Michael David Fulton v. Thayer et al

Filing 98

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re 95 (twdb)

MIKE FEUER, City Attorney - SBN 111529
GARY G. GEUSS, Chief Assistant City Attorney
2 CORY M. BRENTE, Supervising Assistant City Attorney
J. EDWIN RATHBUN, Jr., Deputy City Attorney SBN 221804
3 email: [e-mail]
200 North Main Street, 6th Floor, City Hall East
4 Los Angeles, CA 90012
Phone No.: [phone] - Fax No.: [phone]
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Attorneys for Defendants BRIAN THAYER and EDUARDO GARCIA

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No.: CV10-00137 JCG
Honorable Jay C. Gandhi

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Plaintiff,
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vs.
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BRIAN THAYER AND EDUARDO
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GARCIA,
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Defendants.
_________________________________ )
MICHAEL D. FULTON,

STIPULATED PROTECTIVE
ORDER

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1.

A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary,

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or private information for which special protection from public disclosure and from use

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for any purpose other than prosecuting this litigation may be warranted. Accordingly, the

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parties hereby stipulate to and petition the Court to enter the following Stipulated

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Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it affords

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from public disclosure and use extends only to the limited information or items that are

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entitled to confidential treatment under the applicable legal principles. The parties further

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acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order

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does not entitle them to file confidential information under seal; Civil Local Rule 79-5

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sets forth the procedures that must be followed and the standards that will be applied
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when a party seeks permission from the court to file material under seal.

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B. GOOD CAUSE STATEMENT

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The Los Angeles Police Department conducts internal administrative investigations

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of Officer Involved Uses of Force and Complaint Investigations (hereinafter

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“Administrative Investigations”) and also maintains a personnel file on its officers which

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includes personnel training information. Once an Administrative Investigation is

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initiated, a formal investigation number is prepared. Such investigations are reviewed by

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appropriate command officers in the Department. This review has several purposes: (1)

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to determine whether the involved officers violated any Department policies or

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procedures; (2) to determine whether administrative discipline and/or retraining of the

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involved officers is necessary; and (3) to ascertain if police policies and procedures in

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such areas as supervision, training, tactics, policies, etc. should be modified.

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Administrative Investigations are an essential aid to providing critical evaluation of

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Department officers and policies, and to determine the most effective way to serve the

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citizens of Los Angeles.

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The Department strives to maintain the confidentiality of an officer's personnel

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package and Administrative Investigations, and the information contained therein, in

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recognition of the protections granted pursuant to Penal Code § § 832.5, 832.7, and 832.8

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and 1040 et al. of the California Evidence Code. Just as officer's personnel package is

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maintained as confidential, so too are the Administrative Investigations involving a

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particular officer(s). Administrative Investigations, like an officer's personnel package,

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include information which is both personal in nature and could potentially impact the

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liberty interests of the involved police officers and/or civilians named within. The

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information obtained from personnel packages and Administrative Investigations can,

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and have been used to initiate disciplinary action against officers, as well as evidence in

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disciplinary proceedings where the officer's conduct was considered to be contrary to

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Department policy. At this time, the parties have agreed that certain Administrative

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Investigation information will be provided pursuant to the terms set forth in this
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Protective Order. As a result, the parties have agreed to this Proposed Protective Order

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covering these records for the following Good Cause reasons:

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Administrative Investigations are maintained as confidential reports and are

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considered part of the individual officers' personnel record. Administrative

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Investigations include information which is both personal in nature and could potentially

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impact the liberty interests of the involved police officers and/or civilians named within.

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The information obtained from Administrative Investigations can and have been used to

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initiate disciplinary action against officers and as evidence in disciplinary proceedings

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where the use of force or tactics used were considered to be contrary to Department

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policy.
Unfettered release of Administrative Investigations have the potential for untold

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negative results. In terms of societal interests, it would inhibit the Department’s ability to

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frankly engage in critical self-analysis. Public exposure of many Administrative

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Investigations could severely threaten the safety and well-being of the individuals, their

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families and associates. Many Administrative Investigations include embarrassing facts.

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At a minimum, disclosure of an entire Administrative Investigation would cause needless

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intrusion of privacy rights and have a negative effect on the Department’s effort to

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conduct these important investigations. Indeed, for all of these reasons, persons

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interviewed by Investigators are advised that their statements are being taken for the

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confidential use of the Department.

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The materials and interview statements of Administrative Investigations are

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maintained in protected files in order to maintain their confidentiality. They are not

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routinely shown to other city departments. Even then, information which is not clearly

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relevant to the rationale governing the request is redacted to ensure the utmost regard for

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the privacy rights of the mentioned within a given report. The reports are not available to

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the general public except by court order. In all instances, the Department requests in

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camera hearing to determine the relevance for releasing all or part of a given report, again

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to ensure the constitutionally protected privacy rights of those named or otherwise
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identified within the body of the report.
In each case involving court-ordered disclosure of information from a

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Administrative Investigation sought in state or federal court, it is Department policy to

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seek a protective order limiting use of the information to the case at trial and identifying

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those persons who may properly be granted access to the information. Absent a

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protective order, it becomes unrealistic to conceive that the large numbers of attorneys,

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secretaries, law clerks, paralegals and witnesses involved in many cases will be able to

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maintain proper confidence of personal, private material absent an order which clearly

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delineates their responsibilities. The orders further request that said records be returned

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to the Department after the case has terminated, either by final judgment or otherwise.

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This request serves to ensure that intrusion into the privacy and employment rights of

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those involved is limited to the particular case in which the facts are relevant.

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Even with a carefully written protective order, the release of portions of an

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Administrative Investigation, without prior judicial review to determine relevancy and

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assess privacy concerns, ignores the constitutional protection given to individual privacy

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under the United States and California Constitutions and which a third-party such as the

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Department is obligated to assert. The issuance of an appropriate protective order makes

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certain that these privacy concerns are not compromised beyond that degree necessary to

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the issues before the court. Accordingly, on behalf of the Los Angeles Police Department

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and those persons identified within a given Administrative Investigation, the Defendants

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respectfully request these procedural protections in the instant case.
Accordingly, the parties hereby stipulate that the above-referenced Internal Affairs

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Investigation is confidential in nature and is appropriately produced pursuant to a

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protective order. (See Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995.))

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2.

DEFINITIONS
2.1

Action: Michael D. Fulton v. Brian Thayer and Eduardo Garcia, United

States District Court Case No. CV10-00137 JCG.
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2.2

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Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how it

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is generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

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Statement.
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support staff).
2.5

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Counsel: Outside Counsel of Record and House Counsel (as well as their

Designating Party: a Party or Non-Party that designates information or items

that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
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Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among

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other things, testimony, transcripts, and tangible things), that are produced or generated in

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disclosures or responses to discovery in this matter.
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Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an

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expert witness or as a consultant in this Action.
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House Counsel: attorneys who are employees of a party to this Action.

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House Counsel does not include Outside Counsel of Record or any other outside counsel.

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2.9

Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a party to

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this Action but are retained to represent or advise a party to this Action and have

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appeared in this Action on behalf of that party or are affiliated with a law firm which has

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appeared on behalf of that party, and includes support staff.

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2.11 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
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support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium) and

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their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is designated

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as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from

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a Producing Party.

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3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the trial

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judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees otherwise in

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writing or a court order otherwise directs. Final disposition shall be deemed to be the later

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of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and

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(2) final judgment herein after the completion and exhaustion of all appeals, rehearings,

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remands, trials, or reviews of this Action, including the time limits for filing any motions
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or applications for extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or Non-Party that designates information or items for protection under this Order

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must take care to limit any such designation to specific material that qualifies under the

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appropriate standards. The Designating Party must designate for protection only those

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parts of material, documents, items, or oral or written communications that qualify so that

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other portions of the material, documents, items, or communications for which protection

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is not warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber the case development process or to impose unnecessary expenses

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and burdens on other parties) may expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it designated

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for protection do not qualify for protection, that Designating Party must promptly notify

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all other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter

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“CONFIDENTIAL legend”), to each page that contains protected material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party

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also must clearly identify the protected portion(s) (e.g., by making appropriate markings
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in the margins).
A Party or Non-Party that makes original documents available for inspection need

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not designate them for protection until after the inspecting Party has indicated which

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documents it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order. Then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

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that contains Protected Material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).
(b) for testimony given in depositions that the Designating Party identify the

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Disclosure or Discovery Material on the record, before the close of the deposition all

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protected testimony.
(c) for information produced in some form other than documentary and for any

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other tangible items, that the Producing Party affix in a prominent place on the exterior of

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the container or containers in which the information is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material. Upon

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timely correction of a designation, the Receiving Party must make reasonable efforts to

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assure that the material is treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation
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of confidentiality at any time that is consistent with the Court’s Scheduling Order.
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Meet and Confer. The Challenging Party shall initiate the dispute resolution

process under Local Rule 37.1 et seq.
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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to

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harass or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

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the confidentiality designation, all parties shall continue to afford the material in question

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the level of protection to which it is entitled under the Producing Party’s designation until

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the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this Action

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only for prosecuting, defending, or attempting to settle this Action. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions

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described in this Order. When the Action has been terminated, a Receiving Party must

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comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and

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in a secure manner that ensures that access is limited to the persons authorized under this

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Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party

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may disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this Action;

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(b) the officers, directors, and employees (including House Counsel) of the
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Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional Vendors to

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whom disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a custodian

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or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses ,and attorneys for witnesses, in the Action to

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whom disclosure is reasonably necessary provided: (1) the deposing party requests that

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the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted

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to keep any confidential information unless they sign the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party

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or ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material may be separately bound by the court reporter

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and may not be disclosed to anyone except as permitted under this Stipulated Protective

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Order; and
(i) any mediator or settlement officer, and their supporting personnel, mutually

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agreed upon by any of the parties engaged in settlement discussions.

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8.

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OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:
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(a) promptly notify in writing the Designating Party. Such notification shall

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include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to issue

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in the other litigation that some or all of the material covered by the subpoena or order is

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subject to this Protective Order. Such notification shall include a copy of this Stipulated

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Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the

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Designating Party whose Protected Material may be affected. If the Designating Party

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timely seeks a protective order, the Party served with the subpoena or court order shall

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not produce any information designated in this action as “CONFIDENTIAL” before a

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determination by the court from which the subpoena or order issued, unless the Party has

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obtained the Designating Party’s permission. The Designating Party shall bear the burden

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and expense of seeking protection in that court of its confidential material and nothing in

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these provisions should be construed as authorizing or encouraging a Receiving Party in

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this Action to disobey a lawful directive from another court.

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9.

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THIS LITIGATION

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN

(a) The terms of this Order are applicable to information produced by a Non-Party

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in this Action and designated as “CONFIDENTIAL.” Such information produced by

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Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as prohibiting a

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Non-Party from seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to produce a

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Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party that

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some or all of the information requested is subject to a confidentiality agreement with a
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Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective

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Order in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and
(3) make the information requested available for inspection by the

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Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court within 14 days

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of receiving the notice and accompanying information, the Receiving Party may produce

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the Non-Party’s confidential information responsive to the discovery request. If the

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Non-Party timely seeks a protective order, the Receiving Party shall not produce any

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information in its possession or control that is subject to the confidentiality agreement

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with the Non-Party before a determination by the court. Absent a court order to the

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contrary, the Non-Party shall bear the burden and expense of seeking protection in this

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court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

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the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d) request

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such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

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that is attached hereto as Exhibit A.

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11.

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PROTECTED MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain inadvertently
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produced material is subject to a claim of privilege or other protection, the obligations of

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the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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This provision is not intended to modify whatever procedure may be established in an

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e-discovery order that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the

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effect of disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the court.

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12.

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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MISCELLANEOUS

person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to disclosing

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or producing any information or item on any ground not addressed in this Stipulated

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Protective Order. Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Protective Order.

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12.3 Filing Protected Material. A Party that seeks to file under seal any Protected

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Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

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under seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue. If a Party's request to file Protected Material under seal is denied by the

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court, then the Receiving Party may file the information in the public record unless

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otherwise instructed by the court.

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13.

FINAL DISPOSITION
Upon the final termination of this Action, including any appeal pertaining thereto,

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including but not limited to any event wherein the case is ever remanded to State Court,

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all Internal Affairs Investigation reports, addendum, materials, audio recordings, as well
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as any other Court Ordered Documents provided pursuant to this Protective Order and all

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copies thereof shall be returned to the Offices of the Los Angeles City Attorney’s Office,

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6th Floor, City Hall East, Los Angeles, California 90012 for destruction/shredding. All

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Confidential documentation provided to any person or party, pursuant to any provision

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hereof or of those set forth in the “Acknowledgment and Agreement to Be Bound” that is

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attached hereto as Exhibit A, shall also be returned to the City Attorney’s Office.

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14.

Any violation of this Order may be punished by any and all appropriate measures

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including, without limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED November 13, 2014
________/s/_____________________________
Derek A. Hahn, Attorneys for Plaintiff

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DATED: November 13, 2014
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_______/s/______________________________
J. Edwin Rathbun, Jr., Attorneys for Defendants

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED: November 18, 2014
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_____________________________________
Jay C. Gandhi, United States Magistrate Judge

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