STIPULATED CONFIDENTIALITY AGREEMENT: SETTLEMENT CONFERENCE; STIPULATION NOT TO CALL CHIEF AS WITNESS; AND [PROPOSED] ORDER [N.D. CAL. ADR LR 7-5]

MARIA ELENA JAMES, Magistrate Judge.

Whereas, after meeting and conferring upon the issue, defendants have agreed to produce Chief Greg Suhr at the above dated settlement conference. In light of and in consideration of defendants' agreement to produce the Chief, plaintiff and defendants stipulate to the following:

2. United States District Court for the Northern District ADR L.R. 7-12 states:

"7-5 Settlement Conference Confidentiality

(a) Confidential Treatment. Except as provided by a case a case-specific order entered in advance of the settlement conference or in subdivision (b) of this local rule, this court, the settlement judge, all counsel and parties, and any other persons attending the settlement conference shall treat as "confidential information" the contents of any written settlement conference statements, anything that happened or was said, any position taken, and any view of the merits of the case expressed by any participant in connection with any settlement conference. "Confidential information" shall not be:

(1) Disclosed to anyone not involved in the litigation;

(2) Disclosed to the assigned judge; or

(3) Use for any purpose, including impeachment, in any pending or future proceeding in this court.

(b) Limited Exceptions to Confidentiality. This rule does not prohibit:

(1) Disclosures as may be stipulated by all parties;

(2) Any participant or the settlement judge from responding to an appropriate request for information duly made by persons authorized by the court to monitor or evaluate the court's ADR program in accordance with ADR L.R. 2-6; or

(3) Disclosures as are necessary to preserve the court's capacity to enforce lawful orders or to discipline contumacious conduct, or as are otherwise required by law."

3. Violation of this Order shall subject the offending party or person to sanctions as deemed appropriate by this court.

4. A party or person found to have violated this order shall be subject to attorneys fees for any motion successfully brought by a party to enforce this order.

5. It is further stipulated that plaintiffs agree not to call Chief Greg Suhr as a witness at trial, or subpoena or notice him for deposition, or seek discovery from him in any way.

6. "The parties further stipulate that the one exception to the above paragraph (5) is if Chief Suhr is determined to be a percipient witness to any fact relevant to the incident giving rise to the lawsuit based on information unrelated to the disclosures made at the settlement conference.". Plaintiff may conduct discovery of the Chief on that fact(s) alone. In addition, plaintiff may depose the Chief on a specific policy claim if plaintiff shows through means other than information disclosed at the settlement conference that the Chief was directly involved in a policy relevant to plaintiffs' Monell claim, and that deprivation of his testimony on such point would result in a "manifest injustice" (as defined in In re Anonymous, 283 F.3d 627, 637 (4th Cir. 2002)). In no case shall discovery or testimony be taken upon any fact or issue discussed or disclosed by the Chief at the settlement conference. The parties agree that any dispute over this exception shall be resolved by meeting and conferring first, and then by Magistrate Judge James, if necessary. No attorneys fees shall be sought by either party for litigating this one issue.

7. It is hereby STIPULATED that all parties, all counsel and any other persons attending the settlement agreement will respect and abide by this confidentiality agreement and that plaintiffs' counsel will explain and advise plaintiffs and other family members present at the settlement conference the terms of this stipulation and order and that they fact that they are bound by this agreement.

PURSUANT TO STIPULATION, IT IS SO ORDER.