Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 1 of 14 Page ID #:327

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 HIEN T. NGUYEN, No. 2:21-cv-04327-VAP(ASx) 12 Plaintiff, PROTECTIVE ORDER 13 v. 14 Hon. Alka Sagar CARLOS DEL TORO, in his official United States Magistrate Judge 15 capacity as SECRETARY OF THE NAVY, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 1 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 2 of 14 Page ID #:328

1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, proprietary, 3 or private information for which special protection from public disclosure and from use 4 for any purpose other than prosecuting this litigation may be warranted. Accordingly, the 5 parties hereby stipulate to and petition the Court to enter the following Stipulated 6 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 8 from public disclosure and use extends only to the limited information or items that are 9 entitled to confidential treatment under the applicable legal principles. The parties 10 further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective 11 Order does not entitle them to file confidential information under seal; Civil Local Rule 12 79-5 sets forth the procedures that must be followed and the standards that will be 13 applied when a party seeks permission from the court to file material under seal. 14 B. GOOD CAUSE STATEMENT 15 This employment action centers on Plaintiff’s claims for damages stemming from 16 discrimination and reprisal from the time she worked for the agency through to her 17 termination. As part of those damages, Plaintiff claims she suffered, and continues to 18 suffer, from medical issues, to include mental health issues. Thus, Plaintiff has put her 19 medical and mental health at issue and Defendant seeks her relevant medical records. 20 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of 21 disputes over confidentiality of discovery materials, to adequately protect information 22 the parties are entitled to keep confidential, to ensure that the parties are permitted 23 reasonable necessary uses of such material in preparation for and in the conduct of trial, 24 to address their handling at the end of the litigation, and serve the ends of justice, a 25 protective order for such information is justified in this matter. It is the intent of the 26 parties that information will not be designated as confidential for tactical reasons and 27 that nothing be so designated without a good faith belief that it has been maintained in a 28 confidential, non-public manner, and there is good cause why it should not be part of the 2 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 3 of 14 Page ID #:329

1 public record of this case. 2 2. DEFINITIONS 3 2.1 Action: this pending federal lawsuit. 4 2.2 Challenging Party: a Party or Non-Party that challenges the 5 designation of information or items under this Order. 6 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 7 how it is generated, stored or maintained) or tangible things that qualify for 8 protection under Federal Rule of Civil Procedure 26(c), information that would 9 otherwise be protected from disclosure under the Privacy Act, and as specified 10 above in the Good Cause Statement. 11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 12 their support staff). 13 2.5 Designating Party: a Party or Non-Party that designates information or 14 items that it produces in disclosures or in responses to discovery as 15 “CONFIDENTIAL.” 16 2.6 Disclosure or Discovery Material: all items or information, regardless 17 of the medium or manner in which it is generated, stored, or maintained 18 (including, among other things, testimony, transcripts, and tangible things), that 19 are produced or generated in disclosures or responses to discovery in this matter. 20 2.7 Expert: a person with specialized knowledge or experience in a matter 21 pertinent to the litigation who has been retained by a Party or its counsel to serve 22 as an expert witness or as a consultant in this Action. 23 2.8 House Counsel: attorneys who are employees of a party to this Action. 24 House Counsel does not include Outside Counsel of Record or any other outside 25 counsel. 26 2.9 Non-Party: any natural person, partnership, corporation, association, 27 or other legal entity not named as a Party to this action. 28 2.10 Outside Counsel of Record: attorneys who are not employees of a 3 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 4 of 14 Page ID #:330

1 party to this Action but are retained to represent or advise a party to this Action 2 and have appeared in this Action on behalf of that party or are affiliated with a law 3 firm which has appeared on behalf of that party, and includes support staff. 4 2.11 Party: any party to this Action, including all of its officers, directors, 5 employees, consultants, retained experts, and Outside Counsel of Record (and 6 their support staffs). 7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 8 Discovery Material in this Action. 9 2.13 Professional Vendors: persons or entities that provide litigation 10 support services (e.g., photocopying, videotaping, translating, preparing exhibits 11 or demonstrations, and organizing, storing, or retrieving data in any form or 12 medium) and their employees and subcontractors. 13 2.14 Protected Material: any Disclosure or Discovery Material that is 14 designated as “CONFIDENTIAL.” 15 2.15 Receiving Party: a Party that receives Disclosure or Discovery 16 Material from a Producing Party. 17 3. SCOPE 18 The protections conferred by this Stipulation and Order cover not only Protected 19 Material (as defined above), but also (1) any information copied or extracted from 20 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 21 Material; and (3) any testimony, conversations, or presentations by Parties or their 22 Counsel that might reveal Protected Material. 23 Any use of Protected Material at trial shall be governed by the orders of the trial 24 judge. This Order does not govern the use of Protected Material at trial. 25 4. DURATION 26 Once a case proceeds to trial, all of the information that was designated as 27 confidential or maintained pursuant to this protective order becomes public and will be 28 presumptively available to all members of the public, including the press, unless 4 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 5 of 14 Page ID #:331

1 compelling reasons supported by specific factual findings to proceed otherwise are made 2 to the trial judge in advance of the trial. See Kamakana v. City and County of Honolulu, 3

(9th Cir. 2006) (distinguishing “good cause” showing for 4 sealing documents produced in discovery from “compelling reasons” standard when 5 merits-related documents are part of court record). Accordingly, the terms of this 6 protective order do not extend beyond the commencement of the trial. 7 5. DESIGNATING PROTECTED MATERIAL 8 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 9 Party or Non-Party that designates information or items for protection under this Order 10 must take care to limit any such designation to specific material that qualifies under the 11 appropriate standards. The Designating Party must designate for protection only those 12 parts of material, documents, items, or oral or written communications that qualify so 13 that other portions of the material, documents, items, or communications for which 14 protection is not warranted are not swept unjustifiably within the ambit of this Order. 15 Mass, indiscriminate, or routinized designations are prohibited. Designations that 16 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., 17 to unnecessarily encumber the case development process or to impose unnecessary 18 expenses and burdens on other parties) may expose the Designating Party to sanctions. 19 If it comes to a Designating Party’s attention that information or items that it 20 designated for protection do not qualify for protection, that Designating Party must 21 promptly notify all other Parties that it is withdrawing the inapplicable designation. 22 5.2 Manner and Timing of Designations. Except as otherwise provided in this 23 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 24 ordered, Disclosure or Discovery Material that qualifies for protection under this Order 25 must be clearly so designated before the material is disclosed or produced. 26 Designation in conformity with this Order requires: 27 (a) for information in documentary form (e.g., paper or electronic documents, 28 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 5 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 6 of 14 Page ID #:332

1 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 2 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 3 portion or portions of the material on a page qualifies for protection, the Producing Party 4 also must clearly identify the protected portion(s) (e.g., by making appropriate markings 5 in the margins). 6 A Party or Non-Party that makes original documents available for inspection need 7 not designate them for protection until after the inspecting Party has indicated which 8 documents it would like copied and produced. During the inspection and before the 9 designation, all of the material made available for inspection shall be deemed 10 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 11 copied and produced, the Producing Party must determine which documents, or portions 12 thereof, qualify for protection under this Order. Then, before producing the specified 13 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page 14 that contains Protected Material. If only a portion or portions of the material on a page 15 qualifies for protection, the Producing Party also must clearly identify the protected 16 portion(s) (e.g., by making appropriate markings in the margins). 17 (b) for testimony given in depositions that the Designating Party identify the 18 Disclosure or Discovery Material on the record, before the close of the deposition all 19 protected testimony. 20 (c) for information produced in some form other than documentary and for any 21 other tangible items, that the Producing Party affix in a prominent place on the exterior 22 of the container or containers in which the information is stored the legend 23 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, 24 the Producing Party, to the extent practicable, shall identify the protected portion(s). 25 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 26 to designate qualified information or items does not, standing alone, waive the 27 Designating Party’s right to secure protection under this Order for such material. Upon 28 timely correction of a designation, the Receiving Party must make reasonable efforts to 6 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 7 of 14 Page ID #:333

1 assure that the material is treated in accordance with the provisions of this Order. 2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 3 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 4 designation of confidentiality at any time that is consistent with the Court’s Scheduling 5 Order. 6 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 7 resolution process under Local Rule 37.1 et seq. 8 6.3 The burden of persuasion in any such challenge proceeding shall be on the 9 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., 10 to harass or impose unnecessary expenses and burdens on other parties) may expose the 11 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn 12 the confidentiality designation, all parties shall continue to afford the material in 13 question the level of protection to which it is entitled under the Producing Party’s 14 designation until the Court rules on the challenge. 15 7. ACCESS TO AND USE OF PROTECTED MATERIAL 16 7.1 Basic Principles. A Receiving Party may use Protected Material that is 17 disclosed or produced by another Party or by a Non-Party in connection with this Action 18 only for prosecuting, defending, or attempting to settle this Action. Such Protected 19 Material may be disclosed only to the categories of persons and under the conditions 20 described in this Order. When the Action has been terminated, a Receiving Party must 21 comply with the provisions of section 13 below (FINAL DISPOSITION). 22 Protected Material must be stored and maintained by a Receiving Party at a 23 location and in a secure manner that ensures that access is limited to the persons 24 authorized under this Order. 25 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 26 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 27 may disclose any information or item designated “CONFIDENTIAL” only to: 28 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 7 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 8 of 14 Page ID #:334

1 employees of said Outside Counsel of Record to whom it is reasonably necessary to 2 disclose the information for this Action; 3 (b) the officers, directors, and employees (including House Counsel) of the 4 Receiving Party to whom disclosure is reasonably necessary for this Action; 5 (c) Experts (as defined in this Order) of the Receiving Party to whom 6 disclosure is reasonably necessary for this Action and who have signed the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (d) the court and its personnel; 9 (e) court reporters and their staff; 10 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 11 to whom disclosure is reasonably necessary for this Action and who have signed the 12 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 13 (g) the author or recipient of a document containing the information or a 14 custodian or other person who otherwise possessed or knew the information; 15 (h) during their depositions, witnesses ,and attorneys for witnesses, in the 16 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 17 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will not 18 be permitted to keep any confidential information unless they sign the 19 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 20 by the Designating Party or ordered by the court. Pages of transcribed deposition 21 testimony or exhibits to depositions that reveal Protected Material may be separately 22 bound by the court reporter and may not be disclosed to anyone except as permitted 23 under this Stipulated Protective Order; and 24 (i) any mediator or settlement officer, and their supporting personnel, mutually 25 agreed upon by any of the parties engaged in settlement discussions. 26 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 27 IN OTHER LITIGATION 28 If a Party is served with a subpoena or a court order issued in other litigation that 8 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 9 of 14 Page ID #:335

1 compels disclosure of any information or items designated in this Action as 2 “CONFIDENTIAL,” that Party must: 3 (a) promptly notify in writing the Designating Party. Such notification shall 4 include a copy of the subpoena or court order; 5 (b) promptly notify in writing the party who caused the subpoena or order to 6 issue in the other litigation that some or all of the material covered by the subpoena or 7 order is subject to this Protective Order. Such notification shall include a copy of this 8 Stipulated Protective Order; and 9 (c) cooperate with respect to all reasonable procedures sought to be pursued by 10 the Designating Party whose Protected Material may be affected. 11 If the Designating Party timely seeks a protective order, the Party served with the 12 subpoena or court order shall not produce any information designated in this action as 13 “CONFIDENTIAL” before a determination by the court from which the subpoena or 14 order issued, unless the Party has obtained the Designating Party’s permission. The 15 Designating Party shall bear the burden and expense of seeking protection in that court 16 of its confidential material and nothing in these provisions should be construed as 17 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive 18 from another court. 19 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 20 PRODUCED IN THIS LITIGATION 21 (a) The terms of this Order are applicable to information produced by a Non- 22 Party in this Action and designated as “CONFIDENTIAL.” Such information produced 23 by Non-Parties in connection with this litigation is protected by the remedies and relief 24 provided by this Order. Nothing in these provisions should be construed as prohibiting a 25 Non-Party from seeking additional protections. 26 (b) In the event that a Party is required, by a valid discovery request, to produce 27 a Non-Party’s confidential information in its possession, and the Party is subject to an 28 agreement with the Non-Party not to produce the Non-Party’s confidential information, 9 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 10 of 14 Page ID #:336

1 then the Party shall: 2 (1) promptly notify in writing the Requesting Party and the Non Party that 3 some or all of the information requested is subject to a confidentiality agreement with a 4 Non-Party; 5 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 6 Order in this Action, the relevant discovery request(s), and a reasonably specific 7 description of the information requested; and 8 (3) make the information requested available for inspection by the Non-Party, if 9 requested. 10 (c) If the Non-Party fails to seek a protective order from this court within 14 11 days of receiving the notice and accompanying information, the Receiving Party may 12 produce the Non-Party’s confidential information responsive to the discovery request. If 13 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any 14 information in its possession or control that is subject to the confidentiality agreement 15 with the Non-Party before a determination by the court. Absent a court order to the 16 contrary, the Non-Party shall bear the burden and expense of seeking protection in this 17 court of its Protected Material. 18 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 19 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 20 Protected Material to any person or in any circumstance not authorized under this 21 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 22 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 23 all unauthorized copies of the Protected Material, (c) inform the person or persons to 24 whom unauthorized disclosures were made of all the terms of this Order, and (d) request 25 such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 26 that is attached hereto as Exhibit A. 27 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 28 PROTECTED MATERIAL 10 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 11 of 14 Page ID #:337

1 When a Producing Party gives notice to Receiving Parties that certain 2 inadvertently produced material is subject to a claim of privilege or other protection, the 3 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 4 26(b)(5)(B). This provision is not intended to modify whatever procedure may be 5 established in an e-discovery order that provides for production without prior privilege 6 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach 7 an agreement on the effect of disclosure of a communication or information covered by 8 the attorney-client privilege or work product protection, the parties may incorporate their 9 agreement in the stipulated protective order submitted to the court. 10 12. MISCELLANEOUS 11 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 12 person to seek its modification by the Court in the future. 13 12.2 Right to Assert Other Objections. By stipulating to the entry of this 14 Protective Order no Party waives any right it otherwise would have to object to 15 disclosing or producing any information or item on any ground not addressed in this 16 Stipulated Protective Order. Similarly, no Party waives any right to object on any ground 17 to use in evidence of any of the material covered by this Protective Order. 18 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 19 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 20 under seal pursuant to a court order authorizing the sealing of the specific Protected 21 Material at issue. If a Party's request to file Protected Material under seal is denied by the 22 court, then the Receiving Party may file the information in the public record unless 23 otherwise instructed by the court. 24 13. FINAL DISPOSITION 25 After the final disposition of this Action, as defined in paragraph 4, within 60 days 26 of a written request by the Designating Party, each Receiving Party must return all 27 Protected Material to the Producing Party or destroy such material. As used in this 28 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 11 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 12 of 14 Page ID #:338

1 summaries, and any other format reproducing or capturing any of the Protected Material. 2 Whether the Protected Material is returned or destroyed, the Receiving Party must 3 submit a written certification to the Producing Party (and, if not the same person or 4 entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, 5 where appropriate) all the Protected Material that was returned or destroyed and (2) 6 affirms that the Receiving Party has not retained any copies, abstracts, compilations, 7 summaries or any other format reproducing or capturing any of the Protected Material. 8 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 9 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 10 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 11 consultant and expert work product, even if such materials contain Protected Material. 12 Any such archival copies that contain or constitute Protected Material remain subject to 13 this Protective Order as set forth in Section 4 (DURATION). 14 14. Any violation of this Order may be punished by any and all appropriate 15 measures including, without limitation, contempt proceedings and/or monetary 16 sanctions. 17 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 18 19 DATED: October 20, 2022 20 21 /s/ HIEN T. NGUYEN Hien T. Nguyen 22 Pro se Plaintiff 23 24 25 26 27 28 12 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 13 of 14 Page ID #:339

1 DATED: October 20, 2022 2 E. MARTIN ESTRADA United States Attorney 3 DAVID M. HARRIS Assistant United States Attorney 4 Chief, Civil Division JOANNE S. OSINOFF 5 Assistant United States Attorney Chief, General Civil Section 6 7 /s/ Joseph W. Tursi 8 JOSEPH W. TURSI Assistant United States Attorney 9 Attorneys for Defendant Carlos Del Toro, in 10 his official capacity as Secretary of the Navy 11 12 13 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 14 15 DATED:__N_o_v_e_m_b_e_r_ 1_,_ 2_0_2_2_________ 16 / s / Sagar 17 HONORABLE ALKA SAGAR United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 13 Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 14 of 14 Page ID #:340

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury that I 5 have read in its entirety and understand the Stipulated Protective Order that was issued 6 by the United States District Court for the Central District of California on [date] in the 7 case of Hien T. Nguyen v. Thomas W. Harker CV21-04327-VAP (ASx). I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I 9 understand and acknowledge that failure to so comply could expose me to sanctions 10 and punishment in the nature of contempt. I solemnly promise that I will not disclose 11 in any manner any information or item that is subject to this Stipulated Protective Order 12 to any person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for 14 the Central District of California for the purpose of enforcing the terms of this 15 Stipulated Protective Order, even if such enforcement proceedings occur after 16 termination of this action. I hereby appoint __________________________ [print or 17 type full name] of _______________________________________ [print or type full 18 address and telephone number] as my California agent for service of process in 19 connection with this action or any proceedings related to enforcement of this Stipulated 20 Protective Order. 21 Date: ______________________________ 22 23 City and State where sworn and signed: ___________________________________ 24 Printed name: _____________________________________________ 25 26 Signature: ________________________________________________ 27 28 14