Siskiyou County v. PacifiCorp ( 2022 )

1 HUESTON HENNIGAN LLP BARON & BUDD, P.C. Alison L. Plessman (SBN 250631) JOHN P. FISKE (SBN 249256) 2 aplessman@hueston.com jfiske@baronbudd.com Douglas J. Dixon (SBN 275389) JASON JULIUS (SBN 249036) 3 ddixon@hueston.com jjulius@baronbudd.com William M. Larsen (SBN 314091) VICTORIA SHERLIN (SBN 312337) 4 wlarsen@hueston.com tsherlin@baronbudd.com 523 West 6th Street, Suite 400 TAYLOR O’NEAL (SBN 336077) 5 Los Angeles, CA 90014 toneal@baronbudd.com Telephone: (213) 788-4340 11440 West Bernardo Court Suite 265 6 Facsimile: (888) 775-0898 San Diego, CA 92127 Tel: 858-251-7424 7 Attorneys for Defendant PacifiCorp Fax: 214-520-1181 8 DIXON DIAB & CHAMBERS LLP ED DIAB (SBN 262319) 9 diab@theddcfirm.com DEBORAH S. DIXON (SBN 248965) 10 ddixon@theddcfirm.com ROBERT J. CHAMBERS II (SBN 244688) 11 rob@theddcfirm.com 600 W Broadway, Suite 1540 12 San Diego, CA 92101 Tel: 619.354.2662 13 Attorneys for Plaintiff Siskiyou County 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 SISKIYOU COUNTY, a political subdivision No. 2:22-cv-1582 DAD DB 18 of the State of California, duly organized and existing by virtue of the laws of the State of STIPULATED PROTECTIVE ORDER 19 California, 20 Plaintiff, 21 vs. 22 PACIFICORP, and DOES 1 through 50, 23 Defendants. 24 25 26 27 28 1 This Stipulated Protective Order (“Protective Order”) shall govern the production, review, 2 disclosure, and handling of confidential information, which is subject to protection under the Federal 3 Rules of Civil Procedure by any person or entity (each a “Party” and, collectively, the “Parties”) in 4 connection with the above-captioned case (the “Case”), pending in the United States District Court 5 Eastern District of California (the “Court”). The Parties agree that good cause exists to protect the 6 confidential nature of the information contained in certain documents. One or more Parties have 7 sought or may seek certain confidential information from one another in the Case as provided by the 8 Federal Rules of Civil Procedure. The Parties expect to exchange financial and other sensitive and 9 confidential documents and information relating to the Case, including but not limited to, 10 documentation and information that may have been initiated by or associated with non-parties to this 11 litigation. The Parties further expect to discover other privately held information relative to personal 12 identifiers (such as date of birth), computer and electronic mail accounts, financial accounts, as well 13 as e-mail, phone and other multimedia contacts and messages. The Parties agree that the entry of 14 Protective Order is warranted to protect against disclosure of such documents and information. 15 Based upon the above stipulation of the Parties, and the Court being duly advised: 16 NOW, THEREFORE, IT IS HEREBY ORDERED as follows: 17 1. Good Cause. The Court has reviewed the reasons offered in support of entry of this 18 Protective Order and finds that there is good cause to protect the confidential nature of certain 19 information. 20 2. Designation of Confidential Material. Each Party, and third parties subpoenaed by a 21 Party, may request that documents, testimony, or other materials produced in this Case be designated 22 “CONFIDENTIAL” if such materials contain information that the producing Party has a good faith 23 basis for asserting is confidential under the applicable legal standards. Certain material in the 24 possession of Public Entities, including Plaintiff, may be designated as confidential if it is protected 25 from disclosure under federal and/or California law. 26 3. Each Party, and third parties subpoenaed by a Party, may request that certain 27 documents, testimony, or other materials produced in this Case that constitute highly confidential 28 business or technical information which the producing Party reasonably believes to be highly 1 sensitive because it contains proprietary business, technical, or competitive information be 2 designated as “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”. 3 4. Material that a party is requesting be designated as “CONFIDENTIAL” or 4 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” shall be referred to herein as “Confidential 5 Material.” 6 a. The Party requesting the designation shall identify each page of proposed 7 Confidential Material with a stamp identifying it as “CONFIDENTIAL” or 8 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” as appropriate, if practical to do so. A 9 file produced natively shall be identified by containing “CONFIDENTIAL” or 10 “CONFIDENTIAL-AEO” in the title of the file, labeling the media on which it is transmitted 11 as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” (i.e. CD, 12 thumb drive, etc.), or by including “CONFIDENTIAL” or “CONFIDENTIAL- 13 ATTORNEYS’ EYES ONLY” in the subject line of the email in which it is transmitted. 14 b. Within thirty (30) days after receipt of the final transcript of the deposition of 15 any Party or witness in this case, any Party or the witness may designate as Confidential 16 Material any portion of the transcript that the Party or witness contends discloses confidential 17 information. If a transcript containing any such material is filed with the Court, it shall be 18 filed in the manner described in paragraph 8. 19 5. Public or Known Information. The protections conferred by this Protective Order do 20 not apply to the following information: (a) any information that is in the public domain at the time 21 of disclosure to a Party or becomes part of the public domain after its disclosure to a Party as a result 22 of publication not involving a violation of this Protective Order, including becoming part of the 23 public record through trial or otherwise; and (b) any information known to a receiving Party prior to 24 the disclosure or obtained by the receiving Party after the disclosure from a source who obtained the 25 information lawfully and under no obligation of confidentiality to the disclosing Party. 26 6. Disputes of Confidential Status. Each Party reserves the right to dispute the 27 confidential status requested by any other Party or subpoenaed Party in accordance with this 28 Protective Order. 1 a. If a Party believes that any documents or materials have been inappropriately 2 designated by another Party or subpoenaed Party, that Party shall send a written notice to 3 counsel for the designating Party. This written notice shall (1) identify the documents or 4 materials that the Party believes have been inappropriately designated, and (2) request a meet 5 and confer conference via phone or in person. As part of that conferral, the designating Party 6 must assess whether redaction is a viable alternative to complete non-disclosure. If the Parties 7 are unable to resolve the matter informally, then the Party seeking to have the information 8 designated as Confidential Material must promptly file an appropriate motion before the 9 Court requesting that the Court determine that the material in question is Confidential 10 Material. 11 b. If the Party seeking to have the information designated as Confidential 12 Material fails to file an appropriate motion before the Court within 30 days of receiving the 13 written notice set forth in section (a), above, then the Party shall be deemed to have waived 14 its rights to have the information designated as Confidential Material. 15 c. If the Party seeking to have the information designated as Confidential 16 Material files an appropriate motion before the Court within the 30 day period set forth in 17 section (b), then the Party who disagrees with that Party’s designation must nevertheless abide 18 by that designation until the matter is resolved by agreement of the Parties or by order of the 19 Court. 20 d. The Party seeking to protect information as Confidential Material bears the 21 burden of establishing good cause; however, this Protective Order shall not be interpreted to 22 shift or alter any existing burden under California law. 23 7. Use of Confidential Material. Confidential Material, including all information 24 derived therefrom, shall not be used by any Party for any business, commercial, or competitive 25 purpose and its use shall be restricted solely to the litigation of this Case. 26 8. Confidential Material Filed With the Court. Confidential Material shall not be filed with the 27 Court or included in whole or in part in pleadings, motions, briefs, etc., filed in this case, except when 28 1 any portion(s) of such pleadings, motions, briefs, etc. comprising Confidential Material have been 2 filed in accordance with Local Rules 140, 141, and Judge Drozd’s civil standing order, section V. 3 9. Persons Who May Use Material Designated as “CONFIDENTIAL.” Use of any 4 materials that the parties agree, or that the Court determines to be, Confidential Material, including 5 all information derived therefrom, shall be restricted solely to the following persons, who agree to 6 be bound by the terms of this Protective Order, unless additional persons are stipulated by counsel 7 or authorized by the Court: 8 a. Outside counsel of record for the Parties, and the administrative staff of 9 outside counsel’s firms. 10 b. In-house counsel for the Parties, and the administrative staff for each in-house 11 counsel. 12 c. Any Party who is an individual, and every employee, director, officer, or 13 manager of any Party who is not an individual. 14 d. Independent consultants or expert witnesses (including partners, associates 15 and employees of the firm which employs such consultant or expert) retained by a Party or 16 its attorneys for purposes of this litigation, provided that each independent expert first 17 executes an “Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” 18 attached hereto as Exhibit A, and only to the extent necessary to further the interest of the 19 Parties. 20 e. The Court and its personnel, including, but not limited to, stenographic 21 reporters regularly employed by the Court and stenographic reporters not regularly employed 22 by the Court who are engaged by the Court or the Parties during the litigation of this Case. 23 f. The authors and the original recipients of the documents. 24 g. Any court reporter or videographer reporting a deposition in this Case. 25 h. Testifying witnesses at a deposition or trial in this Case, provided that each 26 witness first executes an “Acknowledgment and Agreement to Be Bound by Stipulated 27 Protective Order” attached hereto as Exhibit A. 28 1 i. Employees of copy services, microfilming or database services, trial support 2 firms and/or translators who are engaged by the Parties during the litigation of this Case. 3 10. Persons Who May Use Material Designated as “CONFIDENTIAL-ATTORNEYS’ 4 EYES ONLY.” Use of any materials that the parties agree, or that the Court determines to be, 5 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” including all information derived therefrom, 6 shall be restricted solely to the following persons, who agree to be bound by the terms of this 7 Protective Order, unless additional persons are stipulated by counsel or authorized by the Court: 8 a. Outside counsel of record for the Parties, and the administrative staff of 9 outside counsel’s firms. 10 b. In-house counsel for the Parties, and the administrative staff for each in-house 11 counsel. 12 c. Independent consultants or expert witnesses (including partners, associates 13 and employees of the firm which employs such consultant or expert) retained by a Party or 14 its attorneys for purposes of this litigation, provided that each independent expert first 15 executes an “Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” 16 attached hereto as Exhibit A, and only to the extent necessary to further the interest of the 17 Parties. 18 d. The Court and its personnel, including, but not limited to, stenographic 19 reporters regularly employed by the Court and stenographic reporters not regularly employed 20 by the Court who are engaged by the Court or the Parties during the litigation of this Case. 21 e. The authors and the original recipients of the documents. 22 f. Any court reporter or videographer reporting a deposition in this Case. 23 g. Testifying witnesses at a deposition or trial in this Case, provided that each 24 witness first executes an “Acknowledgment and Agreement to Be Bound by Stipulated 25 Protective Order” attached hereto as Exhibit A. 26 h. Employees of copy services, microfilming or database services, trial support 27 firms and/or translators who are engaged by the Parties during the litigation of this Case. 28 1 11. Depositions. A party designating deposition testimony as “CONFIDENTIAL” or 2 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” shall be specific as to the portions of the 3 transcript or any exhibit that the party is requesting be designated as “CONFIDENTIAL” or 4 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”. 5 12. Inadvertent Failure to Designate. The inadvertent failure to request a confidential 6 designation of a document, testimony, or other material as Confidential Material prior to disclosure 7 shall not operate as a waiver of the Party’s right to later request designation of the document, 8 testimony, or other material as Confidential Material. Promptly after receiving notice from the 9 producing Party of a claim of confidentiality, the receiving Party or its counsel shall inform the 10 producing Party of all pertinent facts relating to the prior disclosure of the newly-designated 11 documents or materials, and shall make reasonable efforts to retrieve such documents and materials 12 and to prevent further disclosure. 13 13. Inadvertent Disclosure of Privileged Information. If a producing Party inadvertently 14 discloses information that is privileged or otherwise immune from discovery, the producing Party 15 shall promptly upon discovery of such disclosure advise the receiving Party in writing and request 16 that the item or items of information be returned or destroyed, and no party to this action shall 17 thereafter assert that such disclosure waived any privilege or immunity. The receiving Party will 18 immediately return or destroy the item or items requested (including any copies thereof as well as 19 any notes or other materials reflecting the content of any such item) and refrain from any use of such 20 information. Even before receiving any notification from the producing Party, if the receiving Party 21 believes that the producing Party has inadvertently produced information that is privileged or 22 otherwise immune from discovery, the receiving Party shall notify the producing Party and wait a 23 reasonable period of time for a response before using that information. 24 14. Disposal of Confidential Material. Upon the request of the producing Party or third 25 party, within 30 days after the entry of a final judgment no longer subject to appeal on the merits of 26 this case, or the execution of any agreement between the Parties to resolve amicably and settle this 27 case, the Parties and any person authorized by this Protective Order to receive Confidential Material 28 shall return to the producing Party or third party, or destroy, all information and documents subject 1 to this Protective Order. Returned materials shall be delivered in sealed envelopes marked 2 “Confidential” to respective counsel. The Party requesting the return of materials shall pay the 3 reasonable costs of responding to its request. Notwithstanding the foregoing, counsel for a Party may 4 retain archival copies of confidential documents. 5 15. Security of Confidential Material. Confidential Material must be stored and 6 maintained by a receiving Party at a location and in a secure manner that ensures that access is limited 7 to the persons authorized under this Protective Order. 8 16. Enforcement. The Parties agree that any Party to this order has the right to enforce 9 specific performance of the terms of this Protective Order and to apply for injunctive relief to enjoin 10 any act that would violate the Protective Order. 11 17. Non-Waiver. This Protective Order shall not constitute a waiver of any Party’s or 12 nonparty’s right to oppose any discovery request or object to the admissibility of any document, 13 testimony or other information. 14 18. Amendments. Nothing in this Protective Order shall prejudice any Party from seeking 15 amendments to expand or restrict the rights of access to and use of confidential information, or other 16 modifications, subject to order by the Court. 17 19. Survivability. The restrictions on disclosure and use of Confidential Material shall 18 survive the conclusion of this action and this Court shall retain jurisdiction of this action after its 19 conclusion for the purpose of enforcing the terms of this Protective Order. 20 21 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 22 23 24 DATED this 30th day of November, 2022. 25 26 27 28 1 BARON & BUDD, P.C. HUESTON HENNIGAN LLP 2 3 /s/ Torri Sherlin /s/ William Larsen 4 John P. Fiske (SBN 249256) jfiske@baronbudd.com William Larsen (SBN 314091) 5 Jason Julius (SBN 249036) wlarsen@hueston.com jjulius@baronbudd.com Alison L. Plessman (SBN 250631) 6 Victoria Sherlin (SBN 312337) aplessman@hueston.com tsherlin@baronbudd.com 523 W. 6th Street, Suite 400 7 Taylor O’Neal (SBN 336077) Los Angeles, CA 90014 toneal@baronbudd.com Tel. (213) 788-4340 8 BARON & BUDD, P.C. 11440 West Bernardo Court, #265 Douglas J. Dixon (SBN 275389) 9 San Diego, CA 92127 ddixon@hueston.com Tel. (858) 251-7424 Derek Flores (SBN 304499) 10 dflores@hueston.com Ed Diab (SBN 262319) William Larsen (SBN 314091) 11 diab@theddcfirm.com wlarsen@hueston.com Deborah Dixon (SBN 248965) 620 Newport Center Drive, 13th Floor 12 ddixon@theddcfirm.com Newport Beach, CA 92660 Robert J. Chambers, II (SBN 244688) Tel. (949) 229-8640 13 rob@theddcfirm.com DIXON DIAB & CHAMBERS LLP Attorneys for Defendant PacifiCorp 14 600 W. Broadway, #1540 San Diego, CA 92101 15 Tel. (619) 354-2662 16 Attorneys for Plaintiff Siskiyou County 17 18 19 20 21 22 23 24 25 26 27 28 1 ORDER 2 IT IS HEREBY ORDERED that the parties’ stipulation is granted. 3 IT IS FURTHER ORDERED THAT: 4 1. Requests to seal documents shall be made by motion before the same judge who will 5 decide the matter related to that request to seal. 6 2. The designation of documents (including transcripts of testimony) as confidential 7 pursuant to this order does not automatically entitle the parties to file such a document with the 8 court under seal. Parties are advised that any request to seal documents in this district is governed 9 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 10 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 11 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 12 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 13 the requested duration, the identity, by name or category, of persons to be permitted access to the 14 document, and all relevant 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 17 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 18 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana 19 v. City and 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 21 certain documents, at any court hearing or trial – such determinations will only be made by the 22 court at the hearing or trial, or upon an appropriate motion. 23 5. With respect to motions regarding any disputes concerning this protective order which 24 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 25 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex parte 26 basis or on shortened time. 27 //// 28 //// 1 6. The parties may not modify the terms of this Protective Order without the court’s 2 approval. If the parties agree to a potential modification, they shall submit a stipulation and 3 proposed order for the court’s consideration. 4 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement 5 of 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: December 1, 2022 /s/ DEBORAH BARNES 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 SISKIYOU COUNTY, a political subdivision Case No. 2:22-cv-01582-DAD-DB of the State of California, duly organized and 6 existing by virtue of the laws of the State of ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY STIPULATED California, 7 PROTECTIVE ORDER 8 Plaintiff, Judge: Hon. Dale A. Drozd 9 vs. PACIFICORP, and DOES 1 through 50, 10 Defendants. 11 12 13 14 I, , hereby acknowledge receipt of a copy of the 15 Stipulated Protective Order (“Protective Order”) in the above-captioned action. I am familiar with 16 the provisions of the Protective Order and agree to be bound by it. I agree not to copy or to use any 17 Confidential Materials for any purpose other than in connection with the instant action, and agree not 18 to reveal any or all such Confidential Materials to any person not authorized by this Agreement. 19 I further acknowledge and understand that for any violation of the provisions of said 20 Agreement I am subject to the penalties of the Court and any and all penalties imposed upon me by 21 law. I hereby submit to the jurisdiction of the United States District Court Eastern District of 22 California for the purpose of enforcement of the Agreement and waive any and all objections to 23 jurisdiction and venue with regard to the same. 24 Dated: [printed name] 25 26 [signature] 27 28