Schwab v. City of Fairfield ( 2021 )

1 DALE L. ALLEN, JR., State Bar No. 145279 dallen@aghwlaw.com 2 KEVIN P. ALLEN, State Bar No. 252290 kallen@aghwlaw.com 3 Maria Nozzolino, State Bar No. 302368 mnozzolino@aghwlaw.com 4 ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP 180 Montgomery Street, Suite 1200 5 San Francisco, CA 94104 Telephone: (415) 697-2000 6 Facsimile: (415) 813-2045 7 Attorneys for Defendants CITY OF FAIRFIELD, CHRISTOPHER ADAMS, 8 FRANK PIRO, ROBERT MURRAY, ALEXANDER ADLREDGE, 9 SEAN TIMM, KEVIN ANDERSON 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 14 JOSEPH SCHWAB, JR., No. 2:20-cv-1631 JAM DB 15 Plaintiffs, STIPULATED PROTECTIVE ORDER, PURSUANT TO CIVIL LOCAL RULE 141.1 16 v. 17 CITY OF FAIRFIELD, et al., 18 Defendants. 19 20 1. PURPOSES AND LIMITATIONS 21 Disclosure and discovery activity in this action are likely to involve production of 22 confidential, proprietary, or private information for which special protection from public 23 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 24 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 25 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 26 all disclosures or responses to discovery and that the protection it affords from public disclosure 27 and use extends only to the limited information or items that are entitled to confidential treatment 28 under the applicable legal principles. The parties further acknowledge, as set forth in Section 1 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 2 information under seal; Civil Local Rule 141 sets forth the procedures that must be followed and 3 the standards that will be applied when a party seeks permission from the court to file material 4 under seal. 5 2. DEFINITIONS 6 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 7 information or items under this Order. 8 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 9 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 10 Civil Procedure 26(c). It encompasses information where public disclosure is likely to result in 11 particularized harm, or where public disclosure would violate privacy interests recognized by law. 12 Examples of confidential information include, but are not limited to, the following: 13 a. personnel file records of any peace officer; and 14 b. medical records 15 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 16 as their support staff). 17 2.4 Designating Party: a Party or Non-Party that designates information or items that it 18 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 19 2.5 Disclosure or Discovery Material: all items or information, regardless of the 20 medium or manner in which it is generated, stored, or maintained (including, among other things, 21 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 22 responses to discovery in this matter. 23 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 24 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 25 consultant in this action. 26 2.7 House Counsel: attorneys who are employees of a party to this action. House 27 Counsel does not include Outside Counsel of Record or any other outside counsel. 28 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 1 entity not named as a Party to this action. 2 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 3 action but are retained to represent or advise a party to this action and have appeared in this action 4 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 5 2.10 Party: any party to this action, including all of its officers, directors, employees, 6 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 7 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 8 Material in this action. 9 2.12 Professional Vendors: persons or entities that provide litigation support services 10 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 11 storing, or retrieving data in any form or medium) and their employees and subcontractors. 12 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 13 “CONFIDENTIAL.” 14 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 15 Producing Party. 16 3. SCOPE 17 The protections conferred by this Stipulation and Order cover not only Protected Material 18 (as defined above), but also (1) any information copied from Protected Material; (2) all copies, 19 excerpts, summaries, or compilations of Protected Material that reveal the source of the Protected 20 Material or that reveal specific information entitled to confidentiality as a matter of law; and (3) any 21 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected 22 Material. 23 However, the protections conferred by this Stipulation and Order do not cover the following 24 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 25 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 26 publication not involving a violation of this Order, including becoming part of the public record 27 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 28 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 1 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 2 Protected Material at trial shall be governed by a separate agreement or order. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations imposed by this 5 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 6 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 7 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 8 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 9 time limits for filing any motions or applications for extension of time pursuant to applicable law. 10 5. DESIGNATING PROTECTED MATERIAL 11 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 12 Non-Party that designates information or items for protection under this Order must take care to 13 limit any such designation to specific material that qualifies under the appropriate standards. The 14 Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify – so that other portions of the material, documents, 15 items, or communications for which protection is not warranted are not swept unjustifiably within 16 the ambit of this Order. 17 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 18 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 19 encumber or retard the case development process or to impose unnecessary expenses and burdens 20 on other parties) expose the Designating Party to sanctions. 21 If it comes to a Designating Party’s attention that information or items that it designated for 22 protection do not qualify for protection, that Designating Party must promptly notify all other 23 Parties that it is withdrawing the mistaken designation. 24 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 25 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 26 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 27 designated before the material is disclosed or produced. 28 Designation in conformity with this Order requires: 1 (a) for information in documentary form (e.g., paper or electronic documents, but excluding 2 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the 3 legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or 4 portions of the material on a page qualifies for protection, the Producing Party also must clearly 5 identify the protected portion(s) (e.g., by making appropriate markings in the margins). A Party or 6 Non-Party that makes original documents or materials available for inspection need not designate 7 them for protection until after the inspecting Party has indicated which material it would like copied 8 and produced. During the inspection and before the designation, all of the material made available 9 for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the 10 documents it wants copied and produced, the Producing Party must determine which documents, or 11 portions thereof, qualify for protection under this Order. Then, before producing the specified 12 documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that 13 contains Protected Material. If only a portion or portions of the material on a page qualifies for 14 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 15 appropriate markings in the margins). 16 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 17 Designating Party identify on the record, before the close of the deposition, hearing, or other 18 proceeding, all protected testimony. 19 (c) for information produced in some form other than documentary and for any other 20 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 21 containers in which the information or item is stored the legend “CONFIDENTIAL.” If the 22 information is produced electronically, then the term “CONFIDENTIAL” must appear in the name 23 of each electronic file containing confidentially designated information. If only a portion or 24 portions of the information or item warrant protection, the Producing Party, to the extent 25 practicable, shall identify the protected portion(s). 26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 27 designate qualified information or items does not, standing alone, waive the Designating Party’s 28 right to secure protection under this Order for such material. Upon timely correction of a 1 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 2 in accordance with the provisions of this Order. 3 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 4 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 5 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 6 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 7 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 8 challenge a confidentiality designation by electing not to mount a challenge promptly after the 9 original designation is disclosed. 10 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 11 by providing written notice of each designation it is challenging and describing the basis for each 12 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 13 recite that the challenge to confidentiality is being made in accordance with the Protective Order. 14 The parties shall attempt to resolve each challenge in good faith and must begin the process by 15 conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) 16 within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the 17 basis for its belief that the confidentiality designation was not proper and must give the Designating 18 Party an opportunity to review the designated material, to reconsider the circumstances, and, if no 19 change in designation is offered, to explain the basis for the chosen designation. A Challenging 20 Party may proceed to the next stage of the challenge process only if it has engaged in this meet and 21 confer process first or establishes that the Designating Party is unwilling to participate in the meet 22 and confer process in a timely manner. 23 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 24 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 25 Local Rule 230 (and in compliance with Civil Local Rule 141, if applicable) within 21 days of the 26 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process 27 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 28 competent declaration affirming that the movant has complied with the meet and confer 1 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a 2 motion including the required declaration within 21 days (or 14 days, if applicable) shall 3 automatically waive the confidentiality designation for each challenged designation. In addition, the 4 Challenging Party may file a motion challenging a confidentiality designation at any time if there is 5 good cause for doing so, including a challenge to the designation of a deposition transcript or any 6 portions thereof. Any motion brought pursuant to this provision must be accompanied by a 7 competent declaration affirming that the movant has complied with the meet and confer 8 requirements imposed by the preceding paragraph. 9 The burden of persuasion in any such challenge proceeding shall be on the Designating 10 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 11 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 12 Unless the Designating Party has waived the confidentiality designation by failing to file a motion 13 to retain confidentiality as described above, all parties shall continue to afford the material in 14 question the level of protection to which it is entitled under the Producing Party’s designation until 15 the court rules on the challenge. 16 7. ACCESS TO AND USE OF PROTECTED MATERIAL 17 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 18 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 19 defending, or attempting to settle this litigation. Such Protected Material may be disclosed by any 20 party only to the categories of persons and under the conditions described in this Order. When the 21 litigation has been terminated, a Receiving Party must comply with the provisions of section 13 22 below (FINAL DISPOSITION). 23 Protected Material must be stored and maintained by all parties at a location and in a secure 24 manner that ensures that access is limited to the persons authorized under this Order. 25 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 26 by the court or permitted in writing by agreement of both Designating Party and Receiving Party, all 27 parties may disclose any information or item designated “CONFIDENTIAL” only to: 28 (a) the Party’s Outside Counsel of Record in this action, as well as employees of said 1 Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this 2 litigation (counsel and law firms appearing in this action are deemed to have agreed to be bound by 3 this Protective Order); 4 (b) the officers, directors, and employees (including House Counsel) of the Party to whom 5 disclosure is reasonably necessary for this litigation, including employees and agents of the 6 designating party(ies) in the normal course of their business with due regard for the confidential 7 nature of the information under this protective order; 8 (c) Experts (as defined in this Order) of any Party to whom disclosure is reasonably 9 necessary for this litigation; 10 (d) the court and its personnel; 11 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 12 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 15 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 16 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 17 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 18 bound by the court reporter and may not be disclosed to anyone except as permitted under this 19 Stipulated Protective Order or as agreed by all parties. 20 (g) the author or recipient of a document containing the information or a custodian or other 21 person who otherwise possessed or knew the information. 22 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 23 LITIGATION 24 If a Party is served with a subpoena or a court order issued in other litigation that compels 25 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 26 must: 27 (a) promptly notify in writing the Designating Party. Such notification shall include a copy 28 of the subpoena or court order; 1 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 2 other litigation that some or all of the material covered by the subpoena or order is subject to this 3 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 4 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 5 Designating Party whose Protected Material may be affected. 6 If the Designating Party timely seeks a protective order, the Party served with the subpoena 7 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 8 before a determination by the court from which the subpoena or order issued, unless the Party has 9 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 10 expense of seeking protection in that court of its confidential material – and nothing in these 11 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 12 disobey a lawful directive from another court. 13 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 14 LITIGATION 15 (a) The terms of this Order are applicable to information produced by a Non-Party in this 16 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 17 connection with this litigation is protected by the remedies and relief provided by this Order. 18 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 19 protections. 20 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 21 Party’s confidential information in its possession, and the Party is subject to an agreement with the 22 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 23 (1) promptly notify in writing the Requesting Party and the Non-Party that some or 24 all of the information requested is subject to a confidentiality agreement with a Non- 25 Party; 26 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order 27 in this litigation, the relevant discovery request(s), and a reasonably specific 28 description of the information requested; and 1 (3) make the information requested available for inspection by the Non-Party. 2 (c) If the Non-Party fails to object or seek a protective order from this court within 14 days 3 of receiving the notice and accompanying information, the Receiving Party may produce the Non- 4 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a 5 protective order, the Receiving Party shall not produce any information in its possession or control 6 that is subject to the confidentiality agreement with the Non-Party before a determination by the 7 court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 8 seeking protection in this court of its Protected Material. 9 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 10 If a Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any 11 person or in any circumstance not authorized under this Stipulated Protective Order, the Party must 12 immediately (a) notify in writing all Parties of the unauthorized disclosures, (b) use its best efforts 13 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to 14 whom unauthorized disclosures were made of all the terms of this Order, and (d) request such 15 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached 16 hereto as Exhibit A. 17 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 18 MATERIAL 19 When a Producing Party gives notice to Receiving Parties that certain inadvertently 20 produced material is subject to a claim of privilege or other protection, the obligations of the 21 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 22 is not intended to modify whatever procedure may be established in an e-discovery order that 23 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) 24 and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or 25 information covered by the attorney-client privilege or work product protection, the parties may 26 incorporate their agreement in the stipulated protective order submitted to the court. 27 12. MISCELLANEOUS 28 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 1 seek its modification by the court in the future. 2 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 3 no Party waives any right it otherwise would have to object to disclosing or producing any 4 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 5 Party waives any right to object on any ground to use in evidence of any of the material covered by 6 this Protective Order. 7 12.3 Filing Protected Material. Without written permission of all parties or a court order 8 secured after appropriate notice to all interested persons, a Party may not file in the public record in 9 this action any Protected Material. A Party that seeks to file under seal any Protected Material must 10 comply with Civil Local Rule 141. Protected Material may only be filed under seal pursuant to a 11 court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil 12 Local Rule 141, a sealing order will issue only upon a request establishing that the Protected 13 Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection under 14 the law. If a Party's request to file Protected Material under seal pursuant to Civil Local Rule 141(b) 15 is denied by the court, then the any Party may file the information in the public record pursuant to 16 Civil Local Rule 141(e)(1) unless otherwise instructed by the court. 17 13. FINAL DISPOSITION 18 Within 60 days after the final disposition of this action, as defined in paragraph 4, upon 19 written notification served by Producing or Designating Party, each Receiving Party must return all 20 Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all 21 Protected Material” includes all copies, abstracts, compilations, summaries, and any other format 22 reproducing or capturing any of the Protected Material. Whether the Protected Material is returned 23 or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if 24 not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 25 category, where appropriate) all the Protected Material that was returned or destroyed and (2) 26 affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or 27 any other format reproducing or capturing any of the Protected Material. Notwithstanding this 28 provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, 1 deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, 2 expert reports, attorney work product, and consultant and expert work product, even if such 3 materials contain Protected Material. Any such archival copies that contain or constitute Protected 4 Material remain subject to this Protective Order as set forth in Section 4 (DURATION). 5 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 7 8 DATED: July 15, 2021 /s/ Justin Ward JUSTIN WARD 9 Attorneys for Plaintiff 10 11 12 DATED: July 15, 2021 13 _/s/ Kevin P. Allen KEVIN ALLEN 14 Attorney for Defendants 15 16 17 18 19 ORDER Pursuant to the parties’ stipulation, IT IS SO ORDERED. 20 IT IS FURTHER ORDERED THAT: 21 1. Requests to seal documents shall be made by motion before the same judge who will 22 decide the matter related to that request to seal. 23 2. The designation of documents (including transcripts of testimony) as confidential 24 pursuant to this order does not automatically entitle the parties to file such a document with the 25 court under seal. Parties are advised that any request to seal documents in this district is governed 26 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 27 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 28 1 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 2 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 3 the requested duration, the identity, by name or category, of persons to be permitted access to the 4 document, and all relevant information.” L.R. 141(b). 5 3. A request to seal material must normally meet the high threshold of showing that 6 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially 7 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 8 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); 9 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 10 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of 11 certain documents, at any court hearing or trial – such determinations will only be made by the 12 court at the hearing or trial, or upon an appropriate motion. 13 5. With respect to motions regarding any disputes concerning this protective order which 14 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local 15 Rule 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex 16 parte basis or on shortened time. 17 6. The parties may not modify the terms of this Protective Order without the court’s 18 approval. If the parties agree to a potential modification, they shall submit a stipulation and 19 proposed order for the court’s consideration. 20 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement 21 of the terms of this Protective Order after the action is terminated. 22 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 23 hereby DISAPPROVED. 24 DATED: July 19, 2021 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 26 27 28