1 E. MARTIN ESTRADA United States Attorney 2 DAVID M. HARRIS Assistant United States Attorney 3 Chief, Civil Division JOANNE S. OSINOFF 4 Assistant United States Attorney Chief, Complex and Defensive Litigation Section 5 JOSEPH W. TURSI (Cal. Bar No. 300063) Assistant United States Attorney 6 Federal Building, Suite 7516 300 North Los Angeles Street 7 Los Angeles, California 90012 Telephone: (213) 894-3989 8 Facsimile: (213) 894-7819 E-mail: [email protected] 9 Attorneys for Defendant 10 United States of America

11 UNITED STATES DISTRICT COURT 12 FOR THE CENTRAL DISTRICT OF CALIFORNIA 13

14 K.L., a minor by and through his Case No. 5:22-cv-01971-JGB-SPx

guardian ad litem, MARY 15 MOSCHKAU; SAKURA CREEDON, STIPULATED PROTECTIVE ORDER1 16 an individual; JEREMIAH LEAMING, an individual, 17 Plaintiffs, 18 v. 19 UNITED STATES OF AMERICA, 20 Defendant. 21

22 1. A. PURPOSES AND LIMITATIONS 23

24 Discovery in this action is likely to involve production of confidential, proprietary, 25 or private information for which special protection from public disclosure and from use 26

27 1 This Stipulated Protective Order is substantially based on the sample protective 1 for any purpose other than prosecuting this litigation may be warranted. Accordingly, the 2 parties hereby stipulate to and petition the Court to enter the following Stipulated 3 Protective Order. The parties acknowledge that this Order does not confer blanket 4 protections on all disclosures or responses to discovery and that the protection it affords 5 from public disclosure and use extends only to the limited information or items that are 6 entitled to confidential treatment under the applicable legal principles. The parties further 7 acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does 8 not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth 9 the procedures that must be followed and the standards that will be applied when a party 10 seeks permission from the court to file material under seal. 11 12 B. GOOD CAUSE STATEMENT 13 This action is likely to involve medical records for which special protection from 14 public disclosure and from use for any purpose other than prosecution of this action is 15 warranted. Such confidential and proprietary materials and information consist of, among 16 other things, the medical records, including psychological/psychiatric records, of Plaintiff 17 K.L., a minor, (including information implicating privacy rights of third parties, such as 18 his parents, Plaintiffs Creedon and Leaming), information otherwise generally unavailable 19 to the public, or which may be privileged or otherwise protected from disclosure under 20 state or federal statutes, court rules, case decisions, or common law. Accordingly, to 21 expedite the flow of information, to facilitate the prompt resolution of disputes over 22 confidentiality of discovery materials, to adequately protect information the parties are 23 entitled to keep confidential, to ensure that the parties are permitted reasonable necessary 24 uses of such material in preparation for and in the conduct of trial, to address their handling 25 at the end of the litigation, and serve the ends of justice, a protective order for such 26 information is justified in this matter. It is the intent of the parties that information will 27 not be designated as confidential for tactical reasons and that nothing be so designated 1 manner, and there is good cause why it should not be part of the public record of this case. 2 3 2. DEFINITIONS 4 2.1 Action: This pending federal lawsuit, styled K.L., et al. v. United States, 5:22- 5 cv-01971-JGB-SPx. 6 2.2 Challenging Party: A Party or Non-Party that challenges the designation of 7 information or items under this Order. 8 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it 9 is generated, stored or maintained) or tangible things that qualify for protection under 10 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 11 Statement. 12 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 13 support staff). 14 2.5 Designating Party: a Party or Non-Party that designates information or items 15 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 16 2.6 Disclosure or Discovery Material: all items or information, regardless of the 17 medium or manner in which it is generated, stored, or maintained (including, among other 18 things, testimony, transcripts, and tangible things), that are produced or generated in 19 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 as an 22 expert witness or as a consultant in this Action. 23 2.8 House Counsel: attorneys who are employees of a party to this Action. House 24 Counsel does not include Outside Counsel of Record or any other outside counsel. 25 2.9 Non-Party: any natural person, partnership, corporation, association, or other 26 legal entity not named as a Party to this action. 27 2.10 Outside Counsel of Record: attorneys who are not employees of a party to 1 in this Action on behalf of that party or are affiliated with a law firm which has appeared 2 on behalf of that party, and includes support staff. 3 2.11 Party: any party to this Action, including all of its officers, directors, 4 employees, consultants, retained experts, and Outside Counsel of Record (and their 5 support staffs). 6 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 7 Material in this Action. 8 2.13 Professional Vendors: persons or entities that provide litigation support 9 services (e.g., photocopying, videotaping, translating, preparing exhibits or 10 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 11 their employees and subcontractors. 12 2.14 Protected Material: any Disclosure or Discovery Material that is designated 13 as “CONFIDENTIAL.” 14 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from 15 a Producing Party. 16 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 Counsel 22 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 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 sealing 4 documents produced in discovery from “compelling reasons” standard when merits- 5 related documents are part of court record). Accordingly, the terms of this protective order 6 do not extend beyond the commencement of the trial. 7 8 5. DESIGNATING PROTECTED MATERIAL 9 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 10 Party or Non-Party that designates information or items for protection under this Order 11 must take care to limit any such designation to specific material that qualifies under the 12 appropriate standards. The Designating Party must designate for protection only those 13 parts of material, documents, items, or oral or written communications that qualify so that 14 other portions of the material, documents, items, or communications for which protection 15 is not warranted are not swept unjustifiably within the ambit of this Order. 16 Mass, indiscriminate, or routinized designations are prohibited. Designations that 17 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., 18 to unnecessarily encumber the case development process or to impose unnecessary 19 expenses and burdens on other parties) may expose the Designating Party to sanctions. 20 If it comes to a Designating Party’s attention that information or items that it 21 designated for protection do not qualify for protection, that Designating Party must 22 promptly notify all other Parties that it is withdrawing the inapplicable designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in this 24 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 25 ordered, Disclosure or Discovery Material that qualifies for protection under this Order 26 must be clearly so designated before the material is disclosed or produced. 27 Designation in conformity with this Order requires: 1 documents, but excluding transcripts of depositions or other pretrial or trial proceedings), 2 that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 3 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 4 portion or portions of the material on a page qualifies for protection, the Producing Party 5 also must clearly identify the protected portion(s) (e.g., by making appropriate markings 6 in the margins). 7 A Party or Non-Party that makes original documents available for inspection need 8 not designate them for protection until after the inspecting Party has indicated which 9 documents it would like copied and produced. During the inspection and before the 10 designation, all of the material made available for inspection shall be deemed 11 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 12 copied and produced, the Producing Party must determine which documents, or portions 13 thereof, qualify for protection under this Order. Then, before producing the specified 14 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page 15 that contains Protected Material. If only a portion or portions of the material on a page 16 qualifies for protection, the Producing Party also must clearly identify the protected 17 portion(s) (e.g., by making appropriate markings in the margins). 18 (b) for testimony given in depositions that the Designating Party identify 19 the Disclosure or Discovery Material on the record, before the close of the deposition all 20 protected testimony. 21 (c) for information produced in some form other than documentary and 22 for any other tangible items, that the Producing Party affix in a prominent place on the 23 exterior of the container or containers in which the information is stored the legend 24 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, 25 the Producing Party, to the extent practicable, shall identify the protected portion(s). 26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 27 to designate qualified information or items does not, standing alone, waive the Designating 1 correction of a designation, the Receiving Party must make reasonable efforts to assure 2 that the material is treated in accordance with the provisions of this Order. 3 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 4 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation 5 of confidentiality at any time that is consistent with the Court’s Scheduling Order. 6 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 7 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., to 10 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 the 12 confidentiality designation, all parties shall continue to afford the material in question the 13 level of protection to which it is entitled under the Producing Party’s designation until the 14 Court rules on the challenge. 15 16 7. ACCESS TO AND USE OF PROTECTED MATERIAL 17 7.1 Basic Principles. A Receiving Party may use Protected Material that is 18 disclosed or produced by another Party or by a Non-Party in connection with this Action 19 only for prosecuting, defending, or attempting to settle this Action. Such Protected 20 Material may be disclosed only to the categories of persons and under the conditions 21 described in this Order. When the Action has been terminated, a Receiving Party must 22 comply with the provisions of section 13 below (FINAL DISPOSITION). 23 Protected Material must be stored and maintained by a Receiving Party at a location 24 and in a secure manner that ensures that access is limited to the persons authorized under 25 this Order. 26 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 27 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 2 well as employees of said Outside Counsel of Record to whom it is reasonably necessary 3 to disclose the information for this Action; 4 (b) the officers, directors, and employees (including House Counsel) of 5 the Receiving Party to whom disclosure is reasonably necessary for this Action; 6 (c) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (d) the court and its personnel; 10 (e) court reporters and their staff; 11 (f) professional jury or trial consultants, mock jurors, and Professional 12 Vendors to whom disclosure is reasonably necessary for this Action and who have signed 13 the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (g) the author or recipient of a document containing the information or a 15 custodian or other person who otherwise possessed or knew the information; 16 (h) during their depositions, witnesses ,and attorneys for witnesses, in the 17 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 18 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not 19 be permitted to keep any confidential information unless they sign the “Acknowledgment 20 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating 21 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to 22 depositions that reveal Protected Material may be separately bound by the court reporter 23 and may not be disclosed to anyone except as permitted under this Stipulated Protective 24 Order; 25 (i) any mediator or settlement officer, and their supporting personnel, 26 mutually agreed upon by any of the parties engaged in settlement discussions. 27 (j) During the trial of this case, witnesses; and 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 2 OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation that 4 compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL,” that Party must: 6 (a) promptly notify in writing the Designating Party. Such notification 7 shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order 9 to issue in the other litigation that some or all of the material covered by the subpoena or 10 order is subject to this Protective Order. Such notification shall include a copy of this 11 Stipulated Protective Order; and 12 (c) cooperate with respect to all reasonable procedures sought to be 13 pursued by the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served with the 15 subpoena or court order shall not produce any information designated in this action as 16 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 17 issued, unless the Party has obtained the Designating Party’s permission. The Designating 18 Party shall bear the burden and expense of seeking protection in that court of its 19 confidential material and nothing in these provisions should be construed as authorizing 20 or encouraging a Receiving Party in this Action to disobey a lawful directive from another 21 court. 22 23 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 24 IN THIS LITIGATION 25 (a) The terms of this Order are applicable to information produced by a 26 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 27 produced by Non-Parties in connection with this litigation is protected by the remedies 1 prohibiting a Non-Party from seeking additional protections. 2 (b) In the event that a Party is required, by a valid discovery request, to 3 produce a Non-Party’s confidential information in its possession, and the Party is subject 4 to an agreement with the Non-Party not to produce the Non-Party’s confidential 5 information, then the Party shall: 6 (1) promptly notify in writing the Requesting Party and the 7 Non-Party that some or all of the information requested is subject to a confidentiality 8 agreement with a Non-Party; 9 (2) promptly provide the Non-Party with a copy of the Stipulated 10 Protective Order in this Action, the relevant discovery request(s), and a reasonably specific 11 description of the information requested; and 12 (3) make the information requested available for inspection by the 13 Non-Party, if requested. 14 (c) If the Non-Party fails to seek a protective order from this court within 15 14 days of receiving the notice and accompanying information, the Receiving Party may 16 produce the Non-Party’s confidential information responsive to the discovery request. If 17 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any 18 information in its possession or control that is subject to the confidentiality agreement with 19 the Non-Party before a determination by the court. Absent a court order to the contrary, 20 the Non-Party shall bear the burden and expense of seeking protection in this court of its 21 Protected Material. 22 23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 25 Protected Material to any person or in any circumstance not authorized under this 26 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 27 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all 1 unauthorized disclosures were made of all the terms of this Order, and (d) request such 2 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is 3 attached hereto as Exhibit A. 4 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 5 PROTECTED MATERIAL 6 When a Producing Party gives notice to Receiving Parties that certain inadvertently 7 produced material is subject to a claim of privilege or other protection, the obligations of 8 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). 9 This provision is not intended to modify whatever procedure may be established in an e- 10 discovery order that provides for production without prior privilege review. Pursuant to 11 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the 12 effect of disclosure of a communication or information covered by the attorney-client 13 privilege or work product protection, the parties may incorporate their agreement in the 14 stipulated protective order submitted to the court. 15 12. MISCELLANEOUS 16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person 17 to seek its modification by the Court in the future. 18 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 19 Order no Party waives any right it otherwise would have to object to disclosing or 20 producing any information or item on any ground not addressed in this Stipulated 21 Protective Order. Similarly, no Party waives any right to object on any ground to use in 22 evidence of any of the material covered by this Protective Order. 23 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 24 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 25 under seal pursuant to a court order authorizing the sealing of the specific Protected 26 Material at issue. If a Party's request to file Protected Material under seal is denied by the 27 court, then the Receiving Party may file the information in the public record unless 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 60 days 3 of a written request by the Designating Party, each Receiving Party must return all 4 Protected Material to the Producing Party or destroy such material. As used in this 5 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 6 summaries, and any other format reproducing or capturing any of the Protected Material. 7 Whether the Protected Material is returned or destroyed, the Receiving Party must submit 8 a written certification to the Producing Party (and, if not the same person or entity, to the 9 Designating Party) by the 60 day deadline that (1) identifies (by category, where 10 appropriate) all the Protected Material that was returned or destroyed and (2) affirms that 11 the Receiving Party has not retained any copies, abstracts, compilations, summaries or any 12 other format reproducing or capturing any of the Protected Material. Notwithstanding this 13 provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, 14 trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition 15 and trial exhibits, expert reports, attorney work product, and consultant and expert work 16 product, even if such materials contain Protected Material. Any such archival copies that 17 contain or constitute Protected Material remain subject to this Protective Order as set forth 18 in Section 4 (DURATION). 19 14. Any violation of this Order may be punished by any and all appropriate measures 20 including, without limitation, contempt proceedings and/or monetary sanctions. 21 // 22 // 23 24 25 26 27 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 DATED: September 28, 2023 4 5 /s/ Darrell M. Padgette DARRELL M. PADGETTE* 6 MICHAEL H. CHEN Attorneys for Plaintiffs K.L., a minor by 7 and through his guardian ad litem, MARY 8 MOSCHKAU; SAKURA CREEDON, an individual; JEREMIAH LEAMING, 9 an individual

10 11 DATED: September 28, 2023 12 /s/ Joseph W. Tursi 13 JOSEPH W. TURSI Attorneys for Defendant United States of 14 America

15 * Pursuant to Local Rule 5-4.3.4(a)(2)(i), the filer attests that all other signatories 16 listed, and on whose behalf the filing is submitted, concur in the filing’s content and 17 have authorized the filing.

18

19 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 20

21 DATED: October 2, 2023 22

23

24 HONORABLE SHERI PYM 25 United States Magistrate Judge 26 27 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 by 6 the United States District Court for the Central District of California in the case of K.L., 7 et al. v. United States of America, Case No. 5:22-cv-01971-JGB-SPx. I agree to comply 8 with and to be bound by all the terms of this Stipulated Protective Order and I understand 9 and acknowledge that failure to so comply could expose me to sanctions and punishment 10 in the nature of contempt. I solemnly promise that I will not disclose in any manner any 11 information or item that is subject to this Stipulated Protective Order to any person or 12 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 Stipulated 15 Protective Order, even if such enforcement proceedings occur after termination of this 16 action. I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or 19 any proceedings related to enforcement of this Stipulated Protective Order. 20 Date: ______________________________ 21 22 City and State where sworn and signed: ___________________________________ 23 Printed name: _____________________________________________ 24 25 Signature: ________________________________________________ 26

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