Gary Scherer v. City of Los Angeles, et al

Filing 14

PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Stipulation for Protective Order 13 (See Order for details) (rh)

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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 16 17 18 19 DISCOVERY MATTER Plaintiff, 14 15 Case No.: 2:17-cv-01110-FMO (KSx) Gary Scherer, [Proposed] Protective Order v. City of Los Angeles; Los Angeles World Airports; Pacific Coast Sightseeing Tours and Charters, Inc. and Does 1-10, Inclusive, Defendants. 20 21 22 23 24 25 26 27 28 1 [Proposed] Protective Order 1 By agreement of the parties hereto, pursuant to the Joint Stipulation 2 filed concurrently herewith, and for good cause shown, it is hereby 3 ORDERED: 4 5 6 1. A. PURPOSES AND LIMITATIONS 7 Discovery in this action is likely to involve production of confidential, 8 proprietary, or private information for which special protection from public 9 disclosure and from use for any purpose other than prosecuting this litigation 10 may be warranted. Accordingly, the parties hereby stipulate to and petition 11 the Court to enter the following Stipulated Protective Order. The parties 12 acknowledge that this Order does not confer blanket protections on all 13 disclosures or responses to discovery and that the protection it affords from 14 public disclosure and use extends only to the limited information or items 15 that are entitled to confidential treatment under the applicable legal 16 principles. The parties further acknowledge, as set forth in Section 12.3, 17 below, that this Stipulated Protective Order does not entitle them to file 18 confidential information under seal; Civil Local Rule 79-5 sets forth the 19 procedures that must be followed and the standards that will be applied 20 when a party seeks permission from the court to file material under seal. 21 22 B. GOOD CAUSE STATEMENT 23 This action is likely to involve information: (1) regarding or relating 24 to the medical condition or ability of Plaintiff Gary Scherer; and (2) 25 regarding or relating to the contents of Defendants’ employee personnel 26 files. 27 purpose other than prosecution of this action is warranted. Such confidential 28 materials and information consist of, among other things, medical records, Special protection from public disclosure and from use for any 2 [Proposed] Protective Order 1 summaries 2 information; and information otherwise generally unavailable to the public, 3 or which may be privileged or otherwise protected from disclosure under 4 state or federal statutes, court rules, case decisions, or common law. 5 Accordingly, to expedite the flow of information, to facilitate the prompt 6 resolution of disputes over confidentiality of discovery materials, to 7 adequately protect information the parties are entitled to keep confidential, 8 to ensure that the parties are permitted reasonable necessary uses of such 9 material in preparation for and in the conduct of trial, to address their 10 handling at the end of the litigation, and serve the ends of justice, a 11 protective order for such information is justified in this matter. It is the intent 12 of the parties that information will not be designated as confidential for 13 tactical reasons and that nothing be so designated without a good faith belief 14 that it has been maintained in a confidential, non-public manner, and there is 15 good cause why it should not be part of the public record of this case. and information; disciplinary records, summaries and 16 17 18 19 2. DEFINITIONS 2.1 Action: the federal lawsuit filed by Plaintiff Gary Scherer 20 against Defendants City of Los Angeles, Los Angeles World Airports, 21 Pacific Coast Sightseeing Tours and Charters, Inc.; on February 10, 2017 in 22 the Central District of California and reflecting case number 2:17-cv-01110- 23 FMO (KSx). 24 25 26 27 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 how it is generated, stored or maintained) or tangible things 28 3 [Proposed] Protective Order 1 that qualify for protection under Federal Rule of Civil Procedure 26(c), and 2 as specified above in the Good Cause Statement. 3 4 5 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 6 information or items that it produces in disclosures or in responses to 7 discovery as “CONFIDENTIAL.” 8 2.6 Disclosure or Discovery Material: all items or information, 9 regardless of the medium or manner in which it is generated, stored, or 10 maintained (including, among other things, testimony, transcripts, and 11 tangible things), that are produced or generated in disclosures or responses 12 to discovery in this matter. 13 2.7 Expert: a person with specialized knowledge or experience in a 14 matter pertinent to the litigation who has been retained by a Party or its 15 counsel to serve as an expert witness or as a consultant in this Action. 16 2.8 House Counsel: attorneys who are employees of a party to this 17 Action. House Counsel does not include Outside Counsel of Record or any 18 other outside counsel. 19 20 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 21 2.10 Outside Counsel of Record: attorneys who are not employees of 22 a party to this Action but are retained to represent or advise a party to this 23 Action and have appeared in this Action on behalf of that party or are 24 affiliated with a law firm which has appeared on behalf of that party, and 25 includes support staff. 26 2.11 Party: any party to this Action, including all of its officers, 27 directors, employees, consultants, retained experts, and Outside Counsel of 28 Record (and their support staffs). 4 [Proposed] Protective Order 1 2 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 3 2.13 Professional Vendors: persons or entities that provide litigation 4 support services (e.g., photocopying, videotaping, translating, preparing 5 exhibits or demonstrations, and organizing, storing, or retrieving data in any 6 form or medium) and their employees and subcontractors. 7 8 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 9 10 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 11 12 13 3. SCOPE 14 The protections conferred by this Stipulation and Order cover not only 15 Protected Material (as defined above), but also (1) any information copied or 16 extracted from Protected Material; (2) all copies, excerpts, summaries, or 17 compilations of Protected Material; and (3) any testimony, conversations, or 18 presentations by Parties or their Counsel that might reveal Protected 19 Material. 20 Any use of Protected Material at trial shall be governed by the orders 21 of the trial judge. This Order does not govern the use of Protected Material 22 at trial. 23 24 25 4. DURATION 26 Once a case proceeds to trial, all of the information that was 27 designated as confidential or maintained pursuant to this protective order 28 becomes public and will be presumptively available to all members of the 5 [Proposed] Protective Order 1 public, including the press, unless compelling reasons supported by specific 2 factual findings to proceed otherwise are made to the trial judge in advance 3 of the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 4 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing 5 documents produced in discovery from “compelling reasons” standard when 6 merits-related documents are part of court record). Accordingly, the terms of 7 this protective order do not extend beyond the commencement of the trial. 8 9 10 11 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for 12 Protection. Each Party or Non-Party that designates information or items for 13 protection under this Order must take care to limit any such designation to 14 specific material that qualifies under the appropriate standards. The 15 Designating Party must designate for protection only those parts of material, 16 documents, items, or oral or written communications that qualify so that 17 other portions of the material, documents, items, or communications for 18 which protection is not warranted are not swept unjustifiably within the 19 ambit of this Order. 20 Mass, indiscriminate, or routinized designations are prohibited. 21 Designations that are shown to be clearly unjustified or that have been made 22 for an improper purpose (e.g., to unnecessarily encumber the case 23 development process or to impose unnecessary expenses and burdens on 24 other parties) may expose the Designating Party to sanctions. 25 If it comes to a Designating Party’s attention that information or items 26 that it designated for protection do not qualify for protection, that 27 Designating Party must promptly notify all other Parties that it is 28 withdrawing the inapplicable designation. 6 [Proposed] Protective Order 1 5.2 Manner and Timing of Designations. Except as otherwise 2 provided in this Order (see, e.g., second paragraph of section 5.2(a) below), 3 or as otherwise stipulated or ordered, Disclosure or Discovery Material that 4 qualifies for protection under this Order must be clearly so designated before 5 the material is disclosed or produced. 6 Designation in conformity with this Order requires: 7 (a) for information in documentary form (e.g., paper or electronic 8 documents, but excluding transcripts of depositions or other pretrial or trial 9 proceedings), that the Producing Party affix at a minimum, the legend 10 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page 11 that contains protected material. If only a portion or portions of the material 12 on a page qualifies for protection, the Producing Party also must clearly 13 identify the protected portion(s) (e.g., by making appropriate markings in the 14 margins). 15 A Party or Non-Party that makes original documents available for 16 inspection need not designate them for protection until after the inspecting 17 Party has indicated which documents it would like copied and produced. 18 During the inspection and before the designation, all of the material made 19 available for inspection shall be deemed “CONFIDENTIAL.” After the 20 inspecting Party has identified the documents it wants copied and produced, 21 the Producing Party must determine which documents, or portions thereof, 22 qualify for protection under this order. then, before producing the specified 23 documents, the Producing Party must affix the “CONFIDENTIAL legend” 24 to each page that contains Protected Material. If only a portion or portions of 25 the material on a page qualifies for protection, the Producing Party also must 26 clearly identify the protected portion(s) (e.g., by making appropriate 27 markings in the margins). 28 7 [Proposed] Protective Order 1 (b) for testimony given in depositions that the Designating Party 2 identify the Disclosure or Discovery Material on the record, before the close 3 of the deposition all protected testimony. 4 (c) for information produced in some form other than 5 documentary and for any other tangible items, that the Producing Party affix 6 in a prominent place on the exterior of the container or containers in which 7 the information is stored the legend “CONFIDENTIAL.” If only a portion or 8 portions of the information warrants protection, the Producing Party, to the 9 extent practicable, shall identify the protected portion(s). 10 5.3 Inadvertent Failures to Designate. If timely corrected, an 11 inadvertent failure to designate qualified information or items does not, 12 standing alone, waive the Designating Party’s right to secure protection 13 under this Order for such material. Upon timely correction of a designation, 14 the Receiving Party must make reasonable efforts to assure that the material 15 is treated in accordance with the provisions of this Order. 16 17 18 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 20 designation of confidentiality at any time that is consistent with the Court’s 21 Scheduling Order. 22 23 24 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 25 shall be on the Designating Party. Frivolous challenges, and those made for 26 an improper purpose (e.g., to harass or impose unnecessary expenses and 27 burdens on other parties) may expose the Challenging Party to sanctions. 28 Unless the Designating Party has waived or withdrawn the confidentiality 8 [Proposed] Protective Order 1 designation, all parties shall continue to afford the material in question the 2 level of protection to which it is entitled under the Producing Party’s 3 designation until the Court rules on the challenge. 4 5 6 7 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material 8 that is disclosed or produced by another Party or by a Non-Party in 9 connection with this Action only for prosecuting, defending, or attempting to 10 settle this Action. Such Protected Material may be disclosed only to the 11 categories of persons and under the conditions described in this Order. When 12 the Action has been terminated, a Receiving Party must comply with the 13 provisions of section 13 below (FINAL DISPOSITION). 14 Protected Material must be stored and maintained by a Receiving 15 Party at a location and in a secure manner that ensures that access is limited 16 to the persons authorized under this Order. 17 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 18 otherwise ordered by the court or permitted in writing by the Designating 19 Party, a Receiving Party may disclose any information or item designated 20 “CONFIDENTIAL” only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this 22 Action, as well as employees of said Outside Counsel of Record to whom it 23 is reasonably necessary to disclose the information for this Action; 24 (b) the officers, directors, and employees (including House 25 Counsel) of the Receiving Party to whom disclosure is reasonably necessary 26 for this Action; 27 28 9 [Proposed] Protective Order 1 (c) Experts (as defined in this Order) of the Receiving Party to 2 whom disclosure is reasonably necessary for this Action and who have 3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (d) the court and its personnel; 5 (e) court reporters and their staff; 6 (f) professional jury or trial consultants, mock jurors, and 7 Professional Vendors to whom disclosure is reasonably necessary for this 8 Action and who have signed the “Acknowledgment and Agreement to Be 9 Bound” (Exhibit A); 10 (g) the author or recipient of a document containing the 11 information or a custodian or other person who otherwise possessed or knew 12 the information; 13 (h) during their depositions, witnesses, and attorneys for 14 witnesses, in the Action to whom disclosure is reasonably necessary 15 provided: (1) the deposing party requests that the witness sign the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A); and (2) they 17 will not be permitted to keep any confidential information unless they sign 18 the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 19 otherwise agreed by the Designating Party or ordered by the court. Pages of 20 transcribed deposition testimony or exhibits to depositions that reveal 21 Protected Material may be separately bound by the court reporter and may 22 not be disclosed to anyone except as permitted under this Stipulated 23 Protective Order; and 24 (i) any mediator or settlement officer, and their supporting 25 personnel, mutually agreed upon by any of the parties engaged in settlement 26 discussions. 27 28 10 [Proposed] Protective Order 1 8. 2 PRODUCED IN OTHER LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED 3 If a Party is served with a subpoena or a court order issued in other 4 litigation that compels disclosure of any information or items designated in 5 this Action as “CONFIDENTIAL,” that Party must: 6 7 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena 9 or order to issue in the other litigation that some or all of the material 10 covered by the subpoena or order is subject to this Protective Order. Such 11 notification shall include a copy of this Stipulated Protective Order; and 12 (c) cooperate with respect to all reasonable procedures sought to 13 be pursued by the Designating Party whose Protected Material may be 14 affected. If the Designating Party timely seeks a protective order, the Party 15 served with the subpoena or court order shall not produce any information 16 designated in this action as “CONFIDENTIAL” before a determination by 17 the court from which the subpoena or order issued, unless the Party has 18 obtained the Designating Party’s permission. The Designating Party shall 19 bear the burden and expense of seeking protection in that court of its 20 confidential material and nothing in these provisions should be construed as 21 authorizing or encouraging a Receiving Party in this Action to disobey a 22 lawful directive from another court. 23 24 25 9. 26 PRODUCED IN THIS LITIGATION A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 27 (a) The terms of this Order are applicable to information produced 28 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such 11 [Proposed] Protective Order 1 information produced by Non-Parties in connection with this litigation is 2 protected by the remedies and relief provided by this Order. Nothing in these 3 provisions should be construed as prohibiting a Non-Party from seeking 4 additional protections. 5 (b) In the event that a Party is required, by a valid discovery 6 request, to produce a Non-Party’s confidential information in its possession, 7 and the Party is subject to an agreement with the Non-Party not to produce 8 the Non-Party’s confidential information, then the Party shall: 9 (1) promptly notify in writing the Requesting Party and the 10 Non-Party that some or all of the information requested is subject to a 11 confidentiality agreement with a Non-Party; 12 (2) promptly provide the Non-Party with a copy of the 13 Stipulated Protective Order in this Action, the relevant discovery request(s), 14 and a reasonably specific description of the information requested; and 15 16 (3) make the information requested available for inspection by the Non-Party, if requested. 17 (c) If the Non-Party fails to seek a protective order from this 18 court within 14 days of receiving the notice and accompanying information, 19 the Receiving Party may produce the Non-Party’s confidential information 20 responsive to the discovery request. If the Non-Party timely seeks a 21 protective order, the Receiving Party shall not produce any information in its 22 possession or control that is subject to the confidentiality agreement with the 23 Non-Party before a determination by the court. Absent a court order to the 24 contrary, the Non-Party shall bear the burden and expense of seeking 25 protection in this court of its Protected Material. 26 27 28 12 [Proposed] Protective Order 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has 3 disclosed Protected Material to any person or in any circumstance not 4 authorized under this Stipulated Protective Order, the Receiving Party must 5 immediately (a) notify in writing the Designating Party of the unauthorized 6 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 7 Protected Material, (c) inform the person or persons to whom unauthorized 8 disclosures were made of all the terms of this Order, and (d) request such 9 person or persons to execute the “Acknowledgment and Agreement to Be 10 Bound” that is attached hereto as Exhibit A. 11 12 13 11. 14 OTHERWISE PROTECTED MATERIAL 15 INADVERTENT PRODUCTION OF PRIVILEGED OR When a Producing Party gives notice to Receiving Parties that certain 16 inadvertently produced material is subject to a claim of privilege or other 17 protection, the obligations of the Receiving Parties are those set forth in 18 Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended 19 to modify whatever procedure may be established in an e-discovery order 20 that provides for production without prior privilege review. Pursuant to 21 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an 22 agreement on the effect of disclosure of a communication or information 23 covered by the attorney-client privilege or work product protection, the 24 parties may incorporate their agreement in the stipulated protective order 25 submitted to the court. 26 27 28 13 [Proposed] Protective Order 1 12. 2 3 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. 4 12.2 Right to Assert Other Objections. By stipulating to the entry of 5 this Protective Order no Party waives any right it otherwise would have to 6 object to disclosing or producing any information or item on any ground not 7 addressed in this Stipulated Protective Order. Similarly, no Party waives any 8 right to object on any ground to use in evidence of any of the material 9 covered by this Protective Order. 10 12.3 Filing Protected Material. A Party that seeks to file under seal 11 any Protected Material must comply with Civil Local Rule 79-5. Protected 12 Material may only be filed under seal pursuant to a court order authorizing 13 the sealing of the specific Protected Material at issue. If a Party's request to 14 file Protected Material under seal is denied by the court, then the Receiving 15 Party may file the information in the public record unless otherwise 16 instructed by the court. 17 18 19 13. FINAL DISPOSITION 20 After the final disposition of this Action, as defined in paragraph 4, 21 within 60 days of a written request by the Designating Party, each Receiving 22 Party must return all Protected Material to the Producing Party or destroy 23 such material. As used in this subdivision, “all Protected Material” includes 24 all copies, abstracts, compilations, summaries, and any other format 25 reproducing or capturing any of the Protected Material. Whether the 26 Protected Material is returned or destroyed, the Receiving Party must submit 27 a written certification to the Producing Party (and, if not the same person or 28 entity, to the Designating Party) by the 60 day deadline that (1) identifies 14 [Proposed] Protective Order 1 (by category, where appropriate) all the Protected Material that was returned 2 or destroyed and (2)affirms that the Receiving Party has not retained any 3 copies, abstracts, compilations, summaries or any other format reproducing 4 or capturing any of the Protected Material. Notwithstanding this provision, 5 Counsel are entitled to retain an archival copy of all pleadings, motion 6 papers, trial, deposition, and hearing transcripts, legal memoranda, 7 correspondence, deposition and trial exhibits, expert reports, attorney work 8 product, and consultant and expert work product, even if such materials 9 contain Protected Material. Any such archival copies that contain or 10 constitute Protected Material remain subject to this Protective Order as set 11 forth in Section 4 (DURATION). 12 13 14 14. 15 appropriate measures including, without limitation, contempt proceedings 16 and/or monetary sanctions. Any violation of this Order may be punished by any and all 17 18 19 20 DATED: April 10, 2017 21 ______________________________ 22 KAREN L. STEVENSON 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 15 [Proposed] Protective Order 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ________________________ [print or type full name], 4 of__________________________ 5 penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Central 7 District of California on ______ in the case of Gary Scherer v. City of Los 8 Angeles; Los Angeles World Airports; Pacific Coast Sightseeing Tours and 9 Charters, Inc., Case No.: 2:17-cv-01110-FMO (KS). I agree to comply with and to 10 be bound by all the terms of this Stipulated Protective Order and I understand and 11 acknowledge that failure to so comply could expose me to sanctions and 12 punishment in the nature of contempt. I solemnly promise that I will not disclose 13 in any manner any information or item that is subject to this Stipulated Protective 14 Order to any person or entity except in strict compliance with the provisions of 15 this Order. [print or type full address], declare under 16 I further agree to submit to the jurisdiction of the United States District 17 Court for the Central District of California for the purpose of enforcing the terms 18 of this Stipulated Protective Order, even if such enforcement proceedings occur 19 after termination of this action. I hereby appoint __________________________ 20 [print or type full name] of ___________________________ [print or type full 21 address and telephone number] as my California agent for service of process in 22 connection with this action or any proceedings related to enforcement of this 23 Stipulated Protective Order. 24 25 Date: ______________________________________ 26 City and State where sworn and signed: _____________________________ 27 Printed name: _______________________________ 28 Signature: __________________________________ 16 [Proposed] Protective Order

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