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)

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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

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