1 Sanjay S. Schmidt (SBN 247475) LAW OFFICE OF SANJAY S. SCHMIDT 2 1388 Sutter Street, Suite 810 San Francisco, CA 94109 3 T: (415) 563-8583 F: (415) 223-9717 4 [email protected]

5 T. Kennedy Helm, IV (SBN 282319) HELM LAW OFFICE, PC 6 644 40th Street, Suite 305 Oakland, CA 94609 7 T: (510) 350-7517 F: (510) 350-7359 8 [email protected]

9 Attorneys for Plaintiff

10 UNITED STATES DISTRICT COURT

11 EASTERN DISTRICT OF CALIFORNIA

12 SACRAMENTO DIVISION

13 JURRIEA KELLOGG, Individually, ) Case No. 2:22-cv-02154-JAM-KJN ) 14 Plaintiff, ) STIPULATION AND PROTECTIVE ) ORDER FOR CONFIDENTIAL 15 vs. ) DOCUMENTS 16 ) ) CITY OF STOCKTON, a public entity; City ) 17 of Stockton Police Department Officer DOES ) 1-20, jointly and severally, and DOES 21-30, ) 18 jointly and severally, ) ) 19 Defendants. ) ) 20 ) ) 21 ) ) 22 ) ) 23 ) ) 24 ) ) 25 ) 26 27 1 1. PURPOSES AND LIMITATIONS 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 prosecuting this litigation may be warranted. 5 Accordingly, the 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 protections on 7 all disclosures or responses to discovery and that the protection it affords from public disclosure 8 and use extends only to the limited information or items that are entitled to confidential treatment 9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, 10 below, that this Stipulated Protective Order does not entitle them to file confidential information 11 under seal; Civil Local Rule 141.1 sets forth the procedures that must be followed and the standards 12 that will be applied when a party seeks permission from the court to file material under seal. 13 2. DEFINITIONS 14 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 15 information or items under this Order. 16 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 18 of Civil Procedure 26(c). It encompasses information where public disclosure is likely to result 19 in particularized harm, or where public disclosure would violate privacy interests recognized by 20 law. Examples of confidential information include, but are not limited to, the following: 21 a. personnel file records of any peace officer; 22 b. medical records; 23 c. social security numbers and similar sensitive identifying information (unless 24 redacted by order or by agreement of all parties). 25 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 26 as their support staff). 27 1 2.4 Designating Party: a Party or Non-Party that designates information or items that it 2 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 3 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 4 or manner in which it is generated, stored, or maintained (including, among other things, 5 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 6 responses to discovery in this matter. 7 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 8 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 9 consultant in this action. 10 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel 11 does not include Outside Counsel of Record or any other outside counsel. 12 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 13 entity not named as a Party to this action. 14 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 15 but are retained to represent or advise a party to this action and have appeared in this action on 16 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 17 2.10 Party: any party to this action, including all of its officers, directors, employees, 18 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 19 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 20 Material in this action. 21 2.12 Professional Vendors: persons or entities that provide litigation support services 22 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 23 organizing, storing, or retrieving data in any form or medium) and their employees and 24 subcontractors. 25 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 26 “CONFIDENTIAL.” 27 1 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 2 Producing Party. 3 3. SCOPE 4 The protections conferred by this Stipulation and Order cover not only Protected Material 5 (as defined above), but also (1) any information copied from Protected Material; (2) all copies, 6 excerpts, summaries, or compilations of Protected Material that reveal the source of the 7 Protected Material or that reveal specific information, i.e., the raw data gleaned from protected 8 documents, entitled to confidentiality under this stipulated order; and (3) any testimony, 9 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 10 However, the protections conferred by this Stipulation and Order do not cover the following 11 information: (a) any information that is in the public domain at the time of disclosure to a 12 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 13 a result of publication not involving a violation of this Order, including becoming part of the 14 public record through trial or otherwise; and (b) any information known to the Receiving Party 15 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 16 obtained the information lawfully and under no obligation of confidentiality to the Designating 17 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 18 4. DURATION 19 Even after final disposition of this litigation, the confidentiality obligations imposed by 20 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 21 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 22 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 23 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 24 action, including the time limits for filing any motions or applications for extension of time 25 pursuant to applicable law. 26 // 27 // 1 5. DESIGNATING PROTECTED MATERIAL 2 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 3 Non-Party that designates information or items for protection under this Order must take care to 4 limit any such designation to specific material that qualifies under the appropriate standards. The 5 Designating Party must designate for protection only those parts of material, documents, items, 6 or oral or written communications that qualify – so that other portions of the material, 7 documents, items, or communications for which protection is not warranted are not swept 8 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are 9 prohibited. Designations that are shown to be clearly unjustified or that have been made for an 10 improper purpose (e.g., to unnecessarily encumber or retard the case development process or to 11 impose unnecessary expenses and burdens on other parties) expose the Designating Party to 12 sanctions. 13 If it comes to a Designating Party’s attention that information or items that it designated 14 for protection do not qualify for protection, that Designating Party must promptly notify all other 15 Parties that it is withdrawing the mistaken designation. 16 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 17 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure 18 or Discovery Material that qualifies for protection under this Order must be clearly so designated 19 before the material is disclosed or produced. Designation in conformity with this Order requires: 20 (a) for information in documentary form (e.g., paper or electronic documents, but 21 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 22 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 23 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 24 identify the protected portion(s) (e.g., by making appropriate markings in the margins). A Party or 25 Non-Party that makes original documents or materials available for inspection need not designate 26 them for protection until after the inspecting Party has indicated which material it would like 27 copied and produced. During the inspection and before the designation, all of the material made 1 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 2 identified the documents it wants copied and produced, the Producing Party must determine which 3 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 4 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 5 that contains Protected Material. If only a portion or portions of the material on a page qualifies 6 for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by 7 making appropriate markings in the margins). 8 (b) for testimony given in deposition or in other pretrial or trial proceedings, that 9 the Designating Party identify on the record, before the close of the deposition, hearing, or other 10 proceeding, all protected testimony, if it is practicable to do so; otherwise, it must be so designated 11 during the “review and sign” period under Rule 30 of the Federal Rules of Civil Procedure, unless 12 the parties agree to extend the time for designation. 13 (c) for information produced in some form other than documentary and for any 14 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 15 container or containers in which the information or item is stored the legend “CONFIDENTIAL.” 16 If only a portion or portions of the information or item warrant protection, the Producing Party, to 17 the extent practicable, shall identify the protected portion(s). 18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 19 designate qualified information or items does not, standing alone, waive the Designating Party’s 20 right to secure protection under this Order for such material. Upon timely correction of a 21 designation, the Receiving Party must make reasonable efforts to assure that the material is 22 treated in accordance with the provisions of this Order. 23 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 24 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 25 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 26 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 27 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 1 challenge a confidentiality designation by electing not to mount a challenge promptly after the 2 original designation is disclosed. 3 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 4 by providing written notice of each designation it is challenging and describing the basis for each 5 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 6 recite that the challenge to confidentiality is being made in accordance with this specific 7 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good 8 faith and must begin the process by conferring directly (in voice to voice dialogue; other forms 9 of communication are not sufficient) within 14 days of the date of service of notice. In 10 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 11 designation was not proper and must give the Designating Party an opportunity to review the 12 designated material, to reconsider the circumstances, and, if no change in designation is offered, 13 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 14 stage of the challenge process only if it has engaged in this meet and confer process first or 15 establishes that the Designating Party is unwilling to participate in the meet and confer process in 16 a timely manner. 17 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 18 intervention, the Designating Party shall file and serve a motion to retain confidentiality (and in 19 compliance with Civil Local Rule 141.1, if applicable) within 21 days of the initial notice of 20 challenge or within 14 days of the parties agreeing that the meet and confer process will not 21 resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 22 competent declaration affirming that the movant has complied with the meet and confer 23 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such 24 a motion including the required declaration within 21 days (or 14 days, if applicable) shall 25 automatically waive the confidentiality designation for each challenged designation. In addition, 26 the Challenging Party may file a motion challenging a confidentiality designation at any time if 27 there is good cause for doing so, including a challenge to the designation of a deposition 1 transcript or any portions thereof. Any motion brought pursuant to this provision must be 2 accompanied by a competent declaration affirming that the movant has complied with the meet 3 and confer requirements imposed by the preceding paragraph. 4 The burden of persuasion in any such challenge proceeding shall be on the Designating 5 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 6 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 7 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 8 file a motion to retain confidentiality as described above, all parties shall continue to afford the 9 material in question the level of protection to which it is entitled under the Producing Party’s 10 designation until the court rules on the challenge. 11 7. ACCESS TO AND USE OF PROTECTED MATERIAL 12 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 13 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 14 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 15 to the categories of persons and under the conditions described in this Order. When the litigation 16 has been terminated, a Receiving Party must comply with the provisions of section 13 below 17 (FINAL DISPOSITION). 18 Protected Material must be stored and maintained by a Receiving Party at a location and in a 19 secure manner that ensures that access is limited to the persons authorized under this Order. 20 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 21 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 22 information or item designated “CONFIDENTIAL” only to: 23 (a) Experts (as defined in this Order), as well as other consultants, including legal consultants, of 24 the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 25 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 26 (b) the court and its personnel; (c) court reporters and their staff, professional jury or trial 27 consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary 1 for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” 2 (Exhibit A); (d) during their depositions, witnesses in the action to whom disclosure is 3 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 4 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 5 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 6 separately bound by the court reporter and may not be disclosed to anyone except as permitted 7 under this Stipulated Protective Order or as agreed by the Designating Party; or (e) the author or 8 recipient of a document containing the information or a custodian or other person who otherwise 9 possessed or knew the information. 10 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 11 LITIGATION 12 If a Party is served with a subpoena or a court order issued in other litigation that compels 13 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 14 Party must: 15 (a) promptly notify in writing the Designating Party. Such notification shall include a 16 copy of the subpoena or court order; 17 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 18 other litigation that some or all of the material covered by the subpoena or order is subject to this 19 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 20 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 21 Designating Party whose Protected Material may be affected. 22 If the Designating Party timely seeks a protective order, the Party served with the subpoena or 23 court order shall not produce any information designated in this action as “CONFIDENTIAL” 24 before a determination by the court from which the subpoena or order issued, unless the Party 25 has obtained the Designating Party’s permission. The Designating Party shall bear the burden 26 and expense of seeking protection in that court of its confidential material – and nothing in these 27 1 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 2 disobey a lawful directive from another court. 3 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 4 LITIGATION 5 (a) The terms of this Order are applicable to information produced by a Non-Party in this 6 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 7 connection with this litigation is protected by the remedies and relief provided by this Order. 8 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 9 additional protections. 10 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 11 Party’s confidential information in its possession, and the Party is subject to an agreement with 12 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 13 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of the 14 information requested is subject to a confidentiality agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 16 litigation, the relevant discovery request(s), and a reasonably specific description of the 17 information requested; and 18 (3) make the information requested available for inspection by the Non-Party. 19 (c) If the Non-Party fails to object or seek a protective order from this court within 14 days 20 of receiving the notice and accompanying information, the Receiving Party may produce the Non- 21 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks 22 a protective order, the Receiving Party shall not produce any information in its possession or 23 control that is subject to the confidentiality agreement with the Non-Party before a 24 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 25 burden and expense of seeking protection in this court of its Protected Material. 26 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 27 1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 2 Material to any person or in any circumstance not authorized under this Stipulated Protective 3 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 4 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 5 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 6 made of all the terms of this Order, and (d) request such person or persons to execute the 7 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 8 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 9 MATERIAL 10 When a Producing Party gives notice to Receiving Parties that certain inadvertently 11 produced material is subject to a claim of privilege or other protection, the obligations of the 12 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 13 provision is not intended to modify whatever procedure may be established in an e-discovery 14 order that provides for production without prior privilege review. Pursuant to Federal Rule of 15 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 16 communication or information covered by the attorney-client privilege or work product 17 protection, the parties may incorporate their agreement in the stipulated protective order 18 submitted to the court. 19 12. MISCELLANEOUS 20 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 21 seek its modification by the court in the future. 22 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 23 no Party waives any right it otherwise would have to object to disclosing or producing any 24 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 25 Party waives any right to object on any ground to use in evidence of any of the material covered 26 by this Protective Order. 27 1 12.3 Filing Protected Material. Without written permission from the Designating Party, a 2 court order secured after appropriate notice to all interested persons, or a change in the status of 3 designated material after the procedures for challenging a designation in Section 6, above, have 4 been employed, a Party may not file in the public record in this action any Protected Material. A 5 Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 141. 6 Protected Material may only be filed under seal pursuant to a court order authorizing the sealing 7 of the specific Protected Material at issue. Pursuant to Civil Local Rule 141, a sealing order will 8 issue only upon a request establishing that the Protected Material at issue is privileged, 9 protectable as a trade secret, or otherwise entitled to protection under the law. 10 13. FINAL DISPOSITION 11 Within 60 days after the final disposition of this action, as defined in paragraph 4, upon 12 written notification served by Producing or Designating Party, each Receiving Party must return 13 all Protected Material to the Producing Party or destroy such material. As used in this subdivision, 14 “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other 15 format reproducing or capturing any of the Protected Material. Whether the Protected Material is 16 returned or destroyed, the Receiving Party must submit a written certification to the Producing 17 Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that 18 (1) identifies (by category, where appropriate) all the Protected Material that was returned or 19 destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, 20 compilations, summaries or any other format reproducing or capturing any of the Protected 21 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 22 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 23 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 24 and expert work product, even if such materials contain Protected Material. Any such archival 25 copies that contain or constitute Protected Material remain subject to this Protective Order as set 26 forth in Section 4 (DURATION). 27 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. ] Respectfully Submitted, 2 3 Dated: August 18, 2023 LAW OFFICE OF SANJAY S. SCHMIDT -and- 4 HELM LAW OFFICE, PC 5 /s/ Sanjay S. Schmidt By: SANJAY S. SCHMIDT 6 Attorneys for Plaintiff 7 8 |! Dated: August 17, 2023 ORBACH HUFF + HENDERSON LLP 9 /s/ Kevin E. Gilbert* 10 By: KEVIN E. GILBERT Attorney for Defendants D *Mr. Gilbert provided his consent that this document be filed by CM/ECF. 13 14 ORDER 15 The court has reviewed the parties’ stipulated protective order. (See ECF No. 60.) Th 16 ||stipulation comports with the relevant authorities and the court’s applicable local rule. See L.R| 17 141.1. The court APPROVES the protective order, subject to the following clarification. Once a 18 action is closed, “the court will not retain jurisdiction over enforcement of the terms of an 19 ||Protective order filed in that action.” L.R. 141.1(f); see also, e.g., MD Helicopters, Inc. v. 20 Aerometals, Inc.,

(E.D. Cal., Feb. 03, 2017) (noting that courts in the distric generally do not retain jurisdiction for disputes concerning protective orders after closure of th 9 case). Thus, the court will not retain jurisdiction over this protective order once the case 1s closed Dated: August 24, 2023 23 24 AO 25 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 26 97 || kelt2isa 28 || rip. & PROTECTIVE ORDER FOR CONFIDENTIAL DOCUMENTS Case No. 2:22-cv-02154-JAM-KJIN

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 have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Eastern District of California in the case of Kellogg v. City of Stockton, et al., No. 2:22-cv- 7 02154-JAM-KJN. 8 I agree to comply with and to be bound by all the terms of this Stipulated Protective 9 Order and I 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 in any 11 manner any information or item that is subject to this Stipulated Protective Order to any person 12 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 the 14 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. I hereby 16 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 any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 Date: ______________________________________ 21 22 City and State where sworn and signed: _________________________________ 23 24 Printed name: _______________________________ 25 26 Signature: _________________________________

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