Nick Sleeis et al v. City of Torrance et al

Filing 23

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order, 22 . (san)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA (Los Angeles - Spring St.)

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NICK SLEEIS,

CASE NO.: CV14-5479 FMO (JEMx)
Assigned to Hon. Fernando M. Olguin,
Courtroom 22

Plaintiff,
vs.
CITY OF TORRANCE; DAVID
ORTEGA #10635, individually and as
a peace officer, GREG SMALL
#19679, individually and as a peace
officer, MATTHEW JUNGERS
#18192, individually and as a peace
officer, DOES 1 -10, inclusive,

[PROPOSED] PROTECTIVE
ORDER RE CONFIDENTIAL
DOCUMENTS

Complaint Filed: July 14, 2014
Trial:
Not set

Defendants.

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PURSUANT TO THE STIPULATION OF THE PARTIES

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(“Stipulation of the Parties for Protective Order re Confidential

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Documents”), and pursuant to the Court’s inherent and statutory authority,

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including but not limited to the Court’s authority under applicable Federal

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Rules of Civil Procedure and United States District Court, Central District of

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California Local Rules; after due consideration of all relevant pleadings, papers,

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and records in this action; and upon such other evidence or argument as was
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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presented to the Court; Good Cause appearing therefore, and in furtherance of

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justice,

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IT IS HEREBY ORDERED that:

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1.

The parties, in the production or disclosure of documents,

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records, information, or tangible things in this case (hereafter “documents”)

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may designate certain documents as “Confidential” (collectively herein as

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“Confidential Documents”). The types of documents which may be

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designated as Confidential Documents hereunder include: (1) peace officer

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personnel files and all records which are typically contained within or

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associated with such peace officer personnel files according to the regular

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practices of the law enforcement agency which is the custodian of such

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records – including, but not limited to, internal affairs investigations and

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related interviews and reports, peace officer personal financial and asset

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information, peace officer medical records in the custody of the peace

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officer’s law enforcement agency employer, records regarding peace officer

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discipline, associated law enforcement agency employment/internal affairs

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investigations and related interviews and reports, interviews and reports

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related to personnel complaints by peace officers and/or citizen complaints

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against peace officers, and peace officer training records; and (2)

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comparable records of the parties that may otherwise be privileged from

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disclosure but which the parties may agree to produce pursuant to the terms

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of this Stipulation and [Proposed] Protective Order, including a party’s

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medical records, financial records, or other privileged or confidential

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records, documents, or information. However, nothing in this Stipulation

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and [Proposed] Protective Order shall be construed as to require or mandate

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that any party disclose or produce privileged information or records or

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other Confidential Documents in this action.

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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2.

This Stipulation and [Proposed] Protective Order also requires

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each party to this action to return the Confidential Documents produced to

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that party at the conclusion of this lawsuit, subject to certain exceptions

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specified infra: this requirement is intended to ensure that the use of

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Confidential Documents is limited to the particular case in which the facts or

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documents are relevant or at issue. The parties further agree that this

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Stipulation and its terms and provisions, and any Order based thereon, is/are

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applicable only to the above entitled matter and may not be used in the

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proceedings of any other matter for the purpose of establishing good cause

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for a similar stipulation or protective order, nor as a basis for any contention

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that certain documents or records should or should not be produced in another

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matter.

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3.

The mechanism by which parties may designate documents as

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Confidential Documents is either: (a) by marking the individual documents as

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being “Confidential,” such as on the footer of a specific/individual document,

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or (b) by enclosing, with the documents such party intends to be treated as

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Confidential Documents hereunder, written disclosures or discovery

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responses or correspondence specifically and individually identifying those

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enclosed documents as “Confidential” such party intends to be treated as

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Confidential Documents hereunder. The preferred method of designating

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documents as Confidential Documents is to employ all of the aforementioned

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means of designation, but such is not required hereunder.

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4.

The parties agree that documents marked as “Confidential” shall

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be so marked in a manner that does not obstruct the substance of that

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document’s text or content. The parties further agree that no party shall be

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permitted to alter or copy a document or record designated as “Confidential”

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so as to make it appear that such copy of such document or record was not a

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Confidential Document subject to the terms of this Stipulation and Protective
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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Order; the parties further agree that such alteration or copying shall subject

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the party or counsel who engages in such action regarding such documents to

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sanctions, at the discretion of the Court. Nothing in this paragraph shall be

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construed so as to prohibit transparent “highlighting” of any Confidential

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Document for emphasis, provided that prior to filing any such “highlighted”

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document with the Court and/or prior to publishing such “highlighted”

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document to the finder of fact or jury in this matter, the party adding such

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“highlighting” emphasis informs the Court or the fact finder, as applicable, that

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the “highlighting” party has added such “highlighting” emphasis to the

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document at issue.
5.

Hereafter, a party who has designated documents as Confidential

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Documents shall be referred to as the “producing-disclosing party [or counsel]”

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and the party to whom such documents are produced or disclosed shall be

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referred to as the “recipient party [or counsel].”

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6.

Confidential Documents shall be used only in preparation for the

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above entitled action, up to and including the completion of judicial proceedings,

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as well as any appellate phase of this action, and not for any other purpose,

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including any other litigation or dispute, and may not be disclosed or

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disseminated to any other persons, including to any other counsel, other than as

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set forth in this Stipulation and Protective Order.

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7.

In the event that a recipient party or counsel contends that any

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Confidential Documents were already in the possession of that party, or that

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party’s counsel, prior to the date of this Stipulation and Protective Order, or

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prior to such documents’ production in this matter by the producing-disclosing

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party, the recipient party or counsel shall have the burden of proving that any

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such documents were in fact already in the possession of the recipient party or

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that party’s counsel prior to the date of this Stipulation and Protective Order, or

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prior to such documents’ production in this matter.
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

8.

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The parties will attempt to resolve any issue regarding such

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disputed documents or records pursuant to Federal Rule of Civil Procedure

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37(a) (1) before submitting any such dispute-issue to the Court.
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Notwithstanding the foregoing, and despite any dispute as to

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whether any documents produced should be subject to the terms of the

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Stipulation and Protective Order as a result of prior possession, the parties

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will continue to treat the document(s) at issue as confidential and subject

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to this Stipulation and Protective Order until the Court rules upon the

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dispute or until the parties reach agreement on the issue, whichever comes

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first.
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If, upon review of such a dispute, the Court determines that the

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disputed Confidential Documents were already in the possession of the

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recipient party or counsel prior to the date of this Stipulation and Protective

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Order, or prior to such documents’ production in this matter, those specific

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documents shall not be subject to the provisions on destruction of copies (¶ 25,

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infra) nor to the provisions on return of documents at the conclusion of

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litigation (¶ 26, infra), nor shall the recipient party or counsel be prohibited

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from using those specific documents in other litigation or at trial of this action:

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Otherwise, the remaining provisions of this Stipulation and Protective Order

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shall continue to apply to such documents as Confidential Documents

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hereunder.

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11.

The recipient parties to the above entitled action, and/or their

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counsel, and/or their agents or the agents or employees of their counsel, shall

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secure and maintain the confidentiality of any and all Confidential Documents

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in their possession, and shall ensure that such Confidential Documents are used

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only for the purposes set forth herein below, and for no other purpose, and

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subject to the terms and provisions of this Stipulation and Protective Order.

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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12.

Nothing in the parties’ Stipulation and Protective Order shall be

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construed as a waiver by any party of any right to object on any ground to the

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use in any proceeding, or to the admission into evidence, of any Confidential

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Documents. Nothing in this Stipulation and Protective Order shall be

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construed so as to prevent the admission of Confidential Documents into

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evidence at the trial of this matter, or in appellate proceedings on this matter,

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solely on the basis of the documents’ designation as Confidential Documents.

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13.

Nothing in the parties’ Stipulation and Protective Order shall be

construed as a waiver by any party of any right it would otherwise have to object

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to disclosing or producing any information or documents on any ground not

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specifically addressed in this Stipulation and Protective Order, including but

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not limited to objections pursuant to the California Government Code,

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California Evidence Code, California Penal Code, the Official Records

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Privilege, the federal Official Information Privilege, the federal Executive

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Deliberative Process Privilege, the law enforcement-investigative privilege,

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the attorney-client privilege, the physician-patient privilege, the therapist-

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patient privilege, the attorney work product protection, the taxpayer privilege,

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or the right to Privacy under the United States Constitution, the California

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Constitution or any other applicable state or federal authority (as underscored

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and/or augmented by the statutory peace officer personnel records privileges

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pursuant to California Penal Code sections 832.5 through 832.8, as well as

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California Evidence Code sections 1040 through 1048, and the associated

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case law), or any other privilege against disclosure or production available

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under any provision of federal or California law. Nothing in the parties

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Stipulation and Protective Order shall be construed as requiring the

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production or disclosure of documents or information that may be or have

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been designated as Confidential Documents. Nothing in the parties

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Stipulation and Protective Order shall be construed as a waiver by any party
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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of any right it would otherwise have to obtain, acquire, or discover

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documents or records from any party to the extent permitted under federal or

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California law, as applicable.

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14.

The parties’ Stipulation and this Protective Order shall not be

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construed as a stipulation by any party that any privilege asserted by any party

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regarding Confidential Documents, whether produced or disclosed or not, is

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applicable or valid as to such documents; however, all parties, by and through

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their undersigned counsel, agree to abide by the terms of the parties’

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Stipulation and this Protective Order and to maintain such documents’

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confidentiality pursuant to the terms of the parties’ Stipulation and this

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Protective Order.

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15.

Confidential Documents produced in this action shall remain in the

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sole custody of recipient counsel to whom such documents are produced, who

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shall be prohibited from releasing or disseminating, to any other persons –

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including but not limited to legal counsel – any or all such Confidential

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Documents, except as specifically delineated in the parties Stipulation and this

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Protective Order.

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16.

All those permitted by a recipient counsel or party to review any

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Confidential Documents must be informed of the terms of the parties

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Stipulation and this Protective Order and must agree to abide by such

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Stipulation and Protective Order before the recipient party or counsel may

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produce or disclose such documents to such person(s).

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17.

Confidential Documents may be disseminated, released, copied,

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shared, or otherwise reproduced by a recipient party or counsel only to the

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following persons:

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(a) counsel for any party to this action who is also a party to the parties
Stipulation;

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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(b) paralegal, stenographic, clerical and/or secretarial personnel regularly
employed by counsel referred to in paragraph (a);
(c) court personnel, including stenographic reporters engaged in such

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proceedings as are necessary incident to preparation for the trial and

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pretrial proceedings in the above entitled action;

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(d) any outside expert or consultant retained in connection with this action,

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and not otherwise employed by either of the parties – provided that such

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expert or consultant understands and agrees to abide by the terms of the

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parties’ Stipulation and this Protective Order;

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(e) any “in-house” or outside experts designated by the defendant(s) to
testify at trial in this matter; and/or
(f) any party or witnesses to this action, provided that such party or witness

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understands and agrees to abide by the terms of the parties’ Stipulation

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and this Protective Order.

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18.

Confidential Documents may be submitted in all law and motion

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proceedings before the Court if done so under seal pursuant to Federal Rules

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of Civil Procedure 5.2 and 26 and/or United States District Court, Central

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District of California Local Rules 79-5.1 and 79-5.2 as applicable and

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pursuant to the provisions of this paragraph. If any party attaches any

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Confidential Documents to any pleading, motion, or other paper to be filed,

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lodged, or otherwise submitted to the Court, that Confidential Document(s)

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shall be filed/lodged under seal pursuant to Federal Rules of Civil Procedure

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5.2 and 26 and/or United States District Court, Central District of California

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Local Rules 79-5.1 and 79-5.2 to the extent applicable. However, this

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paragraph shall not be construed so as to prevent a producing-disclosing party

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or counsel from submitting, filing, lodging, or publishing any document it has

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previously designated as a Confidential Document without compliance with

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this paragraph’s requirement to do so under seal (i.e., a producing-disclosing
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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party or counsel may submit or publish its own Confidential Documents

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without being in violation of the terms of the parties’ Stipulation and this

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Protective Order).

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19.

Furthermore, a recipient party or counsel shall be exempted from

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the requirements of the foregoing paragraph (¶ 18) as to any specifically

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identified Confidential Document(s) where the counsel for the producing-

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disclosing party of such specifically identified Confidential Document(s)

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serves an express, written waiver as to such specifically identified

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Confidential Document(s) prior to the submission or publication of the

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Confidential Document(s) at issue, either upon request by a recipient party or

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upon the producing-disclosing party’s own initiative. A recipient party or

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counsel shall also be exempted from the requirements of such paragraph as to

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any specifically identified Confidential Document(s) where such Confidential

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Document(s) is/are not documents, records, or information regarding (1)

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private, personal information contained in peace officer personnel files (such

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as social security numbers, driver’s license numbers or comparable personal

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government identification numbers, residential addresses, compensation or

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pension or personal property information, credit card numbers or credit

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information, dates of birth, tax records and information, information related to

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the identity of an officer’s family members or co-residents, and comparable

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personal information about the officer or his family); (2) any internal affairs

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or comparable investigation by any law enforcement agency into alleged

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officer misconduct; or (3) the medical records or records of psychiatric or

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psychological treatment of any peace officer or party to this action. The

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parties shall confer in good faith regarding any request for waiver from this

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sealing requirement. Prior to submitting in any law and motion proceedings

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before the Court any Confidential Document(s) exempted from the sealing

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requirement of this Stipulation and any associated Protective Order, a
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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recipient party or counsel shall confer in good faith with the producing-

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disclosing party or counsel on the issue of whether the parties can agree on

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whether such exempted Confidential Document(s) should be filed under seal

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or whether, if the parties cannot agree, the producing-disclosing party or

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counsel should move to have such Confidential Document(s) placed under

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seal by the Court. Defendants further contend that all Confidential

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Documents not subject to an express waiver by the producing-disclosing party

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should be subject to the requirements of this paragraph; however, plaintiff

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disagrees with such contention and plaintiff does not stipulate to such a

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provision; nothing in this paragraph or in the parties’ Stipulation shall be

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construed as an agreement by plaintiff to file any Confidential Document(s)

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under seal other than documents, records, or information produced-disclosed

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by defendants (if any) regarding (1) private, personal information contained in

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peace officer personnel files (such as social security numbers, driver’s license

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numbers or comparable personal government identification numbers,

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residential addresses, compensation or pension or personal property

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information, credit card numbers or credit information, dates of birth, tax

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records and information, information related to the identity of an officer’s

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family members or co-residents, and comparable personal information about

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the officer or his family); (2) any internal affairs or comparable investigation

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by any law enforcement agency into alleged officer misconduct; or (3) the

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medical records or records of psychiatric or psychological treatment of any

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peace officer or party to this action. Additionally, nothing in this paragraph

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shall be construed to bind the Court so as to limit or prevent the publication

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of any Confidential Documents to the jury or fact finder, at the time of trial of

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this matter, where the Court has deemed such Confidential Documents to be

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admissible into evidence.

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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20.

Nothing in the parties’ Stipulation and this Protective Order shall be

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construed as requiring a producing-disclosing party or counsel to waive the

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requirements hereunder of filing, lodging, or otherwise submitting Confidential

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Documents to the Court only pursuant to the terms of this Stipulation and

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Protective Order and/or to applicable federal or local rules.

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21.

If, in connection with any deposition taken in this action, counsel

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questions a witness regarding materials subject to this Stipulation and

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Protective Order, or use(s) Confidential Documents as deposition exhibits, at

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the request of opposing counsel or party, the portions of the transcripts of such

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deposition testimony wherein such materials are discussed, and the applicable

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attached exhibits, shall be designated as Confidential Documents and shall be

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subject to the provisions of this Stipulation and Protective Order. However,

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only deposition exhibits that are designated as Confidential Documents shall

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be subject to the end-of-litigation return requirement of the parties Stipulation

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and this Protective Order, infra (¶¶ 25, 26 of this Order; ¶¶ 47-48 of the

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Stipulation); deposition transcripts designated as Confidential Documents

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shall not be subject to the aforementioned end-of-litigation return requirement

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of this Stipulation and Protective Order.

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22.

The parties Stipulation and this Protective Order is not intended, and

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shall not be construed, to prevent current officials or current employees of the City,

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or Police Department, or Defendant(s), or other authorized government officials,

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from having access to any document(s) to which such officials or employees would

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have had access in the normal course of their job duties.

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23.

Confidential Documents shall not be shown, produced, shared, copied

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to, published, or otherwise disseminated or produced to any person by any

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recipient party or counsel, or their agents or persons to whom such recipient party

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or counsel discloses or produces such Confidential Documents, other than as

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specified in the parties Stipulation and this Protective Order.
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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24.

Confidential Documents shall not be shown, produced, shared, copied

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to, published, or otherwise disseminated or produced by any recipient party or

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recipient party’s counsel, or their agents or employees, to any member of the press

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or news or entertainment media under any circumstances or at any time.

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25.

Electronic copies of any Confidential Documents may be made by

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any recipient party or counsel but such copies, and their dissemination by any

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means or medium, shall also be subject to the terms of the parties Stipulation and

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this Protective Order, and all such copies in the possession of any recipient party

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or counsel, or their agents, shall be destroyed or permanently deleted at the

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conclusion of the legal proceedings in the above entitled matter.
26.

At the conclusion-end of the legal proceedings in the above

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entitled matter, each person or entity – except court personnel – who has

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received any Confidential Documents, or any copy thereof, and who is not the

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producing-disclosing party thereof, shall return all such Confidential

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Documents to the producing-disclosing counsel within thirty (30) calendar

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days of the conclusion of such proceedings, or be subject to monetary or other

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sanctions at the Court’s discretion. No recipient party or counsel may retain

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any Confidential Documents, or copies thereof, or permit any person or entity

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to whom the recipient party or counsel provided such document(s) to retain

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any Confidential Documents, after legal proceedings in the above entitled

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matter have concluded.

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27.

All counsel in the above entitled action specifically agree not to

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cause or knowingly permit any disclosure or production of any Confidential

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Documents, or the contents thereof, except as permitted by the terms of the parties

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Stipulation and this Protective Order.

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28.

Any restriction or obligation of the parties Stipulation and this

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Protective Order that applies to any recipient party likewise applies to any

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recipient counsel, and vice versa.
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29.

In the event that any party, person, or entity subject to the terms of

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the parties Stipulation and this Protective Order violates the terms or

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provisions thereof, in a manner consistent with the requirements of Due

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Process and the applicable provisions governing motions for sanctions under

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federal law, including but not limited to the Federal Rules of Civil Procedure

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and the United States District Court, Central District of California Local Rules,

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to the extent applicable, at the Court’s discretion, the Court may impose

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sanctions against the party, person, or entity that the Court finds to have

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violated of the terms of the parties Stipulation and this Protective Order.

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However, nothing in this paragraph shall be construed so as to subject counsel

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for any party in the above entitled action to sanctions for any violation(s) of

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the parties Stipulation and this Protective Order that are committed by other

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persons or entities – including but not limited to any agent or employee of any

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recipient party or counsel or any consultants or experts retained by any

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recipient party or counsel – provided that, in the event of the filing of a motion

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for sanctions for violation of the terms of the parties Stipulation and this

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Protective Order, or within thirty (30) days of the termination of this action

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(whichever is sooner), recipient counsel files a sworn declaration with this

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Court affirming that: (a) the alleged violator was informed of all of the

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applicable terms and provisions of the parties’ Stipulation and this Protective

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Order prior to being provided with any Confidential Documents; (b) the

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alleged violator agreed to abide by the applicable terms and provisions of the

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parties Stipulation and this Protective Order prior to being provided with any

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Confidential Documents; and (c) the recipient party and recipient counsel

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otherwise complied with the end-of-litigation return/destruction provisions of

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the parties’ Stipulation and this Protective Order (e.g., ¶¶ 25-26 of this Order;

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¶¶ 47-48 of the parties’ Stipulation), to the extent applicable. Nothing in the

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parties Stipulation and this Protective Order shall be construed as providing for
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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sanctions or the enforcement of any Court orders beyond the powers conferred

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upon the Court under existing law.

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30.

The provisions of the parties’ Stipulation and this Protective Order

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shall be in effect until further Order of the Court or further written Stipulation by

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the parties by and through their attorneys of record.

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IT SO ORDERED.

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Dated: January 20, 2015

____________________________________
UNITED STATES MAGISTRATE JUDGE

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