Jeffrey Goodin v. City of Glendora et al

Filing 34

STIPULATED PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams. 33 (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No.: 2:17-cv-03567-FMO-PLAx

JEFFREY GOODIN,

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Plaintiff,

STIPULATED PROTECTIVE
ORDER

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v.
Trial Date:

7/24/2018

CITY OF GLENDORA;
DETECTIVE CRAWFORD;
DETECTIVE ZIINO;
LIEUTENANT DEMOND;
SERGEANT AMARO; OFFICER
STEIN; OFFICER HOWELL;
SERGEANT BARRETT;
SERGEANT GOLD; and, DOES 1
through 25, inclusive,
Defendants.

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A. PURPOSES AND LIMITATIONS

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

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private information for which special protection from public disclosure and from use
[PROPOSED] STIPULATED PROTECTIVE ORDER

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for any purpose other than prosecuting this litigation may be warranted. Accordingly,

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the parties hereby stipulate to and petition the Court to enter the following Stipulated

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Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it

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affords from public disclosure and use extends only to the limited information

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or items 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, below, that

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this Stipulated Protective Order does not entitle them to file confidential information

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under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and

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the standards that will be applied when a party seeks permission from the court to file

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material under seal.
B. GOOD CAUSE STATEMENT

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1.1

Defendants' Contentions.

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Defendants contend that there is good cause and a particularized need for a

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protective order to preserve the interests of confidentiality and privacy in peace officer

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personnel file records and associated investigative or confidential records for the

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following reasons. Plaintiff does not agree with and does not stipulate to defendants'

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contentions in this section below.

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First, defendants contend that peace officers have a federal privilege of

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privacy in their personnel file records: a reasonable expectation of privacy therein that

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is underscored, specified, and arguably heightened by the Pitchess protective

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procedure of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 1027,

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1033-1034 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 14665,

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*2-3, 12-13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law applies to

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privilege based discovery disputes involving federal claims,” the “state privilege law

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which is consistent with its federal equivalent significantly assists in applying

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[federal] privilege law to discovery disputes”); Soto v. City of Concord, 162 F.R.D.

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603, 613 n. 4, 616 (N.D. Cal. 1995) (peace officers have constitutionally-based
[PROPOSED] STIPULATED PROTECTIVE ORDER

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“privacy rights [that] are not inconsequential” in their police personnel records); cf.

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Cal. Penal Code §§ 832.7, 832.8; Cal. Evid. Code §§ 1040-1047. Under California

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law, peace officer personnel file information is presumed confidential and such may

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not be discovered or disclosed absent a Pitchess Order. See, e.g., Warrick v. Superior

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Ct., 35 Cal.4th 1011 (2005); City of Hemet v. Superior Ct. (1995) 37 Cal.App.4th

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1411. Defendants further contend that uncontrolled disclosure of such personnel file

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information and/or certain investigative information can threaten the safety of non-

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party witnesses, officers, and their families/associates; accordingly, such information

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is also subject to various privileges. See, e.g., Cal. Gov. Code § 6254(f) (law

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enforcement investigative privilege); Cal. Evid. Code §§ 952-954 (attorney-client

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privilege); cf. Cal. R. Ct. 1.20(b) (mandatory privacy protections in public court

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records); U.S. Const., amend V, XIV.

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Second, defendants contend that municipalities and law enforcement agencies

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have federal deliberative-executive process privilege, federal official information

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privilege, federal law enforcement privilege, and federal attorney-client privilege

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(and/or attorney work-product protection) interests in the personnel files of their peace

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officers – particularly as to those portions of peace officer personnel files that contain

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critical self-analysis, internal deliberation/decision-making or evaluation/analysis, or

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communications for the purposes of obtaining or rendering legal advice or analysis –

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potentially including but not limited to evaluative/analytical portions of Internal

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Affairs type records or reports, evaluative/analytical portions of supervisory records or

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reports, and/or reports prepared at the direction of counsel, or for the purpose of

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obtaining or rendering legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa

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Audubon Soc’y v. United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir.

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1997); Soto, 162 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654,

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668-671 (N.D. Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998);

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Hamstreet v. Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co.

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v. United States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants
[PROPOSED] STIPULATED PROTECTIVE ORDER

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further contend that such personnel file records are restricted from disclosure by the

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public entity’s custodian of records pursuant to applicable California law and that

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uncontrolled release is likely to result in needless intrusion of officer privacy;

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impairment in the collection of third-party witness information and statements and

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related legitimate law enforcement investigations/interests; and a chilling of open and

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honest discussion regarding and/or investigation into alleged misconduct that can

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erode a public entity’s ability to identify and/or implement any remedial measures

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that may be required.

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Third, defendants contend that, since peace officers do not have the same

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rights as other private citizens to avoid giving compelled statements, it is contrary to

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the fundamental principles of fairness to permit uncontrolled release of officers’

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compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 822,

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828-830 (1985); cf. U.S. Const., amend V.

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1.2.

Plaintiff does not agree with and does not stipulate to defendants'

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contention herein above, and nothing in this Stipulation or its associated Order shall

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resolve the parties’ disagreement, or bind them, concerning the legal statements and

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claimed privileges set forth above.

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1.3.

The parties jointly contend that there is typically a particularized need

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for protection as to any medical or psychotherapeutic records, because of the privacy

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interests at stake therein. Because of these sensitive interests, a Court Order should

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address these documents rather than a private agreement between the parties.

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1.4.

The parties therefore stipulate that there is Good Cause for, and hereby

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jointly request that the Honorable Court issue/enter, a Protective Order re confidential

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documents consistent with the terms and provisions of this Stipulation. However, the

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entry of a Protective Order by the Court pursuant to this Stipulation shall not be

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construed as any ruling by the Court on the aforementioned legal statements or

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privilege claims in this section, nor shall this section be construed as part of any such

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Court Order.
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Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately

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protect information the parties are entitled to keep confidential, to ensure that the

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parties are permitted reasonable necessary uses of such material in preparation for and

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in the conduct of trial, to address their handling at the end of the litigation, and serve

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the ends of justice, a protective order for such information is justified in this matter. It

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is the intent 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 that it

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has been maintained in a confidential, non-public manner, and there is good cause

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

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2.

DEFINITIONS

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2.1

Action: [this pending federal law suit]. [*Option: consolidated or related

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actions.]
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

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how it is generated, stored or maintained) or tangible things that qualify for protection

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under Federal Rule of Civil Procedure 26(c), and as specified above in the Good

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Cause Statement.

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2.4

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their support staff).

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2.5

Counsel: Outside Counsel of Record and House Counsel (as well as
Designating Party: a Party or Non-Party that designates information or

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

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information, regardless of

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the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.
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2.7

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an

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expert witness or as a consultant in this Action.

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

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House Counsel does not include Outside Counsel of Record or any other outside

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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.
2.10 Outside Counsel of Record: attorneys who are not employees of a party

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

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appeared in this Action on behalf of that party or are affiliated with a law firm that has

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appeared on behalf of that party, including support staff.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
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 extracted
[PROPOSED] STIPULATED PROTECTIVE ORDER

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

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Protected Material; and (3) any testimony, conversations, or presentations by Parties

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or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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Once a case proceeds to trial, all of the court-filed information to be

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introduced that was previously designated as confidential or maintained pursuant to

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this protective order becomes public and will be presumptively available to all

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members of the public, including the press, unless compelling reasons supported by

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

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the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th

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Cir. 2006) (distinguishing “good cause” showing for sealing documents produced

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

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

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beyond the commencement of the trial.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards.

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The Designating Party must designate for protection only those parts of

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material, 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 which

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protection is not warranted are not swept unjustifiably within the ambit of this Order.

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

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shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

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to unnecessarily encumber the case development process or to impose unnecessary

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expenses and burdens on 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 that it

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

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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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 documents,

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but excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix, at a minimum, the legend “CONFIDENTIAL” (hereinafter

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“CONFIDENTIAL legend”), to each page that contains protected material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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

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markings in the margins).

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

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and before

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the designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order. Then, before producing the

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specified 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 the

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

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Disclosure or Discovery Material on the record, before the close of the deposition.

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(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information warrants

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protection, the Producing Party, to the extent practicable, shall identify the protected

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portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material.

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Upon timely correction of a designation, the Receiving Party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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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

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resolution process under Local Rule 37.1, et seq. Any discovery motion must strictly

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comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3.

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6.3

Burden. 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 an

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

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other parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall
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continue to afford the material in question the level of protection to which it is entitled

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under the Producing Party’s designation until the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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conditions described in this Order. When the Action has been terminated, a Receiving

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Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location

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and in a secure manner that ensures that access is limited to the persons authorized

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under this Order.
7.2

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Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”

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only to:

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(a)

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

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

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disclose the information for this Action;

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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this Action and who have signed the

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

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(d) the Court and its personnel;

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(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional

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Vendors to 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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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the

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

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requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed

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by the Designating Party or ordered by the Court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material may be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order; and (i) any mediator or settlement officer, and

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their supporting personnel, mutually agreed upon by any of the parties engaged in

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settlement discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena or

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order is subject to this Protective Order. Such notification shall include a copy of this

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Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

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

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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

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

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disobey a lawful directive from another court.
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 Non-

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Party in this Action and designated as “CONFIDENTIAL.” Such information

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

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remedies and relief provided by this Order.

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Nothing in these provisions should be construed as prohibiting a Non-Party
from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to

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produce a Non- Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement

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with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated

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

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specific description of the information requested; and
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(3) make the information requested available for inspection by the

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Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this Court

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

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

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

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Party shall not produce any information in its possession or control that is subject to

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the confidentiality agreement with the Non-Party before a determination by the Court.

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Absent a court order to the contrary, the Non-Party shall bear the burden and expense

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of seeking protection in this Court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this

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Order, and (d) request such person or persons to execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR

OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without prior

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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

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parties reach an agreement on the effect of disclosure of a communication or
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information 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 submitted to

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the Court.

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12.

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

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MISCELLANEOUS

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

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

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any of the material covered by this Protective Order.

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

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

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only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue; good cause must be shown in the request to file

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under seal. If a Party’s request to file Protected Material under seal is denied by the

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Court, then the Receiving Party may file the information in the public record unless

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otherwise instructed by the Court.

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13.

FINAL DISPOSITION

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After the final disposition of this Action, within 60 days of a written request

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by the Designating Party, each Receiving Party must return all Protected Material to

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the Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and any

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other format 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 a written

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

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

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where appropriate) all the Protected Material that was returned or destroyed and (2)
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affirms that the Receiving Party has not retained any copies, abstracts, compilations,

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summaries or any other format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, counsel are entitled to retain an archival copy of all

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

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

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

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Material. Any such archival copies that contain or constitute Protected Material

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remain subject to this Protective Order as set forth in Section 4 (DURATION).

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Respectfully submitted,

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Date: December 5, 2017

THE LAW OFFICE OF KEVIN S. CONLOGUE
By: /s/Kevin S. Conlogue
Kevin S. Conlogue, Attorney for Plaintiff, JEFFREY
GOODIN

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Date: December 5, 2017

Law Office of D. Wayne Leech a Professional
Corporation
By: /s/ D. Wayne Leech
D. Wayne Leech, Attorney for Defendants CITY OF
GLENDORA, DETECTIVE CRAWFORD,
DETECTIVE ZIINO, LIEUTENANT DEMOND,
OFFICER STEIN, OFFICER HOWELL,
SERGEANT BARRETT, and SERGEANT GOLD

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: December 12, 2017

________________________
Paul L. Abrams
United States Magistrate Judge

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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