Macias v. City of Delano ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 FRANCO MACIAS; and M.M., a minor CASE NO. 1:18-cv-01634-DAD-JLT by guardian ad litem ESMERELDA 11 VALBOVINOS as Co-successors-in- 12 interest to Decedent ERNIE MACIAS [PROPOSED] ORDER GRANTING JOINT MOTION AND ENTERING 13 STIPULATED PROTECTIVE ORDER Plaintiffs, (Doc. 34) 14 v. 15 CITY OF DELANO, a municipal corporation, PEDRO MENDOZA, 16 individually and in his official capacity as a police officer for the Delano Police 17 Department, and DOES 1-50, inclusive, individually and in their official capacity 18 as Police Officers for the Delano Police Department 19 Defendants. 20 21 22 STIPULATED PROTECTIVE ORDER 23 24 1. A. PURPOSES AND LIMITATIONS 25 26 Disclosure and discovery in this action are likely to involve production of 27 confidential, proprietary or private information for which special protection from 28 public disclosure and from use for any purpose other than prosecuting this 1 litigation may be warranted. Accordingly, the parties hereby stipulate to and 2 petition the Court to enter the following Stipulated Protective Order. The parties 3 acknowledge that this Order does not confer blanket protections on all disclosures 4 or responses to discovery and that the protection it affords from public disclosure 5 and use extends only to the limited information or items that are entitled to 6 confidential treatment under the applicable legal principles. The parties further 7 acknowledge that this Stipulated Protective Order does not entitle them to file 8 confidential information under seal; Civil Local Rule 141 sets forth the procedures 9 that must be followed and the standards that will be applied when a party seeks 10 permission from the court to file material under seal. 11 12 B. STATEMENT OF GOOD CAUSE 13 14 This action involves the City of Delano and members of the Delano Police 15 Department. Plaintiff is seeking materials and information that Defendant City of 16 Delano (the “City”) maintains as confidential, such as personnel files of the police 17 officers involved in this incident, Internal Affairs materials and information, 18 audio/video recordings, and other administrative materials and information 19 currently in the possession of the City and which the City believes need special 20 protection from public disclosure and from use for any purpose other than 21 prosecuting this litigation. Plaintiff is also seeking official information contained 22 in the personnel files of the police officers involved in the subject incident, which 23 the City maintains as strictly confidential and which the City believes need special 24 protection from public disclosure and from use for any purpose other than 25 prosecuting this litigation. 26 The City asserts that the confidentiality of the materials and information 27 sought by Plaintiff is recognized by California and federal law, as evidenced inter 28 alia by California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for 1 N.D. Cal., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). The City 2 has not publicly released the materials and information referenced above except 3 under protective order or pursuant to a court order, if at all. These materials and 4 information are of the type that has been used to initiate disciplinary action against 5 Delano Police Department (“DPD”) officers, and has been used as evidence in 6 disciplinary proceedings, where the officers’ conduct was considered to be 7 contrary to DPD policy. 8 The City contends that absent a protective order delineating the 9 responsibilities of nondisclosure on the part of the parties hereto, there is a specific 10 risk of unnecessary and undue disclosure by one or more of the many attorneys, 11 secretaries, law clerks, paralegals and expert witnesses involved in this case, as 12 well as the corollary risk of embarrassment, harassment and professional and legal 13 harm on the part of the DPD officers referenced in the materials and information. 14 The City also contends that the unfettered disclosure of the materials and 15 information, absent a protective order, would allow the media to share this 16 information with potential jurors in the area, impacting the rights of the City to 17 receive a fair trial. 18 Accordingly, to expedite the flow of information, to facilitate the prompt 19 resolution of disputes over confidentiality of discovery materials, to adequately 20 protect information the parties are entitled to keep confidential, to ensure that the 21 parties are permitted reasonable necessary uses of such material in preparation for 22 and in the conduct of trial, to address their handling at the end of the litigation, and 23 serve the ends of justice, a protective order for such information is justified in this 24 matter. It is the intent of the parties that information will not be designated as 25 confidential for tactical reasons and that nothing be so designated without a good 26 faith belief that it has been maintained in a confidential, non-public manner, and 27 there is good cause why it should not be part of the public record of this case. 28 1 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 2 SEAL PURSUANT TO PROTECTIVE ORDER 3 The parties agree that any pleadings, motions, briefs, declarations, 4 stipulations, exhibits or other written submissions to the Court in this litigation 5 which contain or incorporate Confidential Material shall be lodged with an 6 application to file the papers or the portion thereof containing the Confidential 7 Material, under seal. 8 The parties further acknowledge, as set forth in Section 12.3 below, that this 9 Stipulated Protective Order does not automatically entitle them to file confidential 10 information under seal and that Local Rule 141 sets forth the procedures that must 11 be followed and the standards that will be applied when a party seeks permission 12 from the Court to file material under seal. 13 There is a strong presumption that the public has a right of access to judicial 14 proceedings and records in civil cases. In connection with non-dispositive 15 motions, good cause must be shown to support a filing under seal. See Kamakana 16 v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. 17 Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. 18 Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated 19 protective orders require good cause showing), and a specific showing of good 20 cause or compelling reasons with proper evidentiary support and legal justification, 21 must be made with respect to Protected Material that a party seeks to file under 22 seal. The parties’ designation of Disclosure or Discovery Material as 23 CONFIDENTIAL does not — without the submission of evidence by declaration, 24 establishing that the material sought to be filed under seal qualifies as confidential, 25 privileged, or otherwise protectable — constitute good cause. 26 Further, if a party requests sealing related to a dispositive motion or trial, 27 then compelling reasons, not only good cause, for the sealing must be shown, and 28 the relief sought shall be narrowly tailored to serve the specific interest to be 1 protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2 2010). For each item or type of information, document, or thing sought to be filed 3 or introduced under seal in connection with a dispositive motion or trial, the party 4 seeking protection must articulate compelling reasons, supported by specific facts 5 and legal justification, for the requested sealing order. Again, evidence supporting 6 the application to file documents under seal must be provided by declaration. 7 Any document that is not confidential, privileged, or otherwise protectable 8 in its entirety will not be filed under seal if the confidential portions can be 9 redacted. If documents can be redacted, then a redacted version for public 10 viewing, omitting only the confidential, privileged, or otherwise protectable 11 portions of the document, shall be filed. Any application that seeks to file 12 documents under seal in their entirety should include an explanation of why 13 redaction is not feasible. 14 15 2. DEFINITIONS 16 2.1 Action: Franco Macias, et al v. City of Delano, et al., Case No. 1:18- 17 cv-01634-DAD-JLT. 18 2.2 Challenging Party: A Party or Non-Party that challenges the 19 designation of information or items under this Order. 20 2.3 “CONFIDENTIAL” Information or Items: Information (regardless of 21 how it is generated, stored or maintained) or tangible things that qualify for 22 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 23 the Good Cause Statement. This also includes (1) any information copied or 24 extracted from the Confidential information; (2) all copies, excerpts, summaries, 25 abstracts or compilations of Confidential information; and (3) any testimony, 26 conversations, or presentations that might reveal Confidential information. 27 28 1 2.4 Counsel of Record: attorneys who have appeared in this action on 2 behalf of that party or governmental entity or are affiliated with a law firm which 3 has appeared on behalf of that party. 4 2.5 Designating Party: A Party or Non-Party that designates information 5 or items that it produces in disclosures or in responses to discovery as 6 “CONFIDENTIAL” or “HIGHLY CONFIDENTAIL – ATTORNEYS’ EYES 7 ONLY”. 8 2.6 Disclosure or Discovery Material: All items or information, 9 regardless of the medium or manner in which it is generated, stored, or maintained 10 (including, among other things, testimony, transcripts, and tangible things), that are 11 produced or generated in disclosures or responses to discovery in this matter. 12 2.7 Expert: A person with specialized knowledge or experience in a 13 matter pertinent to the litigation who (1) has been retained by a Party or its counsel 14 to serve as an expert witness or as a consultant in this Action, (2) is not a past or 15 current employee of a Party and (3) at the time of retention, is not anticipated to 16 become an employee of a Party. 17 2.8 Non-Party: Any natural person, partnership, corporation, association 18 or other legal entity not named as a Party to this action. 19 2.9 Party: Any party to this Action, including all of its officers, directors, 20 boards, departments, divisions, employees, consultants, retained experts, and 21 Outside Counsel of Record (and their support staffs). 22 2.10 Producing Party: A Party or Non-Party that produces Disclosure or 23 Discovery Material in this Action. 24 2.13 Professional Vendors: Persons or entities that provide litigation 25 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 26 demonstrations, and organizing, storing, or retrieving data in any form or medium) 27 and their employees and subcontractors. 28 1 2.14 Protected Material: Any Disclosure or Discovery Material that is 2 designated as “CONFIDENTIAL”, or as “HIGHLY CONFIDENTIAL – 3 ATTORNEYS’ EYES ONLY.” 4 2.15 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 5 Information or Items: extremely sensitive “Confidential Information or Items,” 6 disclosure of which to another Party or Non-Party would create a substantial risk of 7 serious harm that could not be avoided by less restrictive means. Parties agree that 8 no materials which describe or reflect the treatment of Plaintiffs by Defendants, 9 such as incident reports or audio/visual recordings of interactions with Defendants, 10 will be designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 11 ONLY.” 12 2.16 Receiving Party: A Party that receives Disclosure or Discovery 13 Material from a Producing Party. 14 15 3. SCOPE 16 The protections conferred by this Stipulation and Order cover not only 17 Protected Material (as defined above), but also (1) any information copied or 18 extracted from Protected Material; (2) all copies, excerpts, abstracts, summaries, or 19 compilations of Protected Material; and (3) any testimony, conversations, or 20 presentations by Parties or their Counsel that might reveal Protected Material. 21 Any use of Protected Material at trial shall be governed by the orders of the 22 trial judge. This Order does not govern the use of Protected Material at trial. 23 24 4. DURATION 25 Even after final disposition of this litigation, the confidentiality obligations 26 imposed by this Order shall remain in effect until a Designating Party agrees 27 otherwise in writing or a court order otherwise directs. Final disposition shall be 28 deemed to be the later of (1) dismissal of all claims and defenses in this action, 1 with or without prejudice; and (2) final judgment herein after the completion and 2 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 3 including the time limits for filing any motions or applications for extension of 4 time pursuant to applicable law. 5 6 5. DESIGNATING PROTECTED MATERIAL 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. 8 Each Party or Non-Party that designates information or items for protection 9 under this Order must take care to limit any such designation to specific material 10 that qualifies under the appropriate standards. The Designating Party must 11 designate for protection only those parts of material, documents, items or 12 communications that qualify so that other portions of the material, documents, 13 items or communications for which protection is not warranted are not swept 14 unjustifiably within the ambit of this Order. 15 Mass, indiscriminate or routinized designations are prohibited. Designations 16 that are shown to be clearly unjustified or that have been made for an improper 17 purpose (e.g., to unnecessarily encumber the case development process or to 18 impose unnecessary expenses and burdens on other parties) may expose the 19 Designating Party to sanctions. 20 If it comes to a Designating Party’s attention that information or items that it 21 designated for protection do not qualify for protection, that Designating Party must 22 promptly notify all other Parties that it is withdrawing the mistaken designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in 24 this Order, or as otherwise stipulated or ordered, Disclosure or Discovery Material 25 that qualifies for protection under this Order must be clearly so designated before 26 the material is disclosed or produced. 27 Designation in conformity with this Order requires: 28 1 (a) for information in documentary form (e.g., paper or electronic 2 documents, but excluding transcripts of depositions or other pretrial or trial 3 proceedings), that the Producing Party affix at a minimum, the legend 4 “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 5 ONLY” words of a similar effect to each page that contains protected material. If 6 only a portion or portions of the material on a page qualifies for protection, the 7 Producing Party also must clearly identify the protected portion(s) (e.g., by making 8 appropriate markings in the margins) and must specify , for each portion, the level 9 of protection being asserted. Alternately, the Producing Party may designate an 10 entire production or storage device (such as CD or flash drive) as confidential by 11 including notice of such designation or including “CONFIDENTIAL” in the title 12 of each designated file. 13 A Party or Non-Party that makes original documents or materials available 14 for inspection need not designate them for protection until after the inspecting 15 Party has indicated which material it would like copied and produced. During the 16 inspection and before the designation, all of the material made available for 17 inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 18 ONLY.” After the inspecting Party has identified the documents it wants copied 19 and produced, the Producing Party must determine which documents, or portions 20 thereof, qualify for protection under this Order. Then, before producing the 21 specified documents, the Producing Party must affix the appropriate legend 22 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 23 ONLY”) to each page that contains Protected Material. If only a portion or 24 portions of the material on a page qualifies for protection, the Producing Party also 25 must clearly identify the protected portion(s) (e.g., by making appropriate 26 markings in the margins) and must specify, for each portion, the level of protection 27 being asserted. 28 1 (b) for testimony given in deposition or in other pretrial or trial 2 proceedings, that the Designating Party identifies the Disclosure or Discovery 3 Material on the record, before the close of the deposition, hearing, or other 4 proceeding, or in writing to all parties within 30 business days of receipt of the 5 deposition or hearing transcript, all protected testimony and specify the level of 6 protection being asserted. A Designating Party may specify, at the deposition or 7 up to 30 days afterwards, that the entire transcript shall be treated as 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 9 ONLY.” 10 Parties shall give the other parties notice if they reasonably expect a 11 deposition, hearing or other proceeding to include Protected Material so that the 12 other parties can ensure that only authorized individuals who have signed the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those 14 proceedings. The use of a document as an exhibit at a deposition shall not in any 15 way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 16 – ATTORNEYS’ EYES ONLY.” 17 Transcripts containing Protected Material shall have an obvious legend on 18 the title page that the transcript contains Protected Material, and the title page shall 19 be followed by a list of all pages (including line numbers as appropriate) that have 20 been designated as Protected Material and the level of protection being asserted by 21 the Designating Party. The Designating Party shall inform the court reporter of 22 these requirements. Any transcript that is prepared before the expiration of a 30- 23 day period for designation shall be treated during that period as if it had been 24 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its 25 entirety unless otherwise agreed. After the expiration of that period, the transcript 26 shall be treated only as actually designated. 27 28 1 (c) for information produced in some form other than documentary and for 2 any other tangible items, that the Producing Party affix in a prominent place on the 3 exterior of the container or containers in which the information or item is stored 4 the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 5 EYES ONLY”. If only a portion or portions of the information or item warrant 6 protection, the Producing Party, to the extent practicable, shall identify the 7 protected portion(s) and specify the level of protection being asserted. 8 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 9 failure to designate qualified information or items does not, standing alone, waive 10 the Designating Party’s right to secure protection under this Order for such 11 material. Upon timely correction of a designation, the Receiving Party must make 12 reasonable efforts to assure that the material is treated in accordance with the 13 provisions of this Order. 14 15 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 16 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 17 designation of confidentiality at any time. Unless a prompt challenge to a 18 Designating Party’s confidentiality designation is necessary to avoid foreseeable, 19 substantial unfairness, unnecessary economic burdens, or a significant disruption 20 or delay of the litigation, a Party does not waive its right to challenge a 21 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 24 resolution process by providing written notice of each designation it is challenging 25 and describing the basis for each challenge. To avoid ambiguity as to whether a 26 challenge has been made, the written notice must recite that the challenge to 27 confidentiality is being made in accordance with this specific paragraph of the 28 1 Protective Order. The parties shall attempt to resolve each challenge in good faith 2 and must begin the process by conferring directly (in voice to voice dialogue; other 3 forms of communication are not sufficient) within 14 days of the date of service of 4 notice. In conferring, the Challenging Party must explain the basis for its belief that 5 the confidentiality designation was not proper and must give the Designating Party 6 an opportunity to review the designated material, to reconsider the circumstances, 7 and, if no change in designation is offered, to explain the basis for the chosen 8 designation. A Challenging Party may proceed to the next stage of the challenge 9 process only if it has engaged in this meet and confer process first or establishes 10 that the Designating Party is unwilling to participate in the meet and confer process 11 in a timely manner. 12 The burden of persuasion in any such challenge proceeding shall be on the 13 Designating Party. Frivolous challenges, and those made for an improper purpose 14 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 15 expose the Challenging Party to sanctions. Unless the Designating Party has 16 waived or withdrawn the confidentiality designation, all parties shall continue to 17 afford the material in question the level of protection to which it is entitled under 18 the Producing Party’s designation until the Court rules on the challenge. 19 20 7. ACCESS TO AND USE OF PROTECTED MATERIAL 21 7.1 Basic Principles. A Receiving Party may use Protected Material that 22 is disclosed or produced by another Party or by a Non-Party in connection with this 23 Action only for prosecuting, defending or attempting to settle this Action. Such 24 Protected Material may be disclosed only to the categories of persons and under 25 the conditions described in this Order. When the Action has been terminated, a 26 Receiving Party must comply with the provisions of section 13 below (FINAL 27 DISPOSITION). 28 1 Protected Material must be stored and maintained by a Receiving Party at a 2 location and in a secure manner that ensures that access is limited to the persons 3 authorized under this Order. 4 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 5 otherwise ordered by the court or permitted in writing by the Designating Party, a 6 Receiving Party may disclose any information or item designated 7 “CONFIDENTIAL” only to: 8 (a) the Receiving Party’s Counsel of Record in this Action, as well as 9 employees of said Counsel of Record to whom it is reasonably necessary to 10 disclose the information for this Action; 11 (b) Experts (as defined in this Order) of the Receiving Party to whom 12 disclosure is reasonably necessary for this Action and who have signed the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (b) the court and its personnel; 15 (e) court reporters and their staff, professional jury or trial consultants, and 16 Professional Vendors to whom disclosure is reasonably necessary for this litigation 17 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 18 A); 19 (f) the author or recipient of a document containing the information or a 20 custodian or other person who otherwise possessed or knew the information; 21 (g) during their depositions, witnesses, and attorneys for witnesses, in the 22 Action to whom disclosure is reasonably necessary provided: (1) the deposing 23 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 24 they will not be permitted to keep any confidential information unless they sign the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 26 agreed by the Designating Party or ordered by the court. Pages of transcribed 27 deposition testimony or exhibits to depositions that reveal Protected Material may 28 1 be separately bound by the court reporter and may not be disclosed to anyone 2 except as permitted under this Stipulated Protective Order; and 3 (h) any mediator or settlement officer, and their supporting personnel, 4 mutually agreed upon by any of the parties engaged in settlement discussions and 5 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A). 6 7.3. Counsel making the disclosure to any qualified person described 7 herein shall retain the original executed copy of the “Acknowledgment and 8 Agreement to Be Bound” (Exhibit A) until sixty (60) days after this litigation has 9 become final, including any appellate review, and monitoring of an injunction. 10 Counsel for the Receiving Party shall maintain all signed “Acknowledgment and 11 Agreement to Be Bound” (Exhibit A) and shall produce the original signature page 12 upon reasonable written notice from opposing counsel. If an issue arises regarding 13 a purported unauthorized disclosure of Confidential Information, upon noticed 14 motion of contempt filed by the Designating Party, counsel for the Receiving Party 15 may be required to file the signed “Acknowledgment and Agreement to Be Bound” 16 (Exhibit A), as well as a list of the disclosed materials, in camera with the Court 17 having jurisdiction of the Stipulation. 18 19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 20 IN OTHER LITIGATION 21 If a Party is served with a subpoena or a court order issued in other litigation 22 that compels disclosure of any information or items designated in this Action as 23 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 24 ONLY” that Party must: 25 (a) promptly notify in writing the Designating Party. Such notification 26 shall include a copy of the subpoena or court order; 27 /// 28 1 (b) promptly notify in writing the party who caused the subpoena or order 2 to issue in the other litigation that some or all of the material covered by the 3 subpoena or order is subject to this Protective Order. Such notification shall 4 include a copy of this Stipulated Protective Order; and 5 (c) cooperate with respect to all reasonable procedures sought to be 6 pursued by the Designating Party whose Protected Material may be affected.1 7 If the Designating Party timely seeks a protective order, the Party served 8 with the subpoena or court order shall not produce any information designated in 9 this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 10 ATTORNEYS’ EYES ONLY” before a determination by the court from which the 11 subpoena or order issued, unless the Party has obtained the Designating Party’s 12 permission. The Designating Party shall bear the burden and expense of seeking 13 protection in that court of its confidential material – and nothing in these 14 provisions should be construed as authorizing or encouraging a Receiving Party in 15 this action to disobey a lawful directive from another court. 16 17 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 18 PRODUCED IN THIS LITIGATION 19 (a) The terms of this Order are applicable to information produced by a 20 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced 22 by Non-Parties in connection with this litigation is protected by the remedies and 23 relief provided by this Order. Nothing in these provisions should be construed as 24 prohibiting a Non-Party from seeking additional protections. 25 /// 26 27 1 The purpose of imposing these duties is to alert the interested parties to the existence of this 28 Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. 1 (b) In the event that a Party is required, by a valid discovery request, to 2 produce a Non-Party’s confidential information in its possession, and the Party is 3 subject to an agreement with the Non-Party not to produce the Non-Party’s 4 confidential information, then the Party shall: 5 (1) promptly notify in writing the Requesting Party and the Non- 6 Party that some or all of the information requested is subject to a confidentiality 7 agreement with a Non-Party; 8 (2) promptly provide the Non-Party with a copy of the Stipulated 9 Protective Order in this Action, the relevant discovery request(s), and a reasonably 10 specific description of the information requested; and 11 (3) make the information requested available for inspection by the 12 Non-Party, if requested. 13 (c) If the Non-Party fails to object or seek a protective order from this 14 court within 14 days of receiving the notice and accompanying information, the 15 Receiving Party may produce the Non-Party’s confidential information responsive 16 to the discovery request. If the Non-Party timely seeks a protective order, the 17 Receiving Party shall not produce any information in its possession or control that 18 is subject to the confidentiality agreement with the Non-Party before a 19 determination by the court.2 Absent a court order to the contrary, the Non-Party 20 shall bear the burden and expense of seeking protection in this court of its 21 Protected Material. 22 23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has 25 disclosed Protected Material to any person or in any circumstance not authorized 26 under this Stipulated Protective Order, the Receiving Party must immediately (a) 27 2 The purpose of this provision is to alert the interested parties to the existence of confidentiality 28 rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 1 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 2 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 3 the person or persons to whom unauthorized disclosures were made of all the terms 4 of this Order, and (d) request such person or persons to execute the 5 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 6 A. 7 8 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 9 PROTECTED MATERIAL 10 When a Producing Party gives notice to Receiving Parties that certain 11 inadvertently produced material is subject to a claim of privilege or other 12 protection, the obligations of the Receiving Parties are those set forth in Federal 13 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 14 whatever procedure may be established in an e-discovery order that provides for 15 production without prior privilege review. Pursuant to Federal Rule of Evidence 16 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 17 of a communication or information covered by the attorney-client privilege or 18 work product protection, the parties may incorporate their agreement in the 19 stipulated protective order submitted to the court. 20 21 12. MISCELLANEOUS 22 12.1 Right to Further Relief. Nothing in this Order abridges the right of 23 any person to seek its modification by the Court in the future. 24 12.2 Right to Assert Other Objections. By stipulating to the entry of this 25 Protective Order, no Party waives any right it otherwise would have to object to 26 disclosing or producing any information or item on any ground not addressed in 27 this Stipulated Protective Order. Similarly, no Party waives any right to object on 28 1 any ground to use in evidence of any of the material covered by this Protective 2 Order. 3 12.3 Filing Protected Material. Without written permission from the 4 Designating Party or a court order secured after appropriate notice to all interested 5 persons, a Party may not file in the public record in this action any Protected 6 Material. A Party that seeks to file under seal any Protected Material must comply 7 with Civil Local Rule 141. Protected Material may only be filed under seal 8 pursuant to a court order authorizing the sealing of the specific Protected Material 9 at issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a 10 request establishing that the Protected Material at issue is privileged, protectable as 11 a trade secret, or otherwise entitled to protection under the law. 12 13 13. FINAL DISPOSITION 14 Within 60 days after the final disposition of this action, as defined in 15 paragraph 4, each Receiving Party must return all Protected Material to the 16 Producing Party or destroy such material. As used in this subdivision, “all 17 Protected Material” includes all copies, abstracts, compilations, summaries, and 18 any other format reproducing or capturing any of the Protected Material. Whether 19 the Protected Material is returned or destroyed, the Receiving Party must submit a 20 written certification to the Producing Party (and, if not the same person or entity, to 21 the Designating Party) by the 60-day deadline that (1) identifies (by category, 22 where appropriate) all the Protected Material that was returned or destroyed and 23 (2) affirms that the Receiving Party has not retained any copies, abstracts, 24 compilations, summaries or any other format reproducing or capturing any of the 25 Protected Material. Notwithstanding this provision, Counsel of Record are 26 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, 27 and hearing transcripts, legal memoranda, correspondence, deposition and trial 28 exhibits, expert reports, attorney work product, and consultant and expert work 1 product, even if such materials contain Protected Material. Any such archival 2 copies that contain or constitute Protected Material remain subject to this 3 Protective Order as set forth in Section 4 (DURATION). 4 14. VIOLATION 5 Any violation of this Order may be punished by appropriate measures 6 including, without limitation, contempt proceedings and/or monetary sanctions. 7 8 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 9 DATED: August 3, 2020 /s/ DeWitt M. Lacy 10 DeWitt M. Lacy, Esq., 11 Attorneys for Plaintiffs 12 DATED: August 3, 2020 /s/ Gary P. Dufour 13 Gary P. Dufour, Esq., 14 Attorneys for Defendants 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ORDER 2 The stipulation of the parties is GRANTED. 3 IT IS SO ORDERED. 4 5 Dated: August 3, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 EXHIBIT A 3 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 4 5 I, _____________________________ [print or type full name], of 6 __________________________________ [print or type full address], declare 7 under penalty of perjury that I have read in its entirety and understand the 8 Stipulated Protective Order that was issued by the United States District Court for 9 the Eastern District of California on __________________ [date] in the case of 10 Franco Macias, et al v. City of Delano, et al., Case No. 1:18-cv-01634. I agree to 11 comply with and to be bound by all the terms of this Stipulated Protective Order 12 and I understand and acknowledge that failure to so comply could expose me to 13 sanctions and punishment in the nature of contempt. I solemnly promise that I 14 will not disclose in any manner any information or item that is subject to this 15 Stipulated Protective Order to any person or entity except in strict compliance 16 with the provisions of this Order. 17 I further agree to submit to the jurisdiction of the United States District 18 Court for the Eastern District of California for enforcing the terms of this 19 Stipulated Protective Order, even if such enforcement proceedings occur after 20 termination of this action. I hereby appoint __________________________ 21 [print or type full name] of _______________________________________ 22 [print or type full address and telephone number] as my California agent for 23 service of process in connection with this action or any proceedings related to 24 enforcement of this Stipulated Protective Order. 25 26 Date: ______________________________________ 27 City and State where sworn and signed: _________________________________ 28 Printed name: _______________________________ 1 Signature: __________________________________ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28