Bella Norris v. County of Los Angeles et al

Filing 80

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner. (See Order for details) re Stipulation for Protective Order 79 (vm)

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1 2 3 4 5 6 7 Robert C. Reback, Esq. (58092) Jon R. Schwalbach, Esq. (280785) REBACK, MCANDREWS, KJAR, WARFORD & STOCKALPER, LLP 1230 Rosecrans Avenue, Suite 450 Manhattan Beach, California 90266 Telephone (310) 297-9900 Facsimile (310) 297-9800 Attorneys for Defendant KAMAL BIJANPOUR, M.D. 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BELLA NORRIS, Case No.: CV 15-5263 DMG (MRWx) Room 7 (Los Angeles) Honorable Dolly M. Gee 12 Plaintiff, 13 v. 14 15 STIPULATED PROTECTIVE ORDER PRIME HEALTHCARE SERVICES, INC. et al., 16 Defendants. 17 Trial Date: May 30, 2017 18 19 20 21 22 23 24 1. INTRODUCTION 1.1 PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter 1 STIPULATED PROTECTIVE ORDER 1 the following Stipulated Protective Order. The parties acknowledge that this Order 2 does not confer blanket protections on all disclosures or responses to discovery and 3 that the protection it affords from public disclosure and use extends only to the 4 limited information or items that are entitled to confidential treatment under the 5 applicable legal principles. The parties further acknowledge, as set forth in Section 6 12.3, below, that this Stipulated Protective Order does not entitle them to file 7 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures 8 that must be followed and the standards that will be applied when a party seeks 9 permission from the court to file material under seal. 10 1.2 GOOD CAUSE STATEMENT 11 This action involves the involuntary psychiatric detention of plaintiff Bella 12 Norris in July 2013. Her healthcare providers determined her to be gravely disabled. 13 She was placed in a 72-hour hold under Cal. Welf. & Inst. Code § 5150 as a “person, 14 as a result of a mental disorder, [who] is a danger to others, or to . . . herself.” She 15 was then placed in an extended involuntary hold under Cal. Welf. & Inst. Code § 16 5250 as a “gravely disabled” individual. 17 The parties agree that because this case involves Ms. Norris’s medical 18 treatment and medical records, protections are necessary for the fundamental privacy 19 rights of plaintiff in her medical records, particularly as they relate to psychiatric 20 conditions and treatment. The parties also agree that those records are protected by 21 statutory and constitutional rights to privacy and should be subject to limited 22 disclosure. Medical and psychiatric records are routinely acknowledged as proper 23 information for protective orders limiting disclosure and use in litigation. Pearson v. 24 Miller, 211 F.3d 57, 62-64 (3rd Cir. 2000). 2 STIPULATED PROTECTIVE ORDER Aside from the psychiatric treatment at issue in July 2013, defendants 1 2 anticipate discovery into Ms. Norris’s history of psychiatric treatment to support the 3 reasonableness of the psychiatric holds and treatment in July 2013. Based on 4 discovery to date, the defendants anticipate this discovery will include prior 5 psychiatric hospitalizations, diagnoses and medications. The parties believe Ms. 6 Norris has a strong interest in protecting the confidentiality of her medical status and 7 information contained within her mental health records. If these relevant materials are 8 disclosed, it could result in unnecessary embarrassment and an invasion of privacy. 9 10 2. DEFINITIONS 11 2.1 Action: this pending federal lawsuit. 12 2.2 Challenging Party: a Party or Non-Party that challenges the designation 13 14 of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 15 how it is generated, stored or maintained) or tangible things that qualify for protection 16 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 17 Cause Statement. 18 2.4 19 20 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 information or 21 items that it produces in disclosures or in responses to discovery as 22 “CONFIDENTIAL.” 23 24 3 STIPULATED PROTECTIVE ORDER 1 2.6 Disclosure or Discovery Material: all items or information, regardless of 2 the medium or manner in which it is generated, stored, or maintained (including, 3 among other things, testimony, transcripts, and tangible things), that are produced or 4 generated in disclosures or responses to discovery in this matter. 5 2.7 Expert: a person with specialized knowledge or experience in a matter 6 pertinent to the litigation who has been retained by a Party or its counsel to serve as 7 an expert witness or as a consultant in this Action. 8 9 10 11 12 13 2.8 House Counsel: attorneys who are employees of a party to this Action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a party 14 to this Action but are retained to represent or advise a party to this Action and have 15 appeared in this Action on behalf of that party or are affiliated with a law firm which 16 has appeared on behalf of that party, and includes support staff. 17 2.11 Party: any party to this Action, including all of its officers, directors, 18 employees, consultants, retained experts, and Outside Counsel of Record (and their 19 support staffs). 20 21 22 23 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or 24 4 STIPULATED PROTECTIVE ORDER 1 demonstrations, and organizing, storing, or retrieving data in any form or medium) 2 and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is 3 4 designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 5 6 from a Producing Party. 7 8 3. SCOPE 9 The protections conferred by this Stipulation and Order cover not only 10 Protected Material (as defined above), but also (1) any information copied or 11 extracted from Protected Material; (2) all copies, excerpts, summaries, or 12 compilations of Protected Material; and (3) any testimony, conversations, or 13 presentations by Parties or their Counsel that might reveal Protected Material. Any 14 use of Protected Material at trial shall be governed by the orders of the trial judge. 15 This Order does not govern the use of Protected Material at trial. 16 17 18 4. DURATION Even after final disposition of this litigation, the confidentiality obligations 19 imposed by this Order shall remain in effect until a Designating Party agrees 20 otherwise in writing or a court order otherwise directs. Final disposition shall be 21 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 22 or without prejudice; and (2) final judgment herein after the completion and 23 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 24 5 STIPULATED PROTECTIVE ORDER 1 including the time limits for filing any motions or applications for extension of time 2 pursuant to applicable law. 3 4 5. DESIGNATING PROTECTED MATERIAL 5 5.1 Exercise of Restraint and Care in Designating Material for Protection. 6 Each Party or Non-Party that designates information or items for protection 7 under this Order must take care to limit any such designation to specific material that 8 qualifies under the appropriate standards. The Designating Party must designate for 9 protection only those parts of material, documents, items, or oral or written 10 communications that qualify so that other portions of the material, documents, items, 11 or communications for which protection is not warranted are not swept unjustifiably 12 within the ambit of this Order. 13 Mass, indiscriminate, or routinized designations are prohibited. Designations 14 that are shown to be clearly unjustified or that have been made for an improper 15 purpose (e.g., to unnecessarily encumber the case development process or to impose 16 unnecessary expenses and burdens on other parties) may expose the Designating 17 Party to sanctions. 18 If it comes to a Designating Party’s attention that information or items that it 19 designated for protection do not qualify for protection, that Designating Party must 20 promptly notify all other Parties that it is withdrawing the inapplicable designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in 22 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 23 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 24 6 STIPULATED PROTECTIVE ORDER 1 under this Order must be clearly so designated before the material is disclosed or 2 produced. 3 Designation in conformity with this Order requires: 4 (a) for information in documentary form (e.g., paper or electronic documents, 5 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 6 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 7 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 8 portion or portions of the material on a page qualifies for protection, the Producing 9 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 10 markings in the margins). A Party or Non-Party that makes original documents available for 11 12 inspection need not designate them for protection until after the inspecting Party has 13 indicated which documents it would like copied and produced. During the inspection 14 and before the designation, all of the material made available for inspection shall be 15 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 16 it wants copied and produced, the Producing Party must determine which documents, 17 or portions thereof, qualify for protection under this Order. Then, before producing 18 the specified documents, the Producing Party must affix the “CONFIDENTIAL 19 legend” to each page that contains Protected Material. If only a portion or portions of 20 the material on a page qualifies for protection, the Producing Party also must clearly 21 identify the protected portion(s) (e.g., by making appropriate markings in the 22 margins). 23 24 7 STIPULATED PROTECTIVE ORDER (b) for testimony given in depositions that the Designating Party identify the 1 2 Disclosure or Discovery Material on the record, before the close of the deposition all 3 protected testimony. (c) for information produced in some form other than documentary and for any 4 5 other tangible items, that the Producing Party affix in a prominent place on the 6 exterior of the container or containers in which the information is stored the legend 7 “CONFIDENTIAL.” If only a portion or portions of the information warrants 8 protection, the Producing Party, to the extent practicable, shall identify the protected 9 portion(s). 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 11 designate qualified information or items does not, standing alone, waive the 12 Designating Party’s right to secure protection under this Order for such material. 13 Upon timely correction of a designation, the Receiving Party must make reasonable 14 efforts to assure that the material is treated in accordance with the provisions of this 15 Order. 16 17 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 18 19 designation of confidentiality at any time that is consistent with the Court’s 20 Scheduling Order. 6.2 21 Meet and Confer. The Challenging Party shall initiate the dispute 22 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1 23 et seq. 24 8 STIPULATED PROTECTIVE ORDER 6.3 1 The burden of persuasion in any such challenge proceeding shall be on 2 the Designating Party. Frivolous challenges, and those made for an improper purpose 3 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 4 expose the Challenging Party to sanctions. Unless the Designating Party has waived 5 or withdrawn the confidentiality designation, all parties shall continue to afford the 6 material in question the level of protection to which it is entitled under the Producing 7 Party’s designation until the Court rules on the challenge. 8 9 10 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 11 disclosed or produced by another Party or by a Non-Party in connection with this 12 Action only for prosecuting, defending, or attempting to settle this Action. Such 13 Protected Material may be disclosed only to the categories of persons and under the 14 conditions described in this Order. When the Action has been terminated, a Receiving 15 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 16 Protected Material must be stored and maintained by a Receiving Party at a 17 location and in a secure manner that ensures that access is limited to the persons 18 authorized under this Order. 19 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 20 otherwise ordered by the court or permitted in writing by the Designating Party, a 21 Receiving Party may disclose any information or item designated 22 “CONFIDENTIAL” only to: 23 24 9 STIPULATED PROTECTIVE ORDER 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 2 employees of said Outside Counsel of Record to whom it is reasonably necessary to 3 disclose the information for this Action; 4 (b) the officers, directors, and employees (including House Counsel) of the 5 Receiving Party to whom disclosure is reasonably necessary for this Action; 6 (c) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (d) the Court and its personnel; 10 (e) court reporters and their staff; 11 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 12 to whom disclosure is reasonably necessary for this Action and who have signed the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 15 16 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses ,and attorneys for witnesses, in the 17 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 18 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will 19 not be permitted to keep any confidential information unless they sign the 20 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 21 agreed by the Designating Party or ordered by the court. Pages of transcribed 22 deposition testimony or exhibits to depositions that reveal Protected Material may be 23 separately bound by the court reporter and may not be disclosed to anyone except as 24 permitted under this Stipulated Protective Order; and 10 STIPULATED PROTECTIVE ORDER (i) any mediator or settlement officer, and their supporting personnel, mutually 1 2 agreed upon by any of the parties engaged in settlement discussions. 3 4 8. 5 IN OTHER LITIGATION 6 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED If a Party is served with a subpoena or a court order issued in other litigation 7 that compels disclosure of any information or items designated in this Action as 8 “CONFIDENTIAL,” that Party must: 9 10 11 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to 12 issue in the other litigation that some or all of the material covered by the subpoena or 13 order is subject to this Protective Order. Such notification shall include a copy of this 14 Stipulated Protective Order; and 15 16 17 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 18 the subpoena or court order shall not produce any information designated in this 19 action as “CONFIDENTIAL” before a determination by the court from which the 20 subpoena or order issued, unless the Party has obtained the Designating Party’s 21 permission. The Designating Party shall bear the burden and expense of seeking 22 protection in that court of its confidential material and nothing in these provisions 23 should be construed as authorizing or encouraging a Receiving Party in this Action to 24 disobey a lawful directive from another court. 11 STIPULATED PROTECTIVE ORDER 1 9. 2 PRODUCED IN THIS LITIGATION 3 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE (a) The terms of this Order are applicable to information produced by a Non- 4 Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in connection with this litigation is protected by the 6 remedies and relief provided by this Order. Nothing in these provisions should be 7 construed as prohibiting a Non-Party from seeking additional protections. 8 9 (b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s confidential information in its possession, and the Party is 10 subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non-Party 13 that some or all of the information requested is subject to a confidentiality agreement 14 with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a reasonably 17 specific description of the information requested; and 18 19 20 (3) make the information requested available for inspection by the Non-Party, if requested. (c) If the Non-Party fails to seek a protective order from this court within 14 21 days of receiving the notice and accompanying information, the Receiving Party may 22 produce the Non-Party’s confidential information responsive to the discovery request. 23 If the Non-Party timely seeks a protective order, the Receiving Party shall not 24 12 STIPULATED PROTECTIVE ORDER 1 produce any information in its possession or control that is subject to the 2 confidentiality agreement with the Non-Party before a determination by the court. 3 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 4 of seeking protection in this court of its Protected Material. 5 6 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 7 8 Protected Material to any person or in any circumstance not authorized under this 9 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 10 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 11 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 12 persons to whom unauthorized disclosures were made of all the terms of this Order, 13 and (d) request such person or persons to execute the “Acknowledgment and 14 Agreement to Be Bound” that is attached hereto as Exhibit A. 15 16 11. 17 PROTECTED MATERIAL 18 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE When a Producing Party gives notice to Receiving Parties that certain 19 inadvertently produced material is subject to a claim of privilege or other protection, 20 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 21 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 22 may be established in an e-discovery order that provides for production without prior 23 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 24 parties reach an agreement on the effect of disclosure of a communication or 13 STIPULATED PROTECTIVE ORDER 1 information covered by the attorney-client privilege or work product protection, the 2 parties may incorporate their agreement in the stipulated protective order submitted to 3 the court. 4 5 12. 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 6 7 person to seek its modification by the Court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this 8 9 MISCELLANEOUS Protective Order no Party waives any right it otherwise would have to object to 10 disclosing or producing any information or item on any ground not addressed in this 11 Stipulated Protective Order. Similarly, no Party waives any right to object on any 12 ground to use in evidence of any of the material covered by this Protective Order. 13 12.3 Filing Protected Material. A Party that seeks to file under seal any 14 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 15 only be filed under seal pursuant to a court order authorizing the sealing of the 16 specific Protected Material at issue. If a Party's request to file Protected Material 17 under seal is denied by the court, then the Receiving Party may file the information in 18 the public record unless otherwise instructed by the court. 19 20 13. FINAL DISPOSITION 21 After the final disposition of this Action, as defined in paragraph 4, within 60 22 days of a written request by the Designating Party, each Receiving Party must return 23 all Protected Material to the Producing Party or destroy such material. As used in this 24 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 14 STIPULATED PROTECTIVE ORDER 1 summaries, and any other format reproducing or capturing any of the Protected 2 Material. Whether the Protected Material is returned or destroyed, the Receiving 3 Party must submit a written certification to the Producing Party (and, if not the same 4 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 5 (by category, where appropriate) all the Protected Material that was returned or 6 destroyed and (2) affirms that the Receiving Party has not retained any copies, 7 abstracts, compilations, summaries or any other format reproducing or capturing any 8 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 9 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 10 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 11 reports, attorney work product, and consultant and expert work product, even if such 12 materials contain Protected Material. Any such archival copies that contain or 13 constitute Protected Material remain subject to this Protective Order as set forth in 14 Section 4 (DURATION). 15 16 14. Any willful violation of this Order may be punished by civil or criminal 17 contempt proceedings, financial or evidentiary sanctions, reference to disciplinary 18 authorities, or other appropriate action at the discretion of the Court. 19 20 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 21 DATED: January 19, 2017 22 23 24 LAW OFFICES OF GARY BROWN /s/ Gary Brown GARY BROWN Attorney for Plaintiff BELLA NORRIS 15 STIPULATED PROTECTIVE ORDER EXHIBIT A 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [full name], of _________________ 4 [full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States 6 District Court for the Central District of California on [date] in the case of 7 ___________ [insert case name and number]. I agree to comply with and to be 8 bound by all the terms of this Stipulated Protective Order and I understand and 9 acknowledge that failure to so comply could expose me to sanctions and punishment 10 in the nature of contempt. I solemnly promise that I will not disclose in any manner 11 any information or item that is subject to this Stipulated Protective Order to any 12 person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court 14 for the Central District of California for the purpose of enforcing the terms of this 15 Stipulated Protective Order, even if such enforcement proceedings occur after 16 termination of this action. I hereby appoint __________________________ [full 17 name] of _______________________________________ [full address and 18 telephone number] as my California agent for service of process in connection with 19 this action or any proceedings related to enforcement of this Stipulated Protective 20 Order. 21 Date: ______________________________________ 22 City and State where signed: _________________________________ 23 Printed name: _______________________________ 24 Signature: __________________________________ 17 STIPULATED PROTECTIVE ORDER 1 CERTIFICATE OF SERVICE 2 I hereby certify that on January 23, 2017, I electronically filed the foregoing 3 4 STIPULATED PROTECTIVE ORDER with the Clerk of the Court for the United States 5 District Court, Central District of California by using the Central District CM/ECF system. 6 7 8 9 Participants in the case who are registered CM/ECF users will be served by the USDC-Central District of California CM/ECF system. I further certify that participants in the case not registered as CM/ECF users have 10 11 been mailed the above described documents by First Class Mail, postage pre-paid, or 12 have dispatched it to a third party commercial carrier for delivery within three (3) 13 14 15 calendar days, to the following non-CM/ECF participants: None known 16 17 DATED: January 23, 2017 /s/ Rocio Saucedo 18 19 20 21 22 23 24 25 26 27 28 __________________________________________________________________________________ 1 CERTIFICATE OF SERVICE

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