Romero v. California Highway Patrol ( 2023 )

1 DENISE EATON-MAY, ESQ. (SBN 116780) LAW OFFICES OF DENISE EATON-MAY, PC 2 1290 B Street, Suite 316 Hayward CA 94541 3 Tel.: 510.888.1345 4 Fax: 510.315.3015 Email: denise.may@eaton-maylaw.com 5 Attorney for Plaintiff ADRIAN ROMERO, JR. 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 ADRIAN ROMERO, JR., No. 2:21-cv-1978 JAM DB 13 Plaintiff, 14 STIPULATION AND PROTECTIVE vs. ORDER 15 16 CALIFORNIA HIGHWAY PATROL, 17 Defendant. 18 19 20 1. Purposes and Limitations 21 Disclosure and discovery activity in this action are likely to involve the production of 22 confidential, proprietary, or private information for which special protection from public disclosure 23 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 24 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 25 26 Order. The parties acknowledge that this Order does not confer blanket protections on all 27 disclosures or responses to discovery and that the protection it affords from public disclosure and 1 the applicable legal principles. The parties further acknowledge, as set forth below, that this 2 Stipulated Protective Order does not entitle them to file confidential information under seal; Civil 3 Local Rule 141 sets forth the procedures that must be followed and the standards that will be 4 applied when a party seeks permission from the court to file material under seal. 5 2. Definitions 6 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 7 8 information or items under this Order. 9 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 10 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 11 Civil Procedure 26(c). 12 2.3 Designating Party: a Party or Non-Party that designates information or items that it 13 produces in disclosures or in responses to discovery as “CONFIDENTIAL”. 14 15 2.4 Disclosure or Discovery Material: all items or information, regardless of the medium 16 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 17 transcripts, and tangible things), that are produced or generated in disclosures or responses to 18 discovery in this matter. 19 2.5 Expert: a person with specialized knowledge or experience in a matter pertinent to 20 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a 21 consultant in this action, (2) is not a past or current employee of a Party and (3) at the time of 22 23 retention, is not anticipated to become an employee of a Party. 24 2.6 Non-Party: any natural person, partnership, corporation, association, or other legal 25 entity not named as a Party to this action. 26 2.7 Counsel of Record: attorneys who have appeared in this action on behalf of that party 27 or are affiliated with a law firm or governmental entity which has appeared on behalf of that party. 1 2.8 Party: any party to this action, including all of its officers, directors, employees, 2 consultants, retained experts, and Counsel of Record (and their support staff). 3 2.9 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 4 Material in this action. 5 2.10 Professional Vendors: persons or entities that provide litigation support services 6 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 7 8 storing, or retrieving data in any form or medium) and their employees and subcontractors. 9 2.11 Protected Material: any Disclosure or Discovery Material that is designated as 10 "CONFIDENTIAL". 11 2.12 Receiving Party: a Party that receives Disclosure or Discovery Material from a 12 Producing Party. 13 3 Scope 14 15 3.1 The protections conferred by this Stipulation and Order cover not only Protected 16 Material (as defined above), but also (1) any information copied or extracted from Protected 17 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 18 testimony, conversations, or presentations by Parties or their Counsel of Record that might reveal 19 Protected Material. However, the protections conferred by this Stipulation and Order do not cover 20 the following information: (a) any information that is in the public domain at the time of disclosure 21 to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party 22 23 as a result of publication not involving a violation of this Order, including becoming part of the 24 public record through trial or otherwise; and (b) any information known to the Receiving Party prior 25 to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained 26 the information lawfully and under no obligation of confidentiality to the Designating Party. Any 27 use of Protected Material at trial shall be governed by a separate agreement or order. 1 4 Duration 2 Even after final disposition of this litigation, the confidentiality obligations imposed 3 by this Order shall remain in effect until: (1) a Designating Party agrees otherwise in writing; (2) a 4 court order otherwise directs; or (3) there is a complete return or demolition of all Protected 5 Material pursuant to Section 12. Final disposition shall be deemed to be the later of (1) dismissal of 6 all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 7 8 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 9 including the time limits for filing any motion or application for extension of time pursuant to 10 applicable law. 11 5 Designating Protected Material 12 5.1 Exercise of Restraint and Care in Designating Material for Protection Each Party or 13 Non-Party that designates information or items for protection under this Order must take care to 14 15 limit any such designation to specific material that qualifies under the appropriate standards. To the 16 extent it is practical to do so, the Designating Party must designate for protection only those parts of 17 material, documents, items, or oral or written communications that qualify - so that other portions of 18 the material, documents, items, or communications for which protection is not warranted are not 19 swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations 20 are prohibited. Designations that are shown to be clearly unjustified or that have been made for an 21 improper purpose (e.g., to unnecessarily encumber the case development process or to impose 22 23 unnecessary expenses and burdens on other parties) may expose the Designating Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that it designated for 25 protection do not qualify for protection at all or do not qualify for the level of protection initially 26 asserted, the Designating Party must promptly notify all other parties that is withdrawing the 27 mistaken designation. 1 5.2 Manner and Timing of Designations 2 Expect as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) 3 below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for 4 protection under this Order must be clearly so designated before the material is disclosed or 5 produced. Designation in conformity with this Order requires: 6 (a) for information in documentary form (e.g., paper or electronic documents, but excluding 7 8 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the 9 legend "CONFIDENTIAL" to each page that contains protected material. If only a portion or 10 portions of the material on a page qualifies for protection, the Producing Party also must clearly 11 identify the inspection and before the designation, all of the material made available for protected 12 portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, 13 the level of protection being asserted. Alternatively, the Producing Party may designate an entire 14 15 production or storage device (such as CD or flash drive) as confidential by including notice of such 16 designation or including “CONFIDENTIAL” in the title of each designated file. 17 A Party or Non-Party that makes original documents or materials available for inspection 18 need not designate them for protection until after the inspecting Party has indicated which material 19 it would like copied and produced. During the inspection and before the designation, all of the 20 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 21 Party has identified the documents, or portions thereof, qualify for protection under this Order. 22 23 Then, before producing the specified documents, the Producing Party must affix the appropriate 24 legend “CONFIDENTIAL” to each page that contains Protected Material. If only a portion or 25 portions of the material on a page qualifies for protection, the Producing Party also must clearly 26 identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must 27 specify, for each portion, the level of protection being asserted. 1 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 2 Designating Party identify on the record, before the close of the deposition, hearing, or other 3 proceeding, or in a writing to all parties within 30 business days of receipt of the deposition or 4 hearing transcript, all protected way affect its designation as "CONFIDENTIAL". 5 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 6 other proceeding to include Protected Material so that the other parties can ensure that only 7 8 authorized individuals who have signed the “Acknowledgment and Agreement to be Be Bound” 9 (Exhibit A) are present at those proceedings. The use if a document as an exhibit at a deposition 10 shall not in any way affect its designation as “CONFIDENTIAL.” 11 Transcripts containing Protected Material shall have an obvious legend on the title page that 12 the transcript contains Protected Material, and the title page shall be followed by a list of all pages 13 (including line number as appropriate) that have been designated as Protected Material and the level 14 15 of protection being asserted by the Designating Party. The Designating Party shall inform the court 16 reporter of these requirements. Any transcript that is prepared before the expiration of a 30-day 17 period for designation shall be treated during that period as if it had been designated 18 “CONFIDENTIAL” in its entirety unless otherwise agreed. After the expiration of that period, the 19 transcript shall be treated only as actually designated. 20 (c) for information produced in some other form than documentary and for any other 21 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 22 23 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 24 portion or portions of the information or item warrant protection, the Producing Party, to the extent 25 practicable, shall identify the protected portion(s) and specify the level of protection being asserted. 26 /// 27 /// 1 5.3 Inadvertent Failures to Designate 2 If timely corrected, an inadvertent failure to designate information or items does not, 3 standing alone, waive the Designating Party’s right to secure protection under this Order for such 4 material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts 5 to assure that the material is treated in accordance with the provisions of this Order. 6 6. Challenging Confidentiality Designations 7 8 6.1 Timing of Challenges 9 Any Party or Non-Party may challenge a designation of confidentiality at any time. 10 Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid 11 foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or 12 delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by 13 electing not to mount a challenge promptly after the original designation is disclosed. 14 15 6.2 Meet and Confer 16 The Challenging Party shall initiate the dispute resolution process by providing written 17 notice of each designation it is challenging and describing the basis for each challenge. To avoid 18 ambiguity as to whether a challenge has been made, the written notice must recite that the challenge 19 to confidentiality is being made in accordance with this specific paragraph of the Protective Order. 20 The parties shall attempt to resolve each challenge in good faith and must begin the process by 21 conferring directly within 14 days of the date of service of notice. In conferring, the Challenging 22 23 Party must explain the basis for its belief that the confidentiality designation was not proper and 24 must give the Designating Party an opportunity to review the designated material, to reconsider the 25 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 26 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 27 1 has engaged in this meet and confer process first or establishes that the Designating Party is 2 unwilling to participate in the meet and confer process in a timely manner. 3 6.3 Judicial Intervention 4 If the Parties cannot resolve a challenge without court intervention, the Designating Party 5 shall file and serve a motion to retain confidentiality within 21days of the initial notice of challenge 6 or within 14 days of the parties agreeing that the meet and confer process will not resolve their 7 8 dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration 9 affirming that the movant has complied with the meet and confer requirements imposed in the 10 preceding paragraph. Failure by the Designating Party to make such a motion including the required 11 declaration within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality 12 designation for each challenged designation. In addition, the Challenging Party may file a motion 13 challenging a confidentiality designation at any time if there is good cause of FRCP 26(c), including 14 15 a challenge to the designation of a deposition transcript or any portions thereof. Any motion brought 16 pursuant to this provision must be accompanied by a competent declaration affirming that the 17 movant has complied with the meet and confer requirements imposed by the preceding paragraph. 18 The burden of persuasion in any such challenge proceeding shall be on the Designating 19 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 20 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 21 Unless the Designating Party has waived the confidentiality designation by failing to file a motion 22 23 to retain confidentiality as described above, all parties shall continue to afford the material in 24 question the level or protection to which it is entitled under the Producing Party’s designation until 25 the court rules on the challenge. 26 7. Access to and Use of Protected Material 27 7.1 Basic Principles 1 A Receiving Party may use Protected Material that is disclosed or produced by another Party 2 or by a Non-Party in connection with this case only for prosecuting, defending, or attempting to 3 settle this litigation. Such Protected Material may be disclosed only to the categories of persons and 4 under the conditions described in this Order. When the litigation has been terminated, a Receiving 5 Party must comply with the provisions of section 15 below (FINAL DISPOSITION). Protected 6 Material must be stored and maintained by a Receiving Party at a location and in a secure manner 7 8 that ensures that access is limited to the persons authorized under this Order. 9 7.2 Disclosure of “CONFIDENTIAL” Information or Items 10 Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 11 Receiving Party may disclosure any information or item designated “CONFIDENTIAL” only to: 12 (a) the Receiving Party’s Counsel of Record in this action, as well as employees of 13 said Counsel of Record to whom it is reasonably necessary to disclose the information for this 14 15 litigation; 16 (b) the officers, directors, and employees of the Receiving Party to whom disclosure 17 is reasonably necessary for this litigation and who have signed the “Acknowledgment and 18 Agreement to Be Bound” (Exhibit A); 19 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 20 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 21 to Be Bound” (Exhibit A); 22 23 (d) the court and its personnel; 24 (e) court reporters and their staff, professional jury or trial consultants, and 25 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who signed 26 the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 1 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 2 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 3 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 4 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 5 bound by the court reported and may be disclosed to anyone except as permitted under this 6 Stipulated Protected Order. 7 8 (g) the author or recipient of a document containing the information or a custodian or 9 other person who otherwise possessed or new the information. 10 8. Protected Material Subpoenaed or Order Produced in Other Litigation 11 If a Party is served with a subpoena or a court order issued in other litigation that compels 12 disclosure of any information or items designated in this action as "CONFIDENTIAL" that Party 13 must: 14 15 (a) promptly notify in writing the Designating Party. Such notification shall include a 16 copy of the subpoena or court order; 17 (b) promptly notify in writing the party who caused the subpoena or order to issue in 18 the other litigation that some or all of the material covered by the subpoena or order is subject to this 19 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 20 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 21 Designating Party whose Protected Material may be affected. 22 23 If the Designating Party timely seeks a protective order, the Party served with the subpoena 24 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 25 before a determination by the court from which the subpoena or order issued, unless the Party has 26 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 27 expense of seeking protection in that court of its confidential material – and nothing in these 1 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 2 disobey a lawful directive from another court. 3 9. Unauthorized Disclosure of Protected Material 4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 5 Material to any person or in any circumstance not authorized under this Stipulated Protected Order, 6 the Receiving Party must immediately (a) notify in writing the Designating Party of the 7 8 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 9 Material, (c) inform the person or persons to whom unauthorized disclosures were made all of the 10 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 11 Agreement to Be Bound” that is attached as Exhibit A. 12 10. Inadvertent Production of Privileged or Otherwise Protected Material 13 When a Producing Party gives notice to Receiving Parties that certain inadvertently 14 15 produced material is subject to a claim of privilege or other protection, the obligations of the 16 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 17 is not intended to modify whatever procedure may be established in an e-discovery order that 18 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 19 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 20 communication or information covered by the attorney-client privilege or work product protection, 21 the parties may incorporate their agreement in the stipulated protective order submitted to the court. 22 23 11. Miscellaneous 24 11.1 Right to Further Relief 25 Nothing in this Order abridges the right of any person to seek its modification by the court in 26 the future. 27 /// 1 11.2 Right to Assert Other Objections 2 By stipulating to the entry of this Protective Order no Party waives any right it otherwise 3 would have to object to disclosing or producing any information or item on any ground not 4 addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on any 5 ground to use in evidence of any of the material covered by this Protective Order. 6 11.3 Filing Protected Material 7 8 Without written permission from the Designating Party or a court order secured after 9 appropriate notice to all interested persons, a Party may not file in the public record in this action 10 any Protected Material. A Party that seeks to file under seal any Protected Material must comply 11 with Civil Local Rule 141. Protected Material may only be filed under seal pursuant to a court order 12 authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 141, 13 a sealing order will issue only upon a request establishing that the Protected Material at issue is 14 15 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. 16 12. Final Disposition 17 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 18 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 19 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 21 the Protected Material is returned or destroyed, the Receiving Party must submit a written 22 23 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 24 by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected Material 25 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 26 abstracts, compilations, summaries or any other format reproducing or capturing any of the 27 Protected Material. Notwithstanding this provision, Counsel of Record are entitled to retain an 1 archival copy of all pleadings, motion papers, trial, deposition and trial exhibits, expert reports, 2 attorney work product, and consultation and expert work product even if such material contains 3 Protected Material. Any such archival copies that contain or constitute Protected Material remain 4 subject to this Protective Order as set forth in Section 4 (Duration). 5 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 7 8 9 10 Dated: ___3/23/2023__________ LAW OFFICES OF DENISE EATON-MAY, PC 11 12 By: _____/s/ Denise Eaton May____ 13 DENISE EATON-MAY Attorneys for Plaintiff 14 ADRIAN ROMERO, JR. 15 16 17 18 Dated: ____2/28/2023__________ ATTORNEY GENERAL OF CALIFORNIA 19 20 By: __/s/ Vanessa Mott________ 21 Rob Bonta Celine M. Cooper 22 Vanessa W. Mott 23 Attorneys for Defendant California Highway Patrol 24 25 26 27 1 ORDER 2 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 3 IT IS FURTHER ORDERED THAT: 4 1. Requests to seal documents shall be made by motion before the same judge who will decide 5 the matter related to that request to seal. 6 2. The designation of documents (including transcripts of testimony) as confidential pursuant 7 to this order does not automatically entitle the parties to file such a document with the court under 8 seal. Parties are advised that any request to seal documents in this district is governed by Local Rule 9 141. In brief, Local Rule 141 provides that documents may only be sealed by a written order of the 10 court after a specific request to seal has been made. L.R. 141(a). However, a mere request to seal is 11 not enough under the local rules. In particular, Local Rule 141(b) requires that “[t]he ‘Request to Seal 12 Documents’ shall set forth the statutory or other authority for sealing, the requested duration, the 13 identity, by name or category, of persons to be permitted access to the document, and all relevant 14 information.” L.R. 141(b). 15 3. A request to seal material must normally meet the high threshold of showing that 16 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially related” 17 to the merits of a case, the request to seal may be granted on a showing of “good cause.” Ctr. for 18 Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and 19 County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 20 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of certain 21 documents, at any court hearing or trial – such determinations will only be made by the court at the 22 hearing or trial, or upon an appropriate motion. 23 5. With respect to motions regarding any disputes concerning this protective order which the 24 parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 251. 25 Absent a showing of good cause, the court will not hear discovery disputes on an ex parte basis or on 26 shortened time. 27 //// 1 6. The parties may not modify the terms of this Protective Order without the court’s approval. 2 If the parties agree to a potential modification, they shall submit a stipulation and proposed order for 3 the court’s consideration. 4 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement of 5 the terms of this Protective Order after the action is terminated. 6 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 7 hereby DISAPPROVED. 8 DATED: May 31, 2023 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 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], 4 of _____________________________________________________________________________ 5 [print or type full address], declare under of perjury that I have read in its entirety and understand 6 the Stipulated Protective Order that was issued by the United States District Court for the Eastern 7 8 District of California on ____________, 2023 in the case Adrian Romero, Jr. v. California Highway 9 Patrol, Case No. 2:21-CV-01978-JAM-DB. I agree to comply with and to be bound by all the terms 10 of this Stipulated Protective Order and I understand and acknowledge that failure to so comply 11 could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I 12 will not disclose in any manner any information or item that is subject to this Stipulated Protective 13 Order to any person or entity except in strict compliance with the provisions of this Order. 14 15 I further agree to submit to the jurisdiction of the United States District Court for the Eastern 16 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even 17 if such enforcement proceedings occur after termination of this action. 18 I hereby appoint _____________________________________[print or type full name] of 19 ________________________________________________________________________________ 20 [print or type full address and telephone number] as my California agent of service of process in 21 connection with this action or any proceeding related to enforcement of this Stipulated Protective 22 23 Order. 24 Date: _________________________ ______________________________________ 25 Signature 26 City and State where signed: ______________________________________ 27 ______________________________________