Justin Bryan et al v. City of Hemet et al

Filing 43

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER 42 by Judge S. James Otero (lc)

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RONALD F. FRANK (SBN 109076)
NOTE CHANGES MADE BY THE COURT
E-mail: [e-mail]
ALLISON G. VASQUEZ (SBN 220010)
E-mail: [e-mail]
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite 2400
Los Angeles, CA 90071-2953
Tel: [phone]
Fax: [phone]
Attorneys for Defendants City of Hemet,
Nelson Gould and Jonathan Montoya

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JUSTIN BRYAN, JORDAN BRYAN
MARY PARR, individually and as
successors in interest to Jerry Bryan,
Plaintiffs,

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vs.

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CITY OF HEMET, a local public entity,
and DOES 1 - 10,

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Defendants.

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Case No. CV 11-10690 SJO (DTBx)
[PROPOSED] STIPULATED
CONFIDENTIALITY
AGREEMENT AND
PROTECTIVE ORDER

Action Filed:

December 27, 2011

Trial:

January 29, 2013

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Pursuant to the agreement between the parties to this action, Plaintiffs Justin

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Bryan and Jordan Bryan (“Plaintiffs”) and Defendants City of Hemet, Nelson

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Gould, and Jonathan Montoya (“Defendants”), (Plaintiffs and Defendants are

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collectively referred to as “Parties” and individually as “Party”), and the approval

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of this Court, this Confidentiality Agreement and Protective Order (“Protective

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Order”) shall govern the production of certain documents, materials or information

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produced by Plaintiffs, Defendant and third parties (collectively “the Producing

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Parties” or individually “the Producing Party”).

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

The information/items governed by this Protective Order are:
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LA #4817-3683-4832 v2

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Certain documents produced by the Producing Parties during

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discovery in this litigation which contain private and confidential information

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pertaining to Plaintiffs, Defendants and non-parties.

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hereinafter referred to as the “Confidential Material” which is the subject of the

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Protective Order and shall include, but is not limited to the following records:

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Hemet Police Department policies, logs, 911 calls, reports, radio calls, documents

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related to 2010 arrest of decedent Jerry Bryan and documents related to decedent

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Jerry Bryan’s mental health, criminal investigation files, including audio

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recordings, photographs and all other investigatory documents subject to the official

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information privilege which have been maintained with an expectation of

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confidentiality; and the medical, psychological or mental healthcare records of non-

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party third persons. Such designation will not apply to any material which has been

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made public, or which is accessible by the public.

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2.

These documents are

This Protective Order shall protect from unauthorized disclosure

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documents, things, or other information (Confidential Material as defined in

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paragraph 1, above) produced by the Parties in this action or obtained during

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discovery from third parties. In an effort to maintain the confidentiality of the

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information, the following terms shall apply:

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3.

Confidential Material shall be classified as confidential by

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stamping/watermarking copies with “CONFIDENTIAL” in a manner that will not

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obscure the content of the document. Stamping “CONFIDENTIAL” on the cover

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of a multiple page document shall classify all pages of the document as

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confidential, unless otherwise indicated by the Parties. Other unambiguous written

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notice that material is being classified as Confidential shall also be sufficient.

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4.

Immediately upon production of the Confidential Material, counsel

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shall personally secure and maintain said material in counsel’s possession. Counsel

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shall not cause or knowingly permit disclosure to any person or entity of the

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contents of the Confidential Material in any manner, including orally, any statement
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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

LA #4817-3683-4832 v2

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of information, or portions thereof, beyond the disclosure permitted under the terms

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and conditions of this Protective Order.

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The Confidential Material shall be used only for the purpose of the

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prosecution, including any appeal, and settlement of this action. No person to

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whom Confidential Material is disclosed shall cause or permit it to be used for any

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other purpose.

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6.

All copies, summaries, abstracts, notes, extracts of the contents of, or

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other documents derived from the Confidential Material are protected under this

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Protective Order, and shall be treated in the manner set forth in Paragraph No. 8

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below.
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Production of Confidential Material shall be made solely to Plaintiffs’

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counsel and counsel for Defendants, in this action. No counsel may disseminate the

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information to any person or entity, for any purpose, absent a prior court Protective

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Order, except that Confidential Material may be provided to:

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(a)

Staff personnel employed by counsel for any Party;

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(b)

The Court and its personnel, in connection with this litigation;

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(c)

Experts or consultants retained to work on this case by counsel

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for any Party to this case;

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(d)

Investigators retained by counsel for any Party to this case; and

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(e)

Non-party witnesses only in connection with the deposition of

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that non-party witness as described below.

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The Parties may review their own witness statements even if these statements are

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deemed to be Confidential Material. Additionally, a non-party witness may be

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provided with Confidential Material that is part of any deposition transcript for the

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deposition of that non-party witness for purposes of reviewing the deposition

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testimony and/or making changes to the deposition testimony.

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witness must promptly return all Confidential Material to Plaintiffs’ counsel and/or

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counsel for Defendants, as indicated at the deposition of the non-party witness, after
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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

LA #4817-3683-4832 v2

The non-party

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the non-party witness completes his or her review and makes his or her changes.

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The non-party witness may not keep any copies of the Confidential Material.

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In the event that counsel finds it necessary to employ such experts

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and/or investigators, prior to the disclosure of any Confidential Material, counsel

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shall first cause the substance of this Protective Order to be communicated to any

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such person and provide him or her with a copy of this Protective Order and shall

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cause him or her to execute, on a second copy, which counsel shall thereafter serve

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on counsel for the other Party within ten (10) days the following acknowledgment:

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“I, _____________________________, do solemnly swear that

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I am fully familiar with the terms of the Stipulated Protective Order

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entered into in this action and am bound by the terms and conditions of

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said Protective Order with respect to the handling, use and disclosure

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of the Confidential Material. I hereby consent to the jurisdiction of

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said Court for purposes of enforcing this nondisclosure Protective

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Order.

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Dated: __________, _____________/s/_______________”

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All Parties agree that if a person is provided with Confidential Material and

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should that person’s identity become disclosed via their execution of the

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confidentiality provision of this Protective Order, and said person is not designated

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as an expert in this matter, the other side(s) agrees not to contact or seek records

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from said person.

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If Confidential Material is used, directly or indirectly, in any

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depositions taken, the confidential portions of the transcript of the deposition, and

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all copies thereof shall be stamped “CONFIDENTIAL” and shall be sealed

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pursuant to this Protective Order. Any such testimony referring or relating or

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retelling the events disclosed in the protected documents shall be taken under seal.

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A copy of this Protective Order shall be attached as an exhibit to said deposition

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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CV 11-10690 SJO (DTBx)

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transcript and the court reporter shall be subject to said Protective Order and

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precluded from providing the original deposition transcript or portions thereof, any

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copies thereof, or portions of copies thereof, to any persons or entities other than

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counsel of record in the instant action. Furthermore, any confidential portions of an

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audiotape and/or videotape of said deposition shall be sealed pursuant to this

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Protective Order. A copy of this Protective Order shall be attached as an exhibit to

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said audiotape/videotape and the court videographer shall be subject to said

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Protective Order and precluded from providing the original deposition videotape or

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portions thereof, any copies thereof, or portions of copies thereof, to any persons or

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entities other than counsel of record in the instant action. Any audiotape shall

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similarly be subject to this Protective Order and all persons shall be precluded from

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producing the original deposition audiotape or portions thereof, any copies thereof,

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or portions of copies thereof, to any persons or entities other than counsel of record

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in the instant litigation.

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In addition, anyone other than the Parties and the following persons

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shall be precluded from attending the deposition using Confidential Material:

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Counsel of record in this action, the court reporter, and the court videographer, if

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any, and any expert witnesses who have previously agreed to be bound by the

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instant Stipulation for a Protective Order. Those attending the deposition using

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Confidential Material shall not disclose to any person or entity, in any manner,

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including orally, any statements made by the deponent during the course of said

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deposition and any such disclosure shall be construed as a violation of this

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Protective Order.

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If any counsel is served with a subpoena or other request seeking

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Confidential Material, counsel shall immediately give written notice to counsel for

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the Party producing the Confidential Material, identifying the Confidential Material

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sought and the time in which production or other disclosure is required; and, object

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to the request or subpoena on the grounds of this Protective Order, to afford the
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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

LA #4817-3683-4832 v2

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Party an opportunity to obtain a Protective Order barring production or other

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disclosure, or to otherwise respond to the subpoena or other request for production

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or disclosure of Confidential Material. In no event shall production or disclosure be

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made without written approval by the counsel for the Party producing the

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Confidential Material, unless required by Court Protective Order. Nothing in the

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Protective Order shall be construed as authorizing a party to disobey a lawful

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subpoena issued in another action.

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Any pleadings, motions, briefs, declarations, stipulations, exhibits or

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other written submissions (collectively, “Papers”) filed by counsel with the Court,

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which contain, incorporate or refer to Confidential Material, shall be accompanied

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by an application to file the papers under seal, absent further Protective Order of

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this Court. Pending a ruling on the application, the Papers that are the subject of

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the application shall be lodged under seal. Any motion challenging a designation

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brought pursuant to this paragraph will be made in strict compliance with Local

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Rules 37-1 and 37-2 (including the Joint Stipulation requirement).

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Counsel for any Party may request that any motions, applications or

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other pre-trial proceedings, which could entail the discussion or disclosure of

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Confidential Material, be heard by the court outside the presence of the jury or in a

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closed courtroom. If no request is made by counsel, opposing counsel may reveal

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confidential information in the courtroom, without violating this Protective Order.

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In accordance with Local Rule 79-5.1, if any papers to be filed with the Court

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contain information that has been designated as “Confidential” or “Attorneys’ Eyes

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Only,” the proposed filing shall be accompanied by an application to file the papers

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or the portion thereof containing the designated information (if such portion is

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segregable) under seal; and the application shall be directed to the judge to whom

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the papers are directed. For motions, the Parties should file a redacted version of

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the motion and supporting papers. Neither the fact that counsel have stipulated to

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an under seal filing nor the fact that a proposed filing contains information that one
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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

LA #4817-3683-4832 v2

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of the Parties elected to designate as “Confidential” or “Attorneys’ Eyes Only” in

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accordance with the terms of the protective order is sufficient in itself for the Court

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to find that good cause exists to file the papers or the portion containing the

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designated information under seal. At the very least, the Parties will need to

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convince the Court in their application that protection clearly is warranted for the

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designated information or documents. For declarations with exhibits, this means

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making the requisite showing on an exhibit by exhibit basis.

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Nothing herein shall prejudice a Party’s rights to object to the

introduction of any Confidential Material into evidence, on grounds, including, but
not limited to, relevance and privilege.
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Within thirty (30) days following the termination of the instant action

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or any appellate proceedings relating thereto, all of the above-referenced

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Confidential Material, and all copies or documents derived from the Confidential

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Material, in the possession, custody, or control of counsel and any other person to

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whom counsel provided the Confidential Material, shall be returned to the Party

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producing the Confidential Material. The Parties respectively agree to bear the

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costs associated with retrieval and destruction of the Confidential Material.

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This Protective Order shall survive the termination of this action, and

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the court retains jurisdiction to resolve any dispute concerning the use or disclosure

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of the Confidential Material disclosed pursuant to this Protective Order.

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This Protective Order applies to Confidential Material disclosed or to

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be used in this matter entitled, JUSTIN BRYAN, JORDAN BRYAN, MARY PARR,

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individually and as successors in interest to Jerry Bryan, vs. CITY OF HEMET, et.

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al, Case No. CV 11-10690 SJO (DTBx).

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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CV 11-10690 SJO (DTBx)

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Nothing in this Protective Order is intended to prevent officials or

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employees of the Hemet Police Department, individual Hemet Police Officers, or

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other authorized individuals from having access to Confidential Material or

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information to which they would have access in the normal course of their duties.

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ALL APPLICATIONS TO FILE UNDER SEAL MUST BE IN

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COMPLIANCE WITH THIS COURT’S STANDING ORDER.

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It is SO ORDERED this 7th day of September 2012.

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_______________________________________
THE HONORABLE S. JAMES OTERO
UNITED STATES DISTRICT JUDGE

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

-7LA #4817-3683-4832 v2

CV 11-10690 SJO (DTBx)