The opinion
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UNITED STATES DISTRICT COURT
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8 EASTERN DISTRICT OF CALIFORNIA
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CHRISTIAN RANGEL, Case No. 1:19-cv-00638-LJO-SAB
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Plaintiff, ORDER RE STIPULATED PROTECTIVE
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v.
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CITY OF MODESTO, et al.,
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Defendants.
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16 STIPULATED PROTECTIVE ORDER
17 1. PURPOSES AND LIMITATIONS
18 Disclosure and discovery activity in this action are likely to involve production of confidential,
19 proprietary, or private information for which special protection from public disclosure and from
20 use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the
21 parties hereby stipulate to and petition the court to enter the following Stipulated Protective
22 Order. The parties acknowledge that this Order does not confer blanket protections on all
23 disclosures or responses to discovery and that the protection it affords from public disclosure and
24 use extends only to the limited information or items that are entitled to confidential treatment
25 under the applicable legal principles. The parties further acknowledge, as set forth in Section
26 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential
27 information under seal; Civil Local Rule 141.1 sets forth the procedures that must be followed
and the standards that will be applied when a party seeks permission from the court to file
1 material under seal.
2 2. DEFINITIONS
3 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information
4 or items under this Order.
5 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is
6 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
7 of Civil Procedure 26(c). It encompasses information where public disclosure is likely to result
8 in particularized harm, or where public disclosure would violate privacy interests recognized by
9 law. Examples of confidential information include, but are not limited to, the following:
10 a. personnel file records of any peace officer;
11 b. medical records;
12 c. social security numbers and similar sensitive identifying
13 information (unless redacted by order or by agreement of all parties).
14 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as
15 their support staff).
16 2.4 Designating Party: a Party or Non-Party that designates information or items that it
17 produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
18 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or
19 manner in which it is generated, stored, or maintained (including, among other things, testimony,
20 transcripts, and tangible things), that are produced or generated in disclosures or responses to
21 discovery in this matter.
22 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the
23 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
24 consultant in this action.
25 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel
26 does not include Outside Counsel of Record or any other outside counsel.
27 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity
1 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action but
2 are retained to represent or advise a party to this action and have appeared in this action on
3 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
4 2.10 Party: any party to this action, including all of its officers, directors, employees,
5 consultants, retained experts, and Outside Counsel of Record (and their support staffs).
6 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in
7 this action.
8 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g.,
9 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
10 storing, or retrieving data in any form or medium) and their employees and subcontractors.
11 2.13 Protected Material: any Disclosure or Discovery Material that is designated as
12 “CONFIDENTIAL.”
13 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a
14 Producing Party.
15 3. SCOPE
16 The protections conferred by this Stipulation and Order cover not only Protected Material (as
17 defined above), but also (1) any information copied from Protected Material; (2) all copies,
18 excerpts, summaries, or compilations of Protected Material that reveal the source of the
19 Protected Material or that reveal specific information, i.e., the raw data gleaned from protected
20 documents, entitled to confidentiality under this stipulated order; and (3) any testimony,
21 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
22 However, the protections conferred by this Stipulation and Order do not cover the following
23 information: (a) any information that is in the public domain at the time of disclosure to a
24 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
25 a result of publication not involving a violation of this Order, including becoming part of the
26 public record through trial or otherwise; and (b) any information known to the Receiving Party
27 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
1 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
2 4. DURATION
3 Even after final disposition of this litigation, the confidentiality obligations imposed by this
4 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
5 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
6 and defenses in this action, with or without prejudice; and (2) final judgment herein after the
7 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
8 including the time limits for filing any motions or applications for extension of time pursuant to
9 applicable law.
10 5. DESIGNATING PROTECTED MATERIAL
11 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-
12 Party that designates information or items for protection under this Order must take care to limit
13 any such designation to specific material that qualifies under the appropriate standards. The
14 Designating Party must designate for protection only those parts of material, documents, items,
15 or oral or written communications that qualify – so that other portions of the material,
16 documents, items, or communications for which protection is not warranted are not swept
17 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are
18 prohibited. Designations that are shown to be clearly unjustified or that have been made for an
19 improper purpose (e.g., to unnecessarily encumber or retard the case development process or to
20 impose unnecessary expenses and burdens on other parties) expose the Designating Party to
21 sanctions.
22 If it comes to a Designating Party’s attention that information or items that it designated for
23 protection do not qualify for protection, that Designating Party must promptly notify all other
24 Parties that it is withdrawing the mistaken designation.
25 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see,
26 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure
27 or Discovery Material that qualifies for protection under this Order must be clearly so designated
1 Designation in conformity with this Order requires:
2 (a) for information in documentary form (e.g., paper or electronic documents, but excluding
3 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the
4 legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or
5 portions of the material on a page qualifies for protection, the Producing Party also must clearly
6 identify the protected portion(s) (e.g., by making appropriate markings in the margins).
7 A Party or Non-Party that makes original documents or materials available for inspection need
8 not designate them for protection until after the inspecting Party has indicated which material it
9 would like copied and produced. During the inspection and before the designation, all of the
10 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting
11 Party has identified the documents it wants copied and produced, the Producing Party must
12 determine which documents, or portions thereof, qualify for protection under this Order. Then,
13 before producing the specified documents, the Producing Party must affix the
14 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or
15 portions of the material on a page qualifies for protection, the Producing Party also must clearly
16 identify the protected portion(s) (e.g., by making appropriate markings in the margins).
17 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the
18 Designating Party identify on the record, before the close of the deposition, hearing, or other
19 proceeding, all protected testimony, if it is practicable to do so; otherwise, it must be so
20 designated during the “review and sign” period under Rule 30 of the Federal Rules of Civil
21 Procedure, unless the parties agree to extend the time for designation.
22 (c) for information produced in some form other than documentary and for any other tangible
23 items, that the Producing Party affix in a prominent place on the exterior of the container or
24 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a
25 portion or portions of the information or item warrant protection, the Producing Party, to the
26 extent practicable, shall identify the protected portion(s).
27 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate
1 secure protection under this Order for such material. Upon timely correction of a designation, the
2 Receiving Party must make reasonable efforts to assure that the material is treated in accordance
3 with the provisions of this Order.
4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
5 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
6 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
7 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
8 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
9 challenge a confidentiality designation by electing not to mount a challenge promptly after the
10 original designation is disclosed.
11 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by
12 providing written notice of each designation it is challenging and describing the basis for each
13 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
14 recite that the challenge to confidentiality is being made in accordance with this specific
15 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good
16 faith and must begin the process by conferring directly (in voice to voice dialogue; other forms
17 of communication are not sufficient) within 14 days of the date of service of notice. In
18 conferring, the Challenging Party must explain the basis for its belief that the confidentiality
19 designation was not proper and must give the Designating Party an opportunity to review the
20 designated material, to reconsider the circumstances, and, if no change in designation is offered,
21 to explain the basis for the chosen designation. A Challenging Party may proceed to the next
22 stage of the challenge process only if it has engaged in this meet and confer process first or
23 establishes that the Designating Party is unwilling to participate in the meet and confer process in
24 a timely manner.
25 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention,
26 the Designating Party shall file and serve a motion to retain confidentiality (and in compliance
27 with Civil Local Rule 141.1, if applicable) within 21 days of the initial notice of challenge or
1 dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration
2 affirming that the movant has complied with the meet and confer requirements imposed in the
3 preceding paragraph. Failure by the Designating Party to make such a motion including the
4 required declaration within 21 days (or 14 days, if applicable) shall automatically waive the
5 confidentiality designation for each challenged designation. In addition, the Challenging Party
6 may file a motion challenging a confidentiality designation at any time if there is good cause for
7 doing so, including a challenge to the designation of a deposition transcript or any portions
8 thereof. Any motion brought pursuant to this provision must be accompanied by a competent
9 declaration affirming that the movant has complied with the meet and confer requirements
10 imposed by the preceding paragraph.
11 The burden of persuasion in any such challenge proceeding shall be on the Designating Party.
12 Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
13 unnecessary expenses and burdens on other parties) may expose the Challenging Party to
14 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
15 file a motion to retain confidentiality as described above, all parties shall continue to afford the
16 material in question the level of protection to which it is entitled under the Producing Party’s
17 designation until the court rules on the challenge.
18 7. ACCESS TO AND USE OF PROTECTED MATERIAL
19 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or
20 produced by another Party or by a Non-Party in connection with this case only for prosecuting,
21 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only
22 to the categories of persons and under the conditions described in this Order. When the litigation
23 has been terminated, a Receiving Party must comply with the provisions of section 13 below
24 (FINAL DISPOSITION).
25 Protected Material must be stored and maintained by a Receiving Party at a location and in a
26 secure manner that ensures that access is limited to the persons authorized under this Order.
27 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the
1 information or item designated “CONFIDENTIAL” only to:
2 (a) Experts (as defined in this Order), as well as other consultants, including legal consultants, of
3 the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
4 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
5 (b) the court and its personnel;
6 (c) court reporters and their staff, professional jury or trial consultants, mock jurors, and
7 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
8 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9 (d) during their depositions, witnesses in the action to whom disclosure is reasonably necessary
10 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
11 otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
12 deposition testimony or exhibits to depositions that reveal Protected Material must be separately
13 bound by the court reporter and may not be disclosed to anyone except as permitted under this
14 Stipulated Protective Order or as agreed by the Designating Party.
15 (e) the author or recipient of a document containing the information or a custodian or other
16 person who otherwise possessed or knew the information.
17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
18 LITIGATION
19 If a Party is served with a subpoena or a court order issued in other litigation that compels
20 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
21 Party must:
22 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of
23 the subpoena or court order;
24 (b) promptly notify in writing the party who caused the subpoena or order to issue in the other
25 litigation that some or all of the material covered by the subpoena or order is subject to this
26 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
27 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating
1 If the Designating Party timely seeks a protective order, the Party served with the subpoena or
2 court order shall not produce any information designated in this action as “CONFIDENTIAL”
3 before a determination by the court from which the subpoena or order issued, unless the Party
4 has obtained the Designating Party’s permission. The Designating Party shall bear the burden
5 and expense of seeking protection in that court of its confidential material – and nothing in these
6 provisions should be construed as authorizing or encouraging a Receiving Party in this action to
7 disobey a lawful directive from another court.
8 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
9 LITIGATION
10 (a) The terms of this Order are applicable to information produced by a Non-Party in this action
11 and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in connection
12 with this litigation is protected by the remedies and relief provided by this Order. Nothing in
13 these provisions should be construed as prohibiting a Non-Party from seeking additional
14 protections.
15 (b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s
16 confidential information in its possession, and the Party is subject to an agreement with the Non-
17 Party not to produce the Non-Party’s confidential information, then the Party shall:
18 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of the
19 information requested is subject to a confidentiality agreement with a Non-Party;
20 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this
21 litigation, the relevant discovery request(s), and a reasonably specific description of the
22 information requested; and
23 (3) make the information requested available for inspection by the Non-Party.
24 (c) If the Non-Party fails to object or seek a protective order from this court within 14 days of
25 receiving the notice and accompanying information, the Receiving Party may produce the Non-
26 Party’s confidential information responsive to the discovery request. If the Non-Party timely
27 seeks a protective order, the Receiving Party shall not produce any information in its possession
1 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
2 burden and expense of seeking protection in this court of its Protected Material.
3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material
5 to any person or in any circumstance not authorized under this Stipulated Protective Order, the
6 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
7 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material,
8 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of
9 this Order, and (d) request such person or persons to execute the “Acknowledgment and
10 Agreement to Be Bound” that is attached hereto as Exhibit A.
11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
12 MATERIAL
13 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced
14 material is subject to a claim of privilege or other protection, the obligations of the Receiving
15 Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not
16 intended to modify whatever procedure may be established in an e-discovery order that provides
17 for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
18 (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or
19 information covered by the attorney-client privilege or work product protection, the parties may
20 incorporate their 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 any person to seek its
23 modification by the court in the future.
24 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no
25 Party waives any right it otherwise would have to object to disclosing or producing any
26 information or item on any ground not addressed in this Stipulated Protective Order. Similarly,
27 no Party waives any right to object on any ground to use in evidence of any of the material
1 12.3 Filing Protected Material. Without written permission from the Designating Party, a court
2 order secured after appropriate notice to all interested persons, or a change in the status of
3 designated material after the procedures for challenging a designation in Section 6, above, have
4 been employed, a Party may not file in the public record in this action any Protected Material. A
5 Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 141.
6 Protected Material may only be filed under seal pursuant to a court order authorizing the sealing
7 of the specific Protected Material at issue. Pursuant to Civil Local Rule 141, a sealing order will
8 issue only upon a request establishing that the Protected Material at issue is privileged,
9 protectable as a trade secret, or otherwise entitled to protection under the law.
10 13. FINAL DISPOSITION
11 Within 60 days after the final disposition of this action, as defined in paragraph 4, upon written
12 notification served by Producing or Designating Party, each Receiving Party must return all
13 Protected Material to the Producing Party or destroy such material. As used in this subdivision,
14 “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other
15 format reproducing or capturing any of the Protected Material. Whether the Protected Material is
16 returned or destroyed, the Receiving Party must submit a written certification to the Producing
17 Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that
18 (1) identifies (by category, where appropriate) all the Protected Material that was returned or
19 destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,
20 compilations, summaries or any other format reproducing or capturing any of the Protected
21 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
22 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
23 correspondence, deposition and trial exhibits, videos, photographs, and other objective evidence
24 – as well as reports – reflecting, directly concerning, or arising out of the incident giving rise to
25 the litigation, expert reports, attorney work product, and consultant and expert work product,
26 even if such materials contain Protected Material. Any such archival copies that contain or
27 constitute Protected Material remain subject to this Protective Order as set forth in Section 4
1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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Dated: August 1, 2019 LAW OFFICE OF SANJAY S. SCHMIDT
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By: /s/ Sanjay S. Schmidt (as authorized 8/01/19)
5 LAW OFFICE OF SANJAY S. SCHMIDT
Attorneys for Plaintiff
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8 Dated: August 1, 2019 ALLEN, GLAESSNER,
HAZELWOOD & WERTH, LLP
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10 By: /s/ Patrick Moriarty
DALE L. ALLEN, JR.
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PATRICK MORIARTY
12 Attorneys for Defendants
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14 EXHIBIT A
15 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
16 I, _____________________________ [print or type full name], of _________________
17 [print or type full address], declare under penalty of perjury that I have read in its entirety and
18 understand the Stipulated Protective Order that was issued by the United States District Court for
19 the Eastern District of California on _______ in the case of Jason B. Perkins v. City of Modesto,
20 et al. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order
21 and I understand and acknowledge that failure to so comply could expose me to sanctions and
22 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner
23 any information or item that is subject to this Stipulated Protective Order to any person or entity
24 except in strict compliance with the provisions of this Order.
25 I further agree to submit to the jurisdiction of the United States District Court for the
26 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective
27 Order, even if such enforcement proceedings occur after termination of this action.
1 I hereby appoint __________________________ [print or type full name] of
2 _______________________________________ [print or type full address and telephone
3 number] as my California agent for service of process in connection with this action or any
4 proceedings related to enforcement of this Stipulated Protective Order.
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6 Date: ______________________________________
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8 City and State where sworn and signed: _________________________________
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10 Printed name: _______________________________
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12 Signature: _________________________________
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1 ORDER
2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that:
3 1. The above stipulated protective order is entered;
4 2. The parties are advised that pursuant to the Local Rules of the United States
5 District Court, Eastern District of California, any documents which are to be filed
6 under seal will require a written request which complies with Local Rule 141; and
7 3. The party making a request to file documents under seal shall be required to show
8 good cause for documents attached to a nondispositive motion or compelling
9 reasons for documents attached to a dispositive motion. Pintos v. Pacific
10 Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009).
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0 IT IS SO ORDERED. FA. ee
13 | Dated: _ August 8, 2019
14 UNITED STATES MAGISTRATE JUDGE
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