Wilson, et al. v. City and County of San Francisco, No. 4:2007cv01016 - Document 58 (N.D. Cal. 2008)

Court Description: ORDER GRANTING 57 Stipulated Protective Order. Signed by Judge Jeffrey S. White on 2/8/08. (jjo, COURT STAFF) (Filed on 2/8/2008)
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Wilson, et al. v. City and County of San Francisco 1 2 3 4 5 6 Doc. 58 DENNIS J. HERRERA, State Bar #139669 City Attorney ELIZABETH S. SALVESON, State Bar #83788 Chief Labor Attorney JONATHAN ROLNICK, State Bar #151814 ROSE-ELLEN H. FAIRGRIEVE, State Bar #181257 Deputy City Attorneys Fox Plaza 1390 Market Street, Fifth Floor San Francisco, California 94102-5408 Telephone: (415) 554-3825 Facsimile: (415) 554-4248 7 8 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 13 JOHN CENTURIONI, et al., 14 Case No. C07-1016 JSW Plaintiffs, STIPULATED PROTECTIVE ORDER 15 16 17 vs. CITY AND COUNTY OF SAN FRANCISCO CALIFORNIA, A MUNICIPAL CORPORATION, 18 Defendant. 19 20 21 22 23 24 25 26 27 28 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. The parties further acknowledge, as set forth in Section 10, below, that this Stipulated STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 1 N:\LABOR\LI2007\071466\00452411.DOC Dockets.Justia.com 1 Protective Order creates no entitlement to file confidential information under seal; Civil Local Rule 2 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied 3 when a party seeks permission from the court to file material under seal. 4 5 6 7 2. DEFINITIONS 2.1 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff). 2.2 Disclosure or Discovery Material: all items or information, regardless of the 8 medium or manner generated, stored, or maintained (including, among other things, testimony, 9 transcripts, or tangible things) that are produced or generated in disclosures or responses to 10 11 discovery in this matter. 2.3 "Confidential" Information or Items: information (regardless of how, 12 generated, stored or maintained) or tangible things that qualify for protection under standards 13 developed under F.R.Civ.P. 26(c). 14 2.4 "Highly Confidential - Attorneys' Eyes Only" Information or Items: 15 extremely sensitive "Confidential Information or Items" whose disclosure to another Party or 16 nonparty would create a substantial risk of serious injury that could not be avoided by less 17 restrictive means. 18 2.5 19 a Producing Party. 20 2.6 21 22 Receiving Party: a Party that receives Disclosure or Discovery Material from Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 2.7. Designating Party: a Party or non-party that designates information or items 23 that it produces in disclosures or in responses to discovery as "Confidential" or "Highly 24 Confidential - Attorneys' Eyes Only." 25 26 27 28 2.8 Protected Material: any Disclosure or Discovery Material that is designated as "Confidential" or as "Highly Confidential - Attorneys' Eyes Only." 2.9. Outside Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action. STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 2 N:\LABOR\LI2007\071466\00452411.DOC 1 2.10 House Counsel: attorneys who are employees of a Party. 2 2.11 Counsel (without qualifier): Outside Counsel and House Counsel (as well as 3 their support staffs). 4 2.12 Expert: a person with specialized knowledge or experience in a matter 5 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 6 witness or as a consultant in this action and who is not a past or a current employee of a Party or of 7 a competitor of a Party's and who, at the time of retention, is not anticipated to become an employee 8 of a Party or a competitor of a Party's. This definition includes a professional jury or trial consultant 9 retained in connection with this litigation. 10 2.13 Professional Vendors: persons or entities that provide litigation support 11 services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; 12 organizing, storing, retrieving data in any form or medium; etc.) and their employees and 13 subcontractors. 14 3. 15 The protections conferred by this Stipulation and Order cover not only Protected Material SCOPE 16 (as defined above), but also any information copied or extracted therefrom, as well as all copies, 17 excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by 18 parties or counsel to or in court or in other settings that might reveal Protected Material. 19 4. 20 Even after the termination of this litigation, the confidentiality obligations imposed by this DURATION 21 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 22 otherwise directs. 23 5. 24 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 25 Party or non-party that designates information or items for protection under this Order must take 26 care to limit any such designation to specific material that qualifies under the appropriate standards. 27 A Designating Party must take care to designate for protection only those parts of material, 28 documents, items, or oral or written communications that qualify -so that other portions of the STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 3 N:\LABOR\LI2007\071466\00452411.DOC 1 material, documents, items, or communications for which protection is not warranted are not swept 2 unjustifiably within the ambit of this Order. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 4 shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to 5 unnecessarily encumber or retard the case development process, or to impose unnecessary expenses 6 and burdens on other parties), expose the Designating Party to sanctions. 7 If it comes to a Party's or a non-party's attention that information or items that it 8 designated for protection do not qualify for protection at all, or do not qualify for the level of 9 protection initially asserted, that Party or non-party must promptly notify all other parties that it is 10 11 withdrawing the mistaken designation. 5.2 Manner and Timing of Designations. Except as otherwise provided in this 12 Order (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 16 Designation in conformity with this Order requires: (a) for information in documentary form, (apart from transcripts of 17 depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 18 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" at the top of 19 each page that contains protected material. If only a portion or portions of the material on a page 20 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 21 by making appropriate markings in the margins) and must specify, for each portion, the level of 22 protection being asserted (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - 23 ATTORNEYS' EYES ONLY"). 24 A Party or non-party that makes original documents or materials available for 25 inspection need not designate them for protection until after the inspecting Party has indicated 26 which material it would like copied and produced. During the inspection and before the designation, 27 all of the material made available for inspection shall be deemed "HIGHLY CONFIDENTIAL - 28 ATTORNEYS' EYES ONLY." After the inspecting Party has identified the documents it wants STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 4 N:\LABOR\LI2007\071466\00452411.DOC 1 copied and produced, the Producing Party must determine which documents, or portions thereof, 2 qualify for protection under this Order, then, before producing the specified documents, the 3 Producing Party must affix the appropriate legend ("CONFIDENTIAL" or "HIGHLY 4 CONFIDENTIAL - ATTORNEYS' EYES ONLY") at the top of each page that contains Protected 5 Material. If only a portion or portions of the material on a page qualifies for protection, the 6 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 7 markings in the margins) and must specify, for each portion, the level of protection being asserted 8 (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"). 9 (b) for testimony given in deposition or in other pretrial or trial proceedings, 10 that the Party or non-party offering or sponsoring the testimony identify on the record, before the 11 close of the deposition, hearing, or other proceeding, all protected testimony, and further specify 12 any portions of the testimony that qualify as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - 13 ATTORNEYS' EYES ONLY." When it is impractical to identify separately each portion of 14 testimony that is entitled to protection, and when it appears that substantial portions of the 15 testimony may qualify for protection, the Party or non-party that sponsors, offers, or gives the 16 testimony may invoke on the record (before the deposition or proceeding is concluded) a right to 17 have up to 20 days to identify the specific portions of the testimony as to which protection is sought 18 and to specify the level of protection being asserted ("CONFIDENTIAL" or "HIGHLY 19 CONFIDENTIAL - ATTORNEYS' EYES ONLY"). Only those portions of the testimony that are 20 appropriately designated for protection within the 20 days shall be covered by the provisions of this 21 Stipulated Protective Order. 22 Transcript pages containing Protected Material must be separately bound by 23 the court reporter, who must affix to the top of each such page the legend "CONFIDENTIAL" or 24 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," as instructed by the Party or 25 nonparty offering or sponsoring the witness or presenting the testimony. 26 (c) for information produced in some form other than documentary, and for 27 any other tangible items, that the Producing Party affix in a prominent place on the exterior of the 28 container or containers in which the information or item is stored the legend "CONFIDENTIAL" or STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 5 N:\LABOR\LI2007\071466\00452411.DOC 1 "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY." If only portions of the information or 2 item warrant protection, the Producing Party, to the extent practicable, shall identify the protected 3 portions, specifying whether they qualify as "CONFIDENTIAL" or as "HIGHLY CONFIDENTIAL 4 -ATTORNEYS' EYES ONLY." 5 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 6 failure to designate qualified information or items as "CONFIDENTIAL" or "HIGHLY 7 CONFIDENTIAL - ATTORNEYS' EYES ONLY" does not, standing alone, waive the Designating 8 Party's right to secure protection under this Order for such material. If material is appropriately 9 designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" 10 after the material was initially produced, the Receiving Party, on timely notification of the 11 designation, must make reasonable efforts to assure that the material is treated in accordance with 12 the provisions of this Order. 13 6. 14 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Unless a prompt challenge to a Designating 15 Party's confidentiality designation is necessary to avoid foreseeable substantial unfairness, 16 unnecessary economic burdens, or a later significant disruption or delay of the litigation, a Party 17 does not waive its right to challenge a confidentiality designation by electing not to mount a 18 challenge promptly after the original designation is disclosed. 19 6.2 Meet and Confer. A Party that elects to initiate a challenge to a 20 Designating Party's confidentiality designation must do so in good faith and must begin the process 21 by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) 22 with counsel for the Designating Party. In conferring, the challenging Party must explain the basis 23 for its belief that the confidentiality designation was not proper and must give the Designating Party 24 an opportunity to review the designated material, to reconsider the circumstances, and, if no change 25 in designation is offered, to explain the basis for the chosen designation. A challenging Party may 26 proceed to the next stage of the challenge process only if it has engaged in this meet and confer 27 process first. 28 STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 6 N:\LABOR\LI2007\071466\00452411.DOC 1 6.3 Judicial Intervention. A Party that elects to press a challenge to a 2 confidentiality designation after considering the justification offered by the Designating Party may 3 file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 4 applicable) that identifies the challenged material and sets forth in detail the basis for the challenge. 5 Each such motion must be accompanied by a competent declaration that affirms that the movant has 6 complied with the meet and confer requirements imposed in the preceding paragraph and that sets 7 forth with specificity the justification for the confidentiality designation that was given by the 8 Designating Party in the meet and confer dialogue. 9 The burden of persuasion in any such challenge proceeding shall be on the 10 Designating Party. Until the court rules on the challenge, all parties shall continue to afford the 11 material in question the level of protection to which it is entitled under the Producing Party's 12 designation. 13 7. 14 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that 15 is disclosed or produced by another Party or by a non-party in connection with this case only for 16 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 17 disclosed only to the categories of persons and under the conditions described in this Order. When 18 the litigation has been terminated, a Receiving Party must comply with the provisions of section 11, 19 below (FINAL DISPOSITION). 20 Protected Material must be stored and maintained by a Receiving Party at a 21 location and in a secure manner that ensures that access is limited to the persons authorized under 22 this Order. 23 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless 24 otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party 25 may disclose any information or item designated CONFIDENTIAL only to: 26 27 (a) the Receiving Party's Outside Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably necessary to disclose the information for this 28 STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 7 N:\LABOR\LI2007\071466\00452411.DOC 1 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached 2 hereto as Exhibit A; 3 b) the officers, directors, and employees (including House Counsel) of the 4 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed 5 the "Agreement to Be Bound by Protective Order" (Exhibit A); 6 (c) experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be 8 Bound by Protective Order" (Exhibit A); 9 (d) the Court and its personnel; 10 (e) court reporters, their staffs, and professional vendors to whom disclosure 11 is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by 12 Protective Order" (Exhibit A); 13 (f) during their depositions, witnesses in the action to whom disclosure is 14 reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order" 15 (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal 16 Protected Material must be separately bound by the court reporter and may not be disclosed to 17 anyone except as permitted under this Stipulated Protective Order. 18 (g) the author of the document or the original source of the information. 19 7.3 Disclosure of "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES 20 ONLY" Information or Items. Unless otherwise ordered by the court or permitted in writing by the 21 Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY 22 CONFIDENTIAL -ATTORNEYS' EYES ONLY" only to: 23 (a) the Receiving Party's Outside Counsel of record in this action, as well as 24 employees of said Counsel to whom it is reasonably necessary to disclose the information for this 25 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached 26 hereto as Exhibit A; 27 28 STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 8 N:\LABOR\LI2007\071466\00452411.DOC 1 (b) Experts (as defined in this Order) (l) to whom disclosure is reasonably 2 necessary for this litigation, (2) who have signed the "Agreement to Be Bound by Protective Order" 3 (Exhibit A); 4 (d) the Court and its personnel; 5 (e) court reporters, their staffs, and professional vendors to whom disclosure 6 is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by 7 Protective Order" (Exhibit A); and 8 9 10 (f) the author of the document or the original source of the information. 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. 11 If a Receiving Party is served with a subpoena or an order issued in other litigation 12 that would compel disclosure of any information or items designated in this action as 13 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," the 14 Receiving Party must so notify the Designating Party, in writing (by fax, if possible) immediately 15 and in no event more than three court days after receiving the subpoena or order. Such notification 16 must include a copy of the subpoena or court order. 17 The Receiving Party also must immediately inform in writing the Party who caused 18 the subpoena or order to issue in the other litigation that some or all the material covered by the 19 subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must 20 deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that 21 caused the subpoena or order to issue. 22 The purpose of imposing these duties is to alert the interested parties to the existence 23 of this Protective Order and to afford the Designating Party in this case an opportunity to try to 24 protect its confidentiality interests in the court from which the subpoena or order issued. The 25 Designating Party shall bear the burdens and the expenses of seeking protection in that court of its 26 confidential material - and nothing in these provisions should be construed as authorizing or 27 encouraging a Receiving Party in this action to disobey a lawful directive from another court. 28 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 9 N:\LABOR\LI2007\071466\00452411.DOC 1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 2 Protected Material to any person or in any circumstance not authorized under this Stipulated 3 Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party 4 of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected 5 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 6 terms of this Order, and (d) request such person or persons to execute the "Acknowledgment and 7 Agreement to Be Bound" that is attached hereto as Exhibit A. 8 9 10. FILING PROTECTED MATERIAL. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party 10 may not file in the public record in this action any Protected Material. A Party that seeks to file 11 under seal any Protected Material must comply with Civil Local Rule 79-5. 12 11. FINAL DISPOSITION. Unless otherwise ordered or agreed in writing by the 13 Producing Party, within sixty days after the final termination of this action, each Receiving Party 14 must return all Protected material to the Producing Party. As used in this subdivision, "all Protected 15 Material" includes all copies, abstracts, compilations, summaries or any other form of reproducing 16 or capturing any of the Protected Material. With permission in writing from the Designating Party, 17 the Receiving Party may destroy some or all of the Protected Material instead of returning it. 18 Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written 19 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 20 by the sixty day deadline that identifies (by category, where appropriate) all the Protected Material 21 that was returned or destroyed and that affirms that the Receiving Party has not retained any copies, 22 abstracts, compilations, summaries or other forms of reproducing or capturing any of the Protected 23 Material Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 24 pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product, 25 even if such materials contain Protected Material. Any such archival copies that contain or 26 constitute Protected Material remain subject to this Protective Order as set forth in Section 4 27 (DURATION), above. 28 STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 10 N:\LABOR\LI2007\071466\00452411.DOC 1 12. 2 3 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 4 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 5 Order no Party waives any right it otherwise would have to object to disclosing or producing any 6 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 7 Party waives any right to object on any ground to use in evidence of any of the material covered by 8 this Protective Order. 9 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 10 DATED: SHEA LAW OFFICES 11 12 s:/Mary J. Shea MARY J. SHEA Attorney for Plaintiffs 13 14 DATED: BOXER & GERSON, LLP 15 16 s:/Leslie F. Levy LESLIE F. LEVY DARCI E. BURRELL Attorney for Plaintiffs 17 18 19 DATED: VINICK LAW FIRM 20 21 s:/Sharon Vinick SHARON VINICK Attorney for Plaintiffs 22 23 24 25 DATED: DENNIS J. HERRERA City Attorney JONATHAN C. ROLNICK Deputy City Attorney 26 27 28 s:/Jonathan C. Rolnick JONATHAN C. ROLNICK Attorney for Defendant STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 11 N:\LABOR\LI2007\071466\00452411.DOC 1 PURSUANT TO STIPULATION, IT IS SO ORDERED. 2 3 4 DATED: February 8, 2008 JEFFREY S. WHITE United States District/Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 12 N:\LABOR\LI2007\071466\00452411.DOC 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 Centuroni, et al. v. City and County of San Francisco USDC Case No. C07-1016 JSW 4 5 I, _________________________________[print or type full name], of ___________ [print 6 or type full address], declare under penalty of perjury that I have read in its entirety and understand 7 the Stipulated Protective Order that was issued by the United States District Court for the Northern 8 District of California on [date] in the case of Centuroni, et al. v. City and County of San Francisco, 9 U.S. District Court Case No. 07-1016 JSW. I agree to comply with and to be bound by all the terms 10 of this Stipulated Protective Order and I understand and acknowledge that failure to so comply 11 could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I 12 will not disclose in any manner any information or item that is subject to this Stipulated Protective 13 Order to any person or entity except in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 16 Order, even if such enforcement proceedings occur after termination of this action. 17 I hereby appoint ______________________________________ [print, or type full name] of 18 ________________________________________ [print or type full address and telephone number] 19 as my California agent for service of process in connection with this action or any proceedings 20 related to enforcement of this Stipulated Protective Order. 21 22 Date: 23 City and State where sworn and signed: 24 Printed Name: [printed name] 25 Signature: 26 [signature] 27 28 STIP. PROTECTIVE ORDER - CASE NO. C07-1016 JSW 13 N:\LABOR\LI2007\071466\00452411.DOC