Bryan E. Kaye v. Jerry Brown et al

Filing 28

PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION by Magistrate Judge Jacqueline Chooljian. See order for details. (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BRYAN E. KAYE,
Plaintiff,

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v.

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JERRY BROWN, WILLIAM H.
SEGLETES; KERRY P. CONDON;
ANAEIM POLICE DEPARTMENT;
CITY OF ANAHEIM; JOHN
MOORLACH; and DOES 1-5,

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Case No.:

2:17-cv-04225-SVW (JCx)

Assigned to Hon. Stephen V. Wilson
Ctrm 10A
PROTECTIVE ORDER RE
CONFIDENTIAL INFORMATION

Defendants.

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[Discovery Document: Referred to
Magistrate Judge Jacqueline Chooljian]

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1.

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As Defendant City of Anaheim has represented that discovery in this

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action is likely to involve production of confidential, proprietary, or private

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information for which special protection from public disclosure and from use for

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any purpose other than prosecuting this litigation may be warranted, this Court

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enters the following Protective Order. This Order does not confer blanket

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protections on all disclosures or responses to discovery. The protection it affords

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from 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 principles.

A. PURPOSES AND LIMITATIONS

Case No. 2:17-cv-04225-SVW (JCx)

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Further, as set forth in Section 12.3, below, this Protective Order does not entitle

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the parties to file confidential information under seal. Rather, when the parties

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seek permission from the court to file material under seal, the parties must

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comply with Civil Local Rule 79-5 and with any pertinent orders of the assigned

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District Judge and Magistrate Judge.

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B. GOOD CAUSE STATEMENT

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This action is likely to involve materials and information that were

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acquired in confidence by public employees in the course of their duties and has

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not been officially disclosed or made open or available to the public. Such

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confidential materials and information consist of, among other things: (1) law

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enforcement investigative reports, records and other digital materials concerning

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the subject incident or plaintiff's prior interactions with law enforcement, which

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may contain personal contact information of third party witnesses and alleged

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crime victims, including but not limited to reports, memoranda or other

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documents prepared by the Anaheim Police Department and/or other law

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enforcement agencies. Such confidential materials and information are generally

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unavailable to the public, and may be privileged or otherwise protected from

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disclosure under state or federal statutes, court rules, case decisions, or common

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law. Accordingly, in order to expedite the flow of information, to facilitate the

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prompt resolution of disputes over confidentiality of discovery materials, to

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adequately protect information the parties are entitled to keep confidential, to

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ensure that the parties are permitted reasonable necessary uses of such material in

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connection with this action, to address their handling of such material at the end

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of the litigation, and to serve the ends of justice, a protective order for such

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information is justified in this matter. The parties shall not designate any

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information/documents as confidential without a good faith belief that such

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information/documents have been maintained in a confidential, non-public

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Case No. 2:17-cv-04225-SVW (JCx)

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manner, and that there is good cause or a compelling reason why it should not be

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part of the public record of this case.

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2.

DEFINITIONS

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2.1

Action: this pending federal lawsuit.

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2.2

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

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designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless

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

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

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the Good Cause Statement.
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Counsel: Outside Counsel of Record and House Counsel (as well as

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

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

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information,

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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 tangible

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things), that are produced or generated in disclosures or responses to discovery in

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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 counsel

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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 other

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outside counsel.

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2.9

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Non-Party: any natural person, partnership, corporation,

association, or other legal entity not named as a Party to this action.
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2.10 Outside Counsel of Record: attorneys who are not employees of a

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

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

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law firm which has appeared on behalf of that party, and includes support staff.

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

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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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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation

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

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

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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.

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The protections conferred by this Protective 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 Material,

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other than during a court hearing or at trial. Any use of Protected Material

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during a court hearing or at trial shall be governed by the orders of the presiding

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judge. This Order does not govern the use of Protected Material during a court

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hearing or at trial.

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SCOPE

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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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 Designating

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

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items, or oral or written communications that qualify so that other portions of the

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material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the 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 for

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

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process or to impose unnecessary expenses and burdens on other parties) may

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expose the Designating Party to sanctions.

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

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

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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Case No. 2:17-cv-04225-SVW (JCx)

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5.2

Manner and Timing of Designations. Except as otherwise provided

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

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otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies

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for protection under this Order must be clearly so designated before the material

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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), that the Producing Party

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

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

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

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

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making appropriate markings in the margins).

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

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

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

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

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

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

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

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

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

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Material. If only a portion or portions of the material on a page qualifies for

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

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

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

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

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deposition all protected testimony.
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(c) for information produced in some form other than documentary and

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

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

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

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

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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, standing

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alone, waive the Designating Party’s right to secure protection under this Order

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for such material. Upon timely correction of a designation, the Receiving Party

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must make reasonable efforts to assure that the material is treated in accordance

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with the provisions of this 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

resolution process under Local Rule 37-1 et seq.

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6.3

The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Frivolous challenges, and those made for an improper

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

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

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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Case No. 2:17-cv-04225-SVW (JCx)

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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

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

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

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

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

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

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below (FINAL DISPOSITION).

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

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

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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 Party,

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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 Action, as

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

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necessary to disclose the information for this Action;

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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

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have 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

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party requests that the witness sign the “Acknowledgment and Agreement to Be

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Bound” form attached as Exhibit A hereto; and (2) they will not be permitted to

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keep any confidential information unless they sign the “Acknowledgment and

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Agreement to Be Bound” attached as Exhibit A, unless otherwise agreed by the

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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

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

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as permitted under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions.

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8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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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 this

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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 unless prohibited by law;

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(b) promptly notify in writing the party who caused the subpoena or order

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

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Protective Order; and

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

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

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Case No. 2:17-cv-04225-SVW (JCx)

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

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

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

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which the subpoena or order issued, unless the Party has obtained the

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Designating Party’s permission, or unless otherwise required by the law or court

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order. 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

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provisions should be construed as authorizing or encouraging a Receiving Party

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in this Action to disobey a lawful directive from another court.

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9.

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

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(a) The terms of this Order are applicable to information produced by a

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

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

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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 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 that

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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

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reasonably specific description of the information requested; and

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(3) make the information requested available for inspection by the NonParty, if requested.

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(c) If a Non-Party represented by counsel fails to commence the process

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called for by Local Rules 45-1 and 37-1, et seq. within 14 days of receiving the

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notice and accompanying information or fails contemporaneously to notify the

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Receiving Party that it has done so, the Receiving Party may produce the Non-

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Party’s confidential information responsive to the discovery request. If an

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unrepresented Non-Party fails to seek a protective order from this court within

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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

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

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

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determination by the court unless otherwise required by the law or court order.

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

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expense of seeking protection in this court of its Protected Material.

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10.

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

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disclosed Protected Material to any person or in any circumstance not authorized

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

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

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

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the person or persons to whom unauthorized disclosures were made of all the

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terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as

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Exhibit A.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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11.

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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

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protection, the obligations of the Receiving Parties are those set forth in Federal

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

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of

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disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement

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into this Stipulated Protective Order.

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12.

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

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MISCELLANEOUS

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

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12.2 Right to Assert Other Objections. No Party waives any right it

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

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

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

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covered by this Protective Order.

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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 and with any

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pertinent orders of the assigned District Judge and Magistrate Judge. If a Party's

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

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Receiving 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 Section 4, within 60

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

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

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used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of

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the Protected Material. Whether the Protected Material is returned or destroyed,

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the Receiving Party must submit a written certification to the Producing Party

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(and, if not the same person or entity, to the Designating Party) by the 60 day

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

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Material that was returned or destroyed and (2) affirms that the Receiving Party

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has not retained any copies, abstracts, compilations, summaries or any other

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format reproducing or capturing any of the Protected Material. Notwithstanding

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

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motion 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 contain

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

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Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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14.

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

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

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monetary sanctions.

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IT IS SO ORDERED.
DATED: August 22, 2017

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/s/
HONORABLE JACQUELINE CHOOLJIAN
United States Magistrate Judge
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Case No. 2:17-cv-04225-SVW (JCx)

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

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_________________ [print or type full address], declare under penalty of perjury

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

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

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August 22, 2017, in the case of Brian E. Kaye v. Jerry Brown, et al., No. 2:17-

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cv-04225-SVW-JC. I agree to comply with and to be bound by all the terms of

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this Protective Order and I understand and acknowledge that failure to so comply

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could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item

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that is subject to this Protective Order to any person or entity except in strict

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compliance with the provisions of this Order.

_____________________________

[print

or

type

full

name],

of

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I further agree to submit to the jurisdiction of the United States District

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Court for the Central District of California for the purpose of enforcing the terms

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of this Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint __________________________

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[print or type full name] of _______________________________________

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[print or type full address and telephone number] as my California agent for

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service of process in connection with this action or any proceedings related to

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enforcement of this Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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Case No. 2:17-cv-04225-SVW (JCx)