Jonathan Garcia v. United States of America et al

Filing 23

STIPULATED PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg re Stipulation for Protective Order 22 . ***** SEE ORDER FOR DETAILS. ***** (mp)

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BRIAN T. DUNN, ESQ. (SBN 176502)
MEGAN R. GYONGYOS, ESQ. (SBN 285476)
THE COCHRAN FIRM CALIFORNIA
4929 Wilshire Boulevard, Suite 1010
Los Angeles, California 90010-3856
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]/[e-mail]
Attorneys for Plaintiff
Jonathan Garcia
EILEEN M. DECKER
United States Attorney
DOROTHY A. SCHOUTEN
Assistant United States Attorney
Chief, Civil Division
ROBYN-MARIE LYON MONTELEONE
Assistant United States Attorney
Chief, General Civil Section, Civil Division
JUSTIN A. OKUN (SBN 230954)
Assistant United States Attorney
Federal Building, Suite 7516
300 North Los Angeles Street
Los Angeles, California 90012
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
United States of America
and Special Agent Valentine

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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JONATHAN GARCIA, an individual,
Plaintiff,
v.
UNITED STATES OF AMERICA,
DRUG ENFORCEMENT
ADMINISTRATION SPECIAL
AGENT VALENTINE, and DOES 1
through 10, inclusive,
Defendants.

No. 2:16-cv-01664 ODW (AGRx)
DISCOVERY MATTER
STIPULATED PROTECTIVE
ORDER

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A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve requests for the production of

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confidential, proprietary or private information and documents, records and

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materials that are protected by the Privacy Act and/or law enforcement privilege.

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for which special protection from public disclosure and from use for any purpose

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other than prosecuting and defending this litigation is warranted. Accordingly, the

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parties hereby stipulate to and petition the Court to enter the following Stipulated

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Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it

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affords from public disclosure and use extends only to the limited information or

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items that are entitled to confidential treatment under the applicable legal

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principles.

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Further, as set forth in Section 12.3, below, this Protective Order does not

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entitle the parties to file confidential information under seal. Rather, when the

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parties seek permission from the court to file material under seal, the parties must

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comply with Civil Local Rule 79-5 and with any pertinent orders of the assigned

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District Judge and Magistrate Judge.

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B. GOOD CAUSE STATEMENT

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This action is likely to involve requests for documents relating to past or pending

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criminal investigations and other law enforcement records, manuals, documents

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and other information relating to the investigative techniques of federal agencies.

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In addition, this action may involve requests for agency records that may pose a

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risk to the privacy interests of individuals who are not parties to the action. Special

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protection from public disclosure and from use for any purpose other than

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prosecution of this action is warranted for all such documents. Accordingly, to

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expedite the flow of information, to facilitate the prompt resolution of disputes

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over confidentiality of discovery materials, to adequately protect information the

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parties are entitled to keep confidential, to ensure that the parties are permitted
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reasonable necessary uses of such material in preparation for and in the conduct of

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trial, to address 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 matter. It is the

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intent of the parties that information will not be designated as confidential for

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tactical reasons and that nothing be so designated without a good faith belief that it

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has been maintained in a confidential, non-public manner, and there is good cause

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why it should not be part of the public record of this case. The parties shall not

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designate any information/documents as confidential without a good faith belief

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that such information/documents have been maintained in a confidential, non-

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public manner, and that there is good cause or a compelling reason why it should

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not be part of the public record of this case.

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DEFINITIONS
2.1

Action: The instant action: Garcia v. United States of America, et al.,

2:16-cv-01664 ODW (AGRx).
2.2

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

designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of

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

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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2.4

Counsel: attorneys who represent or advise a party to this Action and

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have appeared in this Action on behalf of that party or are affiliated with a law firm

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that has appeared on behalf of that party, and includes support staff.

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2.5

Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or “FOR ATTORNEYS’ EYES ONLY.”

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2.6

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,
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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve

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as an expert witness or as a consultant in this Action.

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2.8

FOR ATTORNEYS’ EYES ONLY: Documents and materials to be

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seen by Receiving Party’s Counsel only. Any documents or materials so

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designated shall also be considered as CONFIDENTIAL under this stipulation.

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2.9

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.

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2.10 Outside Counsel of Record: attorneys who are not employees of a

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

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and have appeared in this Action on behalf of that party or are affiliated with a law

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firm which has appeared on behalf of that party, and includes support staff.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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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: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or “FOR ATTORNEYS’ EYES ONLY.”

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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 Order cover not only Protected Material (as

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defined above), but also (1) any information copied or extracted from Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any deposition testimony, conversations, or presentations by

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Parties or their Counsel that might reveal Protected Material, other than during a

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court hearing or at trial.

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Any use of Protected Material during a court hearing or at trial shall be
governed by the orders of the presiding judge. This Order does not govern the use

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of Protected Material during a court hearing or at trial.

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4.

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DURATION
Once a case proceeds to trial, information that was designated as

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CONFIDENTIAL or maintained pursuant to this protective order used or

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introduced as an exhibit at trial becomes public and will be presumptively

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available to all members of the public, including the press, unless compelling

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reasons supported by specific factual findings to proceed otherwise are made to the

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trial judge in advance of the trial. See Kamakana v. City and County of Honolulu,

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447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for

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sealing documents produced in discovery from “compelling reasons” standard

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when merits-related documents are part of court record). Accordingly, the terms of

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this protective order do not extend beyond the commencement of the trial to the

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extent that confidential documents are introduced at trial.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written
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communications that qualify so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. If it comes to

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a Designating Party’s attention that information or items that it designated for

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protection do not qualify for protection, that Designating Party must promptly

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notify all other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions), that the Producing Party affix

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at a minimum, the legend “CONFIDENTIAL” or “FOR ATTORNEYS’ EYES

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ONLY” (hereinafter “CONFIDENTIAL legend”), to each page that contains

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protected material. If only a portion or portions of the material on a page qualifies

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for protection, the Producing Party also must clearly identify the protected

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

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

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix
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the “CONFIDENTIAL legend” to each page that contains Protected Material. If

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only a portion or portions of the material on a page qualifies for protection, the

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

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appropriate markings in the margins). To the extent practicable, the Designating

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Party may redact from the records produced highly sensitive and personal

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information which the Designating Party believes is protected by the Privacy Act,

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law enforcement privilege or other applicable privilege.
(b) for testimony given in depositions that the Designating Party

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identifies on the record, before the close of the deposition as protected testimony.
(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 prominent

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place on the exterior of the container or containers in which the information is

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stored the legend “CONFIDENTIAL” or “FOR ATTORNEYS’ EYES ONLY.” If

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only a portion or portions of the information warrants protection, the Producing

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Party, to the extent practicable, shall identify the protected portion(s).
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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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

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The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this

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Action only for prosecuting, defending, attempting to settle, or otherwise litigating

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this Action. Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Order. When the Action has

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been terminated, a Receiving Party must comply with the provisions below.

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” and “FOR ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the court or permitted

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in writing by the Designating Party, a Receiving Party may not disclose items

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designated “FOR ATTORNEYS’ EYES ONLY” to anyone under any

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circumstance except as expressly authorized by this order. A Receiving Party may

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disclose information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Counsel in this Action, as well as employees

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of said Counsel to whom it is reasonably necessary to disclose the information for

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this Action;

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(b) the Receiving Party, as well as the officers, directors, and

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employees of the Receiving Party to whom disclosure is reasonably necessary for

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this Action;

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

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disclosure is reasonably necessary for this Action and who have signed the

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“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 Professional

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Vendors to 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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(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

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16 party requests that the witness sign the “Acknowledgment and Agreement to Be
17 Bound” form attached as Exhibit A hereto; and (2) they will not be permitted to
18 keep any confidential information unless they sign the “Acknowledgment and
19 Agreement to Be Bound” attached as Exhibit A, and unless otherwise agreed by the
20 Designating Party or ordered by the court. Pages of transcribed deposition
21 testimony or exhibits to depositions that reveal Protected Material may be
22 separately bound by the court reporter and may not be disclosed to anyone except as
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(i) any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties, or as ordered by the Court, for the

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purpose of settlement discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL” or “FOR ATTORNEYS’ EYES ONLY” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order unless prohibited by law;

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(b) promptly notify in writing the party who caused the subpoena or
order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order to prohibit or limit a

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required disclosure, the Party served with the subpoena or court order shall not

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produce any information designated in this action as “CONFIDENTIAL” or “FOR

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ATTORNEYS’ EYES ONLY” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission, or unless otherwise required by the law or court order. The

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Designating Party shall bear the burden and expense of seeking protection in that

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court of its confidential material and nothing in these provisions should be

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construed as authorizing or encouraging a Receiving Party in this Action to

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disobey a lawful directive from another court.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by

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a Non-Party in this Action and designated as “CONFIDENTIAL” or “FOR

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ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in
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connection with this litigation is protected by the remedies and relief provided by

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this Order. Nothing in these provisions should be construed as prohibiting a Non-

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Party from seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request,

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to produce a Non-Party’s confidential information in its possession, and the Party

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is subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the NonParty that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Protective

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Order in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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(3) make the information requested available for inspection by the
Non-Party, if requested.
(c) If a Non-Party represented by counsel fails to commence the

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process called for by Local Rules 45-1 and 37-1, et seq. within 14 days of

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receiving the notice and accompanying information or fails contemporaneously to

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notify the Receiving Party that it has done so, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If an

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unrepresented Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery

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request. If the 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 subject to the

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confidentiality agreement with the Non-Party before a determination by the court

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unless otherwise required by the law or court order. Absent a court order to the

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

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this court of its Protected Material.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Protective Order, the Receiving Party must immediately (a) notify in

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

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or

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work product protection, the parties may incorporate their agreement into this

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Protective Order.

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12.

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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.

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12.2 Right to Assert Other Objections. No Party waives any right it

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otherwise would have to object to disclosing or producing any information or item

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on any ground not addressed in this Protective Order. Similarly, no Party waives

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any right to object on any ground to use in evidence of any of the material covered

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by this Protective Order.

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

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Material must apply to the Court, in compliance with Civil Local Rule 79-5 and

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any pertinent orders of the assigned District Judge and Magistrate Judge, to file the

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documents under seal. If a Party’s request to file Protected Material under seal is

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denied by the court, and the Designating Party has not appealed the decision, then

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the Receiving Party may file the information in the public record unless otherwise

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instructed by the court.

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13.

FINAL DISPOSITION

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Within 60 days of the final disposition of this Action, each Receiving Party

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must return all Protected Material to the Producing Party or destroy such material.

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As used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of the

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Protected Material. Whether the Protected Material is returned or destroyed, upon

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request by the Designating Party, the Receiving Party must submit a written

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

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Designating Party) that (1) identifies (by category, where appropriate) all the

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

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

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any other format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of

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all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

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work product, and consultant and expert work product, even if such materials
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contain Protected Material. Any such archival copies that contain or constitute

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Protected Material remain subject to this Protective Order.

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

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

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sanctions.

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IT IS SO STIPULATED.

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DATED December 19, 2016

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/s/ Brian T. Dunn
BRIAN T. DUNN
Attorney for Plaintiff

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EILEEN M. DECKER
United States Attorney
DOROTHY A. SCHOUTEN
Assistant United States Attorney
Chief, Civil Division
ROBYN-MARIE LYON MONTELEONE
Assistant United States Attorney
Chief, General Civil Section

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/s/ Justin A. Okun
JUSTIN A. OKUN
Assistant United States Attorney
Attorneys for Defendants
United States of America
and Special Agent Valentine

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: December 29, 2016

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_____________________________________
HON. ALICIA G. ROSENBERG
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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____________________________________________ [print or type full address],

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

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Protective Order that was issued by the United States District Court for the Central

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District of California on _________________________ in the case of Jonathan

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Garcia v. United States of America, et al., 2:16-cv-01664 ODW (AGRx). I agree to

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comply with and to be bound by all the terms of this Protective Order and I

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understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Protective

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Order to any person or entity except in strict compliance with the provisions of this

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Order.

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

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Court for the Central District of California for the purpose of enforcing the terms

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of this Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint __________________________ [print

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or type full name] of _______________________________________ [print or

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type full address and telephone number] as my California agent for service of

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process in connection with this action or any proceedings related to enforcement of

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this Protective Order.

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Date:

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City and State where sworn and signed:

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Printed name: _______________________________

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Signature: ________________________________
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