The opinion
1 Rraodbkbin Cs@. Awdiknisntos n(.ScBomN: 194576)
2 Jen Machlin Cecil (SBN: 294806)
jcecil@winston.com
3 WINSTON & STRAWN LLP
101 California Street
4 San Francisco, CA 94111-5802
Telephone: (415) 591-1000
5 Facsimile: (415) 591-1400
6 Scott J. Fishwick (SBN: 308661)
sfishwick@winston.com
7 Megan Whipp (SBN: 319182)
mwhipp@winston.com
8 WINSTON & STRAWN LLP
333 S. Grand Avenue, 38th Floor
9 Los Angeles, CA 90071-1543
Telephone: (213) 615-1700
10 Facsimile: (213) 615-1750
11 Matt McCullough (SBN: 301330)
mrmccullough@winston.com
12 WINSTON & STRAWN LLP
275 Middlefield Road, Suite 205
13 Menlo Park, CA 94025
Telephone: (650) 858-6500
14 Facsimile: (650) 858-6550
15 Attorneys for Plaintiff
EDWIN JONES
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17 UNITED STATES DISTRICT COURT
18 CENTRAL DISTRICT OF CALIFORNIA
19 EDWIN D. JONES, Case No. 2:17-cv-08802-CAS-PLA
20 Plaintiff, Assigned to Hon. Paul L. Abrams
21 v. STIPULATED PROTECTIVE
ORDER
22 J. CABILADAS, H. TILLMAN,
O. ROBLES, and F. VILLALOBOS,
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Defendants.
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1 1. GENERAL
2 1.1 Purposes and Limitations. Discovery in this action is likely to involve
3 production of confidential, proprietary, or private information for which special
4 protection from public disclosure and from use for any purpose other than prosecuting
5 this litigation may be warranted. Accordingly, the parties hereby stipulate to and
6 petition the Court to enter the following Stipulated Protective Order. The parties
7 acknowledge that this Order does not confer blanket protections on all disclosures or
8 responses to discovery and that the protection it affords from public disclosure and use
9 extends only to the limited information or items that are entitled to confidential
10 treatment under the applicable legal principles. The parties further acknowledge, as set
11 forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them
12 to file confidential information under seal; Civil Local Rule 79-5 sets forth the
13 procedures that must be followed and the standards that will be applied when a party
14 seeks permission from the court to file material under seal.
15 1.2 Good Cause Statement. This action is likely to involve confidential, highly
16 sensitive, and private information that could implicate the safety and security of a
17 correctional facility for which special protection from public disclosure and from use
18 for any purpose other than prosecution of this action is warranted. Such confidential
19 materials and information may consist of, among other things, medical files, personnel
20 files, records that identify inmates and/or parolees, information otherwise generally
21 unavailable to the public, or which may be privileged or otherwise protected from
22 disclosure under federal statutes, court rules, case decisions, or common law.
23 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of
24 disputes over confidentiality of discovery materials, to adequately protect information
25 the parties believe they are entitled to keep confidential, to ensure that the parties are
26 permitted reasonable necessary uses of such material in preparation for and in the
27 conduct of trial, to address their handling at the end of the litigation, and serve the ends
28 of justice, a protective order for such information is justified in this matter. It is the
1 intent of the parties that information will not be designated as confidential for tactical
2 reasons and that nothing be so designated without a good faith belief that it has been
3 maintained in a confidential, non-public manner, and there is good cause why it should
4 not be part of the public record in this case.
5 2. DEFINITIONS
6 2.1 Action: Edwin D. Jones v. J. Cabiladas, et al., Case No. 2:17-cv-08802-
7 CAS-PLA.
8 2.2 Challenging Party: a Party or Non-Party that challenges the designation of
9 information or items under this Order.
10 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how
11 it is generated, stored or maintained) or tangible things that qualify for protection under
12 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
13 Statement.
14 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
15 support staff).
16 2.5 Designating Party: a Party or Non-Party that designates information or
17 items that it produces in disclosures or in responses to discovery as
18 “CONFIDENTIAL.”
19 2.6 Disclosure or Discovery Material: all items or information, regardless of
20 the medium or manner in which it is generated, stored, or maintained (including, among
21 other things, testimony, transcripts, and tangible things), that are produced or generated
22 in disclosures or responses to discovery in this matter.
23 2.7 Expert: a person with specialized knowledge or experience in a matter
24 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
25 expert witness or as a consultant in this Action.
26 2.8 House Counsel: attorneys who are employees of a party to this Action.
27 House Counsel does not include Outside Counsel of Record or any other outside
28 counsel.
1 2.9 Non-Party: any natural person, partnership, corporation, association, or
2 other legal entity not named as a Party to this action.
3 2.10 Outside Counsel of Record: attorneys who are not employees of a party to
4 this Action but are retained to represent or advise a party to this Action and have
5 appeared in this Action on behalf of that party or are affiliated with a law firm that has
6 appeared on behalf of that party, including support staff.
7 2.11 Party: any party to this Action, including all of its officers, directors,
8 employees, consultants, retained experts, and Outside Counsel of Record (and their
9 support staffs).
10 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
11 Discovery Material in this Action.
12 2.13 Professional Vendors: persons or entities that provide litigation support
13 services (e.g., photocopying, videotaping, translating, preparing exhibits or
14 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
15 their employees and subcontractors.
16 2.14 Protected Material: any Disclosure or Discovery Material that is
17 designated as “CONFIDENTIAL.”
18 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
19 from a Producing Party.
20 3. SCOPE
21 The protections conferred by this Stipulation and Order cover not only Protected
22 Material (as defined above), but also (1) any information copied or extracted from
23 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
24 Material; and (3) any testimony, conversations, or presentations by Parties or their
25 Counsel that might reveal Protected Material.
26 Any use of Protected Material at trial shall be governed by the orders of the trial
27 judge. This Order does not govern the use of Protected Material at trial.
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1 4. DURATION
2 Once a case proceeds to trial, all of the court-filed information to be introduced
3 that was previously designated as confidential or maintained pursuant to this protective
4 order becomes public and will be presumptively available to all members of the public,
5 including the press, unless compelling reasons supported by specific factual findings to
6 proceed otherwise are made to the trial judge in advance of the trial. See Kamakana v.
7 City and Cty. of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing
8 “good cause” showing for sealing documents produced in discovery from “compelling
9 reasons” standard when merits-related documents are part of court record).
10 Accordingly, the terms of this protective order do not extend beyond the
11 commencement of the trial.
12 5. DESIGNATING PROTECTED MATERIAL
13 5.1 Exercise of Restraint and Care in Designating Material for Protection.
14 Each Party or Non-Party that designates information or items for protection under this
15 Order must take care to limit any such designation to specific material that qualifies
16 under the appropriate standards. The Designating Party must designate for protection
17 only those parts of material, documents, items, or oral or written communications that
18 qualify so that other portions of the material, documents, items, or communications for
19 which protection is not warranted are not swept unjustifiably within the ambit of this
20 Order.
21 Mass, indiscriminate, or routinized designations are prohibited. Designations that
22 are shown to be clearly unjustified or that have been made for an improper purpose
23 (e.g., to unnecessarily encumber the case development process or to impose
24 unnecessary expenses and burdens on other parties) may expose the Designating Party
25 to sanctions.
26 If it comes to a Designating Party’s attention that information or items that it
27 designated for protection do not qualify for protection, that Designating Party must
28 promptly notify all other Parties that it is withdrawing the inapplicable designation.
1 5.2 Manner and Timing of Designations. Except as otherwise provided in this
2 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
3 or ordered, Disclosure or Discovery Material that qualifies for protection under this
4 Order must be clearly so designated before the material is disclosed or produced.
5 Designation in conformity with this Order requires:
6 (a) for information in documentary form (e.g., paper or electronic
7 documents, but excluding transcripts of depositions or other pretrial or trial
8 proceedings), that the Producing Party affix, at a minimum, the legend
9 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
10 contains protected material. If only a portion or portions of the material on a page
11 qualifies for protection, the Producing Party also must clearly identify the protected
12 portion(s) (e.g., by making appropriate markings in the margins).
13 A Party or Non-Party that makes original documents available for inspection
14 need not designate them for protection until after the inspecting Party has indicated
15 which documents it would like copied and produced. During the inspection and before
16 the designation, all of the material made available for inspection shall be deemed
17 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
18 copied and produced, the Producing Party must determine which documents, or portions
19 thereof, qualify for protection under this Order. Then, before producing the specified
20 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
21 that contains Protected Material. If only a portion or portions of the material on a page
22 qualifies for protection, the Producing Party also must clearly identify the protected
23 portion(s) (e.g., by making appropriate markings in the margins).
24 (b) for testimony given in depositions that the Designating Party
25 identify the Disclosure or Discovery Material on the record, before the close of the
26 deposition.
27 (c) for information produced in some form other than documentary and
28 for any other tangible items, that the Producing Party affix in a prominent place on the
1 exterior of the container or containers in which the information is stored the legend
2 “CONFIDENTIAL.” If only a portion or portions of the information warrants
3 protection, the Producing Party, to the extent practicable, shall identify the protected
4 portion(s).
5 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
6 failure to designate qualified information or items does not, standing alone, waive the
7 Designating Party’s right to secure protection under this Order for such material. Upon
8 timely correction of a designation, the Receiving Party must make reasonable efforts to
9 assure that the material is treated in accordance with the provisions of this Order.
10 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
11 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
12 designation of confidentiality at any time that is consistent with the Court’s Scheduling
13 Order.
14 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
15 resolution process under Local Rule 37-1, et seq. Any discovery motion must strictly
16 comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3.
17 6.3 Burden. The burden of persuasion in any such challenge proceeding shall
18 be on the Designating Party. Frivolous challenges, and those made for an improper
19 purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties)
20 may expose the Challenging Party to sanctions. Unless the Designating Party has
21 waived or withdrawn the confidentiality designation, all parties shall continue to afford
22 the material in question the level of protection to which it is entitled under the Producing
23 Party’s designation until the Court rules on the challenge.
24 7. ACCESS TO AND USE OF PROTECTED MATERIAL
25 7.1 Basic Principles. A Receiving Party may use Protected Material that is
26 disclosed or produced by another Party or by a Non-Party in connection with this Action
27 only for prosecuting, defending, or attempting to settle this Action. Such Protected
28 Material may be disclosed only to the categories of persons and under the conditions
1 described in this Order. When the Action has been terminated, a Receiving Party must
2 comply with the provisions of section 13 below (FINAL DISPOSITION).
3 Protected Material must be stored and maintained by a Receiving Party at a
4 location and in a secure manner that ensures that access is limited to the persons
5 authorized under this Order.
6 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
7 ordered by the Court or permitted in writing by the Designating Party, a Receiving Party
8 may disclose any information or item designated “CONFIDENTIAL” only to:
9 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
10 well as employees of said Outside Counsel of Record to whom it is reasonably
11 necessary to disclose the information for this Action;
12 (b) the officers, directors, and employees (including House Counsel) of
13 the Receiving Party to whom disclosure is reasonably necessary for this Action;
14 (c) Experts (as defined in this Order) of the Receiving Party to whom
15 disclosure is reasonably necessary for this Action and who have signed the
16 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
17 (d) the Court and its personnel;
18 (e) court reporters and their staff;
19 (f) professional jury or trial consultants, mock jurors, and Professional
20 Vendors to whom disclosure is reasonably necessary for this Action and who have
21 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
22 (g) the author or recipient of a document containing the information or
23 a custodian or other person who otherwise possessed or knew the information;
24 (h) during their depositions, witnesses, and attorneys for witnesses, in
25 the Action to whom disclosure is reasonably necessary provided: (1) the deposing party
26 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will
27 not be permitted to keep any confidential information unless they sign the
28 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
1 by the Designating Party or ordered by the Court. Pages of transcribed deposition
2 testimony or exhibits to depositions that reveal Protected Material may be separately
3 bound by the court reporter and may not be disclosed to anyone except as permitted
4 under this Stipulated Protective Order; and
5 (i) any mediator or settlement officer, and their supporting personnel,
6 mutually agreed upon by any of the parties engaged in settlement discussions.
7 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
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9 If a Party is served with a subpoena or a court order issued in other litigation that
10 compels disclosure of any information or items designated in this Action as
11 “CONFIDENTIAL,” that Party must:
12 (a) promptly notify in writing the Designating Party. Such notification
13 shall include a copy of the subpoena or court order;
14 (b) promptly notify in writing the party who caused the subpoena or
15 order to issue in the other litigation that some or all of the material covered by the
16 subpoena or order is subject to this Protective Order. Such notification shall include a
17 copy of this Stipulated Protective Order; and
18 (c) cooperate with respect to all reasonable procedures sought to be
19 pursued by the Designating Party whose Protected Material may be affected.
20 If the Designating Party timely seeks a protective order, the Party served with the
21 subpoena or court order shall not produce any information designated in this action as
22 “CONFIDENTIAL” before a determination by the court from which the subpoena or
23 order issued, unless the Party has obtained the Designating Party’s permission. The
24 Designating Party shall bear the burden and expense of seeking protection in that court
25 of its confidential material and nothing in these provisions should be construed as
26 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
27 from another court.
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1 9. APR ONDOUNC-PEADR ITNY T’HS ISP LRIOTTIGEACTTIEODN MATERIAL SOUGHT TO BE
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3 (a) The terms of this Order are applicable to information produced by a
4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
5 produced by Non-Parties in connection with this litigation is protected by the remedies
6 and relief provided by this Order. Nothing in these provisions should be construed as
7 prohibiting a Non-Party from seeking additional protections.
8 (b) In the event that a Party is required, by a valid discovery request, to
9 produce a Non-Party’s confidential information in its possession, and the Party is
10 subject to an agreement with the Non-Party not to produce the Non-Party’s confidential
11 information, then the Party shall:
12 (1) promptly notify in writing the Requesting Party and the Non-
13 Party that some or all of the information requested is subject
14 to a confidentiality agreement with a Non-Party;
15 (2) promptly provide the Non-Party with a copy of the Stipulated
16 Protective Order in this Action, the relevant discovery
17 request(s), and a reasonably specific description of the
18 information requested; and
19 (3) make the information requested available for inspection by
20 the Non-Party, if requested.
21 (c) If the Non-Party fails to seek a protective order from this Court
22 within 14 days of receiving the notice and accompanying information, the Receiving
23 Party may produce the Non-Party’s confidential information responsive to the discovery
24 request. If the Non-Party timely seeks a protective order, the Receiving Party shall not
25 produce any information in its possession or control that is subject to the confidentiality
26 agreement with the Non-Party before a determination by the Court. Absent a court order
27 to the contrary, the Non-Party shall bear the burden and expense of seeking protection
28 in this Court of its Protected Material.
1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
3 Protected Material to any person or in any circumstance not authorized under this
4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
5 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
6 all unauthorized copies of the Protected Material, (c) inform the person or persons to
7 whom unauthorized disclosures were made of all the terms of this Order, and (d) request
8 such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
9 that is attached hereto as Exhibit A.
10 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
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12 When a Producing Party gives notice to Receiving Parties that certain
13 inadvertently produced material is subject to a claim of privilege or other protection,
14 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
16 may be established in an e-discovery order that provides for production without prior
17 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
18 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
20 parties may incorporate their agreement in the stipulated protective order submitted to
21 the Court.
22 12. MISCELLANEOUS
23 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
24 person to seek its modification by the Court in the future.
25 12.2 Right to Assert Other Objections. By stipulating to the entry of this
26 Protective Order, no Party waives any right it otherwise would have to object to
27 disclosing or producing any information or item on any ground not addressed in this
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1 Stipulated Protective Order. Similarly, no Party waives any right to object on any
2 ground to use in evidence of any of the material covered by this Protective Order.
3 12.3 Filing Protected Material. A Party that seeks to file under seal any
4 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
5 only be filed under seal pursuant to a court order authorizing the sealing of the specific
6 Protected Material at issue; good cause must be shown in the request to file under seal.
7 If a Party’s request to file Protected Material under seal is denied by the Court, then the
8 Receiving Party may file the information in the public record unless otherwise
9 instructed by the Court.
10 13. FINAL DISPOSITION
11 After the final disposition of this Action, within 60 days of a written request by
12 the Designating Party, each Receiving Party must return all Protected Material to the
13 Producing Party or destroy such material. As used in this subdivision, “all Protected
14 Material” includes all copies, abstracts, compilations, summaries, and any other format
15 reproducing or capturing any of the Protected Material. Whether the Protected Material
16 is returned or destroyed, the Receiving Party must submit a written certification to the
17 Producing Party (and, if not the same person or entity, to the Designating Party) by the
18 60 day deadline that (1) identifies (by category, where appropriate) all the Protected
19 Material that was returned or destroyed, and (2) affirms that the Receiving Party has not
20 retained any copies, abstracts, compilations, summaries or any other format reproducing
21 or capturing any of the Protected Material. Notwithstanding this provision, counsel are
22 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
23 hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,
24 expert reports, attorney work product, and consultant and expert work product, even if
25 such materials contain Protected Material. Any such archival copies that contain or
26 constitute Protected Material remain subject to this Protective Order as set forth in
27 Section 4 (DURATION).
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1 14. VIOLATION OF ORDER
2 Any violation of this Order may be punished by any and all appropriate measures
3 including, without limitation, contempt proceedings and/or monetary sanctions.
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5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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7 DATED: November 4, 2019
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/s/ Megan L. Whipp
9 Megan L. Whipp
Attorney for Plaintiff
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DATED: November 4, 2019
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/s/ Audra C. Call
14 Audra C. Call
Attorney for Defendant
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1 Having considered the papers, and finding that good cause exists, the Parties’
2 | Stipulated Protective Order is granted.
3 IT IS SO ORDERED.
4 SaeK. Mamet
5 | DATED: November 5 , 2019
6 UNITED STATES MAGISTRATE JUDGE
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1 ATTESTATION
2 I, Megan L. Whipp, am the ECF User whose ID and password are being used to
3 file the [PROPOSED] STIPULATED PROTECTIVE ORDER. In accordance with
4 Local Rule 5-4.3.4, concurrence in the filing of this document has been obtained from
5 Audra C. Call, counsel for Defendants, and I shall maintain records to support this
6 concurrence for subsequent production for this Court if so ordered or for inspection
7 upon request by a party.
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Dated: November 4, 2019 /s/ Megan L. Whipp
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Megan L. Whipp
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