Shawn Berry v. County of Los Angeles, et al.

Filing 28

PROTECTIVE ORDER by Magistrate Judge Steve Kim. In re: Stipulation for Protective Order 27 (mkr)

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1 2 3 4 5 JONATHAN TELLER, State Bar No. 280312 j.teller@layfieldbarrett.com LAYFIELD & BARRETT, APC 633 W. 5th Street, Suite 3300 Los Angeles, CA 90071-2052 Telephone No. (323) 524-9414 Facsimile No. (323) 486-1654 Attorneys for Plaintiff SHAWN BERRY 6 7 8 9 10 11 12 PAUL B. BEACH, State Bar No. 166265 RAYMOND W. SAKAI, State Bar No. 193507 ARNOLD LEE, State Bar No. 278610 alee@lbaclaw.com LAWRENCE BEACH ALLEN & CHOI, PC 100 West Broadway, Suite 1200 Glendale, California 91210-1219 Telephone No. (818) 545-1925 Facsimile No. (818) 545-1937 Attorneys for Defendant COUNTY OF LOS ANGELES 13 14 UNITED STATES DISTRICT COURT 15 CENTRAL DISTRICT OF CALIFORNIA 16 17 SHAWN BERRY, 18 Plaintiff, 19 20 21 vs. COUNTY OF LOS ANGELES, an entity of the State of California; and DOES 1-10, Inclusive, 22 Defendants. 23 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-CV-04112 MWF-SK Honorable Steve Kim STIPULATED PROTECTIVE ORDER Action Filed: June 9, 2016 24 25 26 1. A. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, 27 proprietary, or private information for which special protection from public 28 disclosure and from use for any purpose other than prosecuting this litigation may 1 BERRY, S.\Stip. P.O. 1 be warranted. Accordingly, the parties hereby stipulate to and petition the Court 2 to enter the following Stipulated Protective Order. The parties acknowledge that 3 this Order does not confer blanket protections on all disclosures or responses to 4 discovery and that the protection it affords from public disclosure and use extends 5 only to the limited information or items that are entitled to confidential treatment 6 under the applicable legal principles. The parties further acknowledge, as set 7 forth in Section 2.3, below, that this Stipulated Protective Order does not entitle 8 them to file confidential information under seal; Civil Local Rule 79-5 sets forth 9 the procedures that must be followed and the standards that will be applied when 10 a party seeks permission from the court to file material under seal. 11 B. GOOD CAUSE STATEMENT 12 Defendants anticipate that during discovery in this action they will 13 exchange documents, items, or materials and other information that contain 14 sensitive and confidential information that derives actual or potential value from 15 not being generally known to the public and are the subject of reasonable efforts 16 to maintain their confidentiality. Defendants believe, in good faith, that these 17 documents and/or writing are protected by the Official Information Privilege, the 18 right to privacy guaranteed in Federal Constitution, First Amendment and 19 California Constitution, Article I, Section I, and various California Government, 20 Penal, and Evidence Code sections, and thus protected from disclosure. This will 21 be accomplished by affixing to such document or writing a legend, such as 22 “CONFIDENTIAL” or “CONFIDENTIAL – SUBJECT TO PROTECTIVE 23 ORDER” or words of similar effect. Documents and writings so designated, 24 hereinafter, collectively, (“Confidential Information”), shall be treated in 25 accordance with the terms of this stipulation/protective order. Documents, 26 writings and things to be designated as such, include the following: a) 27 28 Any material relating to or regarding the personnel files and/or records of deputies of the Los Angeles County Sheriff’s Department (“LASD”); 2 BERRY, S.\Stip. P.O. b) 1 2 Any material relating to incidents involving Plaintiff containing sensitive and private information regarding third parties. 3 Accordingly, to expedite the flow of information, to facilitate the prompt 4 resolution of disputes over confidentiality of discovery materials, to adequately 5 protect information the parties are entitled to keep confidential, to ensure that the 6 parties are permitted reasonable necessary uses of such material in preparation for 7 and in the conduct of trial, to address their handling at the end of the litigation, 8 and serve the ends of justice, a protective order for such information is justified in 9 this matter. It is the intent of the parties that information will not be designated as 10 confidential for tactical reasons and that nothing be so designated without a good 11 faith belief that it has been maintained in a confidential, non-public manner, and 12 there is good cause why it should not be part of the public record of this case. 13 2. DEFINITIONS 14 2.1 Action: this pending federal law suit. 15 2.2 Challenging Party: a Party or Non-Party that challenges the 16 17 designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless 18 of how it is generated, stored or maintained) or tangible things that qualify for 19 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 20 the Good Cause Statement. 21 2.4 Counsel: Outside Counsel of Record (as well as their support staff). 22 2.5 Designating Party: a Party or Non-Party that designates information 23 or items that it produces in disclosures or in responses to discovery as 24 “CONFIDENTIAL.” 25 2.6 Disclosure or Discovery Material: all items or information, 26 regardless of the medium or manner in which it is generated, stored, or 27 maintained (including, among other things, testimony, transcripts, and tangible 28 things), that are produced or generated in disclosures or responses to discovery in 3 BERRY, S.\Stip. P.O. 1 this matter. 2.7 2 Expert: a person with specialized knowledge or experience in a matter 3 pertinent to the litigation who has been retained by a Party or its counsel to serve 4 as an expert witness or as a consultant in this Action. 2.8 5 6 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.9 7 Outside Counsel of Record: attorneys who are not employees of a 8 party to this Action but are retained to represent or advise a party to this Action and 9 have appeared in this Action on behalf of that party or are affiliated with a law firm 10 which has appeared on behalf of that party, and includes support staff. 11 2.10 Party: any party to this Action, including all of its employees, 12 consultants, retained experts, and Outside Counsel of Record (and their support 13 staffs). 2.11 Producing Party: a Party or Non-Party that produces Disclosure or 14 15 Discovery Material in this Action. 16 2.12 Professional Vendors: persons or entities that provide litigation 17 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 18 demonstrations, and organizing, storing, or retrieving data in any form or medium) 19 and their employees and subcontractors. 2.13 Protected Material: any Disclosure or Discovery Material that is 20 21 designated as “CONFIDENTIAL.” 2.14 Receiving Party: a Party that receives Disclosure or Discovery 22 23 Material from a Producing Party. 24 3. SCOPE 25 The protections conferred by this Stipulation and Order cover not only 26 Protected Material (as defined above), but also (1) any information copied or 27 extracted from Protected Material; (2) all copies, excerpts, summaries, or 28 compilations of Protected Material; and (3) any testimony, conversations, or 4 BERRY, S.\Stip. P.O. 1 presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of 2 3 the trial judge. This Order does not govern the use of Protected Material at trial. 4 4. DURATION Even after final disposition of this litigation, the confidentiality obligations 5 6 imposed by this Order shall remain in effect until a Designating Party agrees 7 otherwise in writing or a court order otherwise directs. Final disposition shall be 8 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 9 with or without prejudice; and (2) final judgment herein after the completion and 10 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 11 including the time limits for filing any motions or applications for extension of 12 time pursuant to applicable law. 13 5. 14 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 15 Each Party or Non-Party that designates information or items for protection under 16 this Order must take care to limit any such designation to specific material that 17 qualifies under the appropriate standards. The Designating Party must designate for 18 protection only those parts of material, documents, items, or oral or written 19 communications that qualify so that other portions of the material, documents, 20 items, or communications for which protection is not warranted are not swept 21 unjustifiably within the ambit of this Order. 22 Mass, indiscriminate, or routinized designations are prohibited. 23 Designations that are shown to be clearly unjustified or that have been made for 24 an improper purpose (e.g., to unnecessarily encumber the case development 25 process or to impose unnecessary expenses and burdens on other parties) may 26 expose the Designating Party to sanctions. 27 28 If it comes to a Designating Party’s attention that information or items that it designated for protection do not qualify for protection, that Designating Party 5 BERRY, S.\Stip. P.O. 1 must promptly notify all other Parties that it is withdrawing the inapplicable 2 designation. 3 5.2 Manner and Timing of Designations. Except as otherwise provided 4 in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 5 stipulated or ordered, Disclosure or Discovery Material that qualifies for 6 protection under this Order must be clearly so designated before the material is 7 disclosed or produced. 8 9 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 10 documents, but excluding transcripts of depositions or other pretrial or trial 11 proceedings), that the Producing Party affix at a minimum, the legend 12 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 13 contains protected material. If only a portion or portions of the material on a page 14 qualifies for protection, the Producing Party also must clearly identify the 15 protected portion(s) (e.g., by making appropriate markings in the margins). 16 A Party or Non-Party that makes original documents available for inspection 17 need not designate them for protection until after the inspecting Party has indicated 18 which documents it would like copied and produced. During the inspection and 19 before the designation, all of the material made available for inspection shall be 20 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 21 documents it wants copied and produced, the Producing Party must determine 22 which documents, or portions thereof, qualify for protection under this Order. 23 Then, before producing the specified documents, the Producing Party must affix 24 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 25 only a portion or portions of the material on a page qualifies for protection, the 26 Producing Party also must clearly identify the protected portion(s) (e.g., by making 27 appropriate markings in the margins). 28 (b) for testimony given in depositions that the Designating Party 6 BERRY, S.\Stip. P.O. 1 identify the Disclosure or Discovery Material on the record, before the close of 2 the deposition all protected testimony. (c) 3 for information produced in some form other than documentary 4 and for any other tangible items, that the Producing Party affix in a prominent 5 place on the exterior of the container or containers in which the information is 6 stored the legend “CONFIDENTIAL.” If only a portion or portions of the 7 information warrants protection, the Producing Party, to the extent practicable, 8 shall identify the protected portion(s). 5.3 9 Inadvertent Failures to Designate. If timely corrected, an inadvertent 10 failure to designate qualified information or items does not, standing alone, waive 11 the Designating Party’s right to secure protection under this Order for such 12 material. Upon timely correction of a designation, the Receiving Party must make 13 reasonable efforts to assure that the material is treated in accordance with the 14 provisions of this Order. 15 6. 16 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 17 designation of confidentiality at any time that is consistent with the Court’s 18 Scheduling Order. 19 20 21 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 The burden of persuasion in any such challenge proceeding shall be 22 on the Designating Party. Frivolous challenges, and those made for an improper 23 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 24 parties) may expose the Challenging Party to sanctions. Unless the Designating 25 Party has waived or withdrawn the confidentiality designation, all parties shall 26 continue to afford the material in question the level of protection to which it is 27 entitled under the Producing Party’s designation until the Court rules on the 28 challenge. 7 BERRY, S.\Stip. P.O. 1 2 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that 3 is disclosed or produced by another Party or by a Non-Party in connection with 4 this Action only for prosecuting, defending, or attempting to settle this Action. 5 Such Protected Material may be disclosed only to the categories of persons and 6 under the conditions described in this Order. When the Action has been 7 terminated, a Receiving Party must comply with the provisions of section 13 8 below (FINAL DISPOSITION). 9 Protected Material must be stored and maintained by a Receiving Party at a 10 location and in a secure manner that ensures that access is limited to the persons 11 authorized under this Order. 12 Disclosure of “CONFIDENTIAL” Information or Items. Unless 7.2 13 otherwise ordered by the court or permitted in writing by the Designating Party, a 14 Receiving Party may disclose any information or item designated 15 “CONFIDENTIAL” only to: 16 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 17 well as employees of said Outside Counsel of Record to whom it is reasonably 18 necessary to disclose the information for this Action; 19 (b) the officers, directors, and employees (including House Counsel) of 20 the Receiving Party to whom disclosure is reasonably necessary for this Action; 21 (c) Experts (as defined in this Order) of the Receiving Party to whom 22 disclosure is reasonably necessary for this Action and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 25 26 27 28 (d) the court and its personnel; (e) court reporters and their staff; (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this Action and who 8 BERRY, S.\Stip. P.O. 1 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 2 3 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 4 5 6 7 8 9 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonably necessary provided: (1) the deposing party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted to keep any confidential information unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 10 11 12 13 transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 14 15 16 17 mutually agreed upon by any of the parties engaged in settlement discussions. 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 18 If a Party is served with a subpoena or a court order issued in other 19 litigation that compels disclosure of any information or items designated in this 20 Action as “CONFIDENTIAL,” that Party must: 21 22 23 (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 24 order to issue in the other litigation that some or all of the material covered by the 25 subpoena or order is subject to this Protective Order. Such notification shall 26 include a copy of this Stipulated Protective Order; and 27 28 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 9 BERRY, S.\Stip. P.O. 1 If the Designating Party timely seeks a protective order, the Party served 2 with the subpoena or court order shall not produce any information designated in 3 this action as “CONFIDENTIAL” before a determination by the court from which 4 the subpoena or order issued, unless the Party has obtained the Designating Party’s 5 permission. The Designating Party shall bear the burden and expense of seeking 6 protection in that court of its confidential material and nothing in these provisions 7 should be construed as authorizing or encouraging a Receiving Party in this Action 8 to disobey a lawful directive from another court. 9 9. 10 11 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 a 12 Non-Party in this Action and designated as “CONFIDENTIAL.” Such 13 information produced by Non-Parties in connection with this litigation is 14 protected by the remedies and relief provided by this Order. Nothing in these 15 provisions should be construed as prohibiting a Non-Party from seeking 16 additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to 18 produce a Non-Party’s confidential information in its possession, and the Party is 19 subject to an agreement with the Non-Party not to produce the Non-Party’s 20 confidential information, then the Party shall: 21 (1) promptly notify in writing the Requesting Party and the Non- 22 Party that some or all of the information requested is subject to a confidentiality 23 agreement with a Non-Party; 24 (2) promptly provide the Non-Party with a copy of the Stipulated 25 Protective Order in this Action, the relevant discovery request(s), and a 26 reasonably specific description of the information requested; and 27 28 (3) make the information requested available for inspection by the Non-Party, if requested. 10 BERRY, S.\Stip. P.O. (c) 1 If the Non-Party fails to seek a protective order from this court 2 within 14 days of receiving the notice and accompanying information, the 3 Receiving Party may produce the Non-Party’s confidential information 4 responsive to the discovery request. If the Non-Party timely seeks a protective 5 order, the Receiving Party shall not produce any information in its possession or 6 control that is subject to the confidentiality agreement with the Non-Party before 7 a determination by the court. Absent a court order to the contrary, the Non-Party 8 shall bear the burden and expense of seeking protection in this court of its 9 Protected Material. 10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 11 If a Receiving Party learns that, by inadvertence or otherwise, it has 12 disclosed Protected Material to any person or in any circumstance not authorized 13 under this Stipulated Protective Order, the Receiving Party must immediately (a) 14 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 15 best efforts to retrieve all unauthorized copies of the Protected Material, (c) 16 inform the person or persons to whom unauthorized disclosures were made of all 17 the terms of this Order, and (d) request such person or persons to execute the 18 “Acknowledgment and Agreement to Be Bound” that is attached hereto as 19 Exhibit A. 20 11. 21 PROTECTED MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 22 When a Producing Party gives notice to Receiving Parties that certain 23 inadvertently produced material is subject to a claim of privilege or other 24 protection, the obligations of the Receiving Parties are those set forth in Federal 25 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 26 whatever procedure may be established in an e-discovery order that provides for 27 production without prior privilege review. Pursuant to Federal Rule of Evidence 28 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 11 BERRY, S.\Stip. P.O. 1 of a communication or information covered by the attorney-client privilege or work 2 product protection, the parties may incorporate their agreement in the stipulated 3 protective order submitted to the court. 4 12. 5 6 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. 7 12.2 Right to Assert Other Objections. By stipulating to the entry of this 8 Protective Order no Party waives any right it otherwise would have to object to 9 disclosing or producing any information or item on any ground not addressed in 10 this Stipulated Protective Order. Similarly, no Party waives any right to object on 11 any ground to use in evidence of any of the material covered by this Protective 12 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 15 may only be filed under seal pursuant to a court order authorizing the sealing of 16 the specific Protected Material at issue. If a Party's request to file Protected 17 Material under seal is denied by the court, then the Receiving Party may file the 18 information in the public record unless otherwise instructed by the court. 19 13. FINAL DISPOSITION 20 After the final disposition of this Action, as defined in paragraph 4, within 21 60 days of a written request by the Designating Party, each Receiving Party must 22 return all Protected Material to the Producing Party or destroy such material. As 23 used in this subdivision, “all Protected Material” includes all copies, abstracts, 24 compilations, summaries, and any other format reproducing or capturing any of 25 the Protected Material. Whether the Protected Material is returned or destroyed, 26 the Receiving Party must submit a written certification to the Producing Party 27 (and, if not the same person or entity, to the Designating Party) by the 60 day 28 deadline that (1) identifies (by category, where appropriate) all the Protected 12 BERRY, S.\Stip. P.O. 1 Material that was returned or destroyed and (2)affirms that the Receiving Party 2 has not retained any copies, abstracts, compilations, summaries or any other 3 format reproducing or capturing any of the Protected Material. Notwithstanding 4 this provision, Counsel are entitled to retain an archival copy of all pleadings, 5 motion papers, trial, deposition, and hearing transcripts, legal memoranda, 6 correspondence, deposition and trial exhibits, expert reports, attorney work 7 product, and consultant and expert work product, even if such materials contain 8 Protected Material. Any such archival copies that contain or constitute Protected 9 Material remain subject to this Protective Order as set forth in Section 4 10 (DURATION). 11 \\ 12 \\ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 BERRY, S.\Stip. P.O. 1 14. Any violation of this Order may be punished by any and all 2 appropriate measures including, without limitation, contempt proceedings and/or 3 monetary sanctions. 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 6 Dated: February 13, 2017 LAYFIELD & BARRETT, APC 7 8 By /s/ Jonathan Teller Jonathan Teller Attorney for Plaintiff Shawn Berry 9 10 11 12 Dated: February 13, 2017 LAWRENCE BEACH ALLEN & CHOI, PC 13 By 14 15 16 /s/ Arnold F. Lee _ 1 Arnold F. Lee Attorneys for Defendants Los Angeles County 17 18 19 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. DATED: February 15, 2017 20 21 22 23 ______________________________________________ Honorable Steve Kim United States Magistrate Judge 24 25 26 27 28 As the filer of this Stipulation, I, Arnold F. Lee, attest that Jonathan Teller concurs in the content of the Stipulation and has authorized its filing. 1 14 BERRY, S.\Stip. P.O. 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ________________________ [print or type full name], of ______________ 4 [print or type full address], declare under penalty of perjury that I have read in its 5 entirety and understand the Stipulated Protective Order that was issued by the 6 United States District Court for the Central District of California on ________ 7 [date] in the case of ___________________ [insert formal name of the case 8 9 10 11 12 13 14 15 16 17 and the number and initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the terms of this 18 Stipulated Protective Order, even if such enforcement proceedings occur after 19 termination of this action. I hereby appoint [print or type full name] of _______ 20 [print or type full address and telephone number] as my California agent for 21 service of process in connection with this action or any proceedings related to 22 enforcement of this Stipulated Protective Order. 23 Date: 24 City and State where sworn and signed: 25 Printed name: __________________________________________ ___________________________ _____________________________ 26 27 Signature: __________________________________ 28 15 BERRY, S.\Stip. P.O.

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