Kim Spangler v. County of Ventura et al

Filing 28

PROTECTIVE ORDER by Magistrate Judge Gail J. Standish re Stipulation for Protective Order 27 . (ec)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 KIM SPANGLER, Individually, and as the Personal Representative for DENNIS HOWARD BREWER, Deceased, 14 Honorable Otis D. Wright II Plaintiff, 15 16 Case No. CV 16-09174-ODW (GJS) [PROPOSED] PROTECTIVE ORDER v. 18 COUNTY OF VENTURA; VENTURA COUNTY DEPUTY SHERIFF WILLIAM SCHNEEKLOTH (Serial No. 4218), and DOES 1 through 10, inclusive, 19 Defendants. 17 20 21 22 23 24 25 26 27 28 1. A. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited 1 information or items that are entitled to confidential treatment under the applicable 2 legal principles. 3 4 B. GOOD CAUSE STATEMENT 5 This action is likely to involve the exchange of documents, items, materials 6 and other information that contain sensitive and confidential information that 7 derives actual or potential value from not being generally known to the public, are 8 the subject of reasonable efforts to maintain their confidentiality, and for which 9 special protection from public disclosure and from use for any purpose other than 10 prosecution of this action is warranted. These records include materials relating to 11 the investigation of the December 17, 2015 incident involving Decedent Dennis 12 Howard Brewer’s death, material relating to or regarding the personnel files and/or 13 records of Deputy William Schneekloth of the Ventura Court Sheriff’s Office, 14 material relating to incidents involving Plaintiff or Decedent containing sensitive 15 and private information regarding third parties, and relevant Ventura County policy, 16 procedure, and/or training manuals. Such confidential materials and information 17 consist of, among other things, documents and/or writings protected by the Official 18 Information Privilege, the right to privacy guaranteed by in the Federal Constitution, 19 First Amendment, California Constitution, Article I, Section I, and various 20 California Government, Penal, and Evidence Code section, as well as information 21 otherwise generally unavailable to the public, or which may be privileged or 22 otherwise protected from disclosure under state or federal statutes, court rules, case 23 decisions, or common law. Accordingly, to expedite the flow of information, to 24 facilitate the prompt resolution of disputes over confidentiality of discovery 25 materials, to adequately protect information the parties are entitled to keep 26 confidential, to ensure that the parties are permitted reasonable necessary uses of 27 such material in preparation for and in the conduct of trial, to address their handling 28 at the end of the litigation, and serve the ends of justice, a protective order for such 2 1 information is justified in this matter. It is the intent of the parties that information 2 will not be designated as confidential for tactical reasons and that nothing be so 3 designated without a good faith belief that it has been maintained in a confidential, 4 non-public manner, and there is good cause why it should not be part of the public 5 record of this case. 6 7 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 8 The parties further acknowledge, as set forth in Section 12.3, below, that this 9 Stipulated Protective Order does not entitle them to file confidential information 10 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 11 and the standards that will be applied when a party seeks permission from the court 12 to file material under seal. 13 There is a strong presumption that the public has a right of access to judicial 14 proceedings and records in civil cases. In connection with non-dispositive motions, 15 good cause must be shown to support a filing under seal. See Kamakana v. City and 16 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 17 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 18 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 19 require good cause showing), and a specific showing of good cause or compelling 20 reasons with proper evidentiary support and legal justification, must be made with 21 respect to Protected Material that a party seeks to file under seal. The parties’ mere 22 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 23 without the submission of competent evidence by declaration, establishing that the 24 material sought to be filed under seal qualifies as confidential, privileged, or 25 otherwise protectable—constitute good cause. 26 Further, if a party requests sealing related to a dispositive motion or trial, then 27 compelling reasons, not only good cause, for the sealing must be shown, and the 28 relief sought shall be narrowly tailored to serve the specific interest to be protected. 3 1 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 2 each item or type of information, document, or thing sought to be filed or introduced 3 under seal in connection with a dispositive motion or trial, the party seeking 4 protection must articulate compelling reasons, supported by specific facts and legal 5 justification, for the requested sealing order. Again, competent evidence supporting 6 the application to file documents under seal must be provided by declaration. Any document that is not confidential, privileged, or otherwise protectable in 7 8 its entirety will not be filed under seal if the confidential portions can be redacted. 9 If documents can be redacted, then a redacted version for public viewing, omitting 10 only the confidential, privileged, or otherwise protectable portions of the document, 11 shall be filed. Any application that seeks to file documents under seal in their 12 entirety should include an explanation of why redaction is not feasible. 13 14 15 16 17 18 19 2. DEFINITIONS 2.1 Action: Kim Spangler v. County of Ventura, et al., Case No. CV 16- 09174-ODW (GJS). 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 20 how it is generated, stored or maintained) or tangible things that qualify for 21 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 22 the Good Cause Statement. 23 24 25 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 26 items that it produces in disclosures or in responses to discovery as 27 “CONFIDENTIAL.” 28 2.6 Disclosure or Discovery Material: all items or information, regardless 4 1 of the medium or manner in which it is generated, stored, or maintained (including, 2 among other things, testimony, transcripts, and tangible things), that are produced or 3 generated in disclosures or responses to discovery in this matter. 4 2.7 Expert: a person with specialized knowledge or experience in a matter 5 pertinent to the litigation who has been retained by a Party or its counsel to serve as 6 an expert witness or as a consultant in this Action. 7 2.8 House Counsel: attorneys who are employees of a party to this Action. 8 House Counsel does not include Outside Counsel of Record or any other outside 9 counsel. 10 11 12 2.9 Non-Party: any natural person, partnership, corporation, association or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a 13 party to this Action but are retained to represent or advise a party to this Action and 14 have appeared in this Action on behalf of that party or are affiliated with a law firm 15 that has appeared on behalf of that party, and includes support staff. 16 2.11 Party: any party to this Action, including all of its officers, directors, 17 employees, consultants, retained experts, and Outside Counsel of Record (and their 18 support staffs). 19 20 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 21 2.13 Professional Vendors: persons or entities that provide litigation 22 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 23 demonstrations, and organizing, storing, or retrieving data in any form or medium) 24 and their employees and subcontractors. 25 26 27 28 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 5 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 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 the 7 8 trial judge. This Order does not govern the use of Protected Material at trial. 9 10 4. DURATION Once a case proceeds to trial, information that was designated as 11 12 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 13 as an exhibit at trial becomes public and will be presumptively available to all 14 members of the public, including the press, unless compelling reasons supported by 15 specific factual findings to proceed otherwise are made to the trial judge in advance 16 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 17 showing for sealing documents produced in discovery from “compelling reasons” 18 standard when merits-related documents are part of court record). Accordingly, the 19 terms of this protective order do not extend beyond the commencement of the trial. 20 21 5. DESIGNATING PROTECTED MATERIAL 22 5.1 Exercise of Restraint and Care in Designating Material for Protection. 23 Each Party or Non-Party that designates information or items for protection 24 under this Order must take care to limit any such designation to specific material 25 that qualifies under the appropriate standards. The Designating Party must 26 designate for protection only those parts of material, documents, items or oral or 27 written communications that qualify so that other portions of the material, 28 documents, items or communications for which protection is not warranted are not 6 1 2 swept unjustifiably within the ambit of this Order. Mass, indiscriminate or routinized designations are prohibited. Designations 3 that are shown to be clearly unjustified or that have been made for an improper 4 purpose (e.g., to unnecessarily encumber the case development process or to impose 5 unnecessary expenses and burdens on other parties) may expose the Designating 6 Party to sanctions. 7 If it comes to a Designating Party’s attention that information or items that it 8 designated for protection do not qualify for protection, that Designating Party must 9 promptly notify all other Parties that it is withdrawing the inapplicable designation. 10 5.2 Manner and Timing of Designations. Except as otherwise provided in 11 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 12 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 13 under this Order must be clearly so designated before the material is disclosed or 14 produced. 15 Designation in conformity with this Order requires: 16 (a) for information in documentary form (e.g., paper or electronic 17 documents, but excluding transcripts of depositions or other pretrial or trial 18 proceedings), that the Producing Party affix at a minimum, the legend 19 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 20 contains protected material. If only a portion of the material on a page qualifies for 21 protection, the Producing Party also must clearly identify the protected portion(s) 22 (e.g., by making appropriate markings in the margins). 23 A Party or Non-Party that makes original documents available for inspection 24 need not designate them for protection until after the inspecting Party has indicated 25 which documents it would like copied and produced. During the inspection and 26 before the designation, all of the material made available for inspection shall be 27 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 28 documents it wants copied and produced, the Producing Party must determine which 7 1 documents, or portions thereof, qualify for protection under this Order. Then, 2 before producing the specified documents, the Producing Party must affix the 3 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 4 portion of the material on a page qualifies for protection, the Producing Party also 5 must clearly identify the protected portion(s) (e.g., by making appropriate markings 6 in the margins). (b) for testimony given in depositions that the Designating Party identifies 7 8 the Disclosure or Discovery Material on the record, before the close of the 9 deposition all protected testimony. (c) for information produced in some form other than documentary and 10 11 for any other tangible items, that the Producing Party affix in a prominent place on 12 the exterior of the container or containers in which the information is stored the 13 legend “CONFIDENTIAL.” If only a portion or portions of the information 14 warrants protection, the Producing Party, to the extent practicable, shall identify the 15 protected portion(s). 16 (d) in the case of depositions, Designating Party may designate all or any 17 portion of the deposition testimony given regarding the Confidential Information in 18 this litigation as Confidential Information orally during the deposition. Any 19 questions intended to elicit testimony regarding the contents of the Confidential 20 Information shall be conducted only in the presence of persons authorized to review 21 the Confidential Information as provided in this Order. Any deposition transcript 22 containing such questions and testimony shall be subject to the same protections and 23 precautions applicable to the Confidential Information. 24 25 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 26 failure to designate qualified information or items does not, standing alone, waive 27 the Designating Party’s right to secure protection under this Order for such material. 28 Upon timely correction of a designation, the Receiving Party must make reasonable 8 1 efforts to assure that the material is treated in accordance with the provisions of this 2 Order. 3 4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 5 Timing of Challenges. Any Party or Non-Party may challenge a 6 designation of confidentiality at any time that is consistent with the Court’s 7 Scheduling Order. 6.2 8 9 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 10 The burden of persuasion in any such challenge proceeding shall be on 11 the Designating Party. Frivolous challenges, and those made for an improper 12 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 13 parties) may expose the Challenging Party to sanctions. Unless the Designating 14 Party has waived or withdrawn the confidentiality designation, all parties shall 15 continue to afford the material in question the level of protection to which it is 16 entitled under the Producing Party’s designation until the Court rules on the 17 challenge. 18 19 20 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 21 disclosed or produced by another Party or by a Non-Party in connection with this 22 Action only for prosecuting, defending or attempting to settle this Action. Such 23 Protected Material may be disclosed only to the categories of persons and under the 24 conditions described in this Order. When the Action has been terminated, a 25 Receiving Party must comply with the provisions of section 13 below (FINAL 26 DISPOSITION). 27 28 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons 9 1 2 authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 3 otherwise ordered by the court or permitted in writing by the Designating Party, a 4 Receiving Party may disclose any information or item designated 5 “CONFIDENTIAL” only to: 6 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 7 well as employees of said Outside Counsel of Record to whom it is reasonably 8 necessary to disclose the information for this Action; 9 (b) the officers, directors, and employees (including House Counsel) of 10 the Receiving Party to whom disclosure is reasonably necessary for this Action; 11 (c) Experts (as defined in this Order) of the Receiving Party to whom 12 disclosure is reasonably necessary for this Action and who have signed the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (d) the court and its personnel; 15 (e) court reporters and their staff; 16 (f) professional jury or trial consultants, mock jurors, and Professional 17 Vendors to whom disclosure is reasonably necessary for this Action and who have 18 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 20 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 21 (h) during their depositions, witnesses, and attorneys for witnesses, in the 22 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 23 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 24 not be permitted to keep any confidential information unless they sign the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 26 agreed by the Designating Party or ordered by the court. Pages of transcribed 27 deposition testimony or exhibits to depositions that reveal Protected Material may 28 be separately bound by the court reporter and may not be disclosed to anyone except 10 1 as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 2 3 mutually agreed upon by any of the parties engaged in settlement discussions. 4 5 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 6 IN OTHER LITIGATION 7 If a Party is served with a subpoena or a court order issued in other litigation 8 that compels disclosure of any information or items designated in this Action as 9 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification 10 11 shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order 12 13 to issue in the other litigation that some or all of the material covered by the 14 subpoena or order is subject to this Protective Order. Such notification shall include 15 a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be 16 17 pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 18 19 the subpoena or court order shall not produce any information designated in this 20 action as “CONFIDENTIAL” before a determination by the court from which the 21 subpoena or order issued, unless the Party has obtained the Designating Party’s 22 permission. The Designating Party shall bear the burden and expense of seeking 23 protection in that court of its confidential material and nothing in these provisions 24 should be construed as authorizing or encouraging a Receiving Party in this Action 25 to disobey a lawful directive from another court. 26 // 27 // 28 // 11 1 2 3 9. 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 4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in connection with this litigation is protected by the 6 remedies and relief provided by this Order. Nothing in these provisions should be 7 construed as prohibiting a Non-Party from seeking additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to 9 produce a Non-Party’s confidential information in its possession, and the Party is 10 subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non-Party 13 that some or all of the information requested is subject to a confidentiality 14 agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a reasonably 17 specific description of the information requested; and 18 19 (3) make the information requested available for inspection by the Non-Party, if requested. 20 (c) If the Non-Party fails to seek a protective order from this court within 21 14 days of receiving the notice and accompanying information, the Receiving Party 22 may produce the Non-Party’s confidential information responsive to the discovery 23 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 24 not produce any information in its possession or control that is subject to the 25 confidentiality agreement with the Non-Party before a determination by the court. 26 Absent a court order to the contrary, the Non-Party shall bear the burden and 27 expense of seeking protection in this court of its Protected Material. 28 12 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 2 3 Protected Material to any person or in any circumstance not authorized under this 4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 7 persons to whom unauthorized disclosures were made of all the terms of this Order, 8 and (d) request such person or persons to execute the “Acknowledgment and 9 Agreement to Be Bound” that is attached hereto as Exhibit A. 10 11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 12 PROTECTED MATERIAL 13 When a Producing Party gives notice to Receiving Parties that certain 14 inadvertently produced material is subject to a claim of privilege or other protection, 15 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 16 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 17 procedure may be established in an e-discovery order that provides for production 18 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 19 (e), insofar as the parties reach an agreement on the effect of disclosure of a 20 communication or information covered by the attorney-client privilege or work 21 product protection, the parties may incorporate their agreement in the stipulated 22 protective order submitted to the court. 23 24 25 26 27 28 12. 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. By stipulating to the entry of this Protective Order, no Party waives any right it otherwise would have to object to 13 1 disclosing or producing any information or item on any ground not addressed in this 2 Stipulated Protective Order. Similarly, no Party waives any right to object on any 3 ground to use in evidence of any of the material covered by this Protective Order. 4 12.3 Filing Protected Material. A Party that seeks to file under seal any 5 Protected Material must comply with Local Civil Rule 79-5. Protected Material 6 may only be filed under seal pursuant to a court order authorizing the sealing of the 7 specific Protected Material at issue. If a Party’s request to file Protected Material 8 under seal is denied by the court, then the Receiving Party may file the information 9 in the public record unless otherwise instructed by the court. 10 11 12 13. FINAL DISPOSITION After the final disposition of this Action, as defined in paragraph 4, within 60 13 days of a written request by the Designating Party, each Receiving Party must return 14 all Protected Material to the Producing Party or destroy such material. As used in 15 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 16 summaries, and any other format reproducing or capturing any of the Protected 17 Material. Whether the Protected Material is returned or destroyed, the Receiving 18 Party must submit a written certification to the Producing Party (and, if not the same 19 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 20 (by category, where appropriate) all the Protected Material that was returned or 21 destroyed and (2) affirms that the Receiving Party has not retained any copies, 22 abstracts, compilations, summaries or any other format reproducing or capturing any 23 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 24 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 25 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 26 reports, attorney work product, and consultant and expert work product, even if such 27 materials contain Protected Material. Any such archival copies that contain or 28 constitute Protected Material remain subject to this Protective Order as set forth in 14 1 Section 4 (DURATION). 2 3 4 5 14. VIOLATION Any violation of this Order may be punished by appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions. 6 7 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 8 9 10 11 DATED: July 5, 2017 _____________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, ______________________, of ________________________________________ 5 declare under penalty of perjury that I have read in its entirety and understand the 6 Stipulated Protective Order that was issued by the United States District Court for 7 the Central District of California on _________________ in the case of Kim 8 Spangler v. County of Ventura, et al., Case No. CV 16-09174-ODW (GJS). I agree 9 to comply with and to be bound by all the terms of this Stipulated Protective Order 10 and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for the 16 Central District of California for enforcing the terms of this Stipulated Protective 17 Order, even if such enforcement proceedings occur after termination of this action. 18 I hereby appoint ________________ of ___________________________________ 19 as my California agent for service of process in connection with this action or any 20 proceedings related to enforcement of this Stipulated Protective Order. 21 22 Date: ______________________________________ 23 24 City and State where sworn and signed: _________________________________ 25 26 Printed name: _______________________________ 27 28 Signature: __________________________________ 16

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