Mihalovic v. City of Turlock ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 TRAVIS MIHALOVIC, Case No. 1:17-cv-01742-LJO-SAB 10 Plaintiff, ORDER RE STIPULATED PROTECTIVE 11 ORDER v. 12 (ECF No. 14) CITY OF TURLOCK, et al., 13 Defendants. 14 15 16 STIPULATED PROTECTIVE ORDER 17 1. PURPOSES AND LIMITATIONS 18 Disclosure and discovery activity in this action are likely to involve production of 19 confidential, proprietary, or private information for which special protection from public 20 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 21 Accordingly, the parties hereby stipulate to and petition the court to enter the following 22 Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 23 protections on all disclosures or responses to discovery and that the protection it affords from 24 public disclosure and use extends only to the limited information or items that are entitled to 25 confidential treatment under the applicable legal principles. The parties further acknowledge that 26 this Stipulated Protective Order does not entitle them to file confidential information under seal; 27 1 Civil Local Rule 141 sets forth the procedures that must be followed and the standards that will 2 be applied when a party seeks permission from the court to file material under seal. 3 2. DEFINITIONS 4 5 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 6 information or items under this Order. 7 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 8 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 9 of Civil Procedure 26(c). 10 11 2.3 Designating Party: a Party or Non-Party that designates information or items that 12 it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 13 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. 14 2.4 Disclosure or Discovery Material: all items or information, regardless of the 15 medium or manner in which it is generated, stored, or maintained (including, among other things, 16 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 17 responses to discovery in this matter. 18 2.5 Expert: a person with specialized knowledge or experience in a matter pertinent to 19 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or 20 as a consultant in this action, (2) is not a past or current employee of a Party and (3) at the time 21 of retention, is not anticipated to become an employee of a Party. 22 23 2.6 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or 24 Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another 25 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by 26 less restrictive means. Parties agree that no materials which describe or reflect the treatment of 27 Plaintiffs by Defendants, such as incident reports or audio/visual recordings of interactions with 1 Defendants, will be designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 2 ONLY.” 3 2.7 Non-Party: any natural person, partnership, corporation, association, or other legal 4 entity not named as a Party to this action. 5 6 2.8 Counsel of Record: attorneys who have appeared in this action on behalf of that 7 party or governmental entity or are affiliated with a law firm which has appeared on behalf of 8 that party. 9 2.9 Party: any party to this action, including all of its officers, directors, employees, 10 consultants, retained experts, and Counsel of Record (and their support staffs). 11 2.10 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 12 Material in this action. 13 14 2.11 Professional Vendors: persons or entities that provide litigation support services 15 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 16 organizing, storing, or retrieving data in any form or medium) and their employees and 17 subcontractors. 18 2.12 Protected Material: any Disclosure or Discovery Material that is designated as 19 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 20 21 2.13 Receiving Party: a Party that receives Disclosure or Discovery Material from a 22 Producing Party. 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only Protected Material 25 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 26 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 27 conversations, or presentations by Parties or their Counsel of Record that might reveal Protected 1 Material. However, the protections conferred by this Stipulation and Order do not cover the 2 following information: (a) any information that is in the public domain at the time of disclosure 3 to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving 4 Party as a result of publication not involving a violation of this Order, including becoming part 5 of the public record through trial or otherwise; and (b) any information known to the Receiving 6 Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source 7 who obtained the information lawfully and under no obligation of confidentiality to the 8 Designating Party. Any use of Protected Material at trial shall be governed by a separate 9 agreement or order. 10 4. DURATION 11 Even after final disposition of this litigation, the confidentiality obligations imposed by 12 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 13 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 14 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 15 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 16 action, including the time limits for filing any motions or applications for extension of time 17 pursuant to applicable law. 18 19 5. DESIGNATING PROTECTED MATERIAL 20 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 21 or Non-Party that designates information or items for protection under this Order must take care 22 to limit any such designation to specific material that qualifies under the appropriate standards. 23 To the extent it is practical to do so, the Designating Party must designate for protection only 24 those parts of material, documents, items, or oral or written communications that qualify – so 25 that other portions of the material, documents, items, or communications for which protection is 26 not warranted are not swept unjustifiably within the ambit of this Order. 27 1 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 2 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 3 unnecessarily encumber or retard the case development process or to impose unnecessary 4 expenses and burdens on other parties) expose the Designating Party to sanctions. 5 If it comes to a Designating Party’s attention that information or items that it designated 6 for protection do not qualify for protection at all or do not qualify for the level of protection 7 initially asserted, that Designating Party must promptly notify all other parties that it is 8 withdrawing the mistaken designation. 9 10 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 11 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 12 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 13 designated before the material is disclosed or produced. 14 Designation in conformity with this Order requires: 15 (a) for information in documentary form (e.g., paper or electronic documents, but 16 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 17 Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 18 EYES ONLY” to each page that contains protected material. If only a portion or portions of the 19 material on a page qualifies for protection, the Producing Party also must clearly identify the 20 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for 21 each portion, the level of protection being asserted. Alternatively, the Producing Party may 22 designate an entire production or storage device (such as CD or flash drive) as confidential by 23 including notice of such designation or including “CONFIDENTIAL” in the title of each 24 designated file. 25 26 A Party or Non-Party that makes original documents or materials available for inspection 27 need not designate them for protection until after the inspecting Party has indicated which 1 material it would like copied and produced. During the inspection and before the designation, all 2 of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – 3 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants 4 copied and produced, the Producing Party must determine which documents, or portions thereof, 5 qualify for protection under this Order. Then, before producing the specified documents, the 6 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY 7 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” ) to each page that contains Protected 8 Material. If only a portion or portions of the material on a page qualifies for protection, the 9 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 10 markings in the margins) and must specify, for each portion, the level of protection being 11 asserted. 12 (b) for testimony given in deposition or in other pretrial or trial proceedings, that 13 the Designating Party identify on the record, before the close of the deposition, hearing, or other 14 proceeding, or in a writing to all parties within 30 business days of receipt of the deposition or 15 hearing transcript, all protected testimony and specify the level of protection being asserted. A 16 Designating Party may specify, at the deposition or up to 30 days afterwards, that the entire 17 transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 18 ATTORNEYS’ EYES ONLY.” 19 20 Parties shall give the other parties notice if they reasonably expect a deposition, hearing 21 or other proceeding to include Protected Material so that the other parties can ensure that only 22 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 23 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 24 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 26 Transcripts containing Protected Material shall have an obvious legend on the title page 27 that the transcript contains Protected Material, and the title page shall be followed by a list of all 1 pages (including line numbers as appropriate) that have been designated as Protected Material 2 and the level of protection being asserted by the Designating Party. The Designating Party shall 3 inform the court reporter of these requirements. Any transcript that is prepared before the 4 expiration of a 30-day period for designation shall be treated during that period as if it had been 5 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless 6 otherwise agreed. After the expiration of that period, the transcript shall be treated only as 7 actually designated. 8 (c) for information produced in some form other than documentary and for any 9 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 10 container or containers in which the information or item is stored the legend “CONFIDENTIAL” 11 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. If only a portion or portions 12 of the information or item warrant protection, the Producing Party, to the extent practicable, shall 13 identify the protected portion(s) and specify the level of protection being asserted. 14 15 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 16 designate qualified information or items does not, standing alone, waive the Designating Party’s 17 right to secure protection under this Order for such material. Upon timely correction of a 18 designation, the Receiving Party must make reasonable efforts to assure that the material is 19 treated in accordance with the provisions of this Order. 20 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 21 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 22 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 23 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 24 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 25 challenge a confidentiality designation by electing not to mount a challenge promptly after the 26 original designation is disclosed. 27 1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 2 process by providing written notice of each designation it is challenging and describing the basis 3 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 4 notice must recite that the challenge to confidentiality is being made in accordance with this 5 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 6 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 7 forms of communication are not sufficient) within 14 days of the date of service of notice. In 8 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 9 designation was not proper and must give the Designating Party an opportunity to review the 10 designated material, to reconsider the circumstances, and, if no change in designation is offered, 11 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 12 stage of the challenge process only if it has engaged in this meet and confer process first or 13 establishes that the Designating Party is unwilling to participate in the meet and confer process in 14 a timely manner. 15 6.3 Judicial Intervention. If the Parties cannot resolve a challenge pursuant to the 16 Meet and Confer provisions above, the Parties consent to judicial resolution of the dispute by the 17 Magistrate Judge Stanley A. Boone, and agree to utilize the informal telephonic conference of 18 discovery disputes provided for in Magistrate Judge Boone’s Standing Order, whereby the 19 Parties will jointly submit a four-page maximum, synopsis of their dispute to the Court 24 hours 20 prior to a scheduled telephonic conference with the Court. 21 22 The burden of persuasion in any such challenge proceeding shall be on the Designating 23 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 24 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 25 sanctions. All parties shall continue to afford the material in question the level of protection to 26 which it is entitled under the Producing Party’s designation until the court rules on the challenge. 27 1 7. ACCESS TO AND USE OF PROTECTED MATERIAL 2 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 3 or produced by another Party or by a Non-Party in connection with this case only for 4 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 5 disclosed only to the categories of persons and under the conditions described in this Order. 6 When the litigation has been terminated, a Receiving Party must comply with the provisions of 7 section 13 below (FINAL DISPOSITION). 8 9 Protected Material must be stored and maintained by a Receiving Party at a location and 10 in a secure manner that ensures that access is limited to the persons authorized under this Order. 11 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 12 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 13 disclose any information or item designated “CONFIDENTIAL” only to: 14 (a) the Receiving Party’s Counsel of Record in this action, as well as employees 15 of said Counsel of Record to whom it is reasonably necessary to disclose the information for this 16 litigation; 17 18 (b) the officers, directors, and employees of the Receiving Party to whom 19 disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment 20 and Agreement to Be Bound” (Exhibit A); 21 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 22 reasonably necessary for this litigation and who have signed the “Acknowledgment and 23 Agreement to Be Bound” (Exhibit A); 24 25 (d) the court and its personnel; 26 27 1 (e) court reporters and their staff, professional jury or trial consultants, and 2 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 3 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (f) during their depositions, witnesses in the action to whom disclosure is 5 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 6 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 7 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 8 separately bound by the court reporter and may not be disclosed to anyone except as permitted 9 under this Stipulated Protective Order. 10 11 (g) the author or recipient of a document containing the information or a 12 custodian or other person who otherwise possessed or knew the information. 13 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information 14 or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, 15 a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL 16 – ATTORNEYS’ EYES ONLY” only to: 17 (a) the Receiving Party’s Counsel of Record in this action, as well as employees 18 of said Counsel of Record to whom it is reasonably necessary to disclose the information for this 19 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 20 attached hereto as Exhibit A; 21 22 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary 23 for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” 24 (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been 25 followed; 26 (c) the court and its personnel; 27 1 (d) court reporters and their staff, professional jury or trial consultants, and 2 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 3 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 4 (e) the author or recipient of a document containing the information or a custodian 5 or other person who otherwise possessed or knew the information. 6 7 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL 8 – ATTORNEYS’ EYES ONLY” [Optional: or “HIGHLY CONFIDENTIAL – SOURCE 9 CODE”] Information or Items to Designated House Counsel1 or Experts.2 10 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the 11 Designating Party, a Party that seeks to disclose to Designated House Counsel any information 12 or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 13 pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that (1) 14 sets forth the full name of the Designated House Counsel and the city and state of his or her 15 residence, and (2) describes the Designated House Counsel’s current and reasonably foreseeable 16 future primary job duties and responsibilities in sufficient detail to determine if House Counsel is 17 involved, or may become involved, in any competitive decision-making.3 18 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the 19 Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any 20 information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 21 EYES ONLY” [Optional: or “HIGHLY CONFIDENTIAL – SOURCE CODE”] pursuant to 22 paragraph 7.3(c) first must make a written request to the Designating Party that (1) identifies the 23 general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional: 24 1 Alternative: The parties may exchange names of a certain number of Designated House Counsel instead of 25 following this procedure. 2 Alternative: “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information or items may be disclosed to an Expert without disclosure of the identity of the Expert as long as the Expert is not a 26 current officer, director, or employee of a competitor of a Party or anticipated to become one. 3 It may be appropriate in certain circumstances to require any Designated House Counsel who receives “HIGHLY 27 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information pursuant to this Order to disclose any relevant changes in job duties or responsibilities prior to final disposition of the litigation to allow the Designating Party to 1 or “HIGHLY CONFIDENTIAL – SOURCE CODE”] information that the Receiving Party seeks 2 permission to disclose to the Expert, (2) sets forth the full name of the Expert and the city and 3 state of his or her primary residence, (3) attaches a copy of the Expert’s current resume, (4) 4 identifies the Expert’s current employer(s), (5) identifies each person or entity from whom the 5 Expert has received compensation or funding for work in his or her areas of expertise or to 6 whom the expert has provided professional services, including in connection with a litigation, at 7 any time during the preceding five years,4 and (6) identifies (by name and number of the case, 8 filing date, and location of court) any litigation in connection with which the Expert has offered 9 expert testimony, including through a declaration, report, or testimony at a deposition or trial, 10 during the preceding five years.5 11 (b) A Party that makes a request and provides the information specified in the 12 preceding respective paragraphs may disclose the subject Protected Material to the identified 13 Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party 14 receives a written objection from the Designating Party. Any such objection must set forth in 15 detail the grounds on which it is based. 16 (c) A Party that receives a timely written objection must meet and confer with the 17 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 18 agreement within seven days of the written objection. If no agreement is reached, the Party 19 seeking to make the disclosure to Designated House Counsel or the Expert may file a motion 20 seeking permission from the court to do so. Any such motion must describe the circumstances 21 with specificity, set forth in detail the reasons why the disclosure to Designated House Counsel 22 or the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, 23 and suggest any additional means that could be used to reduce that risk. In addition, any such 24 motion must be accompanied by a competent declaration describing the parties’ efforts to resolve 25 4 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the Expert should provide whatever information the Expert believes can be disclosed without violating any 26 confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating Party regarding any such engagement. 27 5 It may be appropriate in certain circumstances to restrict the Expert from undertaking certain limited work prior to the termination of the litigation that could foreseeably result in an improper use of the Designating Party’s 1 the matter by agreement (i.e., the extent and the content of the meet and confer discussions) and 2 setting forth the reasons advanced by the Designating Party for its refusal to approve the 3 disclosure. 4 In any such proceeding, the Party opposing disclosure to Designated House Counsel or 5 the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail 6 (under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected 7 Material to its Designated House Counsel or Expert. 8 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 9 LITIGATION 10 If a Party is served with a subpoena or a court order issued in other litigation that compels 11 disclosure of any information or items designated in this action as “CONFIDENTIAL” or 12 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must: 13 (a) promptly notify in writing the Designating Party. Such notification shall 14 include a copy of the subpoena or court order; 15 16 (b) promptly notify in writing the party who caused the subpoena or order to issue 17 in the other litigation that some or all of the material covered by the subpoena or order is subject 18 to this Protective Order. Such notification shall include a copy of this Stipulated Protective 19 Order; and 20 (c) cooperate with respect to all reasonable procedures sought to be pursued by 21 the Designating Party whose Protected Material may be affected.6 22 23 If the Designating Party timely seeks a protective order, the Party served with the 24 subpoena or court order shall not produce any information designated in this action as 25 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a 26 determination by the court from which the subpoena or order issued, unless the Party has 27 6 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court 1 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 2 expense of seeking protection in that court of its confidential material – and nothing in these 3 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 4 disobey a lawful directive from another court. 5 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 6 LITIGATION 7 (a) The terms of this Order are applicable to information produced by a Non- 8 Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 9 ATTORNEYS’ EYES ONLY”. Such information produced by Non-Parties in connection with 10 this litigation is protected by the remedies and relief provided by this Order. Nothing in these 11 provisions should be construed as prohibiting a Non-Party from seeking additional protections. 12 13 (b) In the event that a Party is required, by a valid discovery request, to 14 produce a Non-Party’s confidential information in its possession, and the Party is subject to an 15 agreement with the Non-Party not to produce the Non-Party’s confidential information, then the 16 Party shall: 17 1. promptly notify in writing the Requesting Party and the Non-Party that 18 some or all of the information requested is subject to a confidentiality agreement with a Non- 19 Party; 20 21 2. promptly provide the Non-Party with a copy of the Stipulated Protective 22 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of 23 the information requested; and 24 3. make the information requested available for inspection by the Non-Party. 25 (c) If the Non-Party fails to object or seek a protective order from this court 26 within 14 days of receiving the notice and accompanying information, the Receiving Party may 27 produce the Non-Party’s confidential information responsive to the discovery request. If the 1 Non-Party timely seeks a protective order, the Receiving Party shall not produce any information 2 in its possession or control that is subject to the confidentiality agreement with the Non-Party 3 before a determination by the court.7 Absent a court order to the contrary, the Non-Party shall 4 bear the burden and expense of seeking protection in this court of its Protected Material. 5 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 6 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 7 Material to any person or in any circumstance not authorized under this Stipulated Protective 8 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 9 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 10 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 11 made of all the terms of this Order, and (d) request such person or persons to execute the 12 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 13 14 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 15 MATERIAL 16 When a Producing Party gives notice to Receiving Parties that certain inadvertently 17 produced material is subject to a claim of privilege or other protection, the obligations of the 18 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 19 provision is not intended to modify whatever procedure may be established in an e-discovery 20 order that provides for production without prior privilege review. Pursuant to Federal Rule of 21 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 22 communication or information covered by the attorney-client privilege or work product 23 protection, the parties may incorporate their agreement in the stipulated protective order 24 submitted to the court. 25 26 27 7 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non- 1 12. MISCELLANEOUS 2 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 3 seek its modification by the court in the future. 4 5 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 6 Order no Party waives any right it otherwise would have to object to disclosing or producing any 7 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 8 no Party waives any right to object on any ground to use in evidence of any of the material 9 covered by this Protective Order. 10 12.3 Filing Protected Material. Without written permission from the Designating Party 11 or a court order secured after appropriate notice to all interested persons, a Party may not file in 12 the public record in this action any Protected Material. A Party that seeks to file under seal any 13 Protected Material must comply with Civil Local Rule 141. Protected Material may only be filed 14 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 15 issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a request 16 establishing that the Protected Material at issue is privileged, protectable as a trade secret, or 17 otherwise entitled to protection under the law. 18 13. FINAL DISPOSITION 19 20 Within 60 days after the final disposition of this action, as defined in paragraph 4, 21 each Receiving Party must return all Protected Material to the Producing Party or destroy such 22 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 23 compilations, summaries, and any other format reproducing or capturing any of the Protected 24 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 25 submit a written certification to the Producing Party (and, if not the same person or entity, to the 26 Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all 27 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or 1 capturing any of the Protected Material. Notwithstanding this provision, Counsel of Record are 2 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 3 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, 4 attorney work product, and consultant and expert work product, even if such materials contain 5 Protected Material. Any such archival copies that contain or constitute Protected Material remain 6 subject to this Protective Order as set forth in Section 4 (DURATION). 7 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 8 9 DATED: August 2, 2019 ___/s/ K. Chike Odiwe__________________ 10 DeWitt M. Lacy, Esq., K. Chike Odiwe, Esq., 11 Attorneys for Plaintiff 12 13 DATED: August 2, 2019 __/s/ Kyle Bevan__________________________ Kyle Bevan, Esq., 14 Attorney for Defendants 15 16 17 18 19 20 21 22 23 24 25 26 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 5 read in its entirety and understand the Stipulated Protective Order that was issued by the United 6 States District Court for the Eastern District of California on [date] in the case of ___________ 7 [insert formal name of the case and the number and initials assigned to it by the court]. I 8 agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I 9 understand and acknowledge that failure to so comply could expose me to sanctions and 10 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner 11 any information or item that is subject to this Stipulated Protective Order to any person or entity 12 except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for 14 the Eastern District of California for the purpose of enforcing the terms of this Stipulated 15 Protective Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 21 Date: _________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: ______________________________ 24 [printed name] 25 Signature: __________________________________ [signature] 26 27 1 ORDER 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The above stipulated protective order is entered; 4 2. The parties are advised that pursuant to the Local Rules of the United States 5 District Court, Eastern District of California, any documents which are to be filed 6 under seal will require a written request which complies with Local Rule 141; and 7 3. The party making a request to file documents under seal shall be required to show 8 good cause for documents attached to a nondispositive motion or compelling 9 reasons for documents attached to a dispositive motion. Pintos v. Pacific 10 Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). 11 0 IT IS SO ORDERED. FA. ee 13 | Dated: _ August 6, 2019 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28