Plaintiff 22 23 Dated: July 2, 2021 RIVERA HEWITT PAUL LLP 24 /s/ Shanan L. Hewitt* 25 By: SHANAN L. HEWITT Attorneys for Defendants 26 *Ms. Hewitt provided her consent that this document be filed by CM/ECF. 27 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ 4 [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Eastern District of California in the case of Jose Alberto Garcia v. County of Stanislaus, et al. 7 I agree to comply with and to be bound by all the terms of this Stipulated Protective 8 Order and I understand and acknowledge that failure to so comply could expose me to sanctions 9 and punishment in the nature of contempt. I solemnly promise that I will not disclose in any 10 manner any information or item that is subject to this Stipulated Protective Order to any person 11 or entity except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the 13 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 14 Order, even if such enforcement proceedings occur after termination of this action. I hereby 15 appoint __________________________ [print or type full name] of 16 _______________________________________ [print or type full address and telephone 17 number] as my California agent for service of process in connection with this action or any 18 proceedings related to enforcement of this Stipulated Protective Order. 19 20 21 Date: ______________________________________ 22 23 City and State where sworn and signed: _________________________________ 24 25 Printed name: _______________________________ 26 27 Signature: _________________________________ 1 ORDER 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The 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 and 8 3. The party making a request to file documents under seal shall be required to show 9 good cause for documents attached to a nondispositive motion or compelling 10 reasons for documents attached to a dispositive motion. Pintos v. Pacific 11 Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). 12 B IT IS SO ORDERED. DAM Le 14 ||Dated: _ July 2, 2021 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28