The opinion
Micha Star Liberty (SBN 215687)
1 Ian Hansen (SBN 255449)
LIBERTY LAW
2 1970 Broadway, Suite 700
Oakland, CA 94612
3 Telephone: (510) 645-1000
Facsimile: (888) 645-2008
4 E-mail: team@libertylaw.com
5 Attorney for Plaintiffs Duwayne C. and Regina Schindler
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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REGINA SCHINDLER, an individual,
10 DUWAYNE C., a minor, by and through his
guardian ad litem REGINA SCHINDLER Case No. 1:19-CV-01188-DAD-BAM
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Plaintiffs, STIPULATED PROTECTIVE ORDER
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v.
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MERCED CITY SCHOOL DISTRICT,
14 operating as CHARLES WRIGHT
ELEMENTARY SCHOOL; OLIVIA ZARATE,
15 an individual employee; KEN COOPER, an
individual employee; VERONICA VILLA, an
16 individual employee; BRIAN
17 M DOE UIS GE N CH OE LI LM INE SR ,, aa nn d i n Dd Oiv Eid Su 1a l t he rm op ul go hy 5ee 0; ,
inclusive
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Defendants.
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1. PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in this action are likely to involve production of
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confidential, proprietary, or private information for which special protection from public disclosure
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and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
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pursuant Local Rule 141.1, the parties hereby stipulate to and petition the court to enter the
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following Stipulated Protective Order. The parties acknowledge that this Order does not confer
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blanket protections on all disclosures or responses to discovery and that the protection it affords
1 from public disclosure and use extends only to the limited information or items that are entitled to
2 confidential treatment under the applicable legal principles. The parties further acknowledge, as set
3 forth in Section 13.3, below, that this Stipulated Protective Order does not entitle them to file
4 confidential information under seal; Local Rule 141 sets forth the procedures that must be followed
5 and the standards that will be applied when a party seeks permission from the court to file material
6 under seal.
7 2. DEFINITIONS
8 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information
9 or items under this Order.
10 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is
11 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
12 Civil Procedure 26(c).
13 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as
14 their support staff).
15 2.4 Designating Party: a Party or Non-Party that designates information or items that it
16 produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
17 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium
18 or manner in which it is generated, stored, or maintained (including, among other things, testimony,
19 transcripts, and tangible things), that are produced or generated in disclosures or responses to
20 discovery in this matter.
21 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the
22 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
23 consultant in this action.
24 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel
25 does not include Outside Counsel of Record or any other outside counsel.
26 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal
27 entity not named as a Party to this action.
1 but are retained to represent or advise a party to this action and have appeared in this action on behalf
2 of that party or are affiliated with a law firm which has appeared on behalf of that party.
3 2.10 Party: any party to this action, including all of its officers, directors, employees,
4 consultants, retained experts, and Outside Counsel of Record (and their support staffs).
5 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material
6 in this action.
7 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g.,
8 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing,
9 or retrieving data in any form or medium) and their employees and subcontractors.
10 2.13 Protected Material: any Disclosure or Discovery Material that is designated as
11 “CONFIDENTIAL.”
12 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a
13 Producing Party.
14 3. GOOD CAUSE STATEMENT
15 3.1 The parties contemplate that discovery activity in this action is likely to involve
16 production of medical records, psychological records, school records, and employment records, all of
17 which may be subject to varying degrees of protection from public disclosure.
18 3.2 The parties jointly contend that there is typically a particularized need for protection as
19 to any medical or psychotherapeutic records, because of the privacy interests at stake. Furthermore,
20 the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) also
21 generally provides that before an institution may disclose a student’s education records, it must obtain
22 written consent from the student. 34 CFR section 99.30. Finally, employee personnel files may also
23 contain private information such as performance evaluations, salary levels and private reports.
24 3.3 Because of these sensitive interests which may involve the privacy interests of non-
25 parties, a court order should address these documents rather than a private agreement between the
26 parties.
27 4. SCOPE
1 defined above), but also (1) any information copied or extracted from Protected Material; (2) all
2 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
3 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
4 However, the protections conferred by this Stipulation and Order do not cover the following
5 information: (a) any information that is in the public domain at the time of disclosure to a Receiving
6 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
7 publication not involving a violation of this Order, including becoming part of the public record
8 through trial or otherwise; and (b) any information known to the Receiving Party prior to the
9 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
10 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of
11 Protected Material at trial shall be governed by a separate agreement or order.
12 5. DURATION
13 Even after final disposition of this litigation, the confidentiality obligations imposed by this
14 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
15 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
16 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion
17 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time
18 limits for filing any motions or applications for extension of time pursuant to applicable law.
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20 6. DESIGNATING PROTECTED MATERIAL
21 6.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or
22 Non-Party that designates information or items for protection under this Order must take care to limit
23 any such designation to specific material that qualifies under the appropriate standards. The
24 Designating Party must designate for protection only those parts of material, documents, items, or oral
25 or written communications that qualify – so that other portions of the material, documents, items, or
26 communications for which protection is not warranted are not swept unjustifiably within the ambit of
27 this Order.
1 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to
2 be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber
3 or retard the case development process or to impose unnecessary expenses and burdens on other
4 parties) expose the Designating Party to sanctions. If it comes to a Designating Party’s attention that
5 information or items that it designated for protection do not qualify for protection, that Designating
6 Party must promptly notify all other Parties that it is withdrawing the mistaken designation.
7 6.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see,
8 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or
9 Discovery Material that qualifies for protection under this Order must be clearly so designated before
10 the material is disclosed or produced.
11 Designation in conformity with this Order requires:
12 (a) for information in documentary form (e.g., paper or electronic documents, but excluding
13 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the
14 legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or portions
15 of the material on a page qualifies for protection, the Producing Party also must clearly identify the
16 protected portion(s) (e.g., by making appropriate markings in the margins).
17 A Party or Non-Party that makes original documents or materials available for inspection need not
18 designate them for protection until after the inspecting Party has indicated which material it would like
19 copied and produced. During the inspection and before the designation, all of the material made
20 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified
21 the documents it wants copied and produced, the Producing Party must determine which documents,
22 or portions thereof, qualify for protection under this Order. Then, before producing the specified
23 documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that contains
24 Protected Material. If only a portion or portions of the material on a page qualifies for protection, the
25 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
26 markings in the margins).
27 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the
1 proceeding, all protected testimony.
2 (c) for information produced in some form other than documentary and for any other tangible
3 items, that the Producing Party affix in a prominent place on the exterior of the container or containers
4 in which the information or item is stored the legend “CONFIDENTIAL.” If only a portion or portions
5 of the information or item warrant protection, the Producing Party, to the extent practicable, shall
6 identify the protected portion(s).
7 6.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
8 designate qualified information or items does not, standing alone, waive the Designating Party’s right
9 to secure protection under this Order for such material. Upon timely correction of a designation, the
10 Receiving Party must make reasonable efforts to assure that the material is treated in accordance with
11 the provisions of this Order.
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13 7. CHALLENGING CONFIDENTIALITY DESIGNATIONS
14 7.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
15 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
16 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,
17 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a
18 confidentiality designation by electing not to mount a challenge promptly after the original
19 designation is disclosed.
20 7.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by
21 providing written notice of each designation it is challenging and describing the basis for each
22 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite
23 that the challenge to confidentiality is being made in accordance with this specific paragraph of the
24 Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the
25 process by conferring directly (in voice to voice dialogue; other forms of communication are not
26 sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party must
27 explain the basis for its belief that the confidentiality designation was not proper and must give the
1 and, if no change in designation is offered, to explain the basis for the chosen designation. A
2 Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this
3 meet and confer process first or establishes that the Designating Party is unwilling to participate in the
4 meet and confer process in a timely manner.
5 7.3 Judicial Intervention. If the Parties cannot resolve a challenge without court
6 intervention, the Challenging Party may file a motion challenging a confidentiality designation at any
7 time if there is good cause for doing so, including a challenge to the designation of a deposition
8 transcript or any portions thereof. Any motion brought pursuant to this provision must be
9 accompanied by a competent declaration affirming that the movant has complied with the meet and
10 confer requirements 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 unnecessary
13 expenses and burdens on other parties) may expose the Challenging Party to sanctions. All parties
14 shall continue to afford the material in question the level of protection to which it is entitled under the
15 Producing Party’s designation until the court rules on the challenge.
16 8. ACCESS TO AND USE OF PROTECTED MATERIAL
17 8.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or
18 produced by another Party or by a Non-Party in connection with this case only for prosecuting,
19 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the
20 categories of persons and under the conditions described in this Order. When the litigation has been
21 terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
22 DISPOSITION).
23 Protected Material must be stored and maintained by a Receiving Party at a location and in a
24 secure manner that ensures that access is limited to the persons authorized under this Order.
25 8.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by
26 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
27 information or item designated “CONFIDENTIAL” only to:
1 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this
2 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached
3 hereto as Exhibit A;
4 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to
5 whom disclosure is reasonably necessary for this litigation and who have signed the
6 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
7 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably
8 necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”
9 (Exhibit A);
10 (d) the court and its personnel;
11 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and
12 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
14 (f) during their depositions, witnesses in the action to whom disclosure is reasonably
15 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
16 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
17 deposition testimony or exhibits to depositions that reveal Protected Material must be separately
18 bound by the court reporter and may not be disclosed to anyone except as permitted under this
19 Stipulated Protective Order.
20 (g) the author or recipient of a document containing the information or a custodian or other
21 person who otherwise possessed or knew the information.
22 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
23 LITIGATION
24 If a Party is served with a subpoena or a court order issued in other litigation that compels
25 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
26 must:
27 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of
1 (b) promptly notify in writing the party who caused the subpoena or order to issue in the other
2 litigation that some or all of the material covered by the subpoena or order is subject to this Protective
3 Order. Such notification shall include a copy of this Stipulated Protective Order; and
4 (c) cooperate with respect to all reasonable procedures sought to be pursued by the
5 Designating Party whose Protected Material may be affected.
6 If the Designating Party timely seeks a protective order, the Party served with the subpoena or
7 court order shall not produce any information designated in this action as “CONFIDENTIAL” before
8 a determination by the court from which the subpoena or order issued, unless the Party has obtained
9 the Designating Party’s permission. The Designating Party shall bear the burden and expense of
10 seeking protection in that court of its confidential material – and nothing in these provisions should be
11 construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive
12 from another court.
13 10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
14 LITIGATION
15 (a) The terms of this Order are applicable to information produced by a Non-Party in this
16 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
17 connection with this litigation is protected by the remedies and relief provided by this Order. Nothing
18 in these provisions should be construed as prohibiting a Non-Party from seeking additional
19 protections.
20 (b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s
21 confidential information in its possession, and the Party is subject to an agreement with the Non-Party
22 not to produce the Non-Party’s confidential information, then the Party shall:
23 (1) promptly notify in writing the Requesting Party and the Non-Party that some or
24 all of the information requested is subject to a confidentiality agreement with a Non-Party;
25 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in
26 this litigation, the relevant discovery request(s), and a reasonably specific description of the
27 information requested; and
1 (c) If the Non-Party fails to object or seek a protective order from this court within 14 days of
2 receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s
3 confidential information responsive to the discovery request. If the Non-Party timely seeks a
4 protective order, the Receiving Party shall not produce any information in its possession or control
5 that is subject to the confidentiality agreement with the Non-Party before a determination by the court.
6 Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking
7 protection in this court of its Protected Material.
8 11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
9 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
10 Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
11 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
12 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
13 inform the person or persons to whom unauthorized disclosures were made of all the terms of this
14 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be
15 Bound” that is attached hereto as Exhibit A.
16 12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
17 MATERIAL
18 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced
19 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties
20 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
21 modify whatever procedure may be established in an e-discovery order that provides for production
22 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
23 parties reach an agreement on the effect of disclosure of a communication or information covered by
24 the attorney-client privilege or work product protection, the parties may incorporate their agreement in
25 the stipulated protective order submitted to the court.
26 13. MISCELLANEOUS
27 13.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek
1 13.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no
2 Party waives any right it otherwise would have to object to disclosing or producing any
3 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
4 Party waives any right to object on any ground to use in evidence of any of the material covered by
5 this Protective Order.
6 13.3 Filing Protected Material. Without written permission from the Designating Party or a
7 court order secured after appropriate notice to all interested persons, a Party may not file in the public
8 record in this action any Protected Material. A Party that seeks to file under seal any Protected
9 Material must comply with Local Rule 141. Protected Material may only be filed under seal pursuant
10 to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Local
11 Rule 141, a sealing order will issue only upon a request establishing that the Protected Material at
12 issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a
13 Receiving Party's request to file Protected Material under seal pursuant to Local Rule 141 is denied
14 by the court, then the Receiving Party may file the information in the public record pursuant to Local
15 Rule 141 unless otherwise instructed by the court.
16 14. FINAL DISPOSITION
17 Within 60 days after the final disposition of this action, as defined in paragraph 4, each
18 Receiving Party must return all Protected Material to the Producing Party or destroy such material. As
19 used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
20 summaries, and any other format reproducing or capturing any of the Protected Material. Whether the
21 Protected Material is returned or destroyed, the Receiving Party must submit a written certification to
22 the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day
23 deadline that (1) identifies (by category, where appropriate) all the Protected Material that was
24 returned or destroyed and (2) affirms that the Receiving Party has not retained any copies,
25 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected
26 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
27 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
1 and expert work product, even if such materials contain Protected Material. Any such archival copies
2 that contain or constitute Protected Material remain subject to this Protective Order as set forth in
3 Section 5 (DURATION).
4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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6 DATED: April 17, 2020 __ /s/ Ian Hansen
_________________________________
7 Ian Hansen
Attorney for Plaintiff Regina Schindler, et. al.
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DATED: April 17, 2020 /s/ Ashley Reyes
10 ____________________________________
Ashley Reyes
11 Attorney for Defendants Merced City School District,
et. al.
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13 DATED: April 17, 2020 /s/ Barakah M. Amaral
_____________________________________
14 Barakah M. Amaral
Attorney for Defendant Oliva Zarate
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of _________________ [print or
4 type full address], declare under penalty of perjury that I have read in its entirety and understand the
5 Stipulated Protective Order that was issued by the United States District Court for the Eastern
6 District of California on [date] in the case of Schindler v. Merced City School District, 19-
7 CV-01188-DAD-BAM. I agree to comply with and to be bound by all the terms of this Stipulated
8 Protective Order and I understand and acknowledge that failure to so comply could expose me to
9 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in
10 any manner any information or item that is subject to this Stipulated Protective Order to any person
11 or entity except in strict compliance with the provisions of this Order.
12 I further agree to submit to the jurisdiction of the United States District Court for the Eastern
13 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even
14 if such enforcement proceedings occur after termination of this action.
15 I hereby appoint __________________________ [print or type full name] of
16 _______________________________________ [print or type full address and telephone number]
17 as my California agent for service of process in connection with this action or any proceedings
18 related to enforcement of this Stipulated Protective Order.
19 Date: ______________________________________
20 City and State where sworn and signed: _________________________________
21 Printed name: _______________________________
22 Signature: __________________________________
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1 ORDER
2 The Court adopts the stipulated protective order submitted by the parties. The parties are
3 advised that pursuant to the Local Rules of the United States District Court, Eastern District of
4 California, any documents subject to this protective order to be filed under seal must be
5 accompanied by a written request which complies with Local Rule 141 prior to sealing. The party
6 making a request to file documents under seal shall be required to show good cause for documents
7 attached to a non-dispositive motion or compelling reasons for documents attached to a dispositive
8 motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). Within five (5)
9 days of any approved document filed under seal, the party shall file a redacted copy of the sealed
10 document. The redactions shall be narrowly tailored to protect only the information that is
11 confidential or was deemed confidential. Also, the parties shall consider resolving any dispute
12 arising under this protective order according to the Court’s informal discovery dispute procedure.
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IT IS SO ORDERED.
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15 Dated: April 21, 2020 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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