Dolan Cortes v. City of Santa Monica et al

Filing 31

PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh, The terms and conditions of the STIPULTED PROTECTIVE ORDER shall govern the disclosure of the information/documents set forth therein. re Stipulation for Protective Order, 30 (NOTE CHANGES MADE BY COURT/SEE ORDER FOR FURTHER DETAILS) (lmh)

)

2
3
4

MARSHA JONES MOUTRIE, City Attorney
CAROL ANN ROHR, Deputy City Attorney
Bar No. 90012
caro1.rohrsmgov.net
1685 Main Street, Room 310
Santa Monica, California 90401
Telephone: [phone]
Facsimile: [phone]

5
6
7

Attorneys for Defendants
CITY OF SANTA MONICA, ERIC PILLOR, MATTHEW RICE,
SCOTT McGEE LOUIS MARIONI, LOWELL WATSON,
SCOTT McGO\TAN, SGT. RUDY CAMERENA, and,
TITTUS MENDEZ

8

UNITED STATES DISTRICT COURT
9

CENTRAL DISTRICT OF CALIFORNIA
10

DOLAN CORTES,

CASE NO.: CV12-09408-GAF(PJWx)

11

Plaintiff,
12

Honorable Gary A. Feess,
Roybal Bldg. Ctrm. 740

13
14
15
16
17
18

CITY OF SANTA MONICA, Scott
McGowan, #3582, Sgt. Rudy Camarena
#2914, Lowell Watson #35 14, Louis
Marioni #3468 Scott McGee #3567 #3567,
Mathew Rice W3366 and Downtown Service
Officers (DSO) Eric Pillory #3617 and
Tittus Mendez #3724, individually and as a
peace officers, DOES 1-10,

21
22
23
24
25
26
27
28

ct-Ve_

TkiS

ViOf

Defendants.

19
20

STIPULATED PROTECTIVE
ORDER;
THEREON1

0

I. INTRODUCTION

e

e4js

) I.-Ze-.4/

80-J.

<j

Plaintiff DOLAN CORTES, and defendants CITY OF SANTA MONICA,

Lyd 4-K
I

-1 M
M/

OFFICERS SCOTT McGOWAN, LOWELL WATSON, LOUIS MARIONI, SCOTT
McGEE, MATTHEW RICE, SGT. RUDY CAMARENA, DSO’S ERIC PILLORY
and TITTUS MENDEZ hereby stipulate and agree as follows:
The defendants and/or plaintiff will disclose documents and/or discovery
requests have or will be served that require Defendants and/or plaintiff to disclose
confidential information. The following procedures shall be employed and the terms,
conditions, and restrictions shall govern with respect to all applicable documents

STIPULATED PROTECTIVE ORDER 12-4-13.DOC

I

)

1

disclosed under Fed.R.Civ.P. 26(a)(1) and discovery propounded by any party to this

2

case, including all summaries, copies, abstracts, extracts and/or other documents

3

pertaining to this case and the information contained therein which shall be designated

4

as CONFIDENTIAL, as well as any summaries, copies, abstracts, extracts and/or

5

other documents derived in whole or in part from the material designated as

6

CONFIDENTIAL (hereinafter "Confidential Material"):

7

(a) Any party or other’person producing information in this case may, in

8

good faith, designate information as CONFIDENTIAL. Confidential Material is any

9

information produced in connection with this litigation that the producing party

10

reasonably believes is information that has not been, and should not be, made public,

11

and includes, but not limited to, confidential, private, medical or proprietary

12

information, the disclosure of which would constitute either (1) an invasion of the

13

privacy of any party or non-party to this action; (2) a potential for harm to the Santa

14

Monica Police Department’s internal investigatory system; and/or (3) a potential for

15

harm to significant governmental interests. At the time of production or other

16

disclosure of such CONFIDENTIAL information, the.producing party or other person

17

shall designate such material by placing the word or words CONFIDENTIAL or

18

"Confidential Material subject to Protective Order" on each such document or other

19

material, or if it is not possible to do so label the material, by means of such other

20

designation as will identify the CONFIDENTIAL information with sufficient

21

specificity to permit counsel to adhere to the provisions of this Protective Order.

22

(b) The designation of information as CONFIDENTIAL shall not be

23

considered conclusive or binding on any party, and such designation may be contested

24

by noticed motion at any time. However, unless and until an order of this Court sets

25

aside a designation of CONFIDENTIAL, all documents and information so designated

26

shall be treated as CONFIDENTIAL, pursuant to the terms of this Protective Order. If

27

any party who receives CONFIDENTIAL information is served with a subpoena or

28

1 other request seeking documents containing CONFIDENTIAL information, he/she
STIPULATED PROTECTIVE ORDER 12-4-13.DOC

1

shall immediately give written notice to counsel for the party that disclosed the

2

CONFIDENTIAL information, identifying the CONFIDENTIAL information sought

3

and the time in which production or other disclosure is required, and shall object to the

4

request or subpoena on the grounds of this Order so as to afford the party that

5

disclosed the CONFIDENTIAL information an opportunity to obtain an Order barring

6

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

7

request for production or disclosure of documents containing CONFIDENTIAL

8

information. In no event should production or disclosure be made without written

9

approval by the party that disclosed the CONFIDENTIAL information unless required

10

by Court order, of which the party disclosing the CONFIDENTIAL information has

11

been given prior notice, arising from a motion to compel production or disclosure of

12

documents containing CONFIDENTIAL information.

13

(c) Any CONFIDENTIAL information that is produced pursuant to this

14

Stipulation may be produced only to counsel of record for the parties in this litigation.

15

Counsel for any party who obtains any CONFIDENTIAL information from any other

16

party shall protect it and its contents from all disclosure to anyone save the persons

17

designated in this paragraph. CONFIDENTIAL material and information derived

18

from CONFIDENTIAL material shall be used only as reasonably necessary for

19

preparation of mediation briefs, arbitration briefs and/or trial of this action, including

20

use at depositions and in support of motions as further set forth in this Stipulation,

21

and, including any appeal or retrial, and shall not be used for any other purpose,

22

including, without limitation, any other litigation or proceeding, or any business, or

23

governmental purpose or function. Counsel of record may disclose CONFIDENTIAL

24

information where necessary to the proper preparation for, and trial of, this case to:
their employees, including paralegal, clerical and secretarial staff, as well

25

(i)

26

as contract staff,

27
28

(ii) experts and consultants retained only for the purpose of aiding counsel of

1 record in connection with counsel’s preparation for trial, including the use at
STIPULATED PROTECTIVE ORDER 12-4-13.DOC

)

1
2
3
4
5
6

depositions, and in suppoit of motions and Rule 26 Declarations;
(iii) individuals testifying under oath at deposition in this action’;
(iv) a party, or officer, director or employee of a party to this action, deemed
necessary by counsel to aid in the prosecution, defense or settlement of this action;
(v) the Court and members of its staff, including stenographic and other
reporters; or
(vi) court reporters employed by counsel in this action.
(d) Each person identified in subparagraphs (i) through (vi) above, excluding

10

the Court and its staff, shall, before s/he receives CONFIDENTIAL information, be
provided by the person furnishing him with such information a copy of this order and

12

agree in writing to be bound by its terms, and shall certify that s/he has carefully read

13

the order and fully understands its terms. Such person also must consent in writing to

14

be subject to the jurisdiction of this court with respect to any proceeding relating to

15

enforcement of this order. An agreement incorporating these terms shall be prepared

16

and agreed to by the parties and executed by the person before receiving the

17
18
19
20
21
22

CONFIDENTIAL information. The executed agreement shall be made a part of the
deposition transcript when it is executed by a deponent.
(e) Whenever any CONFIDENTIAL information is introduced or used at a
deposition, those portions of the deposition that concern CONFIDENTIAL
information (i) shall be conducted in such a way that only persons authorized by the
Protective Order to have access to such matters are present; and (ii) shall be separately

23
24
25
26
27
28

In the event a party intends to question a deponent at deposition about
CONFIDENTIAL Material, the party noticing the Deposition shall include a statement of such intent
in the Notice of Deposition and shall describe the CONFIDENTIAL Material to be disclosed to the
deponent at the deposition in sufficient time for the opposing party to seek a protective order. If the
non-noticing party desires to question a deponent at deposition about CONFIDENTIAL Material,
that party must advise the noticing party of such intent, and shall describe the CONFIDENTIAL
Material to be disclosed to the deponent at the deposition in sufficient time for the noticing party to
seek a protective order. The parties shall meet and confer in good faith in an effort to resolve all
disputes regarding CONFIDENTIAL Material in an effort to avoid the necessity for Court
intervention.

STIPULATED PROTECTIVE ORDER 12-4-13.DOC

7

)

1

bound after transcription and marked as CONFIDENTIAL, and then shall be deemed

2

to be subject to the terms of the Protective Order. For convenience, if a deposition

3

transcript contains repeated references to CONFIDENTIAL material that cannot

4

conveniently be segregated from non-CONFIDENTIAL material, any party may

5

request that the entire transcript or exhibits be maintained by the reporter as

6

CONFIDENTIAL.

7

(f)

If a party wishes to file with the court documents which contain

8

information designated as CONFIDENTIAL, that party shall notify the party

9

disclosing the CONFIDENTIAL information, in writing, via personal delivery and/or

10

fax, at least 10 court days prior to filing any pleadings, motions, briefs, declarations,

11

stipulations, exhibits or other written submissions (collectively "papers") with this

12

Court, which contain, reflect, incorporate or refer to CONFIDENTIAL

13

INFORMATION, in order to allow the party disclosing the CONFIDENTIAL

14

information, to make a written application to seal the subject material. Pending a

15

ruling on the application, the "papers" are to be filed consistent with Local Rule 79-

16

5.1. The parties agree to cooperate to the extent possible to expedite the ruling on any

17

such application.

18

(g) Failure of counsel to designate testimony or exhibits as

19

CONFIDENTIAL at deposition shall not constitute a waiver of the confidentiality of

20

the testimony or exhibits. Upon receipt of the transcript of the deposition, counsel

21

shall be entitled to designate specific pages and lines of the transcript or exhibits as

22

CONFIDENTIAL; however, any other party shall be entitled to treat the transcript or

23

exhibits as non-CONFIDENTIAL material until such time as the CONFIDENTIAL

24

designation is made.

25

(h) Discovering counsel may show CONFIDENTIAL material to a deponent

26

at a deposition and examine that deponent concerning same, subject to the provisions

27

of paragraph(c)(iii). Examining counsel will, at the outset of the deposition, inquire as

28

to whether the deponent agrees to be bound by the terms of this Protective Order. If

STIPULATED PROTECTIVE ORDER 12-4-I3.DOC

/

)

1

the deponent does not agfee, the CONFIDENTIAL material shall not be disclosed to

2

the deponent. If the deponent agrees to be bound by the terms of the Protective Order

3

and executes the agreement referred to in I (d) above, the reporter shall be instructed

4

to give the deponent written notice when the transcript has been prepared, stating that

5

the deponent may inspect the transcript and its exhibits, including the

6

CONFIDENTIAL material, in the reporter’s office. If the original deposition

7

transcript is not signed within thirty (30) days after the date of the notice, it will be

8

used as if it is signed. The deponent shall not be furnished with a copy of the portions

9

of the deposition transcript or exhibits that have been designated as CONFIDENTIAL.

10

Alternatively, counsel for the parties who have executed this Protective Order, or their

11

authorized representatives, may make other arrangements for the review and signing

12

of a deposition in this matter that uphold the stipulations herein and protect the

13

confidentiality of the CONFIDENTIAL MATERIAL provided pursuant to this

14

Protective Order. Furthermore, any audiotape and/or videotape of any such deposition

15

shall be subject to this Order.

16

(i) If any CONFIDENTIAL material is provided to a discovering party

17

without being marked as CONFIDENTIAL, the failure to mark the material shall not

18

be deemed a waiver of its confidentiality. Until the material is designated as

19

CONFIDENTIAL by the producing party, however, the discovering party shall be

20

entitled to treat the material as non-CONFIDENTIAL. Upon designation, such

21

material shall be treated as CONFIDENTIAL in accordance with the provisions of this

22

Protective Order.

23

(j)

This Stipulation for Protective Order shall survive the final termination of

24

this action, to the extent that the information contained in CONFIDENTIAL Material

25

is not or does not become known to the public, and the Court shall retain jurisdiction

26

to resolve any dispute concerning the use of information disclosed hereunder. Within

27

thirty (30) days after the final settlement or conclusion of this action, discovering

28

counsel shall return to producing counsel all CONFIDENTIAL documents including,

STIPULATED PROTECTIVE ORDER 12-4-13.DOC

1

without limitation, depositions and trial, hearing, or other transcripts containing

2

information designated as CONFIDENTIAL, as well as all copies, and shall return or

3

destroy any extracts, summaries, or material derived from the information. In

4

addition, the parties agree to cooperate in obtaining from the Clerk of this Court all

5

documents, transcripts, exhibits and any other materials containing information

6

designated as CONFIDENTIAL that have been filed with this Court and securing their

7

return to producing party or destroying them as set forth above.

8
9

(k) This Stipulation for Protective Order is entered solely for the purpose of
facilitating the exchange of documents and information between the parties to this

10

action without involving the Court unnecessarily in the process. Nothing in this Order

11

nor the production of any information or document under the terms of this Order nor

12

any proceedings pursuant to this Order shall be deemed to have the effect of an

13

admission or waiver by either party or of altering the confidentiality or non-

14

confidentiality of any such document or information or altering any existing

15

obligation of any party of the absence thereof. Further, nothing in this Order shall

16

constitute a waiver by any party of any applicable privilege or other protection, nor

17

shall this Order or the production of the documents in question be construed so as to

18

make any document or other material described herein admissible in any proceeding

19

before this or any other court. Nothing in this Order shall prejudice any parties’ rights

20

to object to the introduction of any CONFIDENTIAL information into evidence, on

21

grounds, including, but not limited to, relevance and privilege.

22

(1) Counsel for the parties hereto agree to request that any motions, applications

23

or other pre-trial proceedings in this Court which could entail the discussion or

24

disclosure of CONFIDENTIAL documents, be heard by the Court outside the

25

presence of all individuals, including the jury, except for those individuals indicated in

26

paragraph I (c)(i) through (vi) above.

27
28

II. STATEMENT OF GOOD CAUSE
(m) Pursuant to the [proposed] protective order herein, defendant, the City of

STIPULATED PROTECTIVE ORDER 12-4-13.DOC

1

Santa Monica, ("DISCLOSING PARTY") contends that the below listed confidential

2

material related to underlying incident of September 30, 2011, involving the arrest of

3

plaintiff, which plaintiff seeks, is subject to various protections, including, but not

4

limited to, Governmental Privilege, the Official Information Privilege, and also the

5

privilege of critical self-examination/analysis and/or the deliberative process privilege,

6

Evidence Code § § 1040, et seq., Penal Code § § 146e, 832.5, 832.7, 832.8, and

7

Government Code § § 3300, et seq. and 6254. Further, such material also contains

8

private and confidential information including private and confidential third-party

9

information.

10

(n) Such CONFIDENTIAL material kept by DISCLOSING PARTY are

11

governmental documents that contain official information. Such CONFIDENTIAL

12

material has been maintained by the DISCLOSING PARTY in confidence and

13

contains sensitive and private information.

14

(o) The DISCLOSING PARTY is extremely concerned that dissemination of

15

subject information, documents, and materials related to the incident, relevant

16

personnel, and other confidential internal investigations could compromise the

17

efficacy of such undertakings in the future and act to discourage cooperation from the

18

public. Further, disclosure of which without a protective order may compromise the

19

safety of the subject peace officers and their families and third parties.

20

(p) In light of the aforementioned facts, and given the strong public policies in

21

favor of encouraging witnesses to cooperate in investigations, protecting those who

22

assist in investigations, protecting society’s interests in investigating such incidents, it

23

is necessary and proper to enter into an order carefully limiting the use and

24

dissemination of the information, documents, and materials that are the subject of this

25

Stipulation. In order to informally resolve this matter, the Parties have agreed to this

26

stipulated protective order.

27
28

III. THE CONFIDENTIAL MATERIALS
(q) This Order, based upon the assertions and stipulations herein, shall apply to

STIPULATED PROTECTIVE ORDER 12-4-13.DOC

1

protect from unauthorized disclosure the following CONFIDENTIAL information,

2

which will be provided to plaintiff as CONFIDENTIAL material after the parties have

3

executed the instant Stipulated Protective Order and the Court has thereafter signed

4

the [Proposed] Order thereon.
1.

Recorded l.A interview and transcript of plaintiff, Dolan Cortes

6

2.

Recorded I.A. interview and transcript of Sergeant Rudy Camarena

7

3.

Recorded I.A. interview and transcript of Officer Scott McGee

8

4.

Recorded I.A. interview and transcript of Officer Lowell Watson

9

5.

Recorded I.A. interview and transcript of Officer Louis Marioni (1)

10

6.

Recorded I.A. interview and transcript of Officer Louis Marioni (2)

11

7.

Recorded I.A. interview and transcript of Officer Matt Rice

12

8.

Recorded I.A. interview and transcript of DSO Tittus Mendez

13

9.

Recorded I.A. interview and transcript of Mr. Van Allen (Silver)

14

10. Recorded I.A. interview and transcript of Daniel Moss (Gold)

15

11. Recorded I.A. interview and transcript of DSO Eric Pillor

16

12. Recorded I.A. interview and transcript of Officer Scott McGowan

17

13. Dispositions/Findings regarding the Cortes Administrative Investigation.

18

14. Use of force training records for the last 5 years as follows:
(a) Commission on Peace Officer Standards and Training Confidential

19
20

Profile Reports for Officers McGowan, McGee, Marioni, Watson, Rice, and, Sgt.

21

Carnarena.
(b) Santa Monica Police Department - Confidential Employee Training

22
23
24
25

26
27
28

Reports for Officers McGowan, McGee, Marioni, Watson, Rice, and, Sgt. Carnarena.
15.

Taser Deployment Training records for the last 5 years as follows:
(a)Commission on Peace Officer Standards and Training Confidential

Profile Reports for Officer McGowan, and Sgt. Carnarena.
(b) Santa Monica Police Department - Confidential Employee
Training Reports for Officer McGowan, and Sgt. Camarena.

STIPULATED PROTECTIVE ORDER I2-4-13.DOC

7

2

(r)

This Stipulation for Protective Order is entered into without prejudice to

3

the right of any party to waive the applicability of this Stipulation for Protective Order

4

as to any information produced by the party. Upon the application to this Court by

5

noticed motion, any party may:

6
7
8
9
10
11
12
13
14
15
16
17

(i)

seek additional protective treatment for any information or documents

that might become the subject of discovery;
(ii) object to the designation of any document as CONFIDENTIAL; or
(iii) seek any modification of, or relief from, this Protective Order and such
other relief as may seem appropriate. Prior to any such application, counsel shall
confer to try to obtain agreement without resort to the intervention of the Court.
(s) Attorneys of the parties receiving CONFIDENTIAL
documents/information shall not cause or knowingly permit disclosure of the contents
of the CONFIDENTIAL DOCUMENTS beyond the disclosure permitted under the
terms and conditions of this Stipulation.
(t) No document covered by this Stipulation may be used for any purpose
not set forth herein, or revealed to any person not described herein, absent further
order of this Court.

19
20
21
22
23
24
25
26
27
28

STIPULATED PROTECTIVE ORDER 12-4-I3.DOC

)
1

(u) This Stipulation shall survive the termination of this action, and the Court

2

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

3

CONFIDENTIAL material disclosed pursuant to this Stipulation.

4

IT IS SO STIPULATED:

5
6

DATED: December 5, 2013

7

THE BECK LAW FIRM
/s/Thomas E. Beck
By:
Thomas E. Beck, ESQ.
Attorneys for Plaintiff
DOLAN CORTES

8
9
10
11
12

DATED: December 5, 2013

13
14

/s/Carol Ann Rohr

15

By:
CAROL ANN ROHR
Deputy City Attorney

16
17

Attorneys for Defendants
CITY OF SANTA MONICA, ERIC PILLOR,
MATTHEW RICE, SCOTT McGEE, LOUIS
MARIONI, LOWELL WATSON,
SCOTT McGOWAN, SGT. RUDY
CAMERENA, and TITTUS MENDEZ

18
19
20
21
22

MARSHA JONES MOUTRIE
City Attorney

ts

23
24
25
26
27
28

STIPULATED PROTECTIVE ORDER 12-4-13.DOC