John Johnson v. City of Long Beach

Filing 25

PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh. (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOHN JOHNSON,

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Plaintiff,

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v.
CITY OF LONG BEACH, et al.,

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Defendants.

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Case No. CV 15-02201-PJW
PROTECTIVE ORDER

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1.

A. PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of

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confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other

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than prosecuting this litigation may be warranted.

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parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order.

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this Order does not confer blanket protections on all disclosures or

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responses to discovery and that the protection it affords from public

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disclosure and use extends only to the limited information that is

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entitled

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principles.

to

confidential

treatment

Accordingly, the

The parties acknowledge that

under

the

applicable

legal

The parties further acknowledge, as set forth in Section

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12.3, below, that this Stipulated Protective Order does not entitle

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them to file confidential information under seal; Civil Local Rule

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79-5 sets forth the procedures that must be followed and the standards

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that will be applied when a party seeks permission from the court to

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file material under seal.

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B.

GOOD CAUSE STATEMENT

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This action is likely to involve private information for which

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special protection from public disclosure and from use for any purpose

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other than prosecution of this action is warranted.

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and information consist of, information implicating privacy rights of

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third parties, information otherwise generally unavailable to the

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public, or which may be privileged or otherwise protected from

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disclosure

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decisions, or common law. Accordingly, to expedite the flow of

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information, to facilitate the prompt resolution of disputes over

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confidentiality

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information the parties are entitled to keep confidential, to ensure

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that the parties are permitted reasonable necessary uses of such

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material in preparation for and in the conduct of trial, to address

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their handling at the end of the litigation, and serve the ends of

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justice, a protective order for such information is justified in this

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matter. It is the intent of the parties that information will not be

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designated as confidential for tactical reasons and that nothing be so

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designated without a good faith belief that it has been maintained in

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a confidential, non-public manner, and there is good cause why it

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should not be part of the public record of this case.

under

state

of

or

federal

discovery

statutes,

materials,

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2

to

Such materials

court

rules,

adequately

case

protect

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2.

DEFINITIONS

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2.1

Action: This pending federal law suit.

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2.2

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

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designation of information or items under this Order.
2.3

"CONFIDENTIAL" Information or Items: information (regardless

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of how it is generated, stored or maintained) or tangible things that

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qualify for protection under Federal Rule of Civil Procedure 26(c),

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and as specified above in the Good Cause Statement.

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2.4

Counsel: Outside Counsel of Record and House Counsel (as

well as their support staff).
2.5

Designating Party:

a Party or Non-Party that designates

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information or items that it produces in disclosures or in responses

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to discovery as "CONFIDENTIAL."

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2.6

Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored,

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or maintained (including, among other things, testimony, transcripts,

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and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.7

Expert:

a person with specialized knowledge or experience

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in a matter pertinent to the litigation who has been retained by a

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Party or its counsel to serve as an expert witness or as a consultant

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in this Action.

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2.8

House Counsel:

attorneys who are employees of a party to

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this Action. House Counsel does not include Outside Counsel of Record

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or any other outside counsel.

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2.9

Non-Party:

any natural person, partnership, corporation,

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association, or other legal entity not named as a Party to this

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action.
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2.10 Outside Counsel of Record:

attorneys who are not employees

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of a party to this Action but are retained to represent or advise a

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party to this Action and have appeared in this Action on behalf of

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that party or are affiliated with a law firm which has appeared on

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behalf of that party, and includes support staff.

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2.11 Party: any party to this Action, including all of its

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officers, directors, employees, consultants, retained experts, and

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Outside Counsel of Record (and their support staffs).

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2.12 Producing

Party:

a

Party

or

Non-Party

that

produces

Disclosure or Discovery Material in this Action.

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2.13 Professional Vendors:

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litigation

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translating, preparing exhibits or demonstrations, and organizing,

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storing, or retrieving data in any form or medium) and their employees

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and subcontractors.

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services

2.14 Protected Material:

(e.g.,

photocopying,

videotaping,

any Disclosure or Discovery Material

that is designated as "CONFIDENTIAL."

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support

persons or entities that provide

2.15 Receiving

Party:

a

Party

that

receives

Disclosure

or

Discovery Material from a Producing Party.

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3.

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SCOPE
The protections conferred by this Stipulation and Order cover not

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only

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information copied or extracted from Protected Material; (2) all

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copies, excerpts, summaries, or compilations of Protected Material;

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

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their Counsel that might reveal Protected Material.

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Protected

Material

(as

defined

above),

but

also

(1)

any

Any use of Protected Material at trial shall be governed by the
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orders of the trial judge.

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This Order does not govern the use of

Protected Material at trial.

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4.

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DURATION
Even

after

final

disposition

of

this

litigation,

the

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confidentiality obligations imposed by this Order shall remain in

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effect until a Designating Party agrees otherwise in writing or a

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court order otherwise directs.

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be the later of (1) dismissal of all claims and defenses in this

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Action, with or without prejudice; and (2) final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands,

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trials, or reviews of this Action, including the time limits for

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filing any motions or applications for extension of time pursuant to

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applicable law.

Final disposition shall be deemed to

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

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Protection.

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items for protection under this Order must take care to limit any such

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designation to specific material that qualifies under the appropriate

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standards.

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those

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communications that qualify so that other portions of the material,

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documents, items, or communications for which protection is not

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

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Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have

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been made for an improper purpose (e.g., to unnecessarily encumber the

parts

Each Party or Non-Party that designates information or

The Designating Party must designate for protection only
of

material,

documents,

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items,

or

oral

or

written

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case development process or to impose unnecessary expenses and burdens

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

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If it comes to a Designating Party's attention that information

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or

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protection, that Designating Party must promptly notify all other

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Parties that it is withdrawing the inapplicable designation.

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items

that

5.2

it

designated

for

protection

Manner and Timing of Designations.

do

not

qualify

for

Except as otherwise

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provided in this Order (see, e.g., second paragraph of Section 5.2(a)

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below), or as otherwise stipulated or ordered, Disclosure or Discovery

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Material that qualifies for protection under this Order must be

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clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

for

information

in

documentary

form

(e.g.,

paper

or

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electronic documents, but excluding transcripts of depositions or

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other pretrial or trial proceedings), that the Producing Party affix

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at a minimum, the legend "CONFIDENTIAL" (hereinafter "CONFIDENTIAL

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legend"), to each page that contains protected material.

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portion

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protection,

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protected portion(s) (e.g., by making appropriate markings in the

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margins).

or

portions
the

of

the

Producing

material

Party

also

on

a

must

page

If only a

qualifies

clearly

for

identify

the

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A Party or Non-Party that makes original documents available for

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inspection need not designate them for protection until after the

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inspecting Party has indicated which documents it would like copied

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and produced.

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of

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"CONFIDENTIAL."

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documents it wants copied and produced, the Producing Party must

the

During the inspection and before the designation, all

material

made
After

available
the

for

inspecting

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inspection
Party

has

shall

be

deemed

identified

the

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determine which documents, or portions thereof, qualify for protection

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under this Order. Then, before producing the specified documents, the

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Producing Party must affix the "CONFIDENTIAL legend" to each page that

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contains Protected Material.

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material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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(b)

If only a portion or portions of the

for testimony given in depositions that the Designating

Party identify the Disclosure or Discovery material on the record,
before the close of the deposition.

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(c) for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a

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prominent place on the exterior of the container or containers in

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which the information

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portion or portions of the information warrants protection, the

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Producing

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protected portion(s).

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5.3

Party,

to

is stored the legend "CONFIDENTIAL." If only a

the

extent

practicable,

Inadvertent Failures to Designate.

shall

identify

the

If timely corrected, an

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inadvertent failure to designate qualified information or items does

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not, standing alone, waive the Designating Party's right to secure

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protection under this Order for such material. Upon timely correction

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

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assure that the material is treated in accordance with the provisions

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of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges.

Any Party or Non-Party may challenge

a designation of confidentiality at any time that is consistent with
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the Court's Scheduling Order.

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6.2

Meet and Confer.

The Challenging Party shall initiate the

dispute resolution process under Local Rule 37-1 et seq.

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6.3

The burden of persuasion in any such challenge proceeding

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shall be on the Designating Party.

Frivolous challenges, and those

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made for an improper purpose (e.g., to harass or impose unnecessary

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expenses and burdens on other parties) may expose the Challenging

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Party to sanctions.

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withdrawn the confidentiality designation, all parties shall continue

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to afford the material in question the level of protection to which it

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is entitled under the Producing Party's designation until the Court

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rules on the challenge.

Unless the Designating Party has waived or

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic

Principles.

A

Receiving

Party

may

use

Protected

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Material that is disclosed or produced by another Party or by a

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Non-Party

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defending, or attempting to settle this Action.

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

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the conditions described in this Order.

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terminated, a Receiving Party must comply with the provisions of

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Section 13 below (FINAL DISPOSITION).

in

connection

with

this

Action

only

for

prosecuting,

Such Protected

When the Action has been

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Protected Material must be stored and maintained by a Receiving

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Party at a location and in a secure manner that ensures that access is

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limited to the persons authorized under this Order.

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7.2

Disclosure of "CONFIDENTIAL" Information or Items.
ordered

by

the

court

or

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otherwise

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Designating Party, a Receiving Party may disclose any information or
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permitted

in

writing

Unless
by

the

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2

item designated "CONFIDENTIAL" only to:
(a)

the Receiving Party's Outside Counsel of Record in this

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Action, as well as employees of said Outside Counsel of Record to whom

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it is reasonably necessary to disclose the information for this

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Action;

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(b)

the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably

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necessary for this Action;

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(c) Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this Action and who have

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signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for

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this Action and who have signed the "Acknowledgment and Agreement to

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Be Bound" (Exhibit A);

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(g)

the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or

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knew the information;

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(h)

during their depositions, witnesses, and attorneys for

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witnesses, in the Action to whom disclosure is reasonably necessary

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provided: (1) the deposing party requests that the witness sign the

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form attached as Exhibit 1 hereto;

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to keep any confidential information unless they sign "Acknowledgment

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and Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the

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Designating Party or ordered by the court.

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deposition testimony or exhibits to depositions that reveal Protected

and (2) they will not be permitted

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Pages of transcribed

1

Material may be separately bound by the court reporter and may not be

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disclosed

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Protective Order; and

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(i)

to

anyone

except

as

permitted

under

this

Stipulated

any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in

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settlement discussions.

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8.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED

IN

OTHER

LITIGATION

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

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other litigation that compels disclosure of any information designated

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in this Action as "CONFIDENTIAL," that Party must:

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(a)

promptly notify in writing the Designating Party.

Such

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notification shall include a copy of the subpoena or court order,

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unless prohibited by law;

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(b) promptly notify in writing the party who caused the subpoena

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or order to issue in the other litigation that some or all of the

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material

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Protective Order.

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Stipulated Protective Order; and

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(c)

covered

by

the

subpoena

or

order

is

subject

to

this

Such notification shall include a copy of this

cooperate with respect to all reasonable procedures sought

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to be pursued by the Designating Party whose Protected Material may be

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affected.

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If the Designating Party timely seeks a protective order, the

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Party served with the subpoena or court order shall not produce any

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information designated in this action as "CONFIDENTIAL" before a

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determination by the court from which the subpoena or order issued,

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unless the Party has obtained the Designating Party's permission. The
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Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material and nothing in

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these provisions should be construed as authorizing or encouraging a

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Receiving Party in this Action to disobey a lawful directive from

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another court.

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9.

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

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LITIGATION

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(a)

10

produced

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"CONFIDENTIAL." Such information produced by Non-Parties in connection

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with this litigation is protected by the remedies and relief provided

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by this Order.

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prohibiting a Non-Party from seeking additional protections.

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(b)

The terms of this Order are applicable to information
by

a

Non-Party

in

this

Action

and

designated

as

Nothing in these provisions should be construed as

In the event that a Party is required, by a valid discovery

16

request, to produce a Non-Party's confidential information in its

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possession,

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Non-Party not to produce the Non-Party's confidential information,

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then the Party shall:

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(1)

and

the

Party

is

subject

to

an

agreement

with

the

promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to

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a confidentiality agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this Action, the relevant discovery request(s),

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and a reasonably specific description of the information requested;

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and

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(3)

make the information requested available for inspection by

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

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court

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information,

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confidential information responsive to the discovery request. If the

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Non-Party timely seeks a protective order, the Receiving Party shall

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not produce any information in its possession or control that is

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subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the

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

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within

14
the

days

of

receiving

Receiving

Party

the
may

notice
produce

and
the

accompanying
Non-Party’s

this court of its Protected Material.

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10.

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

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it

has

disclosed

Protected

Material

to

any

person

or

in

any

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circumstance not authorized under this Stipulated Protective Order,

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the Receiving Party must immediately (a) notify in writing the

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

18

efforts to retrieve all unauthorized copies of the Protected Material,

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(c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or

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persons to execute the "Acknowledgment and Agreement to Be Bound" that

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is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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When a Producing Party gives notice to Receiving Parties that

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certain inadvertently produced material is subject to a claim of

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privilege or other protection, the obligations of the Receiving
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Parties are those set forth in Federal Rule of Civil Procedure

2

26(b)(5)(B).

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procedure may be established in an e-discovery order that provides for

4

production without prior privilege review.

5

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

6

on the effect of disclosure of a communication or information covered

7

by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective

9

order submitted to the court.

This provision is not intended to modify whatever

Pursuant to Federal Rule

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12.

MISCELLANEOUS

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

13

right of any person to seek its modification by the Court in the

14

future.

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12.2 Right to Assert Other Objections.

By stipulating to the

16

entry of this Protective Order no Party waives any right it otherwise

17

would have to object to disclosing or producing any information or

18

item on any ground not addressed in this Stipulated Protective Order.

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

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

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

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seal any Protected Material must comply with Civil Local Rule 79-5.

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Protected Material may only be filed under seal pursuant to a court

24

order authorizing the sealing of the specific Protected Material at

25

issue.

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denied by the court, then the Receiving Party may file the information

27

in the public record unless otherwise instructed by the court.

If a Party's request to file Protected Material under seal is

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13

1

13.

FINAL DISPOSITION

2

After the final disposition of this Action, as defined in

3

paragraph 4, within 60 days of a written request by the Designating

4

Party, each Receiving Party must return all Protected Material to the

5

Producing

6

subdivision, "all Protected Material" includes all copies, abstracts,

7

compilations, summaries, and any other format reproducing or capturing

8

any of the Protected Material.

9

returned or destroyed, the Receiving Party must submit a written

10

certification to the Producing Party (and, if not the same person or

11

entity, to the Designating Party) by the 60 day deadline that

12

(1) identifies (by category, where appropriate) all the Protected

13

Material that was returned or destroyed and (2) affirms that the

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Receiving Party has not retained any copies, abstracts, compilations,

15

summaries or any other format reproducing or capturing any of the

16

Protected Material.

17

entitled to retain an archival copy of all pleadings, motion papers,

18

trial,

19

correspondence,

20

attorney work product, and consultant and expert work product, even if

21

such materials contain Protected Material.

22

that contain or constitute Protected Material remain subject to this

23

Protective Order as set forth in Section 4 (DURATION).

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//

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//

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//

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//

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//

Party

or

deposition,

destroy

such

material.

As

used

in

this

Whether the Protected Material is

Notwithstanding this provision, Counsel are

and

deposition

hearing
and

transcripts,

trial

14

exhibits,

legal
expert

memoranda,
reports,

Any such archival copies

1
2

14.

VIOLATIONS OF THIS ORDER
Any violation of this Order may be punished by any and all

3

appropriate

measures

including,

without

4

proceedings and/or monetary sanctions.

5
6
7

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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9

DATED: September 15, 2016

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11

________________________________

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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15

limitation,

contempt

EXHIBIT A

1

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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3
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5

I,

_____________________________

[print

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_________________ [print or type full address], declare under penalty

7

of perjury that I have read in its entirety and understand the

8

Stipulated Protective Order that was issued by the United States

9

District Court for the Central District of California on [date] in the

10

case of ___________ [insert formal name of the case and the number and

11

initials assigned to it by the court].

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be bound by all the terms of this Stipulated Protective Order and I

13

understand and acknowledge that failure to so comply could expose me

14

to sanctions and punishment in the nature of contempt.

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promise that I will not disclose in any manner any information or item

16

that is subject to this Stipulated Protective Order to any person or

17

entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States

19

District Court for the Central District of California for the purpose

20

of enforcing the terms of this Stipulated Protective Order, even if

21

such enforcement proceedings occur after termination of this action.

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I hereby appoint ___________________ [print or type full name] of

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_________________________ [print or type full address and telephone

24

number] as my California agent for service of process in connection

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with this action or any proceedings related to enforcement of this

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//

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//

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//
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or

type

full

name],

of

I agree to comply with and to

I solemnly

1

Stipulated Protective Order.

2

Date: ________________

3

City and State where sworn and signed:________________________

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Printed name: _______________________________

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7

Signature: __________________________________

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