Monique Morgan v. City of Los Angeles et al

Filing 34

PROTECTIVE ORDER RE: DISCLOSURE OF CONFIDENTIAL INFORMATION by Magistrate Judge John E. McDermott re Stipulation for Protective Order 33 . [See Order for details.] (san)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9
10
11

MONIQUE MORGAN, individually
and as successor in interest to Carnell
Snell, Jr., deceased,

CASE NO. CV17-06693 VAP (JEMx)
Hon. Judge Virginia A. Phillips – Ctrm. 8A, 8th Fl.
Hon. Mag. John E. McDermott, Ctrm 640, 6th Fl.

12
Plaintiff,

13
vs.

14
15
16

CITY OF LOS ANGELES;
LEOVARDO GUILLEN; and DOES 110, inclusive,

[PROPOSED] PROTECTIVE
ORDER RE: DISCLOSURE OF
CONFIDENTIAL INFORMATION

17
Defendants.

18
19

ORDER ON STIPULATION

20

The Court, finding good cause, Orders as follows:

21
22

1.

A.

PURPOSES AND LIMITATIONS

23

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

24

proprietary or private information for which special protection from public disclosure

25

and from use for any purpose other than prosecuting this litigation may be warranted.

26

Accordingly, the parties hereby stipulate to and petition the Court to enter the

27

following Stipulated Protective Order. The parties acknowledge that this Order does

28

not confer blanket protections on all disclosures or responses to discovery and that the
1

1

protection it affords from public disclosure and use extends only to the limited

2

information or items that are entitled to confidential treatment under the applicable

3

legal principles.

4
5

B.

GOOD CAUSE STATEMENT

6

This action involves the City of Los Angeles and members of the Los Angeles

7

Police Department. Plaintiff is seeking materials and information that Defendants the

8

City of Los Angeles et al. (“City”) maintains as confidential, such as personnel files of

9

the police officers involved in this incident, Internal Affairs materials and information,

10

video recordings, audio recordings, Force Investigation Division materials and

11

information and other administrative materials and information currently in the

12

possession of the City and which the City believes need special protection from public

13

disclosure and from use for any purpose other than prosecuting this litigation. Plaintiff

14

is also seeking official information contained in the personnel files of the police

15

officers involved in the subject incident, which the City maintains as strictly

16

confidential and which the City believes need special protection from public disclosure

17

and from use for any purpose other than prosecuting this litigation.

18

The City asserts that the confidentiality of the materials and information sought

19

by Plaintiff is recognized by California and federal law, as evidenced inter alia by

20

California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for N.D. Cal.,

21

511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). The City has not

22

publicly released the materials and information referenced above except under

23

protective order or pursuant to a court order, if at all. These materials and information

24

are of the type that has been used to initiate disciplinary action against Los Angeles

25

Police Department (“LAPD”) officers, and has been used as evidence in disciplinary

26

proceedings, where the officers’ conduct was considered to be contrary to LAPD

27

policy.

28
2

1

The City contends that absent a protective order delineating the responsibilities

2

of nondisclosure on the part of the parties hereto, there is a specific risk of unnecessary

3

and undue disclosure by one or more of the many attorneys, secretaries, law clerks,

4

paralegals and expert witnesses involved in this case, as well as the corollary risk of

5

embarrassment, harassment and professional and legal harm on the part of the LAPD

6

officers referenced in the materials and information.

7

The City also contends that the unfettered disclosure of the materials and

8

information, absent a protective order, would allow the media to share this information

9

with potential jurors in the area, impacting the rights of the City herein to receive a fair

10

trial.

11

Accordingly, to expedite the flow of information, to facilitate the prompt

12

resolution of disputes over confidentiality of discovery materials, to adequately protect

13

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

14

permitted reasonable necessary uses of such material in preparation for and in the

15

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

16

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

17

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

18

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

19

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

20

not be part of the public record of this case.

21
22
23

C.

ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
SEAL

24

The parties agree that any pleadings, motions, briefs, declarations, stipulations,

25

exhibits or other written submissions to the Court in this litigation which contain or

26

incorporate Confidential Material shall be lodged with an application and/or joint

27

stipulation to file the papers or the portion thereof containing the Confidential

28

Material, under seal.
3

1

The parties agree that they will meet and confer regarding the necessity of

2

seeking an order from the Court filing under seal any pleadings, motions, briefs,

3

declarations, stipulations, exhibits or other documents and/or materials at least five (5)

4

days prior to filing any application and/or joint stipulation to file under seal.

5

The parties further acknowledge, as set forth in Section 12.3, below, that this

6

Stipulated Protective Order does not automatically entitle them to file confidential

7

information under seal and that Local Civil Rule 79-5 sets forth the procedures that

8

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

9

from the Court to file material under seal.

10
11
12
13
14
15
16

2.

DEFINITIONS
2.1

Action: Monique Morgan v. City of Los Angeles, et al. CV17-06693

VAP (JEMx).
2.2

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

of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of

17

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

18

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

19

Statement.

20

Confidential information; (2) all copies, excerpts, summaries, abstracts or compilations

21

of Confidential information; and (3) any testimony, conversations, or presentations that

22

might reveal Confidential information.

23
24
25

2.4

This also includes (1) any information copied or extracted from the

Counsel: Counsel of record for the parties to this civil litigation and their

support staff.
2.5

Designating Party: a Party or Non-Party that designates information or

26

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

27

“CONFIDENTIAL.”

28
4

1

2.6

Disclosure or Discovery Material: all items or information, regardless

2

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

3

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

4

generated in disclosures or responses to discovery in this matter

5

2.7

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

6

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

7

expert witness or as a consultant in this Action.

8
9
10
11
12
13

2.8

Final Disposition: when this Action has been fully and completely

terminated by way of settlement, dismissal, trial and/or appeal.
2.9

House Counsel: attorneys other than Counsel (as defined in paragraph

2.4) and who are employees of a party to this Action.
2.10 Non-Party: any natural person, partnership, corporation, association or
other legal entity not named as a Party to this action.

14

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

15

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

16

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

17

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

18

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

19

boards, departments, divisions, employees, consultants, retained experts, and Outside

20

Counsel of Record (and their support staffs).

21
22

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

23

2.14 Professional Vendors: persons or entities that provide litigation support

24

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

25

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

26

their employees and subcontractors.

27
28

2.15 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
5

2.16 Receiving Party: a Party that receives Disclosure or Discovery Material

1
2

from a Producing Party.

3
4

3.

SCOPE

5

The protections conferred by this Stipulation and Order cover not only Protected

6

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

7

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

8

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

9

their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the trial

10
11

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

12
13

4.

DURATION

14

Once a trial commences in this Action, information that was designated as

15

CONFIDENTIAL or maintained pursuant to this protective order and that is

16

introduced or admitted as an exhibit at trial becomes public and will be presumptively

17

available to all members of the public, including the press, unless compelling reasons

18

supported by specific factual findings to proceed otherwise are made to the trial judge

19

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

20

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

21

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

22

documents are part of court record). Accordingly, the terms of this protective order do

23

not extend beyond the commencement of the trial as to the CONFIDENTIAL

24

information and materials introduced or admitted as an exhibit at trial.

25
26

5.

DESIGNATING PROTECTED MATERIAL

27

5.1

Exercise of Restraint and Care in Designating Material for

28

Protection.
6

1

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

2

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

3

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

4

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

5

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

6

communications for which protection is not warranted are not swept unjustifiably

7

within the ambit of this Order.

8

Mass, indiscriminate or routinized designations are prohibited. Designations

9

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

10

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

11

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

12

to sanctions.

13

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

14

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

15

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

16
17

5.2

Manner and Timing of Designations. Except as otherwise provided in

18

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

19

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

20

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

21

produced.

22

Designation in conformity with this Order requires:

23

(a) for information in documentary form (e.g., paper or electronic documents,

24

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

25

Producing Party affix at a minimum, the legend “CONFIDENTIAL” or words of a

26

similar effect, and that includes the case name and case number (hereinafter

27

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

28

portion of the material on a page qualifies for protection, the Producing Party also must
7

1

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

2

margins).

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

each page that contains Protected Material. If only a portion of the material on a page

12

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

13

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

14

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

15

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

16

protected testimony.

17

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

18

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

19

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

20

“CONFIDENTIAL.”

21

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

22

portion(s).

23

5.3

If only a portion or portions of the information warrants

Inadvertent Failures to Designate. If timely corrected, an inadvertent

24

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

25

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

26

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

27

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

28

Order.
8

1
2

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

3

Timing of Challenges.

Any Party or Non-Party may challenge a

4

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

5

Order.
6.2

6
7

Meet and Confer.

The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15
16
17

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

authorized under this Order.

26
27

7.2

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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

28
9

1

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

2

only to:

3

(a)

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

4

employees of said Counsel of Record to whom it is reasonably necessary to disclose

5

the information for this Action;

6

(b) Experts (as defined in this Order) of the Receiving Party to whom disclosure

7

is reasonably necessary for this Action and who have signed the “Acknowledgment

8

and Agreement to Be Bound” (Exhibit A);

9

(c) the court and its personnel;

10

(e) court reporters and their staff;

11

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

12

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

13

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

14
15
16

(f)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;
(g)

during their depositions, witnesses, and attorneys for witnesses, in the

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

under this Stipulated Protective Order; and

25

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

26

agreed upon by any of the parties engaged in settlement discussions and who have

27

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

28
10

7.3.

1

Counsel making the disclosure to any qualified person described herein

2

shall retain the original executed copy of the Nondisclosure Agreement until sixty (60)

3

days after this litigation has become final, including any appellate review, and

4

monitoring of an injunction. Counsel for the Receiving Party shall maintain all signed

5

Nondisclosure Agreements and shall produce the original signature page upon

6

reasonable written notice from opposing counsel.

7

purported unauthorized disclosure of Confidential Information, upon noticed motion of

8

contempt filed by the Designating Party, counsel for the Receiving Party may be

9

required to file the signed Nondisclosure Agreements, as well as a list of the disclosed

10

If an issue arises regarding a

materials, in camera with the Court having jurisdiction of the Stipulation.

11
12

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

13

IN OTHER LITIGATION

14

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

15

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

16

“CONFIDENTIAL,” that Party must:

17

(a) promptly notify in writing the Designating Party. Such notification shall

18

include a copy of the subpoena or court order;

19

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

20

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

21

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

22

include a copy of this Stipulated Protective Order; and

23

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

24

the Designating Party whose Protected Material may be affected.

25
26

The Party served with the subpoena or court order shall not produce any

27

information designated in this action as “CONFIDENTIAL”, unless the Party has

28

obtained the Designating Party’s permission or an order from the court from which the
11

1

subpoena or order issued.

Nothing in these provisions should be construed as

2

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

3

directive from another court.

4
5

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

6

PRODUCED IN THIS LITIGATION

7

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

8

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

9

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

10

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

11

prohibiting a Non-Party from seeking additional protections.

12

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

13

a Non-Party’s confidential information in its possession, and the Party is subject to an

14

agreement with the Non-Party not to produce the Non-Party’s confidential information,

15

then the Party shall:

16

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

17

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

18

agreement with a Non-Party;

19

(2)

promptly provide the Non-Party with a copy of the Stipulated

20

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

21

reasonably specific description of the information requested; and

22

(3) make the information requested available for inspection by the Non-

23

Party, if requested.

24

(c) If the Non-Party fails to seek a protective order from this court within 14

25

days of receiving the notice and accompanying information, the Receiving Party may

26

produce the Non-Party’s confidential information responsive to the discovery request.

27

If the Non-Party timely seeks a protective order, the Receiving Party shall not produce

28

any information in its possession or control that is subject to the confidentiality
12

1

agreement with the Non-Party before a determination by the court. Absent a court

2

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

3

protection in this court of its Protected Material.

4
5

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

6

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

7

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

8

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

9

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

10

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

11

whom unauthorized disclosures were made of all the terms of this Order, and (d)

12

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

13

Bound” that is attached hereto as Exhibit A.

14
15

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

16

PROTECTED MATERIAL

17

When a Producing Party gives notice to Receiving Parties that certain

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

parties may incorporate their agreement in the stipulated protective order submitted to

26

the court.

27
28

///
13

1

12.

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

2
3

MISCELLANEOUS

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

Protected Material at issue. If a Party’s request to file Protected Material under seal is

13

denied by the court, then the Receiving Party may file the information in the public

14

record unless otherwise instructed by the court.

15
16

13.

FINAL DISPOSITION

17

After the FINAL DISPOSITION of this Action, as defined in paragraph 2.8,

18

within 30 days of a written request by the Designating Party, each Receiving Party

19

must return all Protected Material to the Producing Party. As used in this subdivision,

20

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

21

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

22

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

23

the same person or entity, to the Designating Party) by the 30 day deadline that (1)

24

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

25

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

26

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

27

Protected Material.

28

///
14

The

1
2
3

14.

VIOLATION
Any violation of this Order may be punished by appropriate measures including,

without limitation, contempt proceedings and/or monetary sanctions.

4
5

IT IS SO ORDERED.

6
7

Dated: March 13, 2018

By: ___________________________________________

8

HONORABLE JOHN A. McDERMOTT

9

UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15

ATTACHMENT “A”

1

NONDISCLOSURE AGREEMENT

2
3
4
5
6
7
8
9
10

I, __________________________do solemnly swear that I am fully familiar
with the terms of the Protective Order entered in Monique Morgan v. City of Los
Angeles, et al., United States District Court for the Central District of California,
Central Division, Case No. CV17-06693 VAP (JEMx), and hereby agree to comply
with and be bound by the terms and conditions of said Order. I hereby consent to the
jurisdiction of the United States District Court for the Central District of California for
purposes of enforcing this Order.

11
12

Dated:

Signed:

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16