Jose Pelayo et al v. City of Pomona et al

Filing 45

STIPULATED PROTECTIVE ORDER by Magistrate Judge Steve Kim. NOTE CHANGES MADE BY THE COURT. In re: Stipulation for Protective Order 39 . (SEE ORDER FOR DETAILS). (clee)

1 AUSTIN DOSSEY (“Officer Dossey”), and Plaintiffs, JOSE PELAYO, JESUS
2 PELAYO, VICTOR PELAYO (“Plaintiffs”), by and through their attorneys of record,
3 hereby Stipulate to the Protective Order set forth herein regarding the production of
4 documents, records, and tangible things during the discovery phase of this action. The
5 Department, Officer Dossey and Plaintiffs are sometimes hereinafter referred to
6 individually as a “Party” and collectively as the “Parties.”
7
8

1.

A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

9 proprietary, or private information for which special protection from public disclosure
10 and from use for any purpose other than prosecuting this litigation may be warranted.
11 Accordingly, the parties hereby stipulate to and petition the Court to enter the following
12 Stipulated Protective Order. This Order is intended to protect all documents produced
13 by the Department in response to Plaintiffs’ Subpoena Duces Tecum, which include but
14 are not limited to items numbered 1-

of the Department’s Privilege Log, a copy of

15 which is attached hereto as Exhibit B.
16
17
18
19

The parties acknowledge

20 that this Order does not confer blanket protections on all disclosures or responses to
21 discovery and that the protection it affords from public disclosure and use extends only
22 to the limited information or items that are entitled to confidential treatment under the
23 applicable legal principles. The parties further acknowledge, as set forth in Section
24 12.3, below, that this Stipulated Protective Order does not entitle them to file
25 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that
26 must be followed and the standards that will be applied when a party seeks permission
27 from the court to file material under seal.
28

B. GOOD CAUSE STATEMENT
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STIPULATED PROTECTIVE ORDER

1

Though Plaintiffs may be entitled, in certain limited circumstances, to examine

2 information in police officers’ personnel files, internal affair files and force reports, to
3 the extent that they are relevant to their claims in the above-captioned action, the
4 Department contends that a protective order is necessary to prevent random distribution
5 of such information. Furthermore, this proposed protective order was created for the
6 purpose of protecting certain information that may be subject to the official information
7 privilege, law enforcement privilege and the right to privacy, as protected by the
8 California and United States Constitution, balanced with plaintiffs’ right to discovery in
9 this litigation.
10

Police personnel records are deemed confidential under federal law. Sanchez v.

11 Santa Ana Police Dep’t., 936 F.2d 1027, 1033-34 (9th Cir. 1990). Law enforcement
12 personnel records also involve confidential information that is protected by the Police
13 Officers Bill of Rights, as codified at section 3300, et seq., of the California
14 Government Code. The public disclosure of law enforcement personnel records and
15 records which include witness name, etc., is further limited by a number of California
16 statutes, including but not limited to California Government Code section 6254 and
17 California Penal Code section 832.7, et seq.
18

The Department and Officer Dossey herein contend that he has an interest in

19 protecting his own privacy rights relating to information in his personnel files and other
20 related information.
21

It is the policy of the Department not to disclose information contained in

22 background investigations about its employees, or other information contained in
23 confidential police personnel files unless ordered to do so by a court of competent
24 jurisdiction. Further, it is the policy of the Department not to disclose information
25 contained in police reports to those other than the parties involved in the incident, their
26 representatives, prosecutors, etc. unless ordered to do so by a court of competent
27 jurisdiction.
28
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1

Within the Department, access to personnel files is restricted to those on a “need

2 to know” basis. Controlled access to the files is regarded by the Department as essential
3 in order to assure the integrity and security of such files. The Department contends that
4 uncontrolled disclosure of such information can disrupt the Department’s vital, day-to5 day operations, erode the integrity and security of the confidential personnel and related
6 files, affect the morale of Department’s personnel, and frustrate the legitimate purposes
7 of gathering the information in these files, including adversely impacting disciplinary
8 procedures within the Department.
9

With respect to police reports, unfettered access is not granted to the public.

10 Instead, access is restricted to those investigating the incident, involved in the incident
11 or their representatives, those who are prosecuting and/or defending those involved, and
12 those who maintain the records. The Department contends that controlled access is
13 necessary to not only assure the integrity and security of said files, but also to ensure
14 the privacy rights of those involved especially third party witnesses and minors are
15 protected. Permitting uncontrolled disclosure can disrupt the Department’s day-to-day
16 operations, including but not limited to adversely impacting the Department’s ability to
17 thoroughly investigate incidents.
18

Further, the Department contends that information contained in the requested

19 material case files is gathered and maintained in confidence by the Department. The
20 information gathered in these case files generally includes the statements of third party
21 witnesses collected in confidence. Witnesses are told that the confidentiality of their
22 statement will be protected and that they are for the confidential use of the Department.
23 The Department believes that uncontrolled release of this information would cause
24 needless intrusion into and violation of privacy rights.
25

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

26 resolution of disputes over confidentiality of discovery materials, to adequately protect
27 information the parties are entitled to keep confidential, to ensure that the parties are
28 permitted reasonable necessary uses of such material in preparation for and in the
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STIPULATED PROTECTIVE ORDER

1 conduct of trial, to address their handling at the end of the litigation, and serve the ends
2 of justice, a protective order for such information is justified in this matter. It is the
3 intent of the parties that information will not be designated as confidential for tactical
4 reasons and that nothing be so designated without a good faith belief that it has been
5 maintained in a confidential, non-public manner, and there is good cause why it should
6 not be part of the public record of this case.
7
8
9

2.

DEFINITIONS
2.1

Action: this pending federal law suit entitled Jose Pelayo, et al. v. City

10 of Pomona, et al. (2:17-cv-07292-PSG-SK).
11

2.2

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

12 designation of information or items under this Order.
13

2.3

“CONFIDENTIAL” Information or Items: information (regardless of

14 how it is generated, stored or maintained) or tangible things that qualify for protection
15 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
16 Statement, including documents produced by the Department in response to Plaintiffs’
17 Subpoena Duces Tecum, which include but are not limited to items numbered 1-68 of
18 the Department’s Privilege Log, a copy of which is attached hereto as Exhibit B
19
20
21

.
2.4

Counsel: Outside Counsel of Record and House Counsel (as well as

22 their support staff).
23

2.5

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

24 items that it produces in disclosures or in responses to discovery as
25 “CONFIDENTIAL.”
26

2.6

Disclosure or Discovery Material: all items or information, regardless

27 of the medium or manner in which it is generated, stored, or maintained (including,
28
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1 among other things, testimony, transcripts, and tangible things), that are produced or
2 generated in disclosures or responses to discovery in this matter.
3

2.7

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

4 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
5 expert witness or as a consultant in this Action.
6

2.8

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

7 House Counsel does not include Outside Counsel of Record or any other outside
8 counsel.
9

2.9

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

10 other legal entity not named as a Party to this action.
11

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

12 party to this Action but are retained to represent or advise a party to this Action and
13 have appeared in this Action on behalf of that party or are affiliated with a law firm
14 which has appeared on behalf of that party, and includes support staff.
15

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

16 employees, consultants, retained experts, and Outside Counsel of Record (and their
17 support staffs).
18

2.12 Producing Party: a Party or Non-Party that produces Disclosure or

19 Discovery Material in this Action.
20

2.13 Professional Vendors: persons or entities that provide litigation

21 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
22 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
23 their employees and subcontractors.
24

2.14 Protected Material: any Disclosure or Discovery Material that is

25 designated as “CONFIDENTIAL.”
26

2.15 Receiving Party: a Party that receives Disclosure or Discovery

27 Material from a Producing Party.
28
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1

3.

2

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

3 Material (as defined above), but also (1) any information copied or extracted from
4 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
5 Material; and (3) any testimony, conversations, or presentations by Parties or their
6 Counsel that might reveal Protected Material.
7

Any use of Protected Material at trial shall be governed by the orders of the trial

8 judge. This Order does not govern the use of Protected Material at trial.
9
10

4.

11

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

12 imposed by this Order shall remain in effect until a Designating Party agrees otherwise
13 in writing or a court order otherwise directs. Final disposition shall be deemed to be the
14 later of (1) dismissal of all claims and defenses in this Action, with or without
15 prejudice; and (2) final judgment herein after the completion and exhaustion of all
16 appeals, rehearings, remands, trials, or reviews of this Action, including the time limits
17 for filing any motions or applications for extension of time pursuant to applicable law.
18
19

5.

DESIGNATING PROTECTED MATERIAL

20

5.1

21

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

Exercise of Restraint and Care in Designating Material for Protection.

22 under this Order must take care to limit any such designation to specific material that
23 qualifies under the appropriate standards. The Designating Party must designate for
24 protection only those parts of material, documents, items, or oral or written
25 communications that qualify so that other portions of the material, documents, items, or
26 communications for which protection is not warranted are not swept unjustifiably
27 within the ambit of this Order. Here, the designated material includes documents
28 produced by the Department in response to Plaintiffs’ Subpoena Duces Tecum, which
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1 include but are not limited to items numbered 1-

of the Department’s Privilege Log, a

2 copy of which is attached hereto as Exhibit B.
3
4
5
6
7
8

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

9 are shown to be clearly unjustified or that have been made for an improper purpose
10 (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

5.2

Manner and Timing of Designations. Except as otherwise provided in

17 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
18 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
19 under this Order must be clearly so designated before the material is disclosed or
20 produced.
21

Designation in conformity with this Order requires:

22

(a)

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

23 documents, but excluding transcripts of depositions or other pretrial or trial
24 proceedings), that the Producing Party affix at a minimum, the legend
25 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
26 contains protected material. If only a portion or portions of the material on a page
27 qualifies for protection, the Producing Party also must clearly identify the protected
28 portion(s) (e.g., by making appropriate markings in the margins).
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1

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

2 need not designate them for protection until after the inspecting Party has indicated
3 which documents it would like copied and produced. During the inspection and before
4 the designation, all of the material made available for inspection shall be deemed
5 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
6 copied and produced, the Producing Party must determine which documents, or
7 portions thereof, qualify for protection under this Order. Then, before producing the
8 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to
9 each page that contains Protected Material. If only a portion or portions of the material
10 on a page qualifies for protection, the Producing Party also must clearly identify the
11 protected portion(s) (e.g., by making appropriate markings in the margins).
12

(b)

for testimony given in depositions that the Designating Party

13 identify the Disclosure or Discovery Material on the record, before the close of the
14 deposition all protected testimony.
15

(c)

for information produced in some form other than documentary

16 and for any other tangible items, that the Producing Party affix in a prominent place on
17 the exterior of the container or containers in which the information is stored the legend
18 “CONFIDENTIAL.” If only a portion or portions of the information warrants
19 protection, the Producing Party, to the extent practicable, shall identify the protected
20 portion(s).
21

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

22 failure to designate qualified information or items does not, standing alone, waive the
23 Designating Party’s right to secure protection under this Order for such material. Upon
24 timely correction of a designation, the Receiving Party must make reasonable efforts to
25 assure that the material is treated in accordance with the provisions of this Order.
26
27

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

28
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1

6.1

Timing of Challenges. Any Party or Non-Party may challenge a

2 designation of confidentiality at any time that is consistent with the Court's Scheduling
3 Order.
4

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

5 resolution process under Local Rule 37.1 et seq.
6

6.3

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

7 the Designating Party. Frivolous challenges, and those made for an improper purpose
8 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
9 expose the Challenging Party to sanctions. Unless the Designating Party has waived or
10 withdrawn the confidentiality designation, all parties shall continue to afford the
11 material in question the level of protection to which it is entitled under the Producing
12 Party’s designation until the Court rules on the challenge.
13
14

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

15

7.1

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

16 disclosed or produced by another Party or by a Non-Party in connection with this
17 Action only for prosecuting, defending, or attempting to settle this Action. Such
18 Protected Material may be disclosed only to the categories of persons and under the
19 conditions described in this Order. When the Action has been terminated, a Receiving
20 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
21

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

22 location and in a secure manner that ensures that access is limited to the persons
23 authorized under this Order.
24

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

25 otherwise ordered by the court or permitted in writing by the Designating Party, a
26 Receiving Party may disclose any information or item designated “CONFIDENTIAL”
27 only to:
28
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STIPULATED PROTECTIVE ORDER

1

(a)

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

2 well as employees of said Outside Counsel of Record to whom it is reasonably
3 necessary to disclose the information for this Action;
4

(b)

the officers, directors, and employees (including House Counsel)

5 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
6

(c)

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

7 disclosure is reasonably necessary for this Action and who have signed the
8 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9

(d)

the court and its personnel;

10

(e)

court reporters and their staff;

11

(f)

professional jury or trial consultants, mock jurors, and Professional

12 Vendors to whom disclosure is reasonably necessary for this Action and who have
13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
14

(g)

the author or recipient of a document containing the information or

15 a custodian or other person who otherwise possessed or knew the information;
16

(h)

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

17 the Action to whom disclosure is reasonably necessary provided: (1) the deposing party
18 requests that the witness sign the form attached as Exhibit 1 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

(i)

any mediator or settlement officer, and their supporting personnel,

26 mutually agreed upon by any of the parties engaged in settlement discussions.
27

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

28 IN OTHER LITIGATION
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STIPULATED PROTECTIVE ORDER

1

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

2 compels disclosure of any information or items designated in this Action as
3 “CONFIDENTIAL,” that Party must:
4

(a)

promptly notify in writing the Designating Party. Such notification

5 shall include a copy of the subpoena or court order;
6

(b)

promptly notify in writing the party who caused the subpoena or

7 order to issue in the other litigation that some or all of the material covered by the
8 subpoena or order is subject to this Protective Order. Such notification shall include a
9 copy of this Stipulated Protective Order; and
10

(c)

cooperate with respect to all reasonable procedures sought to be

11 pursued by the Designating Party whose Protected Material may be affected.
12

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

13 subpoena or court order shall not produce any information designated in this action as
14 “CONFIDENTIAL” before a determination by the court from which the subpoena or
15 order issued, unless the Party has obtained the Designating Party’s permission. The
16 Designating Party shall bear the burden and expense of seeking protection in that court
17 of its confidential material and nothing in these provisions should be construed as
18 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
19 directive from another court.
20
21

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

22 PRODUCED IN THIS LITIGATION
23

(a)

The terms of this Order are applicable to information produced by

24 a Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
25 produced by Non-Parties in connection with this litigation is protected by the remedies
26 and relief provided by this Order. Nothing in these provisions should be construed as
27 prohibiting a Non-Party from seeking additional protections.
28
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1

(b)

In the event that a Party is required, by a valid discovery request,

2 to produce a Non-Party’s confidential information in its possession, and the Party is
3 subject to an agreement with the Non-Party not to produce the Non-Party’s confidential
4 information, then the Party shall:
5

(1)

promptly notify in writing the Requesting Party and the

6 Non-Party that some or all of the information requested is subject to a confidentiality
7 agreement with a Non-Party;
8

(2)

promptly provide the Non-Party with a copy of the

9 Stipulated Protective Order in this Action, the relevant discovery request(s), and a
10 reasonably specific description of the information requested; and
11

(3)

make the information requested available for inspection by

12 the Non-Party, if requested.
13

(c)

If the Non-Party fails to seek a protective order from this court

14 within 14 days of receiving the notice and accompanying information, the Receiving
15 Party may produce the Non-Party’s confidential information responsive to the
16 discovery request. If the Non-Party timely seeks a protective order, the Receiving Party
17 shall not produce any information in its possession or control that is subject to the
18 confidentiality agreement with the Non-Party before a determination by the court.
19 Absent a court order to the contrary, the Non-Party shall bear the burden and expense of
20 seeking protection in this court of its Protected Material.
21
22
23

10.

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

24 Protected Material to any person or in any circumstance not authorized under this
25 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
26 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
27 all unauthorized copies of the Protected Material, (c) inform the person or persons to
28 whom unauthorized disclosures were made of all the terms of this Order, and (d)
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1 request such person or persons to execute the “Acknowledgment and Agreement to Be
2 Bound” that is attached hereto as Exhibit A.
3
4

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

5 PROTECTED MATERIAL
6

When a Producing Party gives notice to Receiving Parties that certain

7 inadvertently produced material is subject to a claim of privilege or other protection, the
8 obligations of the Receiving Parties are those set forth in Federal Rule of Civil
9 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
10 may be established in an e-discovery order that provides for production without prior
11 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
12 parties reach an agreement on the effect of disclosure of a communication or
13 information covered by the attorney-client privilege or work product protection, the
14 parties may incorporate their agreement in the stipulated protective order submitted to
15 the court.
16
17
18

12.

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

19 person to seek its modification by the Court in the future.
20

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

21 Protective Order no Party waives any right it otherwise would have to object to
22 disclosing or producing any information or item on any ground not addressed in this
23 Stipulated Protective Order. Similarly, no Party waives any right to object on any
24 ground to use in evidence of any of the material covered by this Protective Order.
25

12.3 Filing Protected Material. All Parties and their Counsel agree that if a

26 Party intends to file Protected Material with the Court, for any reason, that party and
27 Counsel shall request permission from the Court to file the Protected Material under
28 seal. A Party that seeks to file under seal any Protected Material must comply with
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1 Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a
2 court order authorizing the sealing of the specific Protected Material at issue. If a
3 Party’s request to file Protected Material under seal is denied by the court, then the
4 Receiving Party may file the information in the public record unless otherwise
5 instructed by the court.
6
7
8

13.

FINAL DISPOSITION

Designating Party shall receive written notice from Plaintiffs’ counsel within 30

9 days of the final disposition of this Action, as defined in paragraph 4. After the final
10 disposition of this Action, as defined in paragraph 4, within 60 days of a written request
11 by the Designating Party, each Receiving Party must return all Protected Material to the
12 Producing Party. As used in this subdivision, “all Protected Material” includes all
13 copies, abstracts, compilations, summaries, and any other format reproducing or
14 capturing any of the Protected Material. Whether the Protected Material is returned or
15 destroyed, the Receiving Party must submit a written certification to the Producing
16 Party (and, if not the same person or entity, to the Designating Party) by the 60 day
17 deadline that (1) identifies (by category, where appropriate) all the Protected Material
18 that was returned or destroyed and (2)affirms that the Receiving Party has not retained
19 any copies, abstracts, compilations, summaries or any other format reproducing or
20 capturing any of the Protected Material. Notwithstanding this provision, Counsel are
21 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
22 hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,
23 expert reports, attorney work product, and consultant and expert work product, even if
24 such materials contain Protected Material. Any such archival copies that contain or
25 constitute Protected Material remain subject to this Protective Order as set forth in
26 Section 4 (DURATION).
27
28
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1
2

EXHIBIT A

3

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

4 I,________________________________________ [print or type full name], of
5 ________________________________ [print or type full address], declare under
6 penalty of perjury that I have read in its entirety and understand the Stipulated
7 Protective Order that was issued by the United States District Court for the Central
8 District of California on [date] in the case of Jose Pelayo v. City of Pomona, et al.,
9 Case No.: CV 2:17-cv-07292-PSG-SK . I agree to comply with and to be bound by all
10 the terms of this Stipulated Protective Order and I understand and acknowledge that
11 failure to so comply could expose me to sanctions and punishment in the nature of
12 contempt. I solemnly promise that I will not disclose in any manner any information or
13 item that is subject to this Stipulated Protective Order to any person or entity except in
14 strict compliance with the provisions of this Order.
15

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

16 the Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint ______________________ [print or type
19 full name] of ______________________________________ [print or type full address
20 and telephone number] as my California agent for service of process in connection
21 with this action or any proceedings related to enforcement of this Stipulated Protective
22 Order.
23 Date: _______________________
24 City and State where sworn and signed:
25
26 Printed name:_________________________
27
28 Signature: ___________________________
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