Shainie Lindsey et al v. City of Pasadena et al

Filing 157

PROTECTIVE ORDER REGARDING MEDICAL RECORDS TO BE PRODUCED PURSUANT TO COURT ORDER DATED JANUARY 9, 2018 by Magistrate Judge Rozella A. Oliver. [NOTE: CHANGES MADE BY THE COURT] The Court Orders that the terms of the Protective Order Regarding production of confidential proprietary or private information shall govern the handling of such documents produced or disclosed by the parties in this case. 156 (SEE ORDER FOR FURTHER INFORMATION) (gr)

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NOTE: CHANGES MADE BY THE COURT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiffs,
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vs.
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CITY OF PASADENA, PASADENA )
POLICE CHIEF PHILLIP SANCHEZ,)
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OFFICERS: MATHEW GRIFFIN,
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JEFFREY NEWLEN, THOMAS
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BUTLER, ROBERT GRIFFITH,
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MICHAEL OROSCO, PHILLIP
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POIRIER, RAFAEL SANTIAGO,
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AARON VILLACANA, SGT.
AGUILAR & CORPORAL SUSAN )
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GOMEZ individually and in their
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official capacity and DOES 1-10
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inclusive,
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Defendants.
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1.

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SHAINIE LINDSEY, as Guardian ad
Litem for minors: “PT”, “BT”, “RT1”
“RT2”, & “X”, SHENIA ELDRIDGE
as Guardian ad Litem for “RT3” &
“RT4”, DOMINIQUE KEATON as
Guardian ad Litem for “DT”, and
ANNIE HARRIS for the Estate of
Reginald THOMAS,

A.

Case No.: 2:16-cv-08602-SJO-RAOx
PROTECTIVE ORDER
REGARDING MEDICAL RECORDS
TO BE PRODUCED PURSUANT TO
COURT ORDER DATED JANUARY
9, 2018

PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,

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proprietary or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may
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be warranted. This Order does not confer blanket protections on all disclosures or

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responses to discovery, and the protection it affords from public disclosure and use

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extends only to the limited information or items that are entitled to confidential

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treatment under the applicable legal principles.

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B.

GOOD CAUSE STATEMENT

GOOD CAUSE exists to enter the protective order to balance concerns that

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the documents consist of confidential, private, and privileged information

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concerning the Parties to this litigation as well as third parties who are not parties

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to this litigation. Furthermore, this protective order was created for the purpose of

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protecting certain information that may be subject to the official information

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privilege, law enforcement privilege, and the right to privacy, as protected by the

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California and United States Constitutions, the federal Health Insurance Portability

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and Accountatbility Act of 1996 (“HIPAA”) and its implementing regulations, the

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California Confidentiality of Medical Act (“CMIA”) (including but not limited to

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the CMIA’s limitations on redisclosure), and other federal and state protections of

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health and medical information in general, and substance abuse and mental health

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information in particular, as well as to prevent against the broadcast or

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dissemination of videotaped deposition testimony by any party, balanced with

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plaintiffs’ right to discovery in this litigation. All documents, tangible things, and

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videos marked confidential and produced pursuant to this protective order are

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subject to the terms of this protective order unless otherwise ordered by the Court.

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Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately

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protect information the Parties and Non-Parties are entitled and/or required to keep

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confidential, to ensure that the Parties are permitted reasonable necessary uses of

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

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handling at the end of the litigation, and serve the ends of justice, a protective

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order for such information is justified in this matter. Information will not be
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designated as confidential for tactical reasons and nothing will be so designated

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without a good faith belief that it has been maintained in a confidential, non-public

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manner, and there is good cause why it should not be part of the public record of

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this case.

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C.

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ACKNOWLEDGEMENT OF PROCEDURE FOR FILING UNDER
SEAL

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As set forth in Section 12.3, below, this Protective Order does not entitle the

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Parties to file confidential information under seal; Local Civil Rule 79-5 sets forth

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the procedures that must be followed and the standards that will be applied when a

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Party seeks permission from the court to file material under seal.
There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases. In connection with non-dispositive

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motions, good cause must be shown to support a filing under seal. See Kamakana

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v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v.

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Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.

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Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated

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protective orders require good cause showing), and a specific showing of good

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cause or compelling reasons with proper evidentiary support and legal justification,

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must be made with respect to Protected Material that a party seeks to file under

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seal. The Parties’ mere designation of Disclosure or Discovery Material as

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CONFIDENTIAL does not—without the submission of competent evidence by

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declaration, establishing that the material sought to be filed under seal qualifies as

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confidential, privileged, or otherwise protectable—constitute good cause.

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Further, if a Party requests sealing related to a dispositive motion or trial, then

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compelling reasons, not only good cause, for the sealing must be shown, and the

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relief sought shall be narrowly tailored to serve the specific interest to be protected.

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See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For

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each item or type of information, document, or thing sought to be filed or
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introduced under seal in connection with a dispositive motion or trial, the party

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seeking protection must articulate compelling reasons, supported by specific facts

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and legal justification, for the requested sealing order. Again, competent evidence

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supporting the application to file documents under seal must be provided by

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declaration.

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2.

DEFINITIONS

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2.1

“Action”: this pending federal law suit.

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2.2

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

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designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless 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: Outside Counsel of Record and House Counsel (as well as

their support staff).
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Designating Party: a Party or Non-Party that designates information

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

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information, regardless

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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

House Counsel (i.e., Office of Pasadena City Attorney): attorneys

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who are employees of a party to this Action. House Counsel does not include

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Outside Counsel of Record or any other outside counsel.
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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 that 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
designated as “CONFIDENTIAL.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery

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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

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(as 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 testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material.

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

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trial judge. This Order does not govern the use of Protected Material at trial.

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Pursuant to the Court’s Standing Order at Paragraph 28, it is acknowledged that it
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is the Court, not the parties, that determines whether a document can be filed under

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seal. Thus, this protective order cannot, and does not, attempt to pre-authorize any

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Party to file documents under seal. The Parties acknowledge that they are to

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strictly comply with Local Rule 79-5 and its subdivisions.

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4.

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, 447 F.3d at 1180-81

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(distinguishing “good cause” showing for sealing documents produced in

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discovery from “compelling reasons” standard when merits-related documents are

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part of court record). Accordingly, the terms of this protective order do not extend

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beyond the commencement of the trial.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

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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

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for 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.
Mass, indiscriminate or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to

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impose unnecessary expenses and burdens on other Parties) may expose the

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Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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

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promptly 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

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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.
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 or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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

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contains protected material. If only a portion of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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

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

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inspection need not designate them for protection until after the inspecting Party

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has indicated which documents it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL legend” to each page that contains Protected Material.

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If only a portion of the material on a page qualifies for protection, the Producing
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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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(b)

for testimony given in depositions that the Designating Party

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identifies the Disclosure or Discovery Material on the record, before the close of

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the deposition all protected testimony.

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(c)

for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a 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.” If only a portion or portions of the

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information warrants protection, the Producing Party, to the extent practicable,

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shall identify the protected portion(s).

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5.3

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.
6.3

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

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

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this Action only for prosecuting, defending or attempting to settle this Action.

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Such Protected Material may be disclosed only to the categories of persons and

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under the conditions described in this Order. When the Action has been

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terminated, a Receiving Party must comply with the provisions of section 13 below

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(FINAL DISPOSITION).

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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” Information or Items. Unless

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otherwise ordered by the Court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;
(b)

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the officers, directors, and employees (including House

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Counsel) 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

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whom 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

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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(g)

the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew the

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information;

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(h)

during their depositions, witnesses, and attorneys for witnesses,

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in the Action to whom disclosure is reasonably necessary provided: (1) the

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deposing Party requests that the witness sign the form attached as Exhibit 1 hereto;

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and (2) they will not be permitted to keep any confidential information unless they

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sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless

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otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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

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to anyone except as permitted under this Protective Order; and

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(i)

any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the Parties engaged in settlement

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discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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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,” 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;
(b)

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

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the 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

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pursued by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action

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as “CONFIDENTIAL” 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. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a)

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The terms of this Order are applicable to information produced

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by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is protected

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by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b)

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

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

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

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Party’s confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the

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

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confidentiality agreement with a Non-Party;
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(2)

promptly provide the Non-Party with a copy of the

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

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specific description of the information requested; and

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(3)

make the information requested available for inspection

by the Non-Party, if requested.

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(c)

If the Non-Party fails to seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that

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

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

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 OTHERWISE

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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 in the

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stipulated protective order submitted to the court.

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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.
12.2 Right to Assert Other Objections or Protections. No Party waives any

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right it otherwise would have to object to disclosing or producing any information

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

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

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covered by this Protective Order. No Non-Party may be deemed to have waived

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the independent privacy rights of persons whose Confidential Information is in the

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possession of the Non-Party, and no Non-Party may be ordered to produce

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Confidential Information in violation of applicable federal and/or state law.

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12.3 Filing Protected Material. All Parties and their Counsel agree that if a

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Party intends to file Protected Material with the Court, for any reason, that Party

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and Counsel shall request permission from the Court to file the Protected Material

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under seal. A Party that seeks to file under seal any Protected Material must

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comply with Local Civil Rule 79-5. Protected Material may only be filed under

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seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue. If a Party’s request to file Protected Material under seal is denied

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by the court, then the Receiving Party may file the information in the public record

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unless otherwise instructed by the court.
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13.

FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4, within

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60 days of a written request by the Designating Party, each Receiving Party must

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

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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, the

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Receiving Party must submit a written certification to the Producing Party (and, if

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not the same person or entity, to the Designating Party) by the 60 day deadline that

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

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returned or destroyed and (2) affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel

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

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this

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

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14.

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VIOLATION
Any violation of this Order may be punished by appropriate measures

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including, without limitation, contempt proceedings and/or monetary sanctions.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: January 9, 2018

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___________________________________
HON. ROZELLA A. OLIVER
United States Magistrate Judge
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EXHIBIT “A” TO PROTECTIVE ORDER

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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], declare under penalty of perjury

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that I have read in its entirety and understand the Protective Order that was issued

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by the United States District Court for the Central District of California on January

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9, 2018 in the case of Lindsey, et al. v. City of Pasadena, et al., United States

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District Court case number 2:16-cv-08602-SJO-RAOx. I agree to comply with

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

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

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punishment in the nature of contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Protective Order to

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

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I further agree to submit to the jurisdiction of the United States 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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-1EXHIBIT “A” TO PROTECTIVE ORDER