Elliott v. Elliott ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 AARON A. ELLIOTT, Case No. 1:21-cv-00897-SAB 11 Plaintiff, ORDER ENTERING STIPULATED 12 PROTECTIVE ORDER v. 13 (ECF No. 37) FRANK T. ELLIOTT, III, et al., 14 Defendants. 15 16 On April 6, 2022, the parties filed a stipulated protective order, and have requested the 17 Court approve and enter the parties stipulated protective order. (ECF No. 37.) The Court has 18 reviewed the stipulated agreement and finds good cause to approve and enter the protective order 19 into the record of this action. 20 STIPULATED PROTECTIVE ORDER 21 1. PURPOSES AND LIMITATIONS 22 Disclosure and discovery activity in this action are likely to involve 23 production of confidential, proprietary, or private information for which special 24 protection from public disclosure and from use for any purpose other than prosecuting 25 this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition 26 the court to enter the following Stipulated Protective Order. The parties acknowledge 27 that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to 1 the limited information or items that are entitled to confidential treatment under the 2 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, 3 below, that this Stipulated Protective Order does not entitle them to file confidential 4 information under seal; Local Rules 140, 141 and 141.1 set forth the procedures that must 5 be followed and the standards that will be applied when a party seeks permission from 6 the court to file material under seal. 7 2. DEFINITIONS 8 2.1 Challenging Party: a Party or Non-Party that challenges the 9 designation of information or items under this Order. 10 2.2 “CONFIDENTIAL” Information or Items: information (regardless 11 of how it is generated, stored or maintained) or tangible things that qualify for protection 12 under Federal Rule of Civil Procedure 26(c). 13 2.3 Counsel (without qualifier): Outside Counsel of Record and House 14 Counsel (as well as their support staff). 15 2.4 Designating Party: a Party or Non-Party that designates information 16 or items that it produces in disclosures or in responses to discovery as 17 “CONFIDENTIAL.” 18 2.5 Disclosure or Discovery Material: all items or information, 19 regardless of the medium or manner in which it is generated, stored, or maintained 20 (including, among other things, testimony, transcripts, and tangible things), that are 21 produced or generated in disclosures or responses to discovery in this matter. 22 2.6 Expert: a person with specialized knowledge or experience in a 23 matter pertinent to the litigation who has been retained by a Party or its counsel to serve 24 as an expert witness or as a consultant in this action. 25 2.7 House Counsel: attorneys who are employees of a party to this 26 action. House Counsel does not include Outside Counsel of Record or any other outside 27 counsel. 2.8 Non-Party: any natural person, partnership, corporation, association, 1 or other legal entity not named as a Party to this action. 2 2.9 Outside Counsel of Record: attorneys who are not employees of a 3 party to this action but are retained to represent or advise a party to this action and have 4 appeared in this action on behalf of that party or are affiliated with a law firm which has 5 appeared on behalf of that party. 6 2.10 Party: any party to this action, including all of its officers, directors, 7 employees, consultants, retained experts, and Outside Counsel of Record (and their 8 support staffs). 9 2.11 Producing Party: a Party or Non-Party that produces Disclosure or 10 Discovery Material in this action. 11 2.12 Professional Vendors: persons or entities that provide litigation 12 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 13 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 14 their employees and subcontractors. 15 2.13 Protected Material: any Disclosure or Discovery Material that is 16 designated as “CONFIDENTIAL.” 17 2.14 Receiving Party: a Party that receives Disclosure or Discovery 18 Material from a Producing Party. 19 3. SCOPE 20 The protections conferred by this Stipulation and Order cover not only 21 Protected Material (as defined above), but also (1) any information copied or extracted 22 from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 23 Material; and (3) any testimony, conversations, or presentations by Parties or their 24 Counsel that might reveal Protected Material. However, the protections conferred by this 25 Stipulation and Order do not cover the following information: (a) any information that is 26 in the public domain at the time of disclosure to a Receiving Party or becomes part of the 27 public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including becoming part of the public record through 1 trial or otherwise; and (b) any information known to the Receiving Party prior to the 2 disclosure or obtained by the Receiving Party after the disclosure from a source who 3 obtained the information lawfully and under no obligation of confidentiality to the 4 Designating Party. Any use of Protected Material at trial shall be governed by a separate 5 agreement or order. 6 4. DURATION 7 Even after final disposition of this litigation, the confidentiality obligations 8 imposed by this Order shall remain in effect until a Designating Party agrees otherwise in 9 writing or a court order otherwise directs. Final disposition shall be deemed to be the 10 later of (1) dismissal of all claims and defenses in this action, with or without prejudice; 11 and (2) final judgment herein after the completion and exhaustion of all appeals, 12 rehearings, remands, trials, or reviews of this action, including the time limits for filing 13 any motions or applications for extension of time pursuant to applicable law. 14 5. DESIGNATING PROTECTED MATERIAL 15 5.1 Exercise of Restraint and Care in Designating Material for 16 Protection. Each Party or Non-Party that designates information or items for protection 17 under this Order must take care to limit any such designation to specific material that 18 qualifies under the appropriate standards. The Designating Party must designate for 19 protection only those parts of material, documents, items, or oral or written 20 communications that qualify – so that other portions of the material, documents, items, or 21 communications for which protection is not warranted are not swept unjustifiably within 22 the ambit of this Order. 23 Mass, indiscriminate, or routinized designations are prohibited. 24 Designations that are shown to be clearly unjustified or that have been made for an 25 improper purpose (e.g., to unnecessarily encumber or retard the case development 26 process or to impose unnecessary expenses and burdens on other parties) expose the 27 Designating Party to sanctions. If it comes to a Designating Party’s attention that information or items that 1 it designated for protection do not qualify for protection, that Designating Party must 2 promptly notify all other Parties that it is withdrawing the mistaken designation. 3 5.2 Manner and Timing of Designations. Except as otherwise provided 4 in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 5 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under 6 this Order must be clearly so designated before the material is disclosed or produced. 7 Designation in conformity with this Order requires: 8 (a) for information in documentary form (e.g., paper or electronic 9 documents, but excluding transcripts of depositions or other pretrial or trial proceedings), 10 that the Producing Party affix the legend “CONFIDENTIAL” to each page that contains 11 protected material. If only a portion or portions of the material on a page qualifies for 12 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 13 by making appropriate markings in the margins). 14 A Party or Non-Party that makes original documents or materials available 15 for inspection need not designate them for protection until after the inspecting Party has 16 indicated which material it would like copied and produced. During the inspection and 17 before the designation, all of the material made available for inspection shall be deemed 18 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 19 copied and produced, the Producing Party must determine which documents, or portions 20 thereof, qualify for protection under this Order. Then, before producing the specified 21 documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 22 that contains Protected Material. If only a portion or portions of the material on a page 23 qualifies for protection, the Producing Party also must clearly identify the protected 24 portion(s) (e.g., by making appropriate markings in the margins). 25 (b) for testimony given in deposition or in other pretrial or trial 26 proceedings, that the Designating Party identify on the record, before the close of the 27 deposition, hearing, or other proceeding, all protected testimony. (c) for information produced in some form other than documentary and 1 for any other tangible items, that the Producing Party affix in a prominent place on the 2 exterior of the container or containers in which the information or item is stored the 3 legend “CONFIDENTIAL.” If only a portion or portions of the information or item 4 warrant protection, the Producing Party, to the extent practicable, shall identify the 5 protected portion(s). 6 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 7 failure to designate qualified information or items does not, standing alone, waive the 8 Designating Party’s right to secure protection under this Order for such material. Upon 9 timely correction of a designation, the Receiving Party must make reasonable efforts to 10 assure that the material is treated in accordance with the provisions of this Order. 11 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 12 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 13 designation of confidentiality at any time. Unless a prompt challenge to a Designating 14 Party’s confidentiality designation is necessary to avoid foreseeable, substantial 15 unfairness, unnecessary economic burdens, or a significant disruption or delay of the 16 litigation, a Party does not waive its right to challenge a confidentiality designation by 17 electing not to mount a challenge promptly after the original designation is disclosed. 18 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 19 resolution process by providing written notice of each designation it is challenging and 20 describing the basis for each challenge. To avoid ambiguity as to whether a challenge 21 has been made, the written notice must recite that the challenge to confidentiality is being 22 made in accordance with this specific paragraph of the Protective Order. The parties 23 shall attempt to resolve each challenge in good faith and must begin the process by 24 conferring directly (in voice to voice dialogue; other forms of communication are not 25 sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 26 Party must explain the basis for its belief that the confidentiality designation was not 27 proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to 1 explain the basis for the chosen designation. A Challenging Party may proceed to the 2 next stage of the challenge process only if it has engaged in this meet and confer process 3 first or establishes that the Designating Party is unwilling to participate in the meet and 4 confer process in a timely manner. 5 6.3 Judicial Intervention. If the Parties cannot resolve a challenge 6 without court intervention, the Designating Party shall file and serve a motion to retain 7 confidentiality within 21 days of the initial notice of challenge or within 14 days of the 8 parties agreeing that the meet and confer process will not resolve their dispute, whichever 9 is earlier. Each such motion must be accompanied by a competent declaration affirming 10 that the movant has complied with the meet and confer requirements imposed in the 11 preceding paragraph. Failure by the Designating Party to make such a motion including 12 the required declaration within 21 days (or 14 days, if applicable) shall automatically 13 waive the confidentiality designation for each challenged designation. In addition, the 14 Challenging Party may file a motion challenging a confidentiality designation at any time 15 if there is good cause for doing so, including a challenge to the designation of a 16 deposition transcript or any portions thereof. Any motion brought pursuant to this 17 provision must be accompanied by a competent declaration affirming that the movant has 18 complied with the meet and confer requirements imposed by the preceding paragraph. 19 The burden of persuasion in any such challenge proceeding shall be on the 20 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., 21 to harass or impose unnecessary expenses and burdens on other parties) may expose the 22 Challenging Party to sanctions. Unless the Designating Party has waived the 23 confidentiality designation by failing to file a motion to retain confidentiality as described 24 above, all parties shall continue to afford the material in question the level of protection 25 to which it is entitled under the Producing Party’s designation until the court rules on the 26 challenge. 27 / / / 7. ACCESS TO AND USE OF PROTECTED MATERIAL 1 7.1 Basic Principles. A Receiving Party may use Protected Material that 2 is disclosed or produced by another Party or by a Non-Party in connection with this case 3 only for prosecuting, defending, or attempting to settle this litigation. Such Protected 4 Material may be disclosed only to the categories of persons and under the conditions 5 described in this Order. When the litigation has been terminated, a Receiving Party must 6 comply with the provisions of section 13 below (FINAL DISPOSITION). 7 Protected Material must be stored and maintained by a Receiving Party at a 8 location and in a secure manner that ensures that access is limited to the persons 9 authorized under this Order. 10 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 11 otherwise ordered by the court or permitted in writing by the Designating Party, a 12 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 13 only to: 14 (a) the Receiving Party’s Outside Counsel of Record in this action, as 15 well as employees of said Outside Counsel of Record to whom it is reasonably necessary 16 to disclose the information for this litigation and who have signed the “Acknowledgment 17 and Agreement to Be Bound” that is attached hereto as Exhibit A; 18 (b) the officers, directors, and employees (including House Counsel) of 19 the Receiving Party to whom disclosure is reasonably necessary for this litigation and 20 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 21 (c) Experts (as defined in this Order) of the Receiving Party to whom 22 disclosure is reasonably necessary for this litigation and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (d) the court and its personnel; 25 (e) court reporters and their staff, professional jury or trial consultants, 26 mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for 27 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 (f) during their depositions, witnesses in the action to whom disclosure 2 is reasonably necessary and who have signed the “Acknowledgment and Agreement to 3 Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by 4 the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal 5 Protected Material must be separately bound by the court reporter and may not be 6 disclosed to anyone except as permitted under this Stipulated Protective Order; and 7 (g) the author or recipient of a document containing the information or a 8 custodian or other person who otherwise possessed or knew the information. 9 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 10 PRODUCED IN OTHER LITIGATION 11 If a Party is served with a subpoena or a court order issued in other 12 litigation that compels disclosure of any information or items designated in this action as 13 “CONFIDENTIAL,” that Party must: 14 (a) promptly notify in writing the Designating Party. Such notification 15 shall include a copy of the subpoena or court order; 16 (b) promptly notify in writing the party who caused the subpoena or 17 order to issue in the other litigation that some or all of the material covered by the 18 subpoena or order is subject to this Protective Order. Such notification shall include a 19 copy of this Stipulated Protective Order; and 20 (c) cooperate with respect to all reasonable procedures sought to be 21 pursued by the Designating Party whose Protected Material may be affected. 22 If the Designating Party timely seeks a protective order, the Party served 23 with the subpoena or court order shall not produce any information designated in this 24 action as “CONFIDENTIAL” before a determination by the court from which the 25 subpoena or order issued, unless the Party has obtained the Designating Party’s 26 permission. The Designating Party shall bear the burden and expense of seeking 27 protection in that court of its confidential material – and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to 1 disobey a lawful directive from another court. 2 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 3 PRODUCED IN THIS LITIGATION 4 (a) The terms of this Order are applicable to information produced by a 5 Non-Party in this action and designated as “CONFIDENTIAL.” Such information 6 produced by Non-Parties in connection with this litigation is protected by the remedies 7 and relief provided by this Order. Nothing in these provisions should be construed as 8 prohibiting a Non-Party from seeking additional protections. 9 (b) In the event that a Party is required, by a valid discovery request, to 10 produce a Non-Party’s confidential information in its possession, and the Party is subject 11 to an agreement with the Non-Party not to produce the Non-Party’s confidential 12 information, then the Party shall: 13 (1) promptly notify in writing the Requesting Party and the Non-Party 14 that some or all of the information requested is subject to a confidentiality agreement 15 with a Non-Party; 16 (2) promptly provide the Non-Party with a copy of the Stipulated 17 Protective Order in this litigation, the relevant discovery request(s), and a reasonably 18 specific description of the information requested; and 19 (3) make the information requested available for inspection by the Non- 20 Party. 21 (c) If the Non-Party fails to object or seek a protective order from this 22 court within 14 days of receiving the notice and accompanying information, the 23 Receiving Party may produce the Non-Party’s confidential information responsive to the 24 discovery request. If the Non-Party timely seeks a protective order, the Receiving Party 25 shall not produce any information in its possession or control that is subject to the 26 confidentiality agreement with the Non-Party before a determination by the court. 27 Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its Protected Material. 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has 3 disclosed Protected Material to any person or in any circumstance not authorized under 4 this Stipulated Protective Order, the Receiving Party must immediately (a) notify in 5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to 6 retrieve all unauthorized copies of the Protected Material, (c) inform the person or 7 persons to whom unauthorized disclosures were made of all the terms of this Order, and 8 (d) request such person or persons to execute the “Acknowledgment and Agreement to 9 Be Bound” that is attached hereto as Exhibit A. 10 11. INADVERTENT PRODUCTION OF PRIVILEGED OR 11 OTHERWISE PROTECTED MATERIAL 12 When a Producing Party gives notice to Receiving Parties that certain 13 inadvertently produced material is subject to a claim of privilege or other protection, the 14 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 15 26(b)(5)(B). This provision is not intended to modify whatever procedure may be 16 established in an e-discovery order that provides for production without prior privilege 17 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach 18 an agreement on the effect of disclosure of a communication or information covered by 19 the attorney-client privilege or work product protection, the parties may incorporate their 20 agreement in the stipulated protective order submitted to the court. 21 12. MISCELLANEOUS 22 12.1 Right to Further Relief. Nothing in this Order abridges the right of 23 any person to seek its modification by the court in the future. 24 12.2 Right to Assert Other Objections. By stipulating to the entry of this 25 Protective Order no Party waives any right it otherwise would have to object to disclosing 26 or producing any information or item on any ground not addressed in this Stipulated 27 Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. 1 12.3 Filing Protected Material. Without written permission from the 2 Designating Party or a court order secured after appropriate notice to all interested 3 persons, a Party may not file in the public record in this action any Protected Material. A 4 Party that seeks to file under seal any Protected Material must comply with Local Rules 5 141 and 141.1. Protected Material may only be filed under seal pursuant to a court order 6 authorizing the sealing of the specific Protected Material at issue. Pursuant to Local 7 Rules 141 and 141.1, a sealing order will issue only upon a request establishing that the 8 Protected Material at issue is privileged, protectable as a trade secret, or otherwise 9 entitled to protection under the law. If a Receiving Party's request to file Protected 10 Material under seal pursuant to Local Rules 141 and 141.1 is denied by the court, then the 11 Receiving Party may file the information in the public record pursuant to Rules 140 and 12 141 unless otherwise instructed by the court. 13 13. FINAL DISPOSITION 14 Within 60 days after the final disposition of this action, as defined in 15 paragraph 4, each Receiving Party must return all Protected Material to the Producing 16 Party or destroy such material. As used in this subdivision, “all Protected Material” 17 includes all copies, abstracts, compilations, summaries, and any other format reproducing 18 or capturing any of the Protected Material. Whether the Protected Material is returned or 19 destroyed, the Receiving Party must submit a written certification to the Producing Party 20 (and, if not the same person or entity, to the Designating Party) by the 60 day deadline 21 that (1) identifies (by category, where appropriate) all the Protected Material that was 22 returned or destroyed and (2) affirms that the Receiving Party has not retained any 23 copies, abstracts, compilations, summaries or any other format reproducing or capturing 24 any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 25 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 26 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 27 reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute 1 Protected Material remain subject to this Protective Order as set forth in Section 4 2 (DURATION). 3 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: March 1, 2022 GILMORE MAGNESS JANISSE 4 5 6 By: /s/Christopher E. Seymour 7 Christopher E. Seymour Attorneys for Petitioner Aaron Elliott 8 DATED: March 1, 2022 QUALL CARDOT, 9 10 By: /s/Matthew Dardenne 11 Matthew Dardenne 12 Attorneys for All Responents 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / / / / 1 COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The above stipulated protective order filed on April 6, 2022 (ECF No. 37), is 4 entered; 5 2. The parties are advised that pursuant to the Local Rules of the United States 6 District Court, Eastern District of California, any documents which are to be filed 7 under seal will require a written request which complies with Local Rule 141; 8 3. The party making a request to file documents under seal shall be required to show 9 either good cause or compelling reasons to seal the documents, depending on the 10 type of filing, Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 11 2009); Ctr. for Auto Safety v. Chrysler Grp.. LLC, 809 F.3d 1092, 1101 (9th Cir. 12 2016); and 13 4. If a party’s request to file Protected Material under seal is denied by the Court, then 14 the previously filed material shall be immediately accepted by the court and 15 become information in the public record and the information will be deemed filed 16 as of the date that the request to file the Protected Information under seal was 17 made. 18 19 IT IS SO ORDERED. OF. ee 20 | Dated: _ April 6, 2022 _ ee UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28