Granda v. CALPERS ( 2023 )

1 ELISE R. SANGUINETTI, SBN: 191389 ARIAS SANGUINETTI WANG & TORRIJOS 2 2200 Powell Street, Suite 740 Emeryville, CA 94608 3 Telephone: (510) 629-4877 Facsimile: (510) 291-9742 4 Email: elise@aswtlawyers.com 5 Attorneys for Plaintiffs Sara Granda & Jose Granda 6 7 UNITED STATE DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 SACRAMENTO DIVISION 10 SARA GRANDA, an individual & JOSE Case No.: 2:21-cv-01256-MCE-KJN 11 GRANDA, an individual; Hon. Morrison C. England, Jr. 12 Plaintiffs, STIPULATION AND PROTECTIVE 13 v. ORDER 14 CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM; and DOES 1-10, 15 Inclusive, 16 Defendants. 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 IT IS HEREBY STIPULATED by and between the parties to the above-captioned 2 Proceeding, by and through their respective counsel of record, that in order to facilitate the exchange 3 of information and documents which may be subject to confidentiality limitations on disclosure due 4 to federal laws, state laws, and privacy rights, the Parties stipulate as follows: 5 In this Stipulation and Protective Order, the words set forth below shall have the following 6 meanings: 7 “Proceeding” means the above-entitled proceeding, Case No. 2:21-cv-01256-MCE- 8 KJN. 9 “Court” means the United States District Court, or any judge to which this 10 Proceeding may be assigned, including Court staff participating in such proceedings. 11 “Confidential” means any information which is in the possession of a Designating 12 Party who believes in good faith that such information is entitled to confidential treatment under 13 applicable law. 14 “Confidential Materials” means any Documents, Testimony or Information as 15 defined below designated as Confidential pursuant to the provisions of this Stipulation and 16 Protective Order. 17 “Designating Party” means the Party that designates Materials as “Confidential.” 18 “Disclose” or “Disclosed” or “Disclosure” means to reveal, divulge, give, or make 19 available Materials, or any part thereof, or any information contained therein. 20 “Documents” means (i) any “Writing,” “Original,” and “Duplicate” as those terms 21 are defined by California Evidence Code Sections 250, 255, and 260, which have been produced in 22 discovery in this Proceeding by any person, and (ii) any copies, reproductions, or summaries of all 23 or any part of the foregoing. 24 “Information” means the content of Documents or Testimony. 25 “Testimony” means all depositions, declarations or other testimony taken or used in 26 this Proceeding. 27 1 The Designating Party shall have the right to designate as Confidential any Documents, 2 Testimony or Information that the Designating Party in good faith believes to contain non-public 3 information that is entitled to confidential treatment under applicable law. 4 The entry of this Stipulation and Protective Order does not alter, waive, modify, or abridge 5 any right, privilege or protection otherwise available to any Party with respect to the discovery of 6 matters, including but not limited to any Party’s right to assert the attorney-client privilege, the 7 attorney work product doctrine, or other privileges, or any Party’s right to contest any such assertion. 8 Any Documents, Testimony or Information to be designated as Confidential must be clearly 9 so designated before the Document, Testimony or Information is Disclosed or produced. The Parties 10 may agree that the case name and number are to be part of the Confidential designation. The 11 Confidential designation should not obscure or interfere with the legibility of the designated 12 Information. 13 For Documents (apart from transcripts of depositions or other pretrial or trial 14 proceedings), the Designating Party must affix the legend “Confidential” on each page of any 15 Document containing such designated Confidential Material. 16 For Testimony given in depositions the Designating Party may either: 17 i. identify on the record, before the close of the deposition, all 18 Confidential Testimony, by specifying all portions of the Testimony that qualify as “Confidential;” 19 or 20 ii. designate the entirety of the Testimony at the deposition as 21 Confidential (before the deposition is concluded) with the right to identify more specific portions 22 of the Testimony as to which protection is sought within 30 days following receipt of the deposition 23 transcript. In circumstances where portions of the deposition Testimony are designated for 24 protection, the transcript pages containing Confidential Information may be separately bound by the 25 court reporter, who must affix to the top of each page the legend “Confidential,” as instructed by 26 the Designating Party. 27 1 For Information produced in some form other than Documents, and for any other 2 tangible items, including, without limitation, compact discs or DVDs, the Designating Party must 3 affix in a prominent place on the exterior of the container or containers in which the Information or 4 item is stored the legend “Confidential.” If only portions of the Information or item warrant 5 protection, the Designating Party, to the extent practicable, shall identify the Confidential portions. 6 For written discovery in which Confidential Information is incorporated in answers 7 to interrogatories, responses to requests for admission, or other written discovery, the Designating 8 Party must affix the legend “Confidential” on the first page of the written discovery and on each 9 page containing answers or responses that contain such designated material. 10 The inadvertent production by any of the undersigned Parties or non-Parties to the 11 Proceedings of any Document, Testimony or Information during discovery in this Proceeding 12 without a Confidential designation, shall be without prejudice to any claim that such item is 13 Confidential and such Party shall not be held to have waived any rights by such inadvertent 14 production. In the event that any Document, Testimony or Information that is subject to a 15 Confidential designation is inadvertently produced without such designation, the Party that 16 inadvertently produced the document shall give written notice of such inadvertent production within 17 twenty (20) days of discovery of the inadvertent production, together with a further copy of the 18 subject Document, Testimony or Information designated as Confidential (the “Inadvertent 19 Production Notice”). Upon receipt of such Inadvertent Production Notice, the Party that received 20 the inadvertently produced Document, Testimony or Information shall promptly destroy the 21 inadvertently produced Document, Testimony or Information and all copies thereof, or, at the 22 expense of the producing Party, return such together with all copies of such Document, Testimony 23 or Information to counsel for the producing Party and shall retain only the Confidential designated 24 Materials. Should the receiving Party choose to destroy such inadvertently produced Document, 25 Testimony or Information, the receiving Party shall notify the producing Party in writing of such 26 destruction within ten (10) days of receipt of written notice of the inadvertent production. 27 Notwithstanding the foregoing, if the receiving Party Disclosed such Document, Testimony or 1 Information to persons not authorized to receive such information before receipt of the Confidential 2 designation, such Disclosure shall not be deemed a violation of this Stipulated Protective Order. In 3 the event the receiving Party receives an Inadvertent Production Notice, the receiving Party shall 4 either make reasonable efforts to promptly retrieve the Document, Testimony or Information or 5 shall promptly notify the Designating Party of the distribution and the identity of the person who 6 received the Document, Testimony or Information. This provision is not intended to apply to any 7 inadvertent production of any Information protected by attorney-client or work product privileges. 8 In the event that this provision conflicts with any applicable law regarding waiver of confidentiality 9 through the inadvertent production of Documents, Testimony or Information, such law shall govern. 10 In the event that counsel for a Party receiving Documents, Testimony or Information in 11 discovery designated as Confidential objects to such designation with respect to any or all of such 12 items, said counsel shall advise counsel for the Designating Party, in writing, of such objections, 13 the specific Documents, Testimony or Information to which each objection pertains, and the specific 14 reasons and support for such objections (the “Designation Objections”). Counsel for the Designating 15 Party shall have thirty (30) days from receipt of the written Designation Objections to either (a) 16 agree in writing to de-designate Documents, Testimony or Information pursuant to any or all of the 17 Designation Objections and/or (b) file a motion with the Court seeking to uphold any or all 18 designations on Documents, Testimony or Information addressed by the Designation Objections 19 (the “Designation Motion”). Pending a resolution of the Designation Motion by the Court, any and 20 all existing designations on the Documents, Testimony or Information at issue in such Motion shall 21 remain in place. The Designating Party shall have the burden on any Designation Motion of 22 establishing the applicability of its Confidential designation. In the event that the Designation 23 Objections are neither timely agreed to nor timely addressed in the Designation Motion, then such 24 Documents, Testimony or Information shall be de-designated in accordance with the Designation 25 Objection applicable to such material. 26 Access to and/or Disclosure of Confidential Materials designated as Confidential shall be 27 permitted only to the following persons: 1 a. the Court; 2 b. “Counsel,” consisting of: (1) Attorneys of record in the Proceedings and their 3 affiliated attorneys, paralegals, clerical and secretarial staff employed by such attorneys who are 4 actively involved in the Proceedings and are not employees of any Party; and/or (2) In-house counsel 5 to the undersigned Parties and the paralegal, clerical and secretarial staff employed by such counsel. 6 Provided, however, that each non-lawyer given access to Confidential Materials shall be advised 7 that such Materials are being Disclosed pursuant to, and are subject to, the terms of this Stipulation 8 and Protective Order and that they may not be Disclosed other than pursuant to its terms; 9 c. those officers, directors, partners, members, employees, agents, and counsel 10 of all non-designating Parties that Counsel for such Parties deems necessary to aid counsel in the 11 prosecution and defense of this Proceeding, including, without limitation, officers, directors, 12 partners, members, employees, agents, and counsel for Parties’ insurers (“Insurers”); provided, 13 however, that prior to the Disclosure of Confidential Materials to any such officer, director, partner, 14 member, employee, agent, counsel, or Insurer, counsel for the Party making the Disclosure shall 15 deliver a copy of this Stipulation and Protective Order to such person, shall explain that such person 16 is bound to follow the terms of such Order, and shall secure the signature of such person on a 17 statement in the form attached hereto as Exhibit A; 18 d. court reporters in this Proceeding (whether at depositions, hearings, or any 19 other proceeding); 20 e. any deposition, trial, or hearing witness in the Proceeding who previously has 21 had access to the Confidential Materials, or who is currently or was previously an officer, director, 22 partner, member, employee or agent of an entity that has had access to the Confidential Materials; 23 f. any deposition or non-trial hearing witness in the Proceeding who previously 24 did not have access to the Confidential Materials; provided, however, that each such witness given 25 access to Confidential Materials shall be advised that such Materials are being Disclosed pursuant 26 to, and are subject to, the terms of this Stipulation and Protective Order and that they may not be 27 Disclosed other than pursuant to its terms; 1 g. mock jury participants, provided, however, that prior to the Disclosure of 2 Confidential Materials to any such mock jury participant, counsel for the Party making the 3 Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain 4 that such person is bound to follow the terms of such Order, and shall secure the signature of such 5 person on a statement in the form attached hereto as Exhibit A; 6 h. outside experts or expert consultants consulted by the undersigned Parties or 7 their counsel in connection with the Proceeding, whether or not retained to testify at any oral 8 hearing; provided, however, that prior to the Disclosure of Confidential Materials to any such expert 9 or expert consultant, counsel for the Party making the Disclosure shall deliver a copy of this 10 Stipulation and Protective Order to such person, shall explain its terms to such person, and shall 11 secure the signature of such person on a statement in the form attached hereto as Exhibit A. It shall 12 be the obligation of counsel, upon learning of any breach or threatened breach of this Stipulation 13 and Protective Order by any such expert or expert consultant, to promptly notify counsel for the 14 Designating Party of such breach or threatened breach; 15 i. outside vendors or service providers (such as copy-service providers and 16 document-management consultants) retained by a Party to assist that Party in these Actions;. 17 j. outside trial consultants (including graphics consultants) retained by a Party 18 to assist in prosecuting or defending these Actions; 19 k. any mediator or arbitrator that the Parties engage in these Actions or that this 20 Court appoints; 21 l. persons for whom counsel for Plaintiff or Defendants believes in good faith 22 previously received or had access to the document, unless the person indicates that he or she did not 23 have access to the document; and 24 m. any other person that the Designating Party agrees to in writing. Confidential Materials shall be used by the persons receiving them only for the purposes of 25 preparing for, conducting, participating in the conduct of, and/or prosecuting and/or defending the 26 Proceeding, and not for any business or other purpose whatsoever. 27 1 This Order shall not restrict a Designating Party from using or disclosing its own information 2 designated as Confidential Material, as long as the information does not compromise the privacy 3 rights or privileges of another party. Additionally, this Order does not restrict a Plaintiff from 4 disclosing his or her medical records, to the extent designated as Confidential Material, to others. 5 Nothing in this order prevents disclosure of Confidential Information by any Party with the 6 consent of the Protected Person that designated the material as Confidential Information. 7 Nothing in this order prevents disclosure by a Party of Confidential Information that is (a) 8 publicly known through no fault of that Party; (b) lawfully acquired by or known to that Party 9 independent of receipt in discovery in these Actions; (c) previously produced, disclosed, or provided 10 to that Party without an obligation of confidentiality and not by inadvertence or mistake; or (iv) 11 produced in accordance with an order of this Court. 12 Any Party to the Proceeding (or other person subject to the terms of this Stipulation and 13 Protective Order) may ask the Court, after appropriate notice to the other Parties to the Proceeding, 14 to modify or grant relief from any provision of this Stipulation and Protective Order. 15 Entering into, agreeing to, and/or complying with the terms of this Stipulation and Protective 16 Order shall not: 17 a. operate as an admission by any person that any particular Document, 18 Testimony or Information marked “Confidential” contains or reflects trade secrets, proprietary, 19 confidential or competitively sensitive business, commercial, financial or personal information; or 20 b. prejudice in any way the right of any Party (or any other person subject to the 21 terms of this Stipulation and Protective Order): 22 i. to seek a determination by the Court of whether any particular 23 Confidential Material should be subject to protection as Confidential under the terms of this 24 Stipulation and Protective Order; or 25 ii. to seek relief from the Court on appropriate notice to all other Parties 26 to the Proceeding from any provision(s) of this Stipulation and Protective Order, either generally or 27 1 as to any particular Document, Material or Information. 2 Any Party to the Proceeding who has not executed this Stipulation and Protective Order as 3 of the time it is presented to the Court for signature may thereafter become a Party to this Stipulation 4 and Protective Order by its counsel’s signing and dating a copy of Exhibit “A” hereto and filing the 5 same with the Court, and serving copies of such signed and dated Exhibit “A” upon the other Parties 6 to this Stipulation and Protective Order. 7 Any Information that may be produced by a non-Party witness in discovery in the 8 Proceeding pursuant to subpoena or otherwise may be designated by such non-Party as Confidential 9 under the terms of this Stipulation and Protective Order, and any such designation by a non-Party 10 shall have the same force and effect, and create the same duties and obligations, as if made by one 11 of the undersigned Parties hereto. Any such designation shall also function as consent by such 12 producing non-Party to the authority of the Court in the Proceeding to resolve and conclusively 13 determine any motion or other application made by any person or Party with respect to such 14 designation, or any other matter otherwise arising under this Stipulation and Protective Order. 15 If any person subject to this Stipulation and Protective Order who has custody of any 16 Confidential Materials receives a subpoena or other process (“Subpoena”) from any government or 17 other person or entity demanding production of Confidential Materials, the recipient of the 18 Subpoena shall promptly give notice of the same by electronic mail transmission, followed by either 19 express mail or overnight delivery to counsel of record for the Designating Party, and shall furnish 20 such counsel with a copy of the Subpoena. Upon receipt of this notice, the Designating Party may, 21 in its sole discretion and at its own cost, move to quash or limit the Subpoena, otherwise oppose 22 production of the Confidential Materials, and/or seek to obtain confidential treatment of such 23 Confidential Materials from the subpoenaing person or entity to the fullest extent available under 24 law. The recipient of the Subpoena may not produce any Documents, Testimony or Information 25 pursuant to the Subpoena prior to the date specified for production on the Subpoena. 26 27 1 Nothing in this Stipulation and Protective Order shall be construed to preclude either Party 2 from asserting in good faith that certain Confidential Materials require additional protection. The 3 Parties shall meet and confer to agree upon the terms of such additional protection. 4 If, after execution of this Stipulation and Protective Order, any Confidential Materials 5 submitted by a Designating Party under the terms of this Stipulation and Protective Order is 6 Disclosed by a non-Designating Party to any person other than in the manner authorized by this 7 Stipulation and Protective Order, the non-Designating Party responsible for the Disclosure shall 8 bring all pertinent facts relating to the Disclosure of such Confidential Materials to the immediate 9 attention of the Designating Party. 10 This Stipulation and Protective Order is entered into without prejudice to the right of any 11 Party to knowingly waive the applicability of this Stipulation and Protective Order to any 12 Confidential Materials designated by that Party. If the Designating Party uses Confidential Materials 13 in a non-Confidential manner, then the Designating Party shall advise that the designation no longer 14 applies. 15 The Parties shall meet and confer regarding the procedures for use of any Confidential 16 Materials at trial and shall move the Court for entry of an appropriate order. 17 Nothing in this Stipulation and Protective Order shall affect the admissibility into evidence 18 of Confidential Materials or abridge the rights of any person to seek judicial review or to pursue 19 other appropriate judicial action with respect to any ruling made by the Court concerning the issue 20 of the status of Protected Material. 21 This Stipulation and Protective Order shall continue to be binding after the conclusion of 22 this Proceeding and all subsequent proceedings arising from this Proceeding, except that a Party 23 may seek the written permission of the Designating Party or may move the Court for relief from the 24 provisions of this Stipulation and Protective Order. To the extent permitted by law, the Court shall 25 retain jurisdiction to enforce, modify, or reconsider this Stipulation and Protective Order, even after 26 the Proceeding is terminated. 27 1 After this Stipulation and Protective Order has been signed by counsel for all Parties, it shall 2 be presented to the Court for entry. Counsel agrees to be bound by the terms set forth herein with 3 regard to any Confidential Materials that have been produced before the Court signs this Stipulation 4 and Protective Order. 5 The Parties and all signatories to the Certification attached hereto as Exhibit A agree to be 6 bound by this Stipulation and Protective Order pending its approval and entry by the Court. In the 7 event that the Court modifies this Stipulation and Protective Order, or in the event that the Court 8 enters a different Protective Order, the Parties agree to be bound by this Stipulation and Protective 9 Order until such time as the Court may enter such a different Order. It is the Parties’ intent to be 10 bound by the terms of this Stipulation and Protective Order pending its entry so as to allow for 11 immediate production of Confidential Materials under the terms herein. 12 This Stipulation and Protective Order shall apply to this Proceeding. 13 This Stipulation and Protective Order may be executed in counterparts. 14 Dated: March 13, 2023 ARIAS SANGUINETTI WANG & TORRIJOS, LLP 15 By: /s/ Elise Sanguinetti______________________ ELISE R. SANGUINETTI 16 Attorneys for Plaintiffs 17 Dated: March 13, 2023 ALSTON & BIRD, LLP 18 By: /s/ Lisa Garcia_________________________ 19 JASON LEVIN LISA GARCIA 20 Attorneys for CalPERS 21 22 23 24 25 26 27 1 ORDER 2 The court has reviewed the parties’ stipulated protective order. (See ECF No. 31.) The 3 stipulation comports with the relevant authorities and the court’s applicable local rule. See L.R. 4 141.1. The court APPROVES the protective order, subject to the following clarification. The 5 Local Rules state that once an action is closed, “unless otherwise ordered, the court will not retain 6 jurisdiction over enforcement of the terms of any protective order filed in that action.” L.R. 4 141.1(f); see also, e.g., MD Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., Feb. 03, 2017) (noting that courts in the district generally do not agree to retain jurisdiction for disputes concerning protective orders after closure of the case). Thus, the court will not retain jurisdiction 7 over this protective order once the case is closed. 10 Dated: March 14, 2023 1] □□ . 12 Prersbl L Newsman KENDALL 13 UNITED STATES MAGISTRATE JUDGE 14 gran.1256 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- 1 EXHIBIT A 2 CERTIFICATION RE CONFIDENTIAL DISCOVERY MATERIALS 3 I hereby acknowledge that I, ___________________________________[NAME], 4 ______________________________________________ [POSITION AND EMPLOYER], am 5 about to receive Confidential Materials supplied in connection with the Proceeding, Granda v. 6 CalPERS. I certify that I understand that the Confidential Materials are provided to me subject to 7 the terms and restrictions of the Stipulation and Protective Order filed in this Proceeding. I have 8 been given a copy of the Stipulation and Protective Order; I have read it, and I agree to be bound 9 by its terms. 10 I understand that Confidential Materials, as defined in the Stipulation and Protective 11 Order, including any notes or other records that may be made regarding any such materials, shall 12 not be Disclosed to anyone except as expressly permitted by the Stipulation and Protective Order. 13 I will not copy or use, except solely for the purposes of this Proceeding, any Confidential 14 Materials obtained pursuant to this Protective Order, except as provided therein or otherwise 15 ordered by the Court in the Proceeding. 16 I further understand that I am to retain all copies of all Confidential Materials provided to 17 me in the Proceeding in a secure manner, and that all copies of such Materials are to remain in my 18 personal custody until termination of my participation in this Proceeding, whereupon the copies of 19 such Materials will be returned to counsel who provided me with such Materials. 20 I hereby consent to be subject to the personal jurisdiction of the Los Angeles County 21 Superior Court in Los Angeles, California with respect to any proceeding arising out of or 22 relating to the enforcement of the Protective Order, including any proceeding relating to contempt 23 of court. 24 25 26 27 1 I declare under penalty of perjury, under the laws of the State of California, that the foregoing is 2 true and correct. Executed this _____ day of ______, 20__, at __________________. 3 4 5 DATED: BY: Signature 6 7 Title 8 Address 9 10 City, State, Zip 11 Telephone Number 12 13 Email 14 15 16 17 18 19 20 21 22 23 24 25 26 27