Long Haul, Inc. et al v. Regents of the University of California et al, No. 3:2009cv00168 - Document 87 (N.D. Cal. 2010)
Court Description: ORDER GRANTING 86 Stipulated Protective Order. Signed by Judge JEFFREY S. WHITE on 5/17/10. (jjoS, COURT STAFF) (Filed on 5/17/2010)
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Long Haul, Inc. et al v. Regents of the University of California et al Case3:09-cv-00168-JSW Document86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Doc. 87 Filed05/14/10 Page1 of 13 JOSEPH P. RUSSONIELLO (SBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Assistant United States Attorney Chief, Civil Division JONATHAN U. LEE (CSBN 148792) Assistant United States Attorney VICTORIA R. CARRADERO (CSBN 217885) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6909 Facsimile: (415) 436-6748 Email: Jonathan.Lee@USDOJ.gov Attorneys for Federal Defendants UNITED STATES OF AMERICA, LISA SHAFFER and MIKE HART SCHIFF HARDIN LLP WILLIAM J. CARROLL (CSB #118106) wcarroll@schiffhardin.com SARAH D. YOUNGBLOOD (CSB #244304) syoungblood@schiffhardin.com One Market, Spear Street Tower Thirty-Second Floor San Francisco, CA 94105 Telephone: (415) 901-8700 Facsimile: (415) 901-8701 SARA L. ELLIS (ILSB #6224868) sellis@schiffhardin.com 233 South Wacker Drive Suite 6600 Chicago, IL 60606 Telephone: (312) 258-5800 Facsimile: (312) 258-5600 Attorneys for Defendants MITCHELL CEYELA, KAREN ALBERTS, WILLIAM KASISKE, WADE MACADAM and TIMOTHY J. ZUNIGA 25 26 27 28 STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-1964 JSW Dockets.Justia.com Case3:09-cv-00168-JSW Document86 1 2 3 4 5 6 7 8 9 10 11 12 13 Filed05/14/10 Page2 of 13 Jennifer Stisa Granick (State Bar No. 168423) Matt Zimmerman (State Bar No. 212423) Marcia Hofmann (State Bar No. 250087) ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, California 94110 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Email: jennifer@eff.org Email: mattz@eff.org Michael T. Risher (State Bar No. 191627) AMERICAN CIVIL LIBERTIES FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, California 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 Email: mrisher@aclunc.org Attorneys for Plaintiffs LONG HAUL, INC. and EAST BAY PRISONER SUPPORT 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 17 18 19 LONG HAUL, INC. AND EAST BAY PRISONER SUPPORT, Plaintiffs, 20 21 22 23 24 25 Case No. C 09-0168 JSW STIPULATED PROTECTIVE ORDER v. UNITED STATES OF AMERICA; VICTORIA HARRISON; KAREN ALBERTS; WILLIAM KASISKE; WADE MACADAM; TIMOTHY J. ZUNIGA; MIKE HART; LISA SHAFFER; AND DOES 1-25. Defendants. 26 27 28 -2STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 Filed05/14/10 Page3 of 13 1 1. 2 Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than litigating this action would be warranted. 5 Accordingly, the parties hereby stipulate to and petition the Court to enter the following 6 Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 7 protections on all disclosures or responses to discovery and that the protection it affords extends 8 only to the limited information or items that are entitled under the applicable legal principles to 9 treatment as confidential. The parties further acknowledge, as set forth in Section 10, below, that 10 this Stipulated Protective Order creates no entitlement to file confidential information under seal; 11 Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards 12 that will be applied when a party seeks permission from the court to file material under seal. PURPOSES AND LIMITATIONS 13 2. DEFINITIONS 14 2.1 Party: any party to this action, including all of its officers, directors, employees, 15 16 consultants, and retained experts. 2.2 Disclosure or Discovery Material: all items or information, regardless of the 17 medium or manner generated, stored, or maintained (including, among other things, testimony, 18 transcripts, or tangible things) that are produced or generated in disclosures or responses to 19 discovery in this matter. 20 2.3 “Confidential” Information or Items: information (regardless of how generated, 21 stored or maintained) or tangible things that qualify for protection under standards developed 22 under Federal Rule of Civil Procedure 26(c). 23 2.4 24 Producing Party. 25 2.5 26 27 28 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 2.6 Designating Party: a Party or non-party that designates information or items that it produces in disclosures or in responses to discovery as “Confidential.” -3 STIPULATED PROTECTIVE ORDER, CASE NO. CV08-5005 (MMC) Case3:09-cv-00168-JSW Document86 1 2 3 4 2.7 Filed05/14/10 Page4 of 13 Protected Material: any Disclosure or Discovery Material that is designated as “Confidential.” 2.8 Outside Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action. 5 2.9 House Counsel: attorneys who are employees of a Party. 6 2.10 Counsel (without qualifier): Outside Counsel and House Counsel (as well as their 7 8 9 support staffs). 2.11 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 10 consultant in this action. This definition includes a professional jury or trial consultant retained in 11 connection with this litigation. 12 2.12 Professional Vendors: persons or entities that provide litigation support services 13 (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, 14 storing, retrieving data in any form or medium; etc.) and their employees and subcontractors. 15 3. SCOPE 16 The protections conferred by this Stipulation and Order cover not only Protected Material 17 (as defined above), but also any information copied or extracted therefrom, as well as all copies, 18 excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by 19 parties or counsel to or in Court or in other settings that might reveal Protected Material. 20 4. DURATION 21 Even after the termination of this litigation, the confidentiality obligations imposed by this 22 Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court order 23 otherwise directs. 24 5. DESIGNATING PROTECTED MATERIAL 25 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 26 or non-party that designates information or items for protection under this Order must take care to 27 limit any such designation to specific material that qualifies under the appropriate standards. A 28 Designating Party must take care to designate for protection only those parts of material, -4STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 Filed05/14/10 Page5 of 13 1 documents, items, or oral or written communications that qualify – so that other portions of the 2 material, documents, items, or communications for which protection is not warranted are not 3 swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized 4 designations are prohibited. Designations that are shown to be clearly unjustified, or that have 5 been made for an improper purpose (e.g., to unnecessarily encumber or retard the case 6 development process, or to impose unnecessary expense and burdens on other parties), expose the 7 Designating Party to sanctions. 8 9 10 11 If it comes to a Party’s or a non-party’s attention that information or items that it designated for protection do not qualify for protection, that Party or non-party must promptly notify all other parties that it is withdrawing the mistaken designation. 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 12 (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, 13 material that qualifies for protection under this Order must be clearly so designated before the 14 material is disclosed or produced. 15 Designation in conformity with this Order requires: 16 (a) for information in documentary form (apart from transcripts of depositions or other 17 pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” at the 18 top or bottom of each page that contains protected material. If only a portion or portions of the 19 material on a page qualifies for protection, the Producing Party also must clearly identify the 20 protected portion(s) (e.g., by making the appropriate markings in the margins). 21 A Party or non-party that makes original documents or materials available for inspection 22 need not designate them for protection until after the inspecting Party has indicated which 23 material it would like copied and produced. After the inspecting Party has identified the 24 documents it wants copied and produced, the Producing Party must determine which documents 25 qualify for protection under this Order, then, before producing the specified documents, the 26 Producing Party must affix the legend “CONFIDENTIAL” on each page that contains Protected 27 Material. If only a portion or portions of the material on a page qualifies for protection, the 28 Producing Party also must clearly identify the protected portion(s) (e.g., by making the -5STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 1 2 Filed05/14/10 Page6 of 13 appropriate markings in the margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 3 Party or non-party offering or sponsoring the testimony identify on the record, before the close of 4 the deposition, hearing, or other proceeding, all protected testimony. When it is impractical to 5 identify separately each portion of testimony that is entitled to protection, and when it appears 6 that substantial portions of the testimony may qualify for protection, the Party or non-party that 7 sponsors, offers, or gives the testimony may invoke on the record (before the deposition or 8 proceeding is concluded) a right to have up to 20 days to identify the specific portions of the 9 testimony as to which protection is sought. If a transcript is created for the deposition, pretrial or 10 trial proceedings, the 20-day period begins to run upon release of the transcript to the Party or 11 non-party offering or sponsoring the testimony. Only those portions of the testimony that are 12 appropriately designated for protection within the 20 days shall be covered by the provisions of 13 this Stipulated Protective Order. 14 Transcript pages containing Protected Material must be separately bound by the court 15 reporter, who must affix to the top or bottom of each such page the legend “CONFIDENTIAL” as 16 instructed by the Party or nonparty offering or sponsoring the witness or presenting the testimony. 17 (c) for information produced in some form other than documentary, and for any other 18 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 19 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only 20 portions of the information or item warrant protection, the Producing Party, to the extent 21 practicable, shall identify the protected portions. 22 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 23 designate qualified information or items as “Confidential” does not, standing alone, waive the 24 Designating Party’s right to secure protection under this Order for such material. If material is 25 appropriately designated as “Confidential” after the material was initially produced, the 26 Receiving Party, on timely notification of the designation, must make reasonable efforts to assure 27 that the material is treated in accordance with the provisions of this Order. 28 -6STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 Filed05/14/10 Page7 of 13 1 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 2 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party’s 3 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 4 economic burdens, or a later significant disruption or delay of the litigation, a Party does not 5 waive its right to challenge a confidentiality designation by electing not to mount a challenge 6 promptly after the original designation is disclosed. 7 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating 8 Party’s confidentiality designation must do so in good faith and must begin the process by 9 conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) 10 with counsel for the Designating Party. In conferring, the challenging Party must explain the 11 basis for its belief that the confidentiality designation was not proper and must give the 12 Designating Party an opportunity to review the designated material, to reconsider the 13 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 14 designation. A challenging Party may proceed to the next stage of the challenge process only if it 15 has engaged in this meet and confer process first. 16 6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality 17 designation after considering the justification offered by the Designating Party may file and serve 18 a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) 19 that identifies the challenged material and sets forth in detail the basis for the challenge. Each 20 such motion must be accompanied by a competent declaration that affirms that the movant has 21 complied with the meet and confer requirements imposed in the preceding paragraph and that sets 22 forth with specificity the justification for the confidentiality designation that was given by the 23 Designating Party in the meet and confer dialogue. 24 The burden of persuasion in any such challenge proceeding shall be on the Designating 25 Party. Until the Court rules on the challenge, all parties shall continue to afford the material in 26 question the level of protection to which it is entitled under the Producing Party’s designation. 27 28 -7STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 Filed05/14/10 Page8 of 13 1 7. ACCESS TO AND USE OF PROTECTED MATERIAL 2 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 3 or produced by another Party or by a non-party in connection with this case only for prosecuting, 4 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 5 to the categories of persons and under the conditions described in this Order. When the litigation 6 has been terminated, a Receiving Party must comply with the provisions of section 11, below 7 (FINAL DISPOSITION). 8 Protected Material must be stored and maintained by a Receiving Party at a location and 9 in a secure manner that ensures that access is limited to the persons authorized under this Order. 10 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 11 ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may 12 disclose any information or item designated CONFIDENTIAL only to: 13 (a) the Receiving Party’s counsel of record in this action, employees of, and persons 14 employed in the office of, said counsel and consultants retained by said counsel to whom it is 15 reasonably necessary to disclose the information for this litigation; 16 17 18 19 20 (b) the officers, directors, and employees (including counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation; (c) the officers, directors, and employees of the Receiving Party to whom disclosure is reasonably necessary for this litigation with prior consent of the Producing Party (d) experts (as defined in this Order) of the Receiving Party to whom disclosure is 21 reasonably necessary for this litigation and who have signed the “Acknowledgment and 22 Agreement to Be Bound by Protective Order” (Exhibit A); 23 (e) the Court and its personnel; 24 (f) court reporters and their staffs; 25 (g) professional vendors to whom disclosure is reasonably necessary for this litigation 26 and who have signed the “Acknowledgment and Agreement to Be Bound by Protective Order” 27 (Exhibit A); 28 -8STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 1 (h) Filed05/14/10 Page9 of 13 during their depositions, witnesses in the action to whom disclosure is reasonably 2 necessary; pages of transcribed deposition testimony or exhibits to depositions that reveal 3 Protected Material must be separately bound by the court reporter and may not be disclosed to 4 anyone except as permitted under this Stipulated Protective Order; 5 (i) the author of the document or the original source of the information. 6 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 7 IN OTHER LITIGATION 8 9 If a Receiving Party is served with a subpoena or an order issued in other litigation that would compel disclosure of any information or items designated in this action as 10 “CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in writing (by 11 email or fax, if possible) immediately and in no event more than five (5) court days after 12 receiving the subpoena or order. Such notification must include a copy of the subpoena or court 13 order. 14 The Receiving Party also must immediately inform in writing the Party who caused the 15 subpoena or order to issue in the other litigation that some or all the material covered by the 16 subpoena or order is the subject of this Order. In addition, the Receiving Party must deliver a 17 copy of this Order promptly to the Party in the other action that caused the subpoena or order to 18 issue. 19 The purpose of imposing these duties is to alert the interested parties to the existence of 20 this Order and to afford the Designating Party in this case an opportunity to try to protect its 21 confidentiality interests in the court from which the subpoena or order issued. The Designating 22 Party shall bear the burdens and the expenses of seeking protection in that court of its confidential 23 material – and nothing in these provisions should be construed as authorizing or encouraging a 24 Receiving Party in this action to disobey a lawful directive from another court. 25 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 26 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 27 Material to any person or in any circumstance not authorized under this Order, the Receiving 28 Party must immediately (a) notify in writing the Designating Party of the unauthorized -9STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 Filed05/14/10 Page10 of 13 1 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the 2 person or persons to whom unauthorized disclosures were made of all the terms of this Order, and 3 (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound 4 by Protective Order” that is attached hereto as Exhibit A. 5 10. FILING PROTECTED MATERIAL 6 Without written permission from the Designating Party or a Court order secured after 7 appropriate notice to all interested persons, a Party may not file in the public record in this action 8 any Protected Material. A Party that seeks to file under seal any Protected Material must comply 9 with Civil Local Rule 79-5. 10 11. FINAL DISPOSITION 11 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days 12 after the final termination of this action or any appeal(s) therefrom, each Receiving Party must 13 return all Protected Material to the Producing Party or destroy the Protected Material. As used in 14 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries 15 or any other form of reproducing or capturing any of the Protected Material. Whether the 16 Protected Material is returned or destroyed, the Receiving Party must submit a written 17 certification to the Producing Party (and, if not the same person or entity, to the Designating 18 Party) by the sixty-day deadline that identifies (by category, where appropriate) all the Protected 19 Material that was returned or destroyed and that affirms that the Receiving Party has not retained 20 any copies, abstracts, compilations, summaries or other forms of reproducing or capturing any of 21 the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival 22 copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney 23 work product, even if such materials contain Protected Material. Any such archival copies that 24 contain or constitute Protected Material remain subject to this Protective Order as set forth in 25 Section 4 (DURATION), above. 26 12. MISCELLANEOUS 27 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 28 seek its modification by the Court in the future. - 10 STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 1 12.2 Filed05/14/10 Page11 of 13 Right to Assert Other Objections. By stipulating to the entry of this Order, no 2 Party waives any right it otherwise would have to object to disclosing or producing any 3 information or item on any ground not addressed herein. Similarly, no Party waives any right to 4 object on any ground to use in evidence of any of the material covered by this Order. 5 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: May 13, 2010 7 JOSEPH P. RUSSONIELLO United States Attorney By: 8 9 10 11 12 DATED: May 13, 2010 14 15 16 Dated: May 13, 2010 17 Dated: May 13, 2010 20 22 24 25 26 27 ELECTRONIC FRONTIER FOUNDATION AMERICAN CIVIL LIBERTIES FOUNDATION OF NORTHERN CALIFORNIA By: ___/s/Michael Risher____________ MICHAEL T. RISHER Attorneys for Plaintiffs LONG HAUL, INC., et. al. 21 23 /s/William Carroll WILLIAM J. CARROLL Attorneys for Defendants VICTORIA HARRISON, KAREN ALBERTS, WILLIAM KASISKE, WADE MACADAM, and TIMOTHY J. ZUNIGA By _______/s/Jennifer Granick___ JENNIFER GRANICK 18 19 SCHIFF HARDIN LLP By: 13 /s/Jonathan U. Lee JONATHAN U. LEE Assistant United States Attorney Attorney for Defendants UNITED STATES OF AMERICA, LISA SHAFFER, and MICHAEL HART GENERAL ORDER NO. 45(X) CERTIFICATION I attest that I have obtained Michael Risher’s, Jonathan U. Lee’s and William Carroll’s concurrence in the filing of this document. /s/ Jennifer Granick Jennifer Granick 28 - 11 STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 1 2 3 Filed05/14/10 Page12 of 13 PURSUANT TO STIPULATION, IT IS SO ORDERED. DATED: May 17 __, 2010 HON. JEFFREY S. WHITE United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW Case3:09-cv-00168-JSW Document86 Filed05/14/10 Page13 of 13 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER I, _____________________________ [print or type full name], declare under penalty of 3 4 perjury that I have read in its entirety and understand the Stipulated Protective Order that was 5 issued by the United States District Court for the Northern District of California on __________, 6 2010 in the case of Long Haul, Inc., et al. v. United States of America, et al., Case No. CV 09- 7 0198 JSW. I agree to comply with and to be bound by all the terms of this Stipulated Protective 8 Order and I understand and acknowledge that failure to so comply could expose me to sanctions 9 and punishment in the nature of contempt. I solemnly promise that I will not disclose in any 10 manner any information or item that is subject to this Stipulated Protective Order to any person or 11 entity except in strict compliance with the provisions of this Stipulated Protective Order. I further agree to submit to the jurisdiction of the United States District Court for the 12 13 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 14 Order, even if such enforcement proceedings occur after termination of this action. 15 16 17 18 19 20 21 Date: City and State where sworn and signed: Printed name: Signature: [printed name] [signature] 22 SF\9679646.1 23 24 25 26 27 28 - 13 STIPULATED PROTECTIVE ORDER, CASE NO. CV 09-0168 JSW
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