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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DISCOVERY MATTER

Plaintiff,

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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.

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[Proposed] Protective Order

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By agreement of the parties hereto, pursuant to the Joint Stipulation

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filed concurrently herewith, and for good cause shown, it is hereby

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ORDERED:

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1.

A. PURPOSES AND LIMITATIONS

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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

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may be warranted. Accordingly, the parties hereby stipulate to and petition

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the Court to enter the following Stipulated Protective Order. The parties

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acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items

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that are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section 12.3,

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below, that this Stipulated Protective Order does not entitle them to file

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confidential information under seal; Civil Local Rule 79-5 sets forth the

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

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when a party seeks permission from the court to file material under seal.

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B. GOOD CAUSE STATEMENT

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This action is likely to involve information: (1) regarding or relating

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to the medical condition or ability of Plaintiff Gary Scherer; and (2)

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regarding or relating to the contents of Defendants’ employee personnel

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files.

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purpose other than prosecution of this action is warranted. Such confidential

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materials and information consist of, among other things, medical records,

Special protection from public disclosure and from use for any

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[Proposed] Protective Order

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summaries

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information; and information otherwise generally unavailable to the public,

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or which may be privileged or otherwise protected from disclosure under

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state or federal statutes, court rules, case decisions, or common law.

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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

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adequately protect information the parties are entitled to keep confidential,

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to ensure that the parties are permitted reasonable necessary uses of such

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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

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protective order for such information is justified in this matter. It is the intent

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

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

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that it has been maintained in a confidential, non-public manner, and there is

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good cause why it should not be part of the public record of this case.

and

information;

disciplinary

records,

summaries

and

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2.

DEFINITIONS
2.1

Action: the federal lawsuit filed by Plaintiff Gary Scherer

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against Defendants City of Los Angeles, Los Angeles World Airports,

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Pacific Coast Sightseeing Tours and Charters, Inc.; on February 10, 2017 in

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the Central District of California and reflecting case number 2:17-cv-01110-

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FMO (KSx).

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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

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[Proposed] Protective Order

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that qualify for protection under Federal Rule of Civil Procedure 26(c), and

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as specified above in 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

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information or items that it produces in disclosures or in responses to

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discovery as “CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and

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tangible things), that are produced or generated in disclosures or responses

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to discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a

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

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counsel to serve as an expert witness or as a consultant in this Action.

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2.8

House Counsel: attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or any

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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

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

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Action and have appeared in this Action on behalf of that party or are

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affiliated with a law firm which has appeared on behalf of that party, and

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includes support staff.

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

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directors, employees, consultants, retained experts, and Outside Counsel of

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Record (and their support staffs).

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[Proposed] Protective Order

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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

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exhibits or demonstrations, and organizing, storing, or retrieving data in any

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form or medium) 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
Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected

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Material.

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

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

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at trial.

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4.

DURATION

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Once a case proceeds to trial, all of the information that was

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designated as confidential or maintained pursuant to this protective order

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becomes public and will be presumptively available to all members of the

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[Proposed] Protective Order

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public, including the press, unless compelling reasons supported by specific

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factual findings to proceed otherwise are made to the trial judge in advance

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of the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172,

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1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing

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documents produced in discovery from “compelling reasons” standard when

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

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

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify so that

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other portions of the material, documents, items, or communications for

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which protection is not warranted are not swept unjustifiably within the

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ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have been made

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for an improper purpose (e.g., to unnecessarily encumber the case

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development process or to impose unnecessary expenses and burdens on

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other parties) may expose the Designating Party to sanctions.

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

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that it designated for protection do not qualify for protection, that

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Designating Party must promptly notify all other Parties that it is

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withdrawing the inapplicable designation.

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[Proposed] Protective Order

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5.2

Manner and Timing of Designations. Except as otherwise

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provided in this Order (see, e.g., second paragraph of section 5.2(a) below),

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or as otherwise stipulated or ordered, Disclosure or Discovery Material that

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qualifies for protection under this Order must be clearly so designated before

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the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(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

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that contains protected material. If only a portion or portions of the material

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on a page qualifies for protection, the Producing Party also must clearly

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

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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

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Party has indicated which documents it would like copied and produced.

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During the inspection and before the designation, all of the material made

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available for inspection shall be deemed “CONFIDENTIAL.” After the

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inspecting Party has identified the documents it wants copied and produced,

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the Producing Party must determine which documents, or portions thereof,

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qualify for protection under this order. then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL legend”

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to each page that contains Protected Material. If only a portion or portions of

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the material on a page qualifies for protection, the Producing Party also must

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clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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[Proposed] Protective Order

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(b) for testimony given in depositions that the Designating Party

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identify the Disclosure or Discovery Material on the record, before the close

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of the deposition all protected testimony.

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(c) for information produced in some form other than

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documentary and for any other tangible items, that the Producing Party affix

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in a prominent place on the exterior of the container or containers in which

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the information is stored the legend “CONFIDENTIAL.” If only a portion or

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portions of the information warrants protection, the Producing Party, to the

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

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5.3

Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items does not,

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standing alone, waive the Designating Party’s right to secure protection

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under this Order for such material. Upon timely correction of a designation,

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the Receiving Party must make reasonable efforts to assure that the material

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is treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the

dispute resolution process under Local Rule 37.1 et seq.
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The burden of persuasion in any such challenge proceeding

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shall be on the Designating Party. Frivolous challenges, and those made for

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an improper purpose (e.g., to harass or impose unnecessary expenses and

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burdens on other parties) may expose the Challenging Party to sanctions.

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Unless the Designating Party has waived or withdrawn the confidentiality

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[Proposed] Protective Order

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designation, all parties shall continue to afford the material in question the

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level of protection to which it is entitled under the Producing Party’s

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designation until the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material

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that is disclosed or produced by another Party or by a Non-Party in

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connection with this Action only for prosecuting, defending, or attempting to

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

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categories of persons and under the conditions described in this Order. When

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the Action has been terminated, a Receiving Party must comply with the

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provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving

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Party at a location and in a secure manner that ensures that access is limited

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to the persons 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

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Party, a 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

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Action, as well as employees of said Outside Counsel of Record to whom it

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is reasonably necessary to disclose the information for this Action;

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(b) the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary

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for this Action;

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[Proposed] Protective Order

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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

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signed the “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

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Action and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit 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

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the information;

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(h) during their depositions, witnesses, and attorneys for

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witnesses, in the Action to whom disclosure is reasonably necessary

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provided: (1) the deposing party requests that the witness sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A); and (2) they

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will not be permitted to keep any confidential information unless they sign

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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

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Protected Material may be separately bound by the court reporter and may

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not be disclosed to anyone except as permitted under this Stipulated

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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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[Proposed] Protective Order

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8.

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PRODUCED IN OTHER LITIGATION

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

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

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litigation that compels disclosure of any information or items designated in

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this Action as “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;

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(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

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covered by the subpoena or order is subject to this Protective Order. Such

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notification shall include a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to

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be pursued by the Designating Party whose Protected Material may be

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affected. If the Designating Party timely seeks a protective order, the Party

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served with the subpoena or court order shall not produce any information

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designated in this action as “CONFIDENTIAL” before a determination by

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the court from which the subpoena or order issued, unless the Party has

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obtained the Designating Party’s permission. The Designating Party shall

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bear the burden and expense of seeking protection in that court of its

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confidential material and nothing in these provisions should be construed as

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authorizing or encouraging a Receiving Party in this Action to disobey a

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lawful directive from another court.

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9.

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PRODUCED IN THIS LITIGATION

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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(a) 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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[Proposed] Protective Order

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

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

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

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additional 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,

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

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the Non-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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Stipulated Protective Order in this Action, the relevant discovery request(s),

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and a reasonably 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

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

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

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responsive to the discovery request. If the Non-Party timely seeks a

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protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the

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

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

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protection in this court of its Protected Material.

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[Proposed] Protective Order

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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

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authorized under this Stipulated Protective Order, the Receiving Party must

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immediately (a) notify in writing the Designating Party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (d) request such

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person or persons to execute the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A.

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11.

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OTHERWISE PROTECTED MATERIAL

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INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

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

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

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to modify whatever procedure may be established in an e-discovery order

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that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an

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agreement on the effect of disclosure of a communication or information

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covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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[Proposed] Protective Order

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12.

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

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

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12.2 Right to Assert Other Objections. By stipulating to the entry of

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this Protective Order no Party waives any right it otherwise would have to

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object to disclosing or producing any information or item on any ground not

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addressed in this Stipulated Protective Order. Similarly, no Party waives any

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

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covered by this Protective Order.

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12.3 Filing Protected Material. A Party that seeks to file under seal

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any Protected Material must comply with Civil Local Rule 79-5. Protected

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Material may only be filed under seal pursuant to a court order authorizing

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the sealing of the specific Protected Material at issue. If a Party's request to

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file Protected Material under seal is denied by the court, then the Receiving

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Party may file the information in the public record unless otherwise

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instructed by the court.

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13.

FINAL DISPOSITION

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

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

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Party must return all Protected Material to the Producing Party or destroy

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such material. As used in this subdivision, “all Protected Material” includes

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all copies, abstracts, compilations, summaries, and any other format

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reproducing or capturing any of the Protected Material. Whether the

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Protected Material is returned or destroyed, the Receiving Party must submit

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

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entity, to the Designating Party) by the 60 day deadline that (1) identifies

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[Proposed] Protective Order

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

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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

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

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

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papers, trial, deposition, and hearing transcripts, legal memoranda,

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

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product, and consultant and expert work product, even if such materials

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contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set

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forth in Section 4 (DURATION).

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14.

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appropriate measures including, without limitation, contempt proceedings

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and/or monetary sanctions.

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

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DATED: April 10, 2017

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______________________________

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KAREN L. STEVENSON

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UNITED STATES MAGISTRATE JUDGE

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[Proposed] Protective Order

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

________________________

[print

or

type

full

name],

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of__________________________

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

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

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District of California on ______ in the case of Gary Scherer v. City of Los

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Angeles; Los Angeles World Airports; Pacific Coast Sightseeing Tours and

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Charters, Inc., Case No.: 2:17-cv-01110-FMO (KS). I agree to comply with and to

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be bound by all the terms of this Stipulated 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 Stipulated Protective

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

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this Order.

[print or type full address], declare under

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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 Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action. I hereby appoint __________________________

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[print or type full name] of ___________________________ [print or type full

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address and telephone number] as my California agent for service of process in

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

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Stipulated 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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[Proposed] Protective Order