Richardson-Bass v. State Center Community College District

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 CRYSTAL RICHARDSON-BASS, Case No. 1:19-cv-01566-AWI-SAB

11 Plaintiff, ORDER ENTERING STIPULATED PROTECTIVE ORDER 12 v. (ECF No. 42) DISTRICT, et al., 14 Defendants. 15

16 19 A. Discovery in this action is likely to involve production of confidential, proprietary, 20 or private information for which special protection from public disclosure and from use for any 21 purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby 22 stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties 23 acknowledge that this Order does not confer blanket protections on all disclosures or responses to 24 discovery and that the protection it affords from public disclosure and use extends only to the 25 limited information or items that are entitled to confidential treatment under the applicable legal 26 principles. The parties further acknowledge, as set forth in Section XIII(C), below, that this 27 Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be 1 applied when a party seeks permission from the Court to file material under seal. 2 II. GOOD CAUSE STATEMENT 3 4 A. This action is likely to involve public school student and employee information for 5 which special protection from public disclosure and from use for any purpose other than 6 prosecution of this action is warranted. Such confidential and private materials and information 7 consist of, among other things, confidential personal or financial information, student records, 8 information regarding confidential investigations and/or interviews by independent investigators 9 or medical/mental health information (including information implicating privacy rights of third 10 parties), information otherwise generally unavailable to the public, or which may be privileged or 11 otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or 12 common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution 13 of disputes over confidentiality of discovery materials, to adequately protect information the 14 parties are entitled to keep confidential, to ensure that the parties are permitted reasonable 15 necessary uses of such material in preparation for and in the conduct of trial, to address their 16 handling at the end of the litigation, and serve the ends of justice, a protective order for such 17 information is justified in this matter. It is the intent of the parties that information will not be 18 designated as confidential for tactical reasons and that nothing be so designated without a good 19 faith belief that it has been maintained in a confidential, non-public manner, and there is good 20 cause why it should not be part of the public record of this case. 21 III. DEFINITIONS 22 A. Action: This pending federal lawsuit, as designated in the caption above. 23 24 B. Challenging Party: A Party or Non-Party that challenges the designation of 25 information or items under this Order. 26 C. “CONFIDENTIAL” Information or Items: Information (regardless of how it is 27 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 1 of Civil Procedure 26(c), and as specified above in the Good Cause Statement. 2 D. Counsel: Outside Counsel of Record and House Counsel (as well as their support 3 staff). 4 5 E. Designating Party: A Party or Non-Party that designates information or items that 6 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 7 F. Disclosure or Discovery Material: All items or information, regardless of the 8 medium or manner in which it is generated, stored, or maintained (including, among other things, 9 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 10 responses to discovery in this matter. 11 G. Expert: A person with specialized knowledge or experience in a matter pertinent to 12 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 13 consultant in this Action. 14 15 H. House Counsel: Attorneys who are employees of a party to this Action. House 16 Counsel does not include Outside Counsel of Record or any other outside counsel. 17 I. Non-Party: Any natural person, partnership, corporation, association, or other legal 18 entity not named as a Party to this action. 19 20 J. Outside Counsel of Record: Attorneys who are not employees of a party to this 21 Action but are retained to represent or advise a party to this Action and have appeared in this 22 Action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 23 that party and includes support staff. 24 K. Party: Any party to this Action, including all of its officers, directors, employees, 25 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 26 L. Producing Party: A Party or Non-Party that produces Disclosure or Discovery 27 Material in this Action. 1 M. Professional Vendors: Persons or entities that provide litigation support services 2 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 3 organizing, storing, or retrieving data in any form or medium) and their employees and 4 subcontractors. 5 N. Protected Material: Any Disclosure or Discovery Material that is designated as 6 “CONFIDENTIAL.” 7 8 O. Receiving Party: A Party that receives Disclosure or Discovery Material from a 9 Producing Party. 10 IV. SCOPE 11 A. The protections conferred by this Stipulation and Order cover not only Protected 12 Material (as defined above), but also (1) any information copied or extracted from Protected 13 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 14 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected 15 Material. 16 17 B. Any use of Protected Material at trial shall be governed by the orders of the trial 18 judge. This Order does not govern the use of Protected Material at trial. 19 V. DURATION 20 21 Even after final disposition of this litigation, the confidentiality obligations imposed by this Order 22 shall remain in effect until a Designating Party agrees otherwise in writing or a court order 23 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 24 and defenses in this Action, with or without prejudice; and (2) final judgment herein after the 25 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 26 including the time limits for filing any motions or applications for extension of time pursuant to 27 applicable law. 2 A. Exercise of Restraint and Care in Designating Material for Protection 3 4 1. Each Party or Non-Party that designates information or items for protection 5 under this Order must take care to limit any such designation to specific material that qualifies 6 under the appropriate standards. The Designating Party must designate for protection only those 7 parts of material, documents, items, or oral or written communications that qualify so that other 8 portions of the material, documents, items, or communications for which protection is not 9 warranted are not swept unjustifiably within the ambit of this Order. 10 2. Mass, indiscriminate, or routinized designations are prohibited. 11 Designations that are shown to be clearly unjustified or that have been made for an improper 12 purpose (e.g., to unnecessarily encumber the case development process or to impose unnecessary 13 expenses and burdens on other parties) may expose the Designating Party to sanctions. 14 3. If it comes to a Designating Party’s attention that information or items that 15 it designated for protection do not qualify for protection, that Designating Party must promptly 16 notify all other Parties that it is withdrawing the inapplicable designation. 17 18 B. Manner and Timing of Designations 19 1. Except as otherwise provided in this Order (see, e.g., Section B(2)(b) 20 below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for 21 protection under this Order must be clearly so designated before the material is disclosed or 22 produced. 23 24 2. Designation in conformity with this Order requires the following: 25 a. For information in documentary form (e.g., paper or electronic 26 documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the 27 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 1 “CONFIDENTIAL legend”), to each page that contains protected material. If only a portion or 2 portions of the material on a page qualifies for protection, the Producing Party also must clearly 3 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 4 b. A Party or Non-Party that makes original documents available for 5 inspection need not designate them for protection until after the inspecting Party has indicated 6 which documents it would like copied and produced. During the inspection and before the 7 designation, all of the material made available for inspection shall be deemed 8 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and 9 produced, the Producing Party must determine which documents, or portions thereof, qualify for 10 protection under this Order. Then, before producing the specified documents, the Producing Party 11 must affix the “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 12 portion or portions of the material on a page qualifies for protection, the Producing Party also 13 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 14 margins). 15 16 c. For testimony given in depositions, that the Designating Party 17 identify the Disclosure or Discovery Material on the record, before the close of the deposition all 18 protected testimony. 19 d. For information produced in form other than document and for any 20 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 21 container or containers in which the information is stored the legend “CONFIDENTIAL.” If only 22 a portion or portions of the information warrants protection, the Producing Party, to the extent 23 practicable, shall identify the protected portion(s). 24 C. Inadvertent Failure to Designate 25 26 1. If timely corrected, an inadvertent failure to designate qualified information 27 or items does not, standing alone, waive the Designating Party’s right to secure protection under 1 this Order for such material. An inadvertent disclosure or failure to designate is timely corrected if 2 the designating party corrects the disclosure or failure to designate within a reasonable time upon 3 learning of the disclosure or failure to designate. Upon timely correction of a designation, the 4 Receiving Party must make reasonable efforts to assure that the material is treated in accordance 5 with the provisions of this Order. 6 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 7 8 A. Timing of Challenges 9 1. Any party or Non-Party may challenge a designation of confidentiality at 10 any time that is consistent with the Court’s Scheduling Order. 11 B. Meet and Confer 12 13 1. The Challenging Party shall initiate the dispute resolution process under 14 Local Rule 37.1 et seq. 15 C. The burden of persuasion in any such challenge proceeding shall be on the 16 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 17 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 18 to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality 19 designation, all parties shall continue to afford the material in question the level of protection to 20 which it is entitled under the Producing Party’s designation until the Court rules on the challenge. 21 23 A. Basic Principles 24 1. A Receiving Party may use Protected Material that is disclosed or produced 25 by another Party or by a Non-Party in connection with this Action only for prosecuting, defending, 26 or attempting to settle this Action. Such Protected Material may be disclosed only to the 27 categories of persons and under the conditions described in this Order. When the Action has been 1 terminated, a Receiving Party must comply with the provisions of Section XIV below. 2 2. Protected Material must be stored and maintained by a Receiving Party at a 3 location and in a secure manner that ensures that access is limited to the persons authorized under 4 this Order. 5 6 B. Disclosure of “CONFIDENTIAL” Information or Items 7 1. Unless otherwise ordered by the Court or permitted in writing by the 8 Designating Party, a Receiving Party may disclose any information or item designated 9 “CONFIDENTIAL” only to: 10 a. The Receiving Party’s Outside Counsel of Record in this Action, as 11 well as employees of said Outside Counsel of Record to whom it is reasonably necessary to 12 disclose the information for this Action; 13 14 b. The officers, directors, and employees (including House Counsel) of 15 the Receiving Party to whom disclosure is reasonably necessary for this Action; 16 c. Experts (as defined in this Order) of the Receiving Party to whom 17 disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and 18 Agreement to Be Bound” (Exhibit A); 19 20 d. The Court and its personnel; 21 e. Court reporters and their staff; 22 f. Professional jury or trial consultants, mock jurors, and Professional 23 Vendors to whom disclosure is reasonably necessary or this Action and who have signed the 24 “Acknowledgment and Agreement to be Bound” attached as Exhibit A hereto; 25 26 g. The author or recipient of a document containing the information or 27 a custodian or other person who otherwise possessed or knew the information; 1 h. Any deposition, trial or hearing witness in the Proceeding who 2 previously has had access to the Confidential Materials, or who is currently or was previously an 3 officer, director, partner, member, employee or agent of an entity that has had access to the 4 Confidential Materials. Pages of transcribed deposition testimony or exhibits to depositions that 5 reveal Protected Material may be separately bound by the court reporter and may not be disclosed 6 to anyone except as permitted under this Stipulated Protective Order; 7 i. Any deposition or non-trial hearing witness in the Proceeding who previously did not have 8 access to the Confidential Materials; provided, however, that each such witness given access to 9 Confidential Materials shall be advised on the record that such Materials are being Disclosed 10 pursuant to, and are subject to, the terms of this Stipulation and Protective Order and such witness 11 agrees on the record that they may not be Disclosed other than pursuant to its terms. Pages of 12 transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be 13 separately bound by the court reporter and may not be disclosed to anyone except as permitted 14 under this Stipulated Protective Order; 15 16 j. Any mediator or settlement officer, and their supporting personnel, 17 mutually agreed upon by any of the parties engaged in settlement discussions. 18 k. Any other person to whom the Designating Party agrees in writing. 19 IX. PROTECTED MATERIAL SUPOENAED OR ORDERED PRODUCED IN 20 OTHER LITIGATION 21 22 A. If a Party is served with a subpoena or a court order issued in other litigation that 23 compels disclosure of any information or items designated in this Action as “CONFIDENTIAL,” 24 that Party must: 25 1. Promptly notify in writing the Designating Party. Such notification shall 26 include a copy of the subpoena or court order; 27 2. Promptly notify in writing the party who caused the subpoena or order to 1 issue in the other litigation that some or all of the material covered by the subpoena or order is 2 subject to this Protective Order. Such notification shall include a copy of this Stipulated 3 Protective Order; and 4 3. Cooperate with respect to all reasonable procedures sought to be pursued by 5 the Designating Party whose Protected Material may be affected. 6 7 B. If the Designating Party timely seeks a protective order, the Party served with the 8 subpoena or court order shall not produce any information designated in this action as 9 “CONFIDENTIAL” before a determination by the Court from which the subpoena or order 10 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 11 shall bear the burden and expense of seeking protection in that court of its confidential material 12 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 13 Party in this Action to disobey a lawful directive from another court. 14 X. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 15 THIS LITIGATION 16 A. The terms of this Order are applicable to information produced by a Non-Party in 17 this Action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 18 connection with this litigation is protected by the remedies and relief provided by this Order. 19 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 20 additional protections. 21 22 B. In the event that a Party is required, by a valid discovery request, to produce a Non- 23 Party’s confidential information in its possession, and the Party is subject to an agreement with the 24 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 25 1. Promptly notify in writing the Requesting Party and the Non-Party that 26 some or all of the information requested is subject to a confidentiality agreement with a Non- 27 Party; 1 2. Promptly provide the Non-Party with a copy of the Stipulated Protective 2 Order in this Action, the relevant discovery request(s), and a reasonably specific description of the 3 information requested; and 4 3. Make the information requested available for inspection by the Non-Party, 5 if requested. 6 7 C. If the Non-Party fails to seek a protective order from this court within 14 days of 8 receiving the notice and accompanying information, the Receiving Party may produce the Non- 9 Party’s confidential information responsive to the discovery request. If the Non-Party timely 10 seeks a protective order, the Receiving Party shall not produce any information in its possession or 11 control that is subject to the confidentiality agreement with the Non-Party before a determination 12 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and 13 expense of seeking protection in this court of its Protected Material. 14 XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 A. If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 16 Protected Material to any person or in any circumstance not authorized under this Stipulated 17 Protective Order, the Receiving Party must immediately (1) notify in writing the Designating 18 Party of the unauthorized disclosures, (2) use its best efforts to retrieve all unauthorized copies of 19 the Protected Material, (3) inform the person or persons to whom unauthorized disclosures were 20 made of all the terms of this Order, and (4) request such person or persons to execute the 21 “Acknowledgment and Agreement to be Bound” that is attached hereto as Exhibit A. 22 25 A. When a Producing Party gives notice to Receiving Parties that certain inadvertently 26 produced material is subject to a claim of privilege or other protection, the obligations of the 27 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 1 provision is not intended to modify whatever procedure may be established in an e-discovery 2 order that provides for production without prior privilege review. Pursuant to Federal Rule of 3 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 4 communication or information covered by the attorney-client privilege or work product 5 protection, the parties may incorporate their agreement in the Stipulated Protective Order 6 submitted to the Court. 7 XIII. MISCELLANEOUS 8 9 A. Right to Further Relief 10 1. Nothing in this Order abridges the right of any person to seek its 11 modification by the Court in the future. 12 B. Right to Assert Other Objections 13 14 1. By stipulating to the entry of this Protective Order, no Party waives any 15 right it otherwise would have to object to disclosing or producing any information or item on any 16 ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to 17 object on any ground to use in evidence of any of the material covered by this Protective Order. 18 C. Filing Protected Material 19 20 1. A Party that seeks to file under seal any Protected Material must comply 21 with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court 22 order authorizing the sealing of the specific Protected Material at issue. If a Party's request to file 23 Protected Material under seal is denied by the Court, then the Receiving Party may file the 24 information in the public record unless otherwise instructed by the Court. 25 XIV. FINAL DISPOSITION 26 A. After the final disposition of this Action, as defined in Section V, within sixty (60) 27 days of a written request by the Designating Party, each Receiving Party must return all Protected 1 Material to the Producing Party or destroy such material. As used in this subdivision, “all 2 Protected Material” includes all copies, abstracts, compilations, summaries, and any other format 3 reproducing or capturing any of the Protected Material. Whether the Protected Material is 4 returned or destroyed, the Receiving Party must submit a written certification to the Producing 5 Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that 6 (1) identifies (by category, where appropriate) all the Protected Material that was returned or 7 destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, 8 compilations, summaries or any other format reproducing or capturing any of the Protected 9 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 10 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 11 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 12 consultant and expert work product, even if such materials contain Protected Material. Any such 13 archival copies that contain or constitute Protected Material remain subject to this Protective 14 Order as set forth in Section V. 15 B. Any violation of this Order may be punished by any and all appropriate measures 16 including, without limitation, contempt proceedings and/or monetary sanctions. 17 19 Dated: 5/17/2021 /s/ Gavril T. Gabriel 20 GAVRIL T. GABRIEL 21 22 Gavril T. Gabriel Law 23 Attorney for Plaintiff 24 25 Dated: 5/17/2021 /s/ Maria M. Lampasona 26 MARIA M. LAMPASONA 27 Rankin, Shuey, Ranucci, Mintz, Lampasona & 1 Reynolds 2 Attorneys for Defendant 3 5 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 6 1. The above stipulated protective order is entered; 7 2. The parties are advised that pursuant to the Local Rules of the United States 8 District Court, Eastern District of California, any documents which are to be filed 9 under seal will require a written request which complies with Local Rule 141; 10 3. The party making a request to file documents under seal shall be required to show 11 good cause for documents attached to a nondispositive motion or compelling 12 reasons for documents attached to a dispositive motion, Pintos v. Pacific Creditors 13 Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009); and 14 4. If a party’s request to file Protected Material under seal is denied by the Court, then 15 the previously filed material shall be immediately accepted by the court and 16 become information in the public record and the information will be deemed filed 17 as of the date that the request to file the Protected Information under seal was 18 made. 19 IT IS SO ORDERED. OF. ee 21 | Dated: _May 18, 2021 _ OO UNITED STATES MAGISTRATE JUDGE

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