Estate of Juan Manuel Avila, Jr., et al v. City of Long Beach, et al

Filing 32

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth. (See Order for details) [Note Changes Made By The Court]. 31 (bem)

1
2
3

NOTE: CHANGES MADE BY THE COURT

4
5
6
7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9
10
11
12

ESTATE OF JUAN MANUEL AVILA,
JR., by and through its Personal
Representative, Juan Manuel Avila, Sr.;
JUAN MANUEL AVILA, SR.; and
MARIA VILA, for themselves,
Plaintiffs,

13

16
17
18
19

STIPULATED PROTECTIVE ORDER

vs.

14
15

Case No.: 2:17-cv-05607-AB-JPR

CITY OF LONG BEACH, a public entity;
LONG BEACH POLICE
DEPARTMENT; ELIESER DOMINGO
(#10782); NICHOLAS BARRERA
(#10943); BENJAMIN HEARST
(#10766); IVAN GARCIA (#10792); and
DOES 1 through 10, individually and in
their official capacity as police officers for
the Long Beach Police Department,

Complaint Filed: July 28, 2017
Trial Date:
None

Defendants.

20
21
22
23
24
25
26
27
28

1.

PURPOSE AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties acknowledge that this
Order does not confer blanket protections on all disclosures or responses to
1

1

discovery and that the protection it affords from public disclosure and use extends

2

only to the limited information or items that are entitled to confidential treatment

3

under the applicable legal principles. The parties further acknowledge, as set forth in

4

Section 12.3, below, that this Stipulated Protective Order does not entitle them to

5

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

6

procedures that must be followed and the standards that will be applied when a party

7

seeks permission from the court to file material under seal.

8
9

2.

GOOD CAUSE STATEMENT

10
11

This case revolves around police officers’ uses of lethal force. This action is

12

likely to involve police personnel records, medical records, personal information

13

relating to the nature of the relationship between parents and their deceased adult

14

son, autopsy photographs and other graphic records, employment records, personal

15

financial records, information otherwise generally unavailable to the public, or

16

which may be privileged or otherwise protected from disclosure under state or

17

federal statutes, court rules, case decisions, or common law. Accordingly, to

18

expedite the flow of information, to facilitate the prompt resolution of disputes over

19

confidentiality of discovery materials, to adequately protect information the parties

20

are entitled to keep confidential, to ensure that the parties are permitted reasonable

21

necessary uses of such material in preparation for and in the conduct of trial, to

22

address their handling at the end of the litigation, and serve the ends of justice, a

23

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

24

parties that information will not be designated as confidential for tactical reasons

25

and that nothing be so designated without a good faith belief that it has been

26

maintained in a confidential, non-public manner, and there is good cause why it

27

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

28
2

1

3.

DEFINITIONS

2

2.1 Action: this pending federal law suit.

3

2.2 Challenging Party: A Party or Non-Party that challenges the designation

4
5

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

6

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

7

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

8

Cause Statement.

9
10
11

2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
support staff).
2.5 Designating Party: a Party or Non-Party that designates information or

12

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

13

“CONFIDENTIAL.”

14

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

15

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

16

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

17

generated in disclosures or responses to discovery in this matter.

18

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

19

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

20

an expert witness or as a consultant in this Action.

21

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

22

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

23

counsel.

24
25

2.9 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.

26

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

27

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

28

appeared in this Action on behalf of that party or are affiliated with a law firm which
3

1

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

2

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

3

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

4

support staffs).

5
6

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

7

2.13 Professional Vendors: persons or entities that provide litigation support

8

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

9

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

10

and their employees and subcontractors.

11
12

2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”

13
14

2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.

15
16

3.

SCOPE

17

The protections conferred by this Stipulation and Order cover not only

18

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

19

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

20

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

21

presentations by Parties or their Counsel that might reveal Protected Material.

22
23

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.

24
25
26

4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations

27

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

28

otherwise in writing or a court order otherwise directs. Final disposition shall be
4

1

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

2

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

3

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

4

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

5

pursuant to applicable law.

6
7
8
9

5.

DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

10

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

11

qualifies under the appropriate standards. The Designating Party must designate for

12

protection only those parts of material, documents, items, or oral or written

13

communications that qualify so that other portions of the material, documents,

14

items, or communications for which protection is not warranted are not swept

15

unjustifiably within the ambit of this Order.

16

Mass, indiscriminate, or routinized designations are prohibited. Designations

17

that are shown to be clearly unjustified or that have been made for an improper

18

purpose (e.g., to unnecessarily encumber the case development process or to impose

19

unnecessary expenses and burdens on other parties) may expose the Designating

20

Party to sanctions.

21

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

22

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

23

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

24

5.2 Manner and Timing of Designations. Except as otherwise provided in this

25

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

26

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

27

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

28

produced.
5

1
2

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

3

documents, but excluding transcripts of depositions or other pretrial or trial

4

proceedings), that the Producing Party affix at a minimum, the legend

5

“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

6

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

7

qualifies for protection, the Producing Party also must clearly identify the protected

8

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

9

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

10

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

11

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

12

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

13

deemed “CONFIDENTIAL.” After the inspecting Party has identified the

14

documents it wants copied and produced, the Producing Party must determine which

15

documents, or portions thereof, qualify for protection under this Order. Then, before

16

producing the specified documents, the Producing Party must affix the

17

“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

18

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

19

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

20

markings in the margins).

21

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

22

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

23

deposition all protected testimony.

24

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

25

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

26

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

27

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

28

warrants protection, the Producing Party, to the extent practicable, shall identify the
6

1

protected portion(s).

2

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

3

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

4

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

5

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

6

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

7

Order.

8
9

6.

10

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a

11

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

12

Scheduling Order.

13
14

6.2 Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local Rule 37.1 et seq.

15

6.3 The burden of persuasion in any such challenge proceeding shall be on the

16

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

17

(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

18

expose the Challenging Party to sanctions. Unless the Designating Party has waived

19

or withdrawn the confidentiality designation, all parties shall continue to afford the

20

material in question the level of protection to which it is entitled under the

21

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

22
23

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

24

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

25

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

26

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

27

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

28

conditions described in this Order. When the Action has been terminated, a
7

1

Receiving Party must comply with the provisions of section 13 below (FINAL

2

DISPOSITION).

3

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

4

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

5

authorized under this Order

6

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

7

ordered by the court or permitted in writing by the Designating Party, a Receiving

8

Party may disclose any information or item designated “CONFIDENTIAL” only to:

9

(a) the Receiving Party’s Outside Counsel of Record in this Action, as

10

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

11

necessary to disclose the information for this Action;

12
13
14

(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

15

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

16

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

17

(d) the court and its personnel;

18

(e) court reporters and their staff;

19

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

20

Vendors to whom disclosure is reasonably necessary for this Action and who have

21

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

22
23

(g) the author or recipient of a document containing the information or
a custodian or other person who otherwise possessed or knew the information;

24

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

25

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

26

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

27

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

28

“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
8

1

agreed by the Designating Party or ordered by the court. Pages of transcribed

2

deposition testimony or exhibits to depositions that reveal Protected Material may

3

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

4

as permitted under this Stipulated Protective Order; and

5

(i) any mediator or settlement officer, and their supporting personnel,

6

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

7

appointed by the court.

8
9
10
11

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

12

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

13

“CONFIDENTIAL,” that Party must:

14
15
16

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

17

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

18

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

19

a copy of this Stipulated Protective Order; and

20
21
22

(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

23

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

24

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

25

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

26

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

27

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

28

should be construed as authorizing or encouraging a Receiving Party in this Action
9

1

to disobey a lawful directive from another court.

2
3

9.

4

PRODUCED IN THIS LITIGATION

5

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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

6

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

7

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

8

remedies and relief provided by this Order. Nothing in these provisions should be

9

construed as prohibiting a Non-Party from seeking additional protections.

10

(b) In the event that a Party is required, by a valid discovery request, to

11

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

12

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

13

confidential information, then the Party shall:

14

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

15

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

16

agreement with a Non-Party;

17

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

18

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

19

specific description of the information requested; and

20
21
22

(3) make the information requested available for inspection by
the Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court

23

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

24

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

25

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

26

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

27

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

28

court. Absent a court order to the contrary, the Non-Party shall bear the burden and
10

1

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

2
3

10.

4

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12
13

11.

14

PROTECTED MATERIAL

15

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain

16

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

17

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

18

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

19

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

20

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

21

as the parties reach an agreement on the effect of disclosure of a communication or

22

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

23

parties may incorporate their agreement in the stipulated protective order submitted

24

to the court provided the Court so allowsno wor.

25
26
27
28

12.

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

person to seek its modification by the Court in the future.
11

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

specific Protected Material at issue. If a Party's request to file Protected Material

10

under seal is denied by the court, then the Receiving Party may file the information

11

in the public record unless otherwise instructed by the court

12
13

13.

FINAL DISPOSITION

14

After the final disposition of this Action, as defined in paragraph 4, within 60

15

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

16

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

17

this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

18

summaries, and any other format reproducing or capturing any of the Protected

19

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

20

Party must submit a written certification to the Producing Party (and, if not the same

21

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

22

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

23

destroyed and (2)affirms that the Receiving Party has not retained any copies,

24

abstracts, compilations, summaries or any other format reproducing or capturing any

25

of the Protected Material. Notwithstanding this provision, Counsel are entitled to

26

retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

27

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

28

reports, attorney work product, and consultant and expert work product, even if such
12

1

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

2

constitute Protected Material remain subject to this Protective Order as set forth in

3

Section 4 (DURATION).

4
5

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

6

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

7

sanctions.

8
9

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

10
11

DATED

January 11, 2018

12
13
14

/s/ Jorge Gonzalez
Attorneys for Plaintiff

15
16

DATED

January 11, 2018

17
18
19

/s/ Nicholas J. Masero
Attorneys for Defendants

20
21

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED

22
23

DATED January 12, 2018

24
25
26

Honorable Jean P. Rosenbluth
United States Magistrate Judge

27
28
13

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14

1

EXHIBIT A

2

I, _____________________________ [print or type full name], of

3

________________________________ [print or type full address], declare under

4

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

5

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

6

District of California on [date] in the case of Estate of Juan Manuel Avila et al. v.

7

City of Long Beach et al., Case No. 2:17-cv-05607-AB-JPR. I agree to comply

8

with and to be bound by all the terms of this Stipulated Protective Order and I

9

understand and acknowledge that failure to so comply could expose me to sanctions

10

and punishment in the nature of contempt. I solemnly promise that I will not

11

disclose in any manner any information or item that is subject to this Stipulated

12

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

13

provisions of this Order. I further agree to submit to the jurisdiction of the United

14

States District Court for the Central District of California for the purpose of

15

enforcing the terms of this Stipulated Protective Order, even if such enforcement

16

proceedings occur after termination of this action. I hereby appoint

17

__________________________ [print or type full name] of

18

_______________________________________ [print or type full address and

19

telephone number] as my California agent for service of process in connection with

20

this action or any proceedings related to enforcement of this Stipulated Protective

21

Order.

22

Date: ______________________________________

23

City and State where sworn and signed: _________________________________

24
25

Printed name: _______________________________

26
27

Signature: __________________________________

28
15