even stipulated 19 protective orders require good cause showing
How later courts described this case
- even stipulated 19 protective orders require good cause showing
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10 FRANCO MACIAS; and M.M., a minor CASE NO. 1:18-cv-01634-DAD-JLT
by guardian ad litem ESMERELDA
11
VALBOVINOS as Co-successors-in-
12 interest to Decedent ERNIE MACIAS [PROPOSED] ORDER GRANTING
JOINT MOTION AND ENTERING
13 STIPULATED PROTECTIVE ORDER
Plaintiffs, (Doc. 34)
14 v.
15 CITY OF DELANO, a municipal
corporation, PEDRO MENDOZA,
16 individually and in his official capacity
as a police officer for the Delano Police
17 Department, and DOES 1-50, inclusive,
individually and in their official capacity
18 as Police Officers for the Delano Police
Department
19
Defendants.
20
21
22
STIPULATED PROTECTIVE ORDER
23
24
1. A. PURPOSES AND LIMITATIONS
25
26
Disclosure and discovery in this action are likely to involve production of
27
confidential, proprietary or private information for which special protection from
28
public disclosure and from use for any purpose other than prosecuting this
1 litigation may be warranted. Accordingly, the parties hereby stipulate to and
2 petition the Court to enter the following Stipulated Protective Order. The parties
3 acknowledge that this Order does not confer blanket protections on all disclosures
4 or responses to discovery and that the protection it affords from public disclosure
5 and use extends only to the limited information or items that are entitled to
6 confidential treatment under the applicable legal principles. The parties further
7 acknowledge that this Stipulated Protective Order does not entitle them to file
8 confidential information under seal; Civil Local Rule 141 sets forth the procedures
9 that must be followed and the standards that will be applied when a party seeks
10 permission from the court to file material under seal.
11
12 B. STATEMENT OF GOOD CAUSE
13
14 This action involves the City of Delano and members of the Delano Police
15 Department. Plaintiff is seeking materials and information that Defendant City of
16 Delano (the “City”) maintains as confidential, such as personnel files of the police
17 officers involved in this incident, Internal Affairs materials and information,
18 audio/video recordings, and other administrative materials and information
19 currently in the possession of the City and which the City believes need special
20 protection from public disclosure and from use for any purpose other than
21 prosecuting this litigation. Plaintiff is also seeking official information contained
22 in the personnel files of the police officers involved in the subject incident, which
23 the City maintains as strictly confidential and which the City believes need special
24 protection from public disclosure and from use for any purpose other than
25 prosecuting this litigation.
26 The City asserts that the confidentiality of the materials and information
27 sought by Plaintiff is recognized by California and federal law, as evidenced inter
28 alia by California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for
1 N.D. Cal., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). The City
2 has not publicly released the materials and information referenced above except
3 under protective order or pursuant to a court order, if at all. These materials and
4 information are of the type that has been used to initiate disciplinary action against
5 Delano Police Department (“DPD”) officers, and has been used as evidence in
6 disciplinary proceedings, where the officers’ conduct was considered to be
7 contrary to DPD policy.
8 The City contends that absent a protective order delineating the
9 responsibilities of nondisclosure on the part of the parties hereto, there is a specific
10 risk of unnecessary and undue disclosure by one or more of the many attorneys,
11 secretaries, law clerks, paralegals and expert witnesses involved in this case, as
12 well as the corollary risk of embarrassment, harassment and professional and legal
13 harm on the part of the DPD officers referenced in the materials and information.
14 The City also contends that the unfettered disclosure of the materials and
15 information, absent a protective order, would allow the media to share this
16 information with potential jurors in the area, impacting the rights of the City to
17 receive a fair trial.
18 Accordingly, to expedite the flow of information, to facilitate the prompt
19 resolution of disputes over confidentiality of discovery materials, to adequately
20 protect information the parties are entitled to keep confidential, to ensure that the
21 parties are permitted reasonable necessary uses of such material in preparation for
22 and in the conduct of trial, to address their handling at the end of the litigation, and
23 serve the ends of justice, a protective order for such information is justified in this
24 matter. It is the intent of the parties that information will not be designated as
25 confidential for tactical reasons and that nothing be so designated without a good
26 faith belief that it has been maintained in a confidential, non-public manner, and
27 there is good cause why it should not be part of the public record of this case.
28
1 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
2 SEAL PURSUANT TO PROTECTIVE ORDER
3 The parties agree that any pleadings, motions, briefs, declarations,
4 stipulations, exhibits or other written submissions to the Court in this litigation
5 which contain or incorporate Confidential Material shall be lodged with an
6 application to file the papers or the portion thereof containing the Confidential
7 Material, under seal.
8 The parties further acknowledge, as set forth in Section 12.3 below, that this
9 Stipulated Protective Order does not automatically entitle them to file confidential
10 information under seal and that Local Rule 141 sets forth the procedures that must
11 be followed and the standards that will be applied when a party seeks permission
12 from the Court to file material under seal.
13 There is a strong presumption that the public has a right of access to judicial
14 proceedings and records in civil cases. In connection with non-dispositive
15 motions, good cause must be shown to support a filing under seal. See Kamakana
16 v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v.
17 Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.
18 Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
19 protective orders require good cause showing), and a specific showing of good
20 cause or compelling reasons with proper evidentiary support and legal justification,
21 must be made with respect to Protected Material that a party seeks to file under
22 seal. The parties’ designation of Disclosure or Discovery Material as
23 CONFIDENTIAL does not — without the submission of evidence by declaration,
24 establishing that the material sought to be filed under seal qualifies as confidential,
25 privileged, or otherwise protectable — constitute good cause.
26 Further, if a party requests sealing related to a dispositive motion or trial,
27 then compelling reasons, not only good cause, for the sealing must be shown, and
28 the relief sought shall be narrowly tailored to serve the specific interest to be
1 protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.
2 2010). For each item or type of information, document, or thing sought to be filed
3 or introduced under seal in connection with a dispositive motion or trial, the party
4 seeking protection must articulate compelling reasons, supported by specific facts
5 and legal justification, for the requested sealing order. Again, evidence supporting
6 the application to file documents under seal must be provided by declaration.
7 Any document that is not confidential, privileged, or otherwise protectable
8 in its entirety will not be filed under seal if the confidential portions can be
9 redacted. If documents can be redacted, then a redacted version for public
10 viewing, omitting only the confidential, privileged, or otherwise protectable
11 portions of the document, shall be filed. Any application that seeks to file
12 documents under seal in their entirety should include an explanation of why
13 redaction is not feasible.
14
15 2. DEFINITIONS
16 2.1 Action: Franco Macias, et al v. City of Delano, et al., Case No. 1:18-
17 cv-01634-DAD-JLT.
18 2.2 Challenging Party: A Party or Non-Party that challenges the
19 designation of information or items under this Order.
20 2.3 “CONFIDENTIAL” Information or Items: Information (regardless of
21 how it is generated, stored or maintained) or tangible things that qualify for
22 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
23 the Good Cause Statement. This also includes (1) any information copied or
24 extracted from the Confidential information; (2) all copies, excerpts, summaries,
25 abstracts or compilations of Confidential information; and (3) any testimony,
26 conversations, or presentations that might reveal Confidential information.
27
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1 2.4 Counsel of Record: attorneys who have appeared in this action on
2 behalf of that party or governmental entity or are affiliated with a law firm which
3 has appeared on behalf of that party.
4 2.5 Designating Party: A Party or Non-Party that designates information
5 or items that it produces in disclosures or in responses to discovery as
6 “CONFIDENTIAL” or “HIGHLY CONFIDENTAIL – ATTORNEYS’ EYES
7 ONLY”.
8 2.6 Disclosure or Discovery Material: All items or information,
9 regardless of the medium or manner in which it is generated, stored, or maintained
10 (including, among other things, testimony, transcripts, and tangible things), that are
11 produced or generated in disclosures or responses to discovery in this matter.
12 2.7 Expert: A person with specialized knowledge or experience in a
13 matter pertinent to the litigation who (1) has been retained by a Party or its counsel
14 to serve as an expert witness or as a consultant in this Action, (2) is not a past or
15 current employee of a Party and (3) at the time of retention, is not anticipated to
16 become an employee of a Party.
17 2.8 Non-Party: Any natural person, partnership, corporation, association
18 or other legal entity not named as a Party to this action.
19 2.9 Party: Any party to this Action, including all of its officers, directors,
20 boards, departments, divisions, employees, consultants, retained experts, and
21 Outside Counsel of Record (and their support staffs).
22 2.10 Producing Party: A Party or Non-Party that produces Disclosure or
23 Discovery Material in this Action.
24 2.13 Professional Vendors: Persons or entities that provide litigation
25 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
26 demonstrations, and organizing, storing, or retrieving data in any form or medium)
27 and their employees and subcontractors.
28
1 2.14 Protected Material: Any Disclosure or Discovery Material that is
2 designated as “CONFIDENTIAL”, or as “HIGHLY CONFIDENTIAL –
3 ATTORNEYS’ EYES ONLY.”
4 2.15 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
5 Information or Items: extremely sensitive “Confidential Information or Items,”
6 disclosure of which to another Party or Non-Party would create a substantial risk of
7 serious harm that could not be avoided by less restrictive means. Parties agree that
8 no materials which describe or reflect the treatment of Plaintiffs by Defendants,
9 such as incident reports or audio/visual recordings of interactions with Defendants,
10 will be designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11 ONLY.”
12 2.16 Receiving Party: A Party that receives Disclosure or Discovery
13 Material from a Producing Party.
14
15 3. SCOPE
16 The protections conferred by this Stipulation and Order cover not only
17 Protected Material (as defined above), but also (1) any information copied or
18 extracted from Protected Material; (2) all copies, excerpts, abstracts, summaries, or
19 compilations of Protected Material; and (3) any testimony, conversations, or
20 presentations by Parties or their Counsel that might reveal Protected Material.
21 Any use of Protected Material at trial shall be governed by the orders of the
22 trial judge. This Order does not govern the use of Protected Material at trial.
23
24 4. DURATION
25 Even after final disposition of this litigation, the confidentiality obligations
26 imposed by this Order shall remain in effect until a Designating Party agrees
27 otherwise in writing or a court order otherwise directs. Final disposition shall be
28 deemed to be the later of (1) dismissal of all claims and defenses in this action,
1 with or without prejudice; and (2) final judgment herein after the completion and
2 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
3 including the time limits for filing any motions or applications for extension of
4 time pursuant to applicable law.
5
6 5. DESIGNATING PROTECTED MATERIAL
7 5.1 Exercise of Restraint and Care in Designating Material for Protection.
8 Each Party or Non-Party that designates information or items for protection
9 under this Order must take care to limit any such designation to specific material
10 that qualifies under the appropriate standards. The Designating Party must
11 designate for protection only those parts of material, documents, items or
12 communications that qualify so that other portions of the material, documents,
13 items or communications for which protection is not warranted are not swept
14 unjustifiably within the ambit of this Order.
15 Mass, indiscriminate or routinized designations are prohibited. Designations
16 that are shown to be clearly unjustified or that have been made for an improper
17 purpose (e.g., to unnecessarily encumber the case development process or to
18 impose unnecessary expenses and burdens on other parties) may expose the
19 Designating Party to sanctions.
20 If it comes to a Designating Party’s attention that information or items that it
21 designated for protection do not qualify for protection, that Designating Party must
22 promptly notify all other Parties that it is withdrawing the mistaken designation.
23 5.2 Manner and Timing of Designations. Except as otherwise provided in
24 this Order, or as otherwise stipulated or ordered, Disclosure or Discovery Material
25 that qualifies for protection under this Order must be clearly so designated before
26 the material is disclosed or produced.
27 Designation in conformity with this Order requires:
28
1 (a) for information in documentary form (e.g., paper or electronic
2 documents, but excluding transcripts of depositions or other pretrial or trial
3 proceedings), that the Producing Party affix at a minimum, the legend
4 “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
5 ONLY” words of a similar effect to each page that contains protected material. If
6 only a portion or portions of the material on a page qualifies for protection, the
7 Producing Party also must clearly identify the protected portion(s) (e.g., by making
8 appropriate markings in the margins) and must specify , for each portion, the level
9 of protection being asserted. Alternately, the Producing Party may designate an
10 entire production or storage device (such as CD or flash drive) as confidential by
11 including notice of such designation or including “CONFIDENTIAL” in the title
12 of each designated file.
13 A Party or Non-Party that makes original documents or materials available
14 for inspection need not designate them for protection until after the inspecting
15 Party has indicated which material it would like copied and produced. During the
16 inspection and before the designation, all of the material made available for
17 inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
18 ONLY.” After the inspecting Party has identified the documents it wants copied
19 and produced, the Producing Party must determine which documents, or portions
20 thereof, qualify for protection under this Order. Then, before producing the
21 specified documents, the Producing Party must affix the appropriate legend
22 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
23 ONLY”) to each page that contains Protected Material. If only a portion or
24 portions of the material on a page qualifies for protection, the Producing Party also
25 must clearly identify the protected portion(s) (e.g., by making appropriate
26 markings in the margins) and must specify, for each portion, the level of protection
27 being asserted.
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1 (b) for testimony given in deposition or in other pretrial or trial
2 proceedings, that the Designating Party identifies the Disclosure or Discovery
3 Material on the record, before the close of the deposition, hearing, or other
4 proceeding, or in writing to all parties within 30 business days of receipt of the
5 deposition or hearing transcript, all protected testimony and specify the level of
6 protection being asserted. A Designating Party may specify, at the deposition or
7 up to 30 days afterwards, that the entire transcript shall be treated as
8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
9 ONLY.”
10 Parties shall give the other parties notice if they reasonably expect a
11 deposition, hearing or other proceeding to include Protected Material so that the
12 other parties can ensure that only authorized individuals who have signed the
13 “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those
14 proceedings. The use of a document as an exhibit at a deposition shall not in any
15 way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
16 – ATTORNEYS’ EYES ONLY.”
17 Transcripts containing Protected Material shall have an obvious legend on
18 the title page that the transcript contains Protected Material, and the title page shall
19 be followed by a list of all pages (including line numbers as appropriate) that have
20 been designated as Protected Material and the level of protection being asserted by
21 the Designating Party. The Designating Party shall inform the court reporter of
22 these requirements. Any transcript that is prepared before the expiration of a 30-
23 day period for designation shall be treated during that period as if it had been
24 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its
25 entirety unless otherwise agreed. After the expiration of that period, the transcript
26 shall be treated only as actually designated.
27
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1 (c) for information produced in some form other than documentary and for
2 any other tangible items, that the Producing Party affix in a prominent place on the
3 exterior of the container or containers in which the information or item is stored
4 the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
5 EYES ONLY”. If only a portion or portions of the information or item warrant
6 protection, the Producing Party, to the extent practicable, shall identify the
7 protected portion(s) and specify the level of protection being asserted.
8 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
9 failure to designate qualified information or items does not, standing alone, waive
10 the Designating Party’s right to secure protection under this Order for such
11 material. Upon timely correction of a designation, the Receiving Party must make
12 reasonable efforts to assure that the material is treated in accordance with the
13 provisions of this Order.
14
15 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
16 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
17 designation of confidentiality at any time. Unless a prompt challenge to a
18 Designating Party’s confidentiality designation is necessary to avoid foreseeable,
19 substantial unfairness, unnecessary economic burdens, or a significant disruption
20 or delay of the litigation, a Party does not waive its right to challenge a
21 confidentiality designation by electing not to mount a challenge promptly after the
22 original designation is disclosed.
23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
24 resolution process by providing written notice of each designation it is challenging
25 and describing the basis for each challenge. To avoid ambiguity as to whether a
26 challenge has been made, the written notice must recite that the challenge to
27 confidentiality is being made in accordance with this specific paragraph of the
28
1 Protective Order. The parties shall attempt to resolve each challenge in good faith
2 and must begin the process by conferring directly (in voice to voice dialogue; other
3 forms of communication are not sufficient) within 14 days of the date of service of
4 notice. In conferring, the Challenging Party must explain the basis for its belief that
5 the confidentiality designation was not proper and must give the Designating Party
6 an opportunity to review the designated material, to reconsider the circumstances,
7 and, if no change in designation is offered, to explain the basis for the chosen
8 designation. A Challenging Party may proceed to the next stage of the challenge
9 process only if it has engaged in this meet and confer process first or establishes
10 that the Designating Party is unwilling to participate in the meet and confer process
11 in a timely manner.
12 The burden of persuasion in any such challenge proceeding shall be on the
13 Designating Party. Frivolous challenges, and those made for an improper purpose
14 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
15 expose the Challenging Party to sanctions. Unless the Designating Party has
16 waived or withdrawn the confidentiality designation, all parties shall continue to
17 afford the material in question the level of protection to which it is entitled under
18 the Producing Party’s designation until the Court rules on the challenge.
19
20 7. ACCESS TO AND USE OF PROTECTED MATERIAL
21 7.1 Basic Principles. A Receiving Party may use Protected Material that
22 is disclosed or produced by another Party or by a Non-Party in connection with this
23 Action only for prosecuting, defending or attempting to settle this Action. Such
24 Protected Material may be disclosed only to the categories of persons and under
25 the conditions described in this Order. When the Action has been terminated, a
26 Receiving Party must comply with the provisions of section 13 below (FINAL
27 DISPOSITION).
28
1 Protected Material must be stored and maintained by a Receiving Party at a
2 location and in a secure manner that ensures that access is limited to the persons
3 authorized under this Order.
4 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
5 otherwise ordered by the court or permitted in writing by the Designating Party, a
6 Receiving Party may disclose any information or item designated
7 “CONFIDENTIAL” only to:
8 (a) the Receiving Party’s Counsel of Record in this Action, as well as
9 employees of said Counsel of Record to whom it is reasonably necessary to
10 disclose the information for this Action;
11 (b) Experts (as defined in this Order) of the Receiving Party to whom
12 disclosure is reasonably necessary for this Action and who have signed the
13 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
14 (b) the court and its personnel;
15 (e) court reporters and their staff, professional jury or trial consultants, and
16 Professional Vendors to whom disclosure is reasonably necessary for this litigation
17 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
18 A);
19 (f) the author or recipient of a document containing the information or a
20 custodian or other person who otherwise possessed or knew the information;
21 (g) during their depositions, witnesses, and attorneys for witnesses, in the
22 Action to whom disclosure is reasonably necessary provided: (1) the deposing
23 party requests that the witness sign the form attached as Exhibit A hereto; and (2)
24 they will not be permitted to keep any confidential information unless they sign the
25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
26 agreed by the Designating Party or ordered by the court. Pages of transcribed
27 deposition testimony or exhibits to depositions that reveal Protected Material may
28
1 be separately bound by the court reporter and may not be disclosed to anyone
2 except as permitted under this Stipulated Protective Order; and
3 (h) any mediator or settlement officer, and their supporting personnel,
4 mutually agreed upon by any of the parties engaged in settlement discussions and
5 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
6 7.3. Counsel making the disclosure to any qualified person described
7 herein shall retain the original executed copy of the “Acknowledgment and
8 Agreement to Be Bound” (Exhibit A) until sixty (60) days after this litigation has
9 become final, including any appellate review, and monitoring of an injunction.
10 Counsel for the Receiving Party shall maintain all signed “Acknowledgment and
11 Agreement to Be Bound” (Exhibit A) and shall produce the original signature page
12 upon reasonable written notice from opposing counsel. If an issue arises regarding
13 a purported unauthorized disclosure of Confidential Information, upon noticed
14 motion of contempt filed by the Designating Party, counsel for the Receiving Party
15 may be required to file the signed “Acknowledgment and Agreement to Be Bound”
16 (Exhibit A), as well as a list of the disclosed materials, in camera with the Court
17 having jurisdiction of the Stipulation.
18
19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
20 IN OTHER LITIGATION
21 If a Party is served with a subpoena or a court order issued in other litigation
22 that compels disclosure of any information or items designated in this Action as
23 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
24 ONLY” that Party must:
25 (a) promptly notify in writing the Designating Party. Such notification
26 shall include a copy of the subpoena or court order;
27 ///
28
1 (b) promptly notify in writing the party who caused the subpoena or order
2 to issue in the other litigation that some or all of the material covered by the
3 subpoena or order is subject to this Protective Order. Such notification shall
4 include a copy of this Stipulated Protective Order; and
5 (c) cooperate with respect to all reasonable procedures sought to be
6 pursued by the Designating Party whose Protected Material may be affected.1
7 If the Designating Party timely seeks a protective order, the Party served
8 with the subpoena or court order shall not produce any information designated in
9 this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
10 ATTORNEYS’ EYES ONLY” before a determination by the court from which the
11 subpoena or order issued, unless the Party has obtained the Designating Party’s
12 permission. The Designating Party shall bear the burden and expense of seeking
13 protection in that court of its confidential material – and nothing in these
14 provisions should be construed as authorizing or encouraging a Receiving Party in
15 this action to disobey a lawful directive from another court.
16
17 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
18 PRODUCED IN THIS LITIGATION
19 (a) The terms of this Order are applicable to information produced by a
20 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced
22 by Non-Parties in connection with this litigation is protected by the remedies and
23 relief provided by this Order. Nothing in these provisions should be construed as
24 prohibiting a Non-Party from seeking additional protections.
25 ///
26
27
1 The purpose of imposing these duties is to alert the interested parties to the existence of this
28 Protective Order and to afford the Designating Party in this case an opportunity to try to protect
its confidentiality interests in the court from which the subpoena or order issued.
1 (b) In the event that a Party is required, by a valid discovery request, to
2 produce a Non-Party’s confidential information in its possession, and the Party is
3 subject to an agreement with the Non-Party not to produce the Non-Party’s
4 confidential information, then the Party shall:
5 (1) promptly notify in writing the Requesting Party and the Non-
6 Party that some or all of the information requested is subject to a confidentiality
7 agreement with a Non-Party;
8 (2) promptly provide the Non-Party with a copy of the Stipulated
9 Protective Order in this Action, the relevant discovery request(s), and a reasonably
10 specific description of the information requested; and
11 (3) make the information requested available for inspection by the
12 Non-Party, if requested.
13 (c) If the Non-Party fails to object or seek a protective order from this
14 court within 14 days of receiving the notice and accompanying information, the
15 Receiving Party may produce the Non-Party’s confidential information responsive
16 to the discovery request. If the Non-Party timely seeks a protective order, the
17 Receiving Party shall not produce any information in its possession or control that
18 is subject to the confidentiality agreement with the Non-Party before a
19 determination by the court.2 Absent a court order to the contrary, the Non-Party
20 shall bear the burden and expense of seeking protection in this court of its
21 Protected Material.
22
23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
24 If a Receiving Party learns that, by inadvertence or otherwise, it has
25 disclosed Protected Material to any person or in any circumstance not authorized
26 under this Stipulated Protective Order, the Receiving Party must immediately (a)
27
2 The purpose of this provision is to alert the interested parties to the existence of confidentiality
28 rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality
interests in this court.
1 notify in writing the Designating Party of the unauthorized disclosures, (b) use its
2 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
3 the person or persons to whom unauthorized disclosures were made of all the terms
4 of this Order, and (d) request such person or persons to execute the
5 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
6 A.
7
8 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
9 PROTECTED MATERIAL
10 When a Producing Party gives notice to Receiving Parties that certain
11 inadvertently produced material is subject to a claim of privilege or other
12 protection, the obligations of the Receiving Parties are those set forth in Federal
13 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
14 whatever procedure may be established in an e-discovery order that provides for
15 production without prior privilege review. Pursuant to Federal Rule of Evidence
16 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
17 of a communication or information covered by the attorney-client privilege or
18 work product protection, the parties may incorporate their agreement in the
19 stipulated protective order submitted to the court.
20
21 12. MISCELLANEOUS
22 12.1 Right to Further Relief. Nothing in this Order abridges the right of
23 any person to seek its modification by the Court in the future.
24 12.2 Right to Assert Other Objections. By stipulating to the entry of this
25 Protective Order, no Party waives any right it otherwise would have to object to
26 disclosing or producing any information or item on any ground not addressed in
27 this Stipulated Protective Order. Similarly, no Party waives any right to object on
28
1 any ground to use in evidence of any of the material covered by this Protective
2 Order.
3 12.3 Filing Protected Material. Without written permission from the
4 Designating Party or a court order secured after appropriate notice to all interested
5 persons, a Party may not file in the public record in this action any Protected
6 Material. A Party that seeks to file under seal any Protected Material must comply
7 with Civil Local Rule 141. Protected Material may only be filed under seal
8 pursuant to a court order authorizing the sealing of the specific Protected Material
9 at issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a
10 request establishing that the Protected Material at issue is privileged, protectable as
11 a trade secret, or otherwise entitled to protection under the law.
12
13 13. FINAL DISPOSITION
14 Within 60 days after the final disposition of this action, as defined in
15 paragraph 4, each Receiving Party must return all Protected Material to the
16 Producing Party or destroy such material. As used in this subdivision, “all
17 Protected Material” includes all copies, abstracts, compilations, summaries, and
18 any other format reproducing or capturing any of the Protected Material. Whether
19 the Protected Material is returned or destroyed, the Receiving Party must submit a
20 written certification to the Producing Party (and, if not the same person or entity, to
21 the Designating Party) by the 60-day deadline that (1) identifies (by category,
22 where appropriate) all the Protected Material that was returned or destroyed and
23 (2) affirms that the Receiving Party has not retained any copies, abstracts,
24 compilations, summaries or any other format reproducing or capturing any of the
25 Protected Material. Notwithstanding this provision, Counsel of Record are
26 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition,
27 and hearing transcripts, legal memoranda, correspondence, deposition and trial
28 exhibits, expert reports, attorney work product, and consultant and expert work
1 product, even if such materials contain Protected Material. Any such archival
2 copies that contain or constitute Protected Material remain subject to this
3 Protective Order as set forth in Section 4 (DURATION).
4 14. VIOLATION
5 Any violation of this Order may be punished by appropriate measures
6 including, without limitation, contempt proceedings and/or monetary sanctions.
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8 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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DATED: August 3, 2020 /s/ DeWitt M. Lacy
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DeWitt M. Lacy, Esq.,
11 Attorneys for Plaintiffs
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DATED: August 3, 2020 /s/ Gary P. Dufour
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Gary P. Dufour, Esq.,
14 Attorneys for Defendants
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1 ORDER
2 The stipulation of the parties is GRANTED.
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IT IS SO ORDERED.
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5 Dated: August 3, 2020 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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1
2 EXHIBIT A
3 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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5 I, _____________________________ [print or type full name], of
6 __________________________________ [print or type full address], declare
7 under penalty of perjury that I have read in its entirety and understand the
8 Stipulated Protective Order that was issued by the United States District Court for
9 the Eastern District of California on __________________ [date] in the case of
10 Franco Macias, et al v. City of Delano, et al., Case No. 1:18-cv-01634. I agree to
11 comply with and to be bound by all the terms of this Stipulated Protective Order
12 and I understand and acknowledge that failure to so comply could expose me to
13 sanctions and punishment in the nature of contempt. I solemnly promise that I
14 will not disclose in any manner any information or item that is subject to this
15 Stipulated Protective Order to any person or entity except in strict compliance
16 with the provisions of this Order.
17 I further agree to submit to the jurisdiction of the United States District
18 Court for the Eastern District of California for enforcing the terms of this
19 Stipulated Protective Order, even if such enforcement proceedings occur after
20 termination of this action. I hereby appoint __________________________
21 [print or type full name] of _______________________________________
22 [print or type full address and telephone number] as my California agent for
23 service of process in connection with this action or any proceedings related to
24 enforcement of this Stipulated Protective Order.
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26 Date: ______________________________________
27 City and State where sworn and signed: _________________________________
28 Printed name: _______________________________
1 Signature: __________________________________
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