Thompson v. Saukhla

Opinion

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3

4 FELICIA THOMPSON Case No. 2:18-cv-2422 WBS-KJN 5

6 Plaintiff, STIPULATED PROTECTIVE ORDER

7 v. Trial Date: November 24, 2020 8 Action Filed: September 3, 2018 NARINDER SAUKHLA, et al., 9

10 Defendants.

11 12 1. PURPOSES AND LIMITATIONS 13 Disclosure and discovery activity in this action are likely to involve production of 14 confidential, proprietary, or private information for which special protection from public disclosure 15 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 16 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 17 Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures 18 or responses to discovery and that the protection it affords from public disclosure and use extends 19 only to the limited information or items that are entitled to confidential treatment under the 20 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that 21 this Stipulated Protective Order does not entitle them to file confidential information under seal; 22 Local Rule 141 sets forth the procedures that must be followed and the standards that will be applied 23 when a party seeks permission from the court to file material under seal. 24 The following Stipulated Protective Order shall govern the use and disclosure of the 25 documents and materials listed herein, and any other documents that are designated “confidential” 26 by the producing party. 27 1 2. DEFINITIONS 2 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 3 information or items under this Order. 4 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 5 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 6 Civil Procedure 26(c) and for which public disclosure is likely to result in particularized harm, or is 7 privileged under law, and/or violates privacy interests. This information may include: 8 a. information regarding Plaintiff’s medical history disclosed in 9 communications between the decedent and Plaintiff; 10 b. intimate details of Plaintiff’s personal relationships with those other than 11 decedent disclosed in communications between the decedent and Plaintiff; 12 c. intimate details of decedent’s personal relationships with those other than 13 Plaintiff disclosed in communications between the decedent and Plaintiff; 14 d. employment records that would otherwise be privileged. 15 Other items may be included as Confidential for purposes of this order by agreement of the 16 parties or by court order on noticed motion. 17 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 18 as their support staff). 19 2.4 Designating Party: a Party or Non-Party that designates information or items that it 20 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 21 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 22 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 23 transcripts, and tangible things), that are produced or generated in disclosures or responses to 24 discovery in this matter. 25 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 26 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 27 consultant in this action. 1 Counsel does not include Outside Counsel of Record or any other outside counsel. 2 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 3 entity not named as a Party to this action. 4 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 5 but are retained to represent or advise a party to this action and have appeared in this action on 6 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 7 2.10 Party: any party to this action, including all of its officers, directors, employees, 8 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 9 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 10 Material in this action. 11 2.12 Professional Vendors: persons or entities that provide litigation support services 12 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 13 storing, or retrieving data in any form or medium) and their employees and subcontractors. 14 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 15 “CONFIDENTIAL.” 16 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 17 Producing Party. 18 3. SCOPE 19 The protections conferred by this Stipulation and Order cover not only Protected Material (as 20 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 21 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 22 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 23 However, the protections conferred by this Stipulation and Order do not cover the following 24 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 25 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 26 publication not involving a violation of this Order, including becoming part of the public record 27 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 1 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 2 Protected Material at trial shall be governed by a separate agreement or order. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations imposed by this 5 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 6 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 7 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 8 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 9 time limits for filing any motions or applications for extension of time pursuant to applicable law. 10 5. DESIGNATING PROTECTED MATERIAL 11 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 12 Non-Party that designates information or items for protection under this Order must take care to 13 limit any such designation to specific material that qualifies under the appropriate standards. The 14 Designating Party must designate for protection only those parts of material, documents, items, or 15 oral or written communications that qualify – so that other portions of the material, documents, 16 items, or communications for which protection is not warranted are not swept unjustifiably within 17 the ambit of this Order. 18 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 19 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 20 encumber or retard the case development process or to impose unnecessary expenses and burdens on 21 other parties) expose the Designating Party to sanctions. 22 If it comes to a Designating Party’s attention that information or items that it designated for 23 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 24 that it is withdrawing the mistaken designation. 25 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 26 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 27 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 1 Designation in conformity with this Order requires: 2 (a) for information in documentary form (e.g., paper or electronic documents, but 3 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 4 affix the legend “CONFIDENTIAL” to each page that contains protected material. A Party or Non- 5 Party that makes original documents or materials available for inspection need not designate them 6 for protection until after the inspecting Party has indicated which material it would like copied and 7 produced. During the inspection and before the designation, all of the material made available for 8 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the 9 documents it wants copied and produced, the Producing Party must determine which documents, or 10 portions thereof, qualify for protection under this Order. Then, before producing the specified 11 documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that 12 contains Protected Material. 13 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 14 Designating Party identify on the record, before the close of the deposition, hearing, or other 15 proceeding, all protected testimony. 16 (c) for information produced in some form other than documentary and for any other 17 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 18 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 19 portion or portions of the information or item warrant protection, the Producing Party, to the extent 20 practicable, shall identify the protected portion(s). 21 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 22 designate qualified information or items does not, standing alone, waive the Designating Party’s 23 right to secure protection under this Order for such material. Upon timely correction of a 24 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 25 accordance with the provisions of this Order. 26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 27 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 1 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 2 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 3 confidentiality designation by electing not to mount a challenge promptly after the original 4 designation is disclosed. 5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 6 by providing written notice of each designation it is challenging and describing the basis for each 7 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 8 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 9 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 10 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 11 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 12 Party must explain the basis for its belief that the confidentiality designation was not proper and 13 must give the Designating Party an opportunity to review the designated material, to reconsider the 14 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 15 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 16 has engaged in this meet and confer process first or establishes that the Designating Party is 17 unwilling to participate in the meet and confer process in a timely manner. 18 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 19 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Local 20 Rule 230 and 251 (and in compliance with Local Rule 141 and 141.1, if applicable) within 21 days 21 of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer 22 process will not resolve their dispute, whichever is earlier. Each such motion must be accompanied 23 by a competent declaration affirming that the movant has complied with the meet and confer 24 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a 25 motion including the required declaration within 21 days (or 14 days, if applicable) shall 26 automatically waive the confidentiality designation for each challenged designation. In addition, the 27 Challenging Party may file a motion challenging a confidentiality designation at any time if there is 1 portions thereof. Any motion brought pursuant to this provision must be accompanied by a 2 competent declaration affirming that the movant has complied with the meet and confer 3 requirements imposed by the preceding paragraph. 4 The burden of persuasion in any such challenge proceeding shall be on the Designating 5 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 6 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 7 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 8 retain confidentiality as described above, all parties shall continue to afford the material in question 9 the level of protection to which it is entitled under the Producing Party’s designation until the court 10 rules on the challenge. 11 7. ACCESS TO AND USE OF PROTECTED MATERIAL 12 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 13 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 14 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 15 the categories of persons and under the conditions described in this Order. When the litigation has 16 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 17 DISPOSITION). 18 Protected Material must be stored and maintained by a Receiving Party at a location and in a 19 secure manner that ensures that access is limited to the persons authorized under this Order. 20 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 21 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 22 information or item designated “CONFIDENTIAL” only to: 23 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 24 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 25 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 26 attached hereto as Exhibit A; 27 (b) the officers, directors, and employees (including House Counsel) of the Receiving 1 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 2 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 3 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 4 to Be Bound” (Exhibit A); 5 (d) the court and its personnel; 6 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 7 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 10 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 11 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 12 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 13 bound by the court reporter and may not be disclosed to anyone except as permitted under this 14 Stipulated Protective Order. 15 (g) the author or recipient of a document containing the information or a custodian or 16 other person who otherwise possessed or knew the information. 17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 18 LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation that compels 20 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 21 must: 22 (a) promptly notify in writing the Designating Party. Such notification shall include a 23 copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 25 other litigation that some or all of the material covered by the subpoena or order is subject to this 26 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 27 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 1 If the Designating Party timely seeks a protective order, the Party served with the subpoena 2 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 3 before a determination by the court from which the subpoena or order issued, unless the Party has 4 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 5 expense of seeking protection in that court of its confidential material – and nothing in these 6 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 7 disobey a lawful directive from another court. 8 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 9 LITIGATION 10 (a) The terms of this Order are applicable to information produced by a Non-Party in this 11 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 12 connection with this litigation is protected by the remedies and relief provided by this Order. 13 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 14 protections. 15 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 16 Party’s confidential information in its possession, and the Party is subject to an agreement with the 17 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 18 (1) promptly notify in writing the Requesting Party and the Non-Party that some or 19 all of the information requested is subject to a confidentiality agreement with a Non-Party; 20 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in 21 this litigation, the relevant discovery request(s), and a reasonably specific description of the 22 information requested; and 23 (3) make the information requested available for inspection by the Non-Party. 24 (c) If the Non-Party fails to object or seek a protective order from this court within 14 25 days of receiving the notice and accompanying information, the Receiving Party may produce the 26 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 27 seeks a protective order, the Receiving Party shall not produce any information in its possession or 1 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 2 seeking protection in this court of its Protected Material. 3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 5 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 6 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 7 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 8 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 9 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 10 Be Bound” that is attached hereto as Exhibit A. 11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 12 MATERIAL 13 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 14 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 15 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 16 modify whatever procedure may be established in an e-discovery order that provides for production 17 without prior 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 information covered by 19 the attorney-client privilege or work product protection, the parties may incorporate their agreement 20 in the stipulated protective order submitted to the court. 21 12. MISCELLANEOUS 22 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 23 its modification by the court in the future. 24 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 25 no Party waives any right it otherwise would have to object to disclosing or producing any 26 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 27 Party waives any right to object on any ground to use in evidence of any of the material covered by 1 12.3 Filing Protected Material. Without written permission from the Designating Party or a 2 court order secured after appropriate notice to all interested persons, a Party may not file in the 3 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 4 Material must comply with Local Rule 141. Protected Material may only be filed under seal pursuant 5 to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Local 6 Rule 141, a sealing order will issue only upon a request establishing that the Protected Material at 7 issue is entitled to protection under the law. 8 13. FINAL DISPOSITION 9 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 10 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 11 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 12 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 13 the Protected Material is returned or destroyed, the Receiving Party must submit a written 14 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 15 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 16 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 17 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 18 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 19 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 20 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 21 and expert work product, even if such materials contain Protected Material. Any such archival copies 22 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 23 Section 4 (DURATION). 24 14. REMEDIES 25 Any party believing that this order is being violated may move for a court order of 26 enforcement. The motion shall be subject to all local rules governing motions concerning 27 discovery disputes, including but not limited to meet and confer requirements. Said motion may be 1 15. LOCAL RULE 141.1 STATEMENT 2 In accordance with the provisions of Local Rule 141.1, the parties state as follows: 3 (1) The information eligible for a protective order in this case are: 4 a. information regarding Plaintiff’s medical history disclosed in 5 communications between the decedent and Plaintiff; 6 b. intimate details of Plaintiff’s personal relationships with those other 7 than decedent disclosed in communications between the decedent and 8 Plaintiff; 9 c. intimate details of decedent’s personal relationships with those other 10 than Plaintiff disclosed in communications between the decedent and 11 Plaintiff; 12 d. employment records that would otherwise be privileged. 13 (2) A particularized need exists as to these categories as follows: 14 a. These records contain confidential and personal information; 15 b. These records contain information of third parties to this lawsuit that are 16 confidential and personal in nature. 17 (3) A court order is needed to ensure the privacy and confidentiality of this 18 information is enforceable during and after the litigation has ended. 19 20 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

21 DATED: ___2/11/2020_____ ______s/Carter C. White_______________ 22 Carter C. White, Attorney for Plaintiff

23 DATED: ___2/11/2020____ ______s/Diana Esquivel________________ 24 Diana Esquivel, Attorney for Defendants Briggs, Cortez, Galvan, Haile, and Saukhla 25 DATED: ___2/11/2020____ ______s/Nicole Cahill__________________ 26 Nicole Cahill, Attorney for Defendants Naidoo 27 and Portugal 1 ORDER 2 The Court has reviewed the parties’ stipulated protective order, which complies with the 3 relevant authorities and the Court’s applicable local rule. See L.R. 141.1(c);' see also Phillips ex 4 |} rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) “Generally, the 5 public can gain access to litigation documents and information produced during discovery unless 6 || the party opposing disclosure shows ‘good cause’ why a protective order is necessary.”) 7 Therefore, the Court GRANTS the request subject to the following clarification. 8 It is unclear as to the parties’ intent concerning the duration of the Court’s jurisdiction 9 || regarding this protective order. The Local Rules indicate that once this action is closed, “unless 10 otherwise ordered, the Court will not retain jurisdiction over enforcement of the terms of any 11 protective order filed in that action.” L.R. 141.1(f). Courts in the district generally do not agree to 12 retain jurisdiction after closure of the case, and the Court sees no reason to do so here. See, e.g., 13 MD Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., February 03, 2017). Thus, 14 || for clarity, the undersigned informs the parties that once the case is closed, the Court will not 15 || retain jurisdiction over this protective order. 16 Dated: February 18, 2020 M7 Al Norra 18 EKENDALLJ. WEA UNITED STATES MAGISTRATE JUDGE 19 thom.2422 20 YO ' The Court’s Local Rules instruct the parties, when requesting a protective order, to 22 || include in their submission: 23 (1) A description of the types of information eligible for protection under the 24 order, with the description provided in general terms sufficient to reveal the nature of the information (e.g., customer list, formula for soda, diary of a 25 troubled child); (2) A showing of particularized need for protection as to each category of 26 information proposed to be covered by the order; and (3) A showing as to why the need for protection should be addressed by a court order, as opposed to a private agreement between or among the parties. 28 |! Local Rule 141.1(c).

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 ___________ [insert formal name of the case and the 7 number and initials assigned to it by the court]. I agree to comply with and to be bound by all the 8 terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply 9 could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I 10 will not disclose in any manner any information or item that is subject to this Stipulated Protective 11 Order to any person 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 District 13 of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such 14 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] as 17 my California agent for service of process in connection with this action or any proceedings related 18 to enforcement of this Stipulated Protective Order. 19 20 Date: ______________________________________ 21 City and State where sworn and signed: _________________________________ 22 23 Printed name: _______________________________ 24 25 Signature: __________________________________ 26 27