Geraldine Nicholson et al v. City of Los Angeles et al

Filing 42

PROTECTIVE ORDER RE: DISCLOSURE OF CONFIDENTIAL INFORMATION by Magistrate Judge Rozella A. Oliver. The Court Orders that the terms of the parties Stipulated Confidentiality Agreement and Protective Order Regarding Non-Disclosure of Confidential Information shall govern the handling of such documents produced or disclosed by the parties in this case. 41 (SEE ORDER FOR FURTHER DETAILS) (gr)

1

08/01/16

2

G
R

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9
10
11
12
13
14

CENTRAL DISTRICT OF CALIFORNIA
CASE NO. CV15-07594 DDP(RAOx)
GERALDINE NICHOLSON, an
Hon. Dean D. Pregerson – Ctrm.3, 2nd Fl
individual, et al.,
Hon. Mag Judge Rozella A. Oliver – Ctrm.F, 9th Fl
Plaintiffs,
vs.

15

CITY OF LOS ANGELES, et al.,

16

PROTECTIVE ORDER RE:
DISCLOSURE OF CONFIDENTIAL
INFORMATION

Defendants.

17
18
19

Plaintiff is seeking materials and information that Defendant City of Los

20

Angeles (“City”) maintains as confidential, such as personnel files of the police

21

officers involved in this incident, Force Investigation Division materials and

22

information, Internal Affairs materials and information, and other administrative

23
24
25
26
27
28

materials and information currently in the possession of the City and which the City
believes need special protection from public disclosure and from use for any purpose
other than prosecuting this litigation;
///
///
1

1

WHEREAS, Plaintiff is also seeking official information contained in the

2

personnel files of the involved police officers, LAPD Officers, which the City

3

maintains as strictly confidential and which the City believes need special protection

4

from public disclosure and from use for any purpose other than prosecuting this

5

litigation;

6
7
8
9

WHEREAS, the City asserts that the confidentiality of the materials and
information sought by Plaintiff is recognized by California and federal law, as
evidenced inter alia by California Penal Code section 832.7 and Kerr v. United States
Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976);

10
11
12

WHEREAS, the City has not publicly released the materials and information
referenced above except under protective order or pursuant to court order, if at all;
WHEREAS, the City contends these materials and information are of the type

13
14

that has been used to initiate disciplinary action against Los Angeles Police

15

Department (“LAPD”) officers, and has been used as evidence in disciplinary

16

proceedings, where the officers’ conduct was considered to be contrary to LAPD

17

policy;

18

WHEREAS, the City contends that absent a protective order delineating the

19

responsibilities of nondisclosure on the part of the parties hereto, there is a specific risk

20

of unnecessary and undue disclosure by one or more of the many attorneys, secretaries,

21

law clerks, paralegals and expert witnesses involved in this case, as well as the

22

corollary risk of embarrassment, harassment and professional and legal harm on the

23

part of the LAPD officers referenced in the materials and information;

24

WHEREAS, the City contends that the unfettered disclosure of the materials and

25

information, absent a protective order, would allow the media to share this information

26
27
28

with potential jurors in the area, impacting the rights of the City herein to receive a fair
trial.
///
2

1

///

2

///

3

ORDER ON STIPULATION

4

The Court, having found good cause, Orders as follows:

5

1.

6
7
8
9
10
11
12
13
14

Defendants (hereinafter “Disclosing Party(ies)”) may designate as

confidential any personnel files, videos, Internal Affairs materials or any other
materials or writing that they, in good faith, believe is protected from disclosure within
the meaning of FRCivP 26(g), in that they believe the material contains confidential or
private information. Such materials may be classified as subject to this protective
order by marking the material, each document or writing with a watermark that
includes words such as “Confidential,” “Confidential Documents,” “Confidential
Material,” “Subject to Protective Order,” or words of a similar effect, and that includes
the case name and case number.

Materials and writings so designated, and all

15

privileged information derived therefrom [hereinafter collectively referred to as

16

“Confidential Material”], shall be treated in accordance with the terms of this Order.

17

In making this designation, the Disclosing Parties are also representing that no portion

18

of the materials is segregable and, therefore, subject to production without restriction

19

as “Confidential.”

20

2.

Confidential Material may be used by the persons receiving such

21

information [hereinafter “Receiving Party(ies)”] only for the purpose of litigation of

22

this case, and for such other purposes as permitted by law.

23

3.

This Order applies not only to the Confidential Material, but also to (1)

24

any information copied or extracted from the Confidential Material; (2) all copies,

25

excerpts, summaries or compilations of Confidential Material; and (3) any testimony,

26
27

conversations, or presentations by Receiving Parties that might reveal Confidential
Material.

28
3

4.

1

The Confidential Material may only be disclosed to the Court and to the

2

following “qualified” persons:

3

///

4

///

5

(a)

Counsel of record for the parties to this civil litigation;

6

(b)

Defendants City of Los Angeles and Los Angeles Police

(c)

Attorneys, paralegals, law clerks, stenographic, clerical and

7

Department;

8
9
10
11

secretarial personnel who are employees in the offices of counsel referred to in
subparagraph (a);
(d)

14
15

5.

Expert witnesses consulted and/or retained for this action; and

(f)

13

Parties to the litigation;

(e)

12

The judge and court personnel, including stenographic reporters.

Prior to the disclosure of any Confidential Material to any person

16

described in paragraph 3(a), (c) or (d), counsel for the Receiving Party who seeks to

17

use or disclose such Confidential Material shall first provide a copy of this Stipulation

18

and have the individual to whom the Receiving Party intends to disclose said

19

Confidential Material sign the Nondisclosure Agreement set forth in Attachment “A”,

20

stating that the person has received and read a copy of the Stipulation and understands

21

that s/he is bound by the terms of the Stipulation.

22

6.

Unless made on the record in this litigation, counsel making the disclosure

23

to any qualified person described herein shall retain the original executed copy of the

24

Nondisclosure Agreements until thirty (30) days after this litigation has become final,

25

including any appellate review, and monitoring of an injunction. Counsel for the

26
27
28

Receiving Party shall maintain all signed Nondisclosure Agreements and shall produce
the original signature page upon reasonable written notice from opposing counsel. If
an issue arises regarding a purported unauthorized disclosure of Confidential Material,
4

1

upon noticed motion of contempt filed by the Disclosing Parties, counsel for the

2

Receiving Party may be required to file the signed Nondisclosure Agreements, as well

3

as a list of the disclosed materials, in camera with the Court having jurisdiction of the

4

Stipulation.

5
6
7
8
9
10
11
12
13
14

7.

The court reporter, videographer, and audiographer, if any, who record all

or part of the depositions in this matter shall be subject to this Order. In preparing the
original deposition videotape, audiotape, or portions thereof, any copies thereof, or
portions of copies thereof, all materials and testimony designated as “Confidential
Material”, including testimony derived from the “Confidential Material”, shall be
segregated from the rest of the deposition. No copies of such segregated “Confidential
Material” portions of the materials described above shall be provided to any persons
other than those persons identified in paragraph 4. Nothing in this agreement is
intended to limit the rights of third parties to obtain such Confidential Material through

15

discovery and subpoena power in other proceedings, subject to a motion for a

16

protective order filed in those proceedings by the party seeking to prevent disclosure of

17

the Confidential Material.

18

8.

If any “Confidential Material” or testimony derived from such materials

19

occurs at a deposition, those attending such portions of the depositions shall be bound

20

by this Order and, therefore, shall not disclose to any person or entity, in any manner,

21

including orally, any statements made by Defendants City of Los Angeles and Los

22

Angeles Police Department, or any other current or former employee of the Los

23

Angeles Police Department during the “Confidential” sections of said depositions.

24
25
26
27
28

9.

An inadvertent failure to designate qualified materials or items does not,

standing alone, waive the Disclosing Party’s right to secure protection under this Order
for such material.

Upon being notified of the correction of a designation, the

Receiving Party must make reasonable efforts to assure that the material is treated in
accordance with this provisions of this Order.
5

1

///

2

///

3

///

4

///

5
6
7
8
9
10
11
12
13
14

10.

Upon final termination of this litigation, including any appeal pertaining

thereto, all materials still classified as Confidential Material at that time, and all copies
thereof, including copies provided to any qualified person in paragraph 3 herein above,
shall be returned to the Disclosing Party within thirty (30) days.
11.

If any Receiving Party who receives Confidential Material is served with

a subpoena or other request seeking Confidential Material, s/he or it shall immediately
give written notice to counsel for the Disclosing Parties, identifying the Confidential
Material sought and the time in which production or other disclosure is required. Such
notice shall be given sufficiently in advance of the date for production or other

15

disclosure so that the Disclosing Parties have the opportunity to obtain an order barring

16

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

17

request for production or disclosure of Confidential Material. The Receiving Party

18

also shall immediately give notice to the party who caused the subpoena or other

19

request to issue that the material is subject to this Order and include a copy of this

20

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

21

approval by the Disclosing Party’s Counsel unless required by court order arising from

22

a motion to compel production or disclosure of Confidential Material.

23

12.

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

24

written submissions to the Court in this litigation which contain or incorporate

25

Confidential Material shall be filed and maintained in accordance with Local Rule 79-

26
27
28

5, which governs the filing of materials under seal. Any other pleadings, motions,
briefs, declarations, stipulations, exhibits or other written submissions that refer but do
not contain or incorporate Confidential Material, shall designate the particular aspects
6

1

that are confidential so as to enable the Court, in drafting presumptively public orders

2

relating to these filings under seal, to determine whether there is evidence which the

3

Court should attempt not to disclose. If any papers to be filed with the Court contain

4

Confidential Material, the proposed filing shall be accompanied by an application to

5

file the papers or the portion thereof containing the protected information, under seal

6

and that the application shall be directed to the judge to whom the papers are directed.

7
8
9
10
11
12
13
14
15
16
17

Pending the ruling on the application, the papers or portions thereof subject to the
sealing application shall be lodged under seal.
13.

Counsel for the parties agree to request that any motions, applications or

other pre-trial proceedings which would entail the disclosure of Confidential Material
be heard by the Court in a manner that would preserve the confidential nature of the
information, unless having heard opposition from counsel to such a process, the Court
orders otherwise.
14.

Nothing herein shall prejudice any party’s rights to object to the

introduction of any Confidential Material into evidence.
15.

Any violation of this Order may be punished by any and all appropriate

18

measures including, without limitation, contempt proceedings and/or monetary

19

sanctions.

20

16.

Any party bound by the Order who contests the confidential nature of

21

materials produced pursuant to this Order may move the Court for an order to have the

22

materials removed from the protective order and to have the materials declared not

23

confidential, or otherwise move to modify the Order as to some or all of the materials.

24
25

17.

Any procedures specified above in this Protective Order are in addition to,

and not in lieu of, compliance with the local rules regarding discovery motions.

26
27
28

ATTACHMENT “A”
NONDISCLOSURE AGREEMENT
7

1
2

I, __________________________do solemnly swear that I am fully familiar

3

with the terms of the Protective Order entered in Geraldine Nicholson, et al. v. City of

4

Los Angeles, et al., United States District Court for the Central District of California,

5

Central Division, Case No. No.CV15-07594 DDP (RAOx), and hereby agree to

6

comply with and be bound by the terms and conditions of said Order. I hereby consent

7
8

to the jurisdiction of the United States District Court for the Central District of
California for purposes of enforcing this Order.

9
10
11

Dated:

Signed:

12
13
14
15
16

IT IS SO ORDERED.
Dated: August 1, 2016

By:
HONORABLE ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
8