Jacobo v. Hernandez et al, No. 3:2021cv01113 - Document 24 (S.D. Cal. 2021)

Court Description: ORDER Granting 23 Joint Motion and Protective Order. Signed by Magistrate Judge Andrew G. Schopler on 12/21/2021. (tcf)

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Jacobo v. Hernandez et al Doc. 24 Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.121 Page 1 of 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No: 3:21-cv-01113-JLS-AGS Luis JACOBO, 12 13 Plaintiff, v. ORDER GRANTING JOINT MOTION AND PROTECTIVE ORDER 14 15 Rogelio HERNANDEZ, et al., Defendants. 16 17 18 The Court recognizes that at least some of the documents and information 19 (“materials”) being sought through discovery in the above-captioned action are, for public 20 safety and privacy reasons, normally kept confidential by the parties. The parties have 21 agreed to be bound by the terms of this Protective Order (“Order”) in this action. 22 In addition, discovery in this case involves subpoenas for the production of 23 documents by third parties. The materials to be produced throughout the course of the 24 litigation by the parties and third-party subpoena recipients (“Producing Parties”) may 25 contain sensitive information from prison records that affect safety and privacy interests, 26 as is contemplated by Federal Rule of Civil Procedure 26(c)(1)(D). The purpose of this 27 Order is to protect the confidentiality of such materials as much as practical during the 28 litigation. THEREFORE: 1 21-cv-1113-JLS-AGS Dockets.Justia.com Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.122 Page 2 of 12 1 2 DEFINITIONS 1. The term "confidential information" will mean and include information 3 contained or disclosed in any materials, including documents, portions of documents, 4 answers to interrogatories, responses to requests for admissions, responses to subpoenas, 5 trial testimony, deposition testimony, and transcripts of trial testimony and depositions, 6 including data, summaries, and compilations derived therefrom that is deemed to be 7 confidential information by any Producing Party to which it belongs. 8 2. The term "materials" will include, but is not be limited to: documents; 9 correspondence; memoranda; bulletins; blueprints; specifications; minutes; telegrams; 10 letters;; contracts; drafts;; worksheets; notes of conversations; desk diaries; appointment 11 books; expense accounts; recordings; photographs; video material; compilations from 12 which information can be obtained and translated into reasonably usable form through 13 detection devices; sketches; drawings; notes (including laboratory notebooks and records); 14 reports; instructions; disclosures; other writings; models and prototypes and other physical 15 objects. 16 3. 17 The term "counsel" will mean outside counsel of record, and other attorneys, paralegals, secretaries, and other support staff employed in the law firms identified below: 18 19 JONATHAN PAUL 20 DALBIR CHOPRA 21 Rivera Hewitt Paul LLP 22 11341 Gold Express Drive Suite 160 23 Gold River, CA 95670 24 Telephone: 916-922-1200 25 E-mail: Jpaul@rhplawyers.com 26 E-mail: dchopra@rhplawyers.com 27 28 2 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.123 Page 3 of 12 1 THOMAS ROBERTSON 2 501 West Broadway Suite 1510 3 San Diego, CA 92101 4 Telephone: 619-544-9911 5 E-mail: thomas@robertsonSDlaw.com 6 7 SUSAN COLEMAN 8 Burke, Williams & Sorensen LLP 9 444 South Flower Street Suite 2400 10 Los Angeles, CA 90071-2953 11 Telephone: (213)236-0600 12 E-mail: scoleman@bwslaw.com 13 14 THOMAS CREGGER 15 Cregger Law LLP 16 5960 South Land Park Drive Suite 640 17 Sacramento, CA 95822 18 Telephone:916-761-8293 19 E-mail:Tac@creggerlaw.com 20 21 22 GENERAL RULES 4. Each Producing Party that produces or discloses any materials, documents, 23 answers to interrogatories, responses to requests for admission, trial testimony, deposition 24 testimony, and transcripts of trial testimony and depositions, or information that the 25 producing party believes should be subject to this Protective Order may designate the same 26 as "CONFIDENTIAL" or "CONFIDENTIAL - FOR COUNSEL ONLY." 27 28 a. Designation as "CONFIDENTIAL": Any Producing Party may designate information as "CONFIDENTIAL" only if, in the good faith belief of such Producing Party 3 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.124 Page 4 of 12 1 and its counsel, the unrestricted disclosure of such information could be potentially 2 prejudicial to the safety or privacy interests of such party, its employees, or third-party 3 individuals. 4 b. Designation as "CONFIDENTIAL - FOR COUNSEL ONLY": Any 5 Producing Party may designate information as "CONFIDENTIAL - FOR COUNSEL 6 ONLY" only if, in the good faith belief of such party and its counsel, the information is 7 among that considered to be most sensitive by the party, including but not limited to 8 information that would otherwise present a substantial safety risk or substantial intrusion 9 into an individual’s right to privacy. 10 5. In the event the producing party elects to produce materials for inspection, no 11 marking need be made by the producing party in advance of the initial inspection. For 12 purposes of the initial inspection, all materials produced will be considered as 13 "CONFIDENTIAL - FOR COUNSEL ONLY," and must be treated as such pursuant to the 14 terms of this Order. Thereafter, upon selection of specified materials for copying by the 15 inspecting party, the producing party must, within a reasonable time prior to producing 16 those materials to the inspecting party, mark the copies of those materials that contain 17 confidential information with the appropriate confidentiality marking. 18 19 20 6. Whenever a deposition taken on behalf of any party involves a disclosure of confidential information of any Producing Party: a. the deposition or portions of the deposition must be designated as 21 containing confidential information subject to the provisions of this 22 Order; such designation must be made on the record whenever possible, 23 but a party may designate portions of depositions as containing 24 confidential information after transcription of the proceedings; [A] 25 party will have until fourteen (14) days after receipt of the deposition 26 transcript to inform the other party or Producing Parties to the action of 27 the portions of the transcript to be designated "CONFIDENTIAL" or 28 "CONFIDENTIAL - FOR COUNSEL ONLY.” 4 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.125 Page 5 of 12 1 b. the disclosing party will have the right to exclude from attendance at 2 the deposition, during such time as the confidential information is to be 3 disclosed, any person other than the deponent, counsel (including their 4 staff and associates), the court reporter, and the person(s) agreed upon 5 pursuant to paragraph 8 below; and 6 c. the originals of the deposition transcripts and all copies of the 7 deposition 8 "CONFIDENTIAL - FOR COUNSEL ONLY," as appropriate, and the 9 original or any copy ultimately presented to a court for filing must not 10 be filed unless it can be accomplished under seal, identified as being 11 subject to this Order, and protected from being opened except by order 12 of this Court. 13 7. must bear the legend "CONFIDENTIAL" or All confidential information designated as "CONFIDENTIAL" or 14 "CONFIDENTIAL FOR COUNSEL ONLY" must not be disclosed by the receiving party 15 to anyone other than those persons designated within this order and must be handled in the 16 manner set forth below and, in any event, must not be used for any purpose other than in 17 connection with this litigation, unless and until such designation is removed either by 18 agreement of the parties, or by order of the Court. If such designation is to be removed for 19 any reason, reasonable advance notice must be given to the Producing Party, along with an 20 opportunity to object. 21 8. Information designated "CONFIDENTIAL - FOR COUNSEL ONLY" must 22 be viewed only by counsel (as defined in paragraph 3) of the receiving party, and by 23 retained expert witnesses, provided they sign this agreement (Exhibit A) and consent to be 24 bound by it, in advance of being provided any confidential information. 25 9. Information designated "confidential" must be viewed only by counsel (as 26 defined in paragraph 3) of the receiving party, by expert witnesses (pursuant to the terms 27 of paragraph 8), by court personnel, and by the additional individuals listed below, 28 provided each such individual has read this Order in advance of disclosure and has agreed 5 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.126 Page 6 of 12 1 in writing to be bound by its terms: 2 a) Technical personnel of the parties with whom Counsel for the parties 3 find it necessary to consult, in the discretion of such counsel, in 4 preparation for trial of this action; and 5 b) 6 7 Stenographic and clerical employees associated with the individuals identified above. 10. With respect to material designated "CONFIDENTIAL" or 8 "CONFIDENTIAL – FOR COUNSEL ONLY," any person indicated on the face of the 9 document to be its originator, author or a recipient of a copy of the document, may be 10 shown the same. 11 11. All information which has been designated as "CONFIDENTIAL" or 12 "CONFIDENTIAL - FOR COUNSEL ONLY" by the producing or disclosing party, and 13 any and all reproductions of that information, must be retained in the custody of the counsel 14 for the receiving party identified in paragraph 3, except that experts authorized to view 15 such information under the terms of this Order may retain custody of copies such as are 16 necessary for their participation in this litigation. 17 12. Before any materials produced in discovery (including those produced in 18 response to subpoena), answers to interrogatories, responses to requests for admissions, 19 deposition transcripts, or other documents which are designated as confidential information 20 are filed with the Court for any purpose, the party seeking to file such material must seek 21 permission of the Court to file the material under seal. 22 13. At any stage of these proceedings, any party may object to a designation of 23 the materials as confidential information. The party objecting to confidentiality must 24 notify, in writing, counsel for the Producing Party of the objected-to materials and the 25 grounds for the objection. If the dispute is not resolved consensually between the parties 26 within seven (7) days of receipt of such a notice of objections, the objecting party may 27 move the Court for a ruling on the objection. The materials at issue must be treated as 28 confidential information, as designated by the Producing Party, until the Court has ruled 6 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.127 Page 7 of 12 1 2 on the objection or the matter has been otherwise resolved. 14. All confidential information must be held in confidence by those inspecting 3 or receiving it, and must be used only for purposes of this action. Counsel for each party, 4 and each person receiving confidential information must take reasonable precautions to 5 prevent the unauthorized or inadvertent disclosure of such information. If confidential 6 information is disclosed to any person other than a person authorized by this Order, the 7 party responsible for the unauthorized disclosure must immediately bring all pertinent facts 8 relating to the unauthorized disclosure to the attention of the other parties and, without 9 prejudice to any rights and remedies of the other parties, make every effort to prevent 10 further disclosure by the party and by the person(s) receiving the unauthorized disclosure. 11 15. No party will be responsible to another party for disclosure of confidential 12 information under this Order if the information in question is not labeled or otherwise 13 identified as such in accordance with this Order. 14 16. If a Producing Party, through inadvertence, produces any confidential 15 information without labeling or marking or otherwise designating it as such in accordance 16 with this Order, the Producing Party may give written notice to the receiving party that the 17 document or thing produced is deemed confidential information, and that the document or 18 thing produced should be treated as such in accordance with that designation under this 19 Order. The receiving party must treat the materials as confidential, once the Producing 20 Party so notifies the receiving party. If the receiving party has disclosed the materials 21 before receiving the designation, the receiving party must notify the Producing Party in 22 writing of each such disclosure. Counsel for the parties will agree on a mutually acceptable 23 manner of labeling or marking the inadvertently produced materials as "CONFIDENTIAL" 24 or "CONFIDENTIAL - FOR COUNSEL ONLY" - SUBJECT TO PROTECTIVE 25 ORDER. 26 17. Nothing within this order will prejudice the right of any party or Producing 27 Party to object to the production of any discovery material on the grounds that the material 28 is protected as privileged or as attorney work product. 7 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.128 Page 8 of 12 1 18. Nothing in this Order will bar counsel from rendering advice to their clients 2 with respect to this litigation and, in the course thereof, relying upon any information 3 designated as confidential information, provided that the contents of the information and 4 the underlying documents must not be disclosed. 5 19. This Order will be without prejudice to the right of any party or Producing 6 Party to oppose production of any information for lack of relevance or any other ground 7 other than the mere presence of confidential information. The existence of this Order must 8 not be used by either party as a basis for discovery that is otherwise improper under the 9 Federal Rules of Civil Procedure. 10 20. Nothing within this order will be construed to prevent disclosure of 11 confidential information if such disclosure is required by law or by order of the Court. If 12 a party is called upon to disclose confidential information in this manner, the disclosing 13 party shall provide reasonable advance notice to the Producing Party. 14 21. Upon final termination of this action, including any and all appeals, counsel 15 for each party must destroy all confidential information produced under this Protective 16 Order, including any copies, excerpts, and summaries of that information, and must purge 17 all such information from all machine-readable media on which it resides. Notwithstanding 18 the foregoing, counsel for each party may retain all pleadings, briefs, memoranda, motions, 19 and other documents filed with the Court that refer to or incorporate confidential 20 information, and will continue to be bound by this Order with respect to all such retained 21 information. Further, attorney work product materials that contain confidential information 22 need not be destroyed, but, if they are not destroyed, the person in possession of the 23 attorney work product will continue to be bound by this Order with respect to all such 24 retained information. 25 22. The restrictions and obligations set forth within this order will not apply to 26 any information that: (a) the parties (and relevant Producing Party, if applicable) agree 27 should not be designated confidential information; (b) the parties (and relevant Producing 28 Party, if applicable) agree, or the Court rules, is already public knowledge; (c) the parties 8 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.129 Page 9 of 12 1 (and relevant Producing Party, if applicable) agree, or the Court rules, has become public 2 knowledge other than as a result of disclosure by the receiving party, its employees, or its 3 agents in violation of this Order; or (d) has come or will come into the receiving party's 4 legitimate knowledge independently of the production by the designating party. Prior 5 knowledge must be established by pre-production documentation. 6 23. The restrictions and obligations within this order will not be deemed to 7 prohibit discussions of any confidential information with anyone if that person already has 8 or obtains legitimate possession of that information. 9 10 11 12 13 24. Transmission by email or some other currently utilized method of transmission is acceptable for all notification purposes within this Order. 25. This Order may be modified by agreement of the parties, subject to approval by the Court. 26. The Court may modify the terms and conditions of this Order for good cause, 14 or in the interest of justice, or on its own order at any time in these proceedings. The parties 15 prefer that the Court provide them with notice of the Court's intent to modify the Order and 16 the content of those modifications, prior to entry of such an order. 17 27. 18 party subpoena. 19 28. A copy of this Protective Order shall be served on any recipient of a third- No document may be filed under seal, except pursuant to a court order that 20 authorizes the sealing of the particular document, or portion of the document. A sealing 21 order may issue only upon a showing that the information is privileged or protectable under 22 the law. The request must be narrowly tailored to seek sealing only of the confidential or 23 privileged material. 24 29. To file a document under seal, the parties must comply with the procedures 25 explained in Section 2.j of the Electronic Case Filing Administrative Policies and 26 Procedures Manual for the United States District Court for the Southern District of 27 California and Civil Local Rule 79.2. In addition, a party must file a redacted version of 28 any document that it seeks to file under seal. The document must be titled to show that it 9 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.130 Page 10 of 12 1 corresponds to an item filed under seal, e.g., ”Redacted Copy of Sealed Declaration of John 2 Smith in Support of Motion for Summary Judgment.” The party should file the redacted 3 document(s) simultaneously with a joint motion or ex parte application requesting that the 4 confidential portions of the document(s) be filed under seal and setting forth good cause 5 for the request. 6 30. Without a separate court order, the Protective Order and the parties' stipulation 7 does not change, amend, or circumvent any court rule or local rule. 8 Dated: December 21, 2021 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.131 Page 11 of 12 1 2 3 4 Exhibit A 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 21-cv-1113-JLS-AGS Case 3:21-cv-01113-JLS-AGS Document 24 Filed 12/21/21 PageID.132 Page 12 of 12 1 Non-Disclosure Agreement 2 Jacobo v. Hernandez, et. al., 21cv1113-JLS-AGS (S.D. Cal.) 3 4 I, the undersigned, hereby declare that I have read the attached 5 Stipulated Protective Order (“Order”) entered in the above-captioned case. 6 I understand the terms of the Order. I also understand that my execution of 7 this Non-Disclosure Agreement, indicating my agreement to be bound by the 8 9 10 11 12 13 14 15 16 17 18 Order, is a prerequisite to my review of any information or documents designated as "CONFIDENTIAL" or "CONFIDENTIAL – FOR COUNSEL ONLY" pursuant to the Order. I will comply with, and agree to be bound by, all of the provisions of the Order. I agree and attest to my understanding that, if I fail to abide by the terms of the Order, I may be subject to sanctions, including contempt of court, for such failure. I agree to be subject to the jurisdiction of the United States District Court, Southern District of California, for the purposes of any proceedings relating to the enforcement of the Order and this Non-Disclosure Agreement. 19 20 21 DATED: ______________________ ________________________________ Signature 22 23 24 25 ________________________________ 26 Print Name 27 28 12 21-cv-1113-JLS-AGS

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