Amber Moreno v. Benas ( 2024 )

11 Jesse J. Maddox, Bar No. 219091 jmaddox@lcwlegal.com 22 Sue Ann Renfro, Bar No. 143122 srenfro@lcwlegal.com 33 LIEBERT CASSIDY WHITMORE A Professional Law Corporation 44 5250 North Palm Ave, Suite 310 Fresno, California 93704 55 Telephone: 559.256.7800 Facsimile: 559.449.4535 66 Attorneys for Defendant CITY OF PORTERVILLE, GARY 77 MILLER and MARK AZEVEDO 88 Lawrence J. King, Esq., Bar No. 120805 kingesq@pacbell.net 99 LAW OFFICES OF LAWRENCE J. KING 11 Western Avenue 1100 Petaluma, CA 94952 Telephone: 707-769-9791 1111 Facsimile: 707-763-9253 1122 Attorneys for Plaintiff AMBER MORENO 1133 Mark K. Kitabayashi, Bar No. 125822 mkitabayashi@lozanosmith.com 1144 Wiley R. Driskill, Bar No. 253913 wdriskill@lozanosmith.com 1155 LOZANO SMITH 7404 N. Spalding Avenue 1166 Fresno, CA 93720-3370 Telephone: 559-431-5600 1177 Facsimile: 559-261-9366 1188 Attorneys for Defendant MICHAEL BENAS 1199 UNITED STATES DISTRICT COURT 2200 EASTERN DISTRICT OF CALIFORNIA - FRESNO 2211 AMBER MORENO, Case No.: 1:21-CV-00865-JLT-BAM 2222 Plaintiff, Complaint Filed: May 27, 2021 FAC Filed: October 18, 2021 2233 v. SAC Filed: November 26, 2021 2244 CITY OF PORTERVILLE, MICHAEL STIPULATION AND PROTECTIVE ORDER BENAS, GARY MILLER and MARK 2255 AZEVEDO, 2266 Defendants. 2277 1. PURPOSES AND LIMITATIONS 11 involve production of confidential or private information for which special protection from public 22 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 33 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 44 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 55 all disclosures or responses to discovery and that the protection it affords from public disclosure 66 and use extends only to the limited information or items that are entitled to confidential treatment 77 under the applicable legal principles. The parties further acknowledge, as set forth in Section 88 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 99 information under seal without a court order. 1100 2. DEFINITIONS 1111 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 1122 information or items under this Order. 1133 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 1144 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 1155 of Civil Procedure 26(c). 1166 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 1177 well as their support staff). 1188 2.4 Designating Party: a Party or Non-Party that designates information or items that it 1199 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2200 2.5 Disclosure or Discovery Material: all items or information, regardless of the 2211 medium or manner in which it is generated, stored, or maintained (including, among other things, 2222 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 2233 responses to discovery in this matter. 2244 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 2255 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 2266 consultant in this action. 2277 2.7 House Counsel: attorneys who are employees of a party to this action. House 11 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 22 entity not named as a Party to this action. 33 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 44 action but are retained to represent or advise a party to this action and have appeared in this action 55 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 66 2.10 Party: any party to this action, including all of its officers, directors, employees, 77 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 88 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 99 Material in this action. 1100 2.12 Professional Vendors: persons or entities that provide litigation support services 1111 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 1122 organizing, storing, or retrieving data in any form or medium) and their employees and 1133 subcontractors. 1144 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 1155 “CONFIDENTIAL.” 1166 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 1177 Producing Party. 1188 3. SCOPE 1199 The protections conferred by this Stipulation and Order cover not only Protected Material 2200 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 2211 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 2222 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 2233 However, the protections conferred by this Stipulation and Order do not cover the following 2244 information: (a) any information that is in the public domain at the time of disclosure to a 2255 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 2266 a result of publication not involving a violation of this Order, including becoming part of the 2277 public record through trial or otherwise; and (b) any information known to the Receiving Party 11 obtained the information lawfully and under no obligation of confidentiality to the Designating 22 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 33 4. DURATION 44 This Stipulation and Protective Order shall continue to be binding after the conclusion of 55 this Proceeding and all subsequent proceedings arising from this Proceeding, except that a Party 66 may seek the written permission of the Designating Party or may move the Court for relief from 77 the provisions of this Stipulation and Protective Order. To the extent permitted by law, the Court 88 shall retain jurisdiction to enforce, modify, or reconsider this Stipulation and Protective Order, 99 even after the Proceeding is terminated. 1100 5. DESIGNATING PROTECTED MATERIAL 1111 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 1122 Party or Non-Party that designates information or items for protection under this Order must take 1133 care to limit any such designation to specific material that qualifies under the appropriate 1144 standards. The Designating Party must designate for protection only those parts of material, 1155 documents, items, or oral or written communications that qualify – so that other portions of the 1166 material, documents, items, or communications for which protection is not warranted are not 1177 swept unjustifiably within the ambit of this Order. 1188 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 1199 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 2200 unnecessarily encumber or retard the case development process or to impose unnecessary 2211 expenses and burdens on other parties) expose the Designating Party to sanctions. 2222 If it comes to a Designating Party’s attention that information or items that it designated 2233 for protection do not qualify for protection, that Designating Party must promptly notify all other 2244 Parties in writing that it is withdrawing the designation. 2255 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 2266 (see, e.g., second paragraph of section 5.2(a) and section 5.3 below), or as otherwise stipulated or 2277 ordered, Disclosure of Discovery Material that qualifies for protection under this Order must be 11 Designation in conformity with this Order requires: 22 (a) For information in documentary form (e.g., paper or electronic documents, but 33 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 44 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a 55 portion or portions of the material on a page qualifies for protection, the Producing Party also 66 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 77 margins). 88 A Designating Party that makes original documents or materials available for inspection 99 need not designate them for protection until after the Receiving Party has indicated which 1100 material it would like copied and produced. During the inspection and before the designation, all 1111 of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the 1122 Receiving Party has identified the documents it wants copied and produced, the Producing Party 1133 must determine which documents, or portions thereof, qualify for protection under this Order. 1144 Then, before producing the specified documents, the Producing Party must affix the 1155 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or 1166 portions of the material on a page qualifies for protection, the Producing Party also must clearly 1177 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 1188 (b) For Testimony given in depositions the Designating Party may either: 1199 i. identify on the record, before the close of the deposition, all “Confidential” 2200 Testimony, by specifying all portions of the Testimony that qualify as “Confidential;” or 2211 ii. designate the entirety of the Testimony at the deposition as “Confidential” (before 2222 the deposition is concluded) with the right to identify more specific portions of the Testimony as 2233 to which protection is sought within 30 days following receipt of the deposition transcript. In 2244 circumstances where portions of the deposition Testimony are designated for protection, the 2255 transcript pages containing “Confidential” Information may be separately bound by the court 2266 reporter, who must affix to the top of each page the legend “Confidential,” as instructed by the 2277 Designating Party. All additional costs related to designation of any portion of a deposition 11 (c) For information produced in some form other than documentary and for any other 22 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 33 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 44 portion or portions of the information or item warrant protection, the Producing Party, to the 55 extent practicable, shall identify the protected portion(s). 66 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 77 designate qualified information or items does not, standing alone, waive the Designating Party’s 88 right to secure protection under this Order for such material. Upon timely correction of a 99 designation, the Receiving Party must make reasonable efforts to assure that the material is 1100 treated in accordance with the provisions of this Order. 1111 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 1122 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 1133 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 1144 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 1155 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 1166 challenge a confidentiality designation by electing not to mount a challenge promptly after the 1177 original designation is disclosed. 1188 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 1199 process by providing written notice of each designation it is challenging and describing the basis 2200 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 2211 notice must recite that the challenge to confidentiality is being made in accordance with this 2222 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 2233 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 2244 forms of communication are not sufficient) within 14 days of the date of service of notice. In 2255 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 2266 designation was not proper and must give the Designating Party an opportunity to review the 2277 designated material, to reconsider the circumstances, and, if no change in designation is offered, 11 stage of the challenge process only if it has engaged in this meet and confer process first or 22 establishes that the Designating Party is unwilling to participate in the meet and confer process in 33 a timely manner. A Challenging Party must notify all other Parties in writing that it will proceed 44 to the next step of the challenge process. 55 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 66 intervention, the Challenging Party shall file and serve a motion within 21 days of the initial 77 notice of challenge or within 14 days of the parties agreeing that the meet and confer process will 88 not resolve their dispute, whichever is earlier. Failure by the Challenging Party to make such a 99 motion including the required declaration within 21 days (or 14 days, if applicable) shall 1100 automatically waive the challenge to the confidentiality designation for each challenged 1111 designation. In addition, the Designating Party may file a motion to retain a confidentiality 1122 designation at any time if there is good cause for doing so. Any motion brought pursuant to this 1133 provision must be accompanied by a competent declaration affirming that the movant has 1144 complied with the meet and confer requirements imposed by the preceding paragraph. 1155 The burden of persuasion in any such challenge proceeding shall be on the Designating 1166 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 1177 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 1188 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 1199 file a motion to retain confidentiality as described above, all parties shall continue to afford the 2200 material in question the level of protection to which it is entitled under the Producing Party’s 2211 designation until the court rules on the challenge. 2222 7. ACCESS TO AND USE OF PROTECTED MATERIAL 2233 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 2244 or produced by another Party or by a Non-Party in connection with this case only for prosecuting, 2255 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 2266 the categories of persons and under the conditions described in this Order. When the litigation has 2277 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 11 Protected Material must be stored and maintained by a Receiving Party at a location and 22 in a secure manner that ensures that access is limited to the persons authorized under this Order. 33 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 44 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 55 disclose any information or item designated “CONFIDENTIAL” only to: 66 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 77 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 88 for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that 99 is attached hereto as Exhibit A; 1100 (b) the officers, directors, and employees (including House Counsel) of the Receiving 1111 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 1122 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1133 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 1144 reasonably necessary for this litigation and who have signed the “Acknowledgment and 1155 Agreement to Be Bound” (Exhibit A); 1166 (d) the court and its personnel, in this Proceeding only; 1177 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 1188 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 1199 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 2200 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 2211 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 2222 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 2233 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 2244 bound by the court reporter and may not be disclosed to anyone except as permitted under this 2255 Stipulated Protective Order. 2266 (g) the author or recipient of a document containing the information or a custodian or 2277 other person who otherwise possessed or knew the information. 11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 22 OTHER LITIGATION 33 8.1 If a Party is served with a subpoena or a court order issued in other litigation that 44 compels disclosure of any information or items designated in this action as “CONFIDENTIAL,” 55 that Party must: 66 (a) promptly notify in writing the Designating Party. Such notification shall include a 77 copy of the subpoena or court order; 88 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 99 other litigation that some or all of the material covered by the subpoena or order is subject to this 1100 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 1111 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 1122 Designating Party whose Protected Material may be affected. 1133 8.2 If the Designating Party timely seeks a protective order, the Party served with the 1144 subpoena or court order shall not produce any information designated in this action as 1155 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 1166 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 1177 shall bear the burden and expense of seeking protection in that court of its confidential material – 1188 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 1199 Party in this action to disobey a lawful directive from another court. 2200 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 2211 THIS LITIGATION 2222 (a) The terms of this Order are applicable to information produced by a Non-Party in this 2233 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 2244 connection with this litigation is protected by the remedies and relief provided by this Order. 2255 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 2266 additional protections. 2277 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 11 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 22 (1) promptly notify in writing the Requesting Party and the Non-Party that some or 33 all of the information requested is subject to a confidentiality agreement with a Non-Party; 44 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order 55 in this litigation, the relevant discovery request(s), and a reasonably specific description of the 66 information requested; and 77 (3) make the information requested available for inspection by the Non-Party. 88 (c) If the Non-Party fails to object or seek a protective order from this court within 14 99 days of receiving the notice and accompanying information, the Receiving Party may produce the 1100 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 1111 seeks a protective order, the Receiving Party shall not produce any information in its possession 1122 or control that is subject to the confidentiality agreement with the Non-Party before a 1133 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 1144 burden and expense of seeking protection in this court of its Protected Material. 1155 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 1166 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 1177 Material to any person or in any circumstance not authorized under this Stipulated Protective 1188 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 1199 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 2200 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 2211 made of all the terms of this Order, and (d) request such person or persons to execute the 2222 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 2233 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 2244 PROTECTED MATERIAL 2255 When a Producing Party gives notice to Receiving Parties that certain inadvertently 2266 produced material is subject to a claim of privilege or other protection, the obligations of the 2277 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 11 order that provides for production without prior privilege review. Pursuant to Federal Rule of 22 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 33 communication or information covered by the attorney-client privilege or work product 44 protection, the parties may incorporate their agreement in the stipulated protective order 55 submitted to the court. 66 12. MISCELLANEOUS 77 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 88 seek its modification by the court in the future. 99 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 1100 Order no Party waives any right it otherwise would have to object to disclosing or producing any 1111 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 1122 Party waives any right to object on any ground to use in evidence of any of the material covered 1133 by this Protective Order. 1144 12.3 Filing Protected Material. Without written permission from the Designating 1155 Party or a court order secured after appropriate notice to all interested persons, a Party may not 1166 file in the public record in this action any Protected Material. Protected Material may only be 1177 filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material 1188 at issue. A sealing order will issue only upon a request establishing that the Protected Material at 1199 issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. 2200 If a Receiving Party's request to file Protected Material under seal is denied by the court, then the 2211 Receiving Party may file the information in the public record unless otherwise instructed by the 2222 court. 2233 13. FINAL DISPOSITION 2244 Upon written request made within thirty (30) days after the settlement or other 2255 termination of the Proceeding, the undersigned Parties shall have thirty (30) days to either (a) 2266 promptly return to counsel for each Designating Party all Confidential Materials and all copies 2277 thereof (except that counsel for each Party may maintain in its files, in continuing compliance 11 pleading filed with the Court and one copy of each deposition together with the exhibits marked 22 at the deposition), (b) agree with counsel for the Designating Party upon appropriate methods and 33 certification of destruction or other disposition of such Confidential Materials, or (c) as to any 44 Documents, Testimony or other Information not addressed by sub-paragraphs (a) and (b), file a 55 motion seeking a Court order regarding proper preservation of such Materials. 66 To the extent permitted by law the Court shall retain continuing jurisdiction to review and 77 rule upon the motion referred to in sub-paragraph (c) herein. 88 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 99 Dated: February 16, 2024 LIEBERT CASSIDY WHITMORE 1100 1111 By; _/s/ Sue Ann Renfro Jesse J. Maddox 1122 Sue Ann Renfro Attorneys for Defendant CITY OF 1133 PORTERVILLE, GARY MILLER and MARK AZEVEDO 1144 1155 Dated: February 16, 2024 LAW OFFICES OF LAWRENCE J. KING 1166 1177 By: __/s/ Lawrence J. King Lawrence J. King 1188 Attorney for Plaintiff AMBER MORENO 1199 2200 2211 Dated: February 16, 2024 LOZANO SMITH 2222 By: __/s/_ Wiley R. Driskill 2233 Wiley R. Driskill Attorneys for Defendant 2244 MICHAEL BENAS 2255 2266 2277 11 EXHIBIT A 22 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 33 I, _____________________________ [print or type full name], of _________________ 44 [print or type full address], declare under penalty of perjury that I have read in its entirety and 55 understand the Stipulated Protective Order that was issued by the United States District Court for 66 the Northern District of California on [date] in the case of ___________ [insert formal name of 77 the case and the number and initials assigned to it by the court]. I agree to comply with and to be 88 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 99 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I 1100 solemnly promise that I will not disclose in any manner any information or item that is subject to 1111 this Stipulated Protective Order to any person or entity except in strict compliance with the 1122 provisions of this Order. 1133 I further agree to submit to the jurisdiction of the United States District Court for the 1144 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 1155 Order, even if such enforcement proceedings occur after termination of this action. 1166 I hereby appoint __________________________ [print or type full name] of 1177 _______________________________________ [print or type full address and telephone 1188 number] as my California agent for service of process in connection with this action or any 1199 proceedings related to enforcement of this Stipulated Protective Order. 2200 2211 Date: ______________________________________ 2222 City and State where sworn and signed: _________________________________ 2233 2244 Printed name: _______________________________ 2255 2266 Signature: __________________________________ 2277 11 ORDER 22 GOOD CAUSE APPEARING, the Court hereby approves the parties’ Stipulation and 33 Protective order. The parties are advised that pursuant to the Local Rules of the United States 44 District Court, Eastern District of California, any documents subject to this protective order to be 55 filed under seal must be accompanied by a written request which complies with Local Rule 141 66 prior to sealing. The party making a request to file documents under seal shall be required to 77 show good cause for documents attached to a non-dispositive motion or compelling reasons for 88 documents attached to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 99 677-78 (9th Cir. 2009). Within five (5) days of any approved document filed under seal, the party 1100 shall file a redacted copy of the sealed document. The redactions shall be narrowly tailored to 1111 protect only the information that is confidential or was deemed confidential. 1122 Additionally, the parties shall consider resolving any dispute arising under the protective 1133 order according to the Court’s informal discovery dispute procedure. 1144 IT IS SO ORDERED. 1155 1166 Dated: February 20, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 1177 1188 1199 2200 2211 2222 2233 2244 2255 2266 2277