Jose Pelayo et al v. City of Pomona et al
Filing
58
STIPULATED PROTECTIVE ORDER 52 by Magistrate Judge Steve Kim. (SEE ORDER FOR DETAILS). (clee)
1 Narine Mkrtchyan, Esq. (SBN 243269)
MKRTCHYAN LAW
2
225 S. Lake Ave, Suite 300
3 Pasadena, CA 91101
Telephone No. (818) 338-7022
4
Facsimile No. (818) 243-3611
5 Email: narine56@msn.com
6
7 Attorneys for Jose Pelayo, Jesus Pelayo, Victor Pelayo
8
9
10
11
UNITED STATES DISTRICT COURT
12
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
13
14 Jose Pelayo, Jesus Pelayo, Victor
Pelayo
15
Plaintiff,
16
v.
17
CITY OF POMONA, POMONA
18 POLICE DEPARTMENT CHIEF
PAUL CAPRARO, individually and in
19 his official capacity, AUSTIN DOSSEY
#42108, individually and as a peace
20 officer, FRANK SACCA #41873,
individually and as a peace officer, TIM
21 DORN #41974, individually and as a
peace officer, PRINCE HUTCHINSON
22 #42642, individually and as a peace
officer, and DOES 1-10.
23
Defendant.
24
25
26
27
28
Stipulated Protective Order
Case No. 2:17- CV-07292-PSG (SKx)
STIPULATED PROTECTIVE
ORDER
1
PURPOSES AND LIMITATIONS
2
A. Discovery in this action is likely to involve production of confidential,
3 proprietary, or private information for which special protection from public
4 disclosure and from use for any purpose other than prosecuting this litigation may
5 be warranted. Accordingly, the parties, GERAGOS & GERAGOS , CHRISTIAN
6 AGUILAR, and MKRTCHYAN LAW, stipulate to and petition the Court to enter
7 the following Stipulated Protective Order. The parties acknowledge that this Order
8 does not confer blanket protections on all disclosures or responses to discovery and
9 that the protection it affords from public disclosure and use extends only to the
10 limited information or items that are entitled to confidential treatment under the
11 applicable legal principles. The parties further acknowledge, as set forth in Section
12 12.3, below, that this Stipulated Protective Order does not entitle them to file
13 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures
14 that must be followed and the standards that will be applied when a party seeks
15 permission from the court to file material under seal.
16
B. GOOD CAUSE STATEMENT
17
Requested records involve materials in possession of non-party Geragos &
18 Geragos, case files in the civil rights action, Aguilar et al. v. City of Pomona et al.
19 (Case no. 2:16-cv-05804) and juvenile criminal case In Re Christian Aguilar
20 KJ39567, including documents under an express Protective Order/non-disclosure
21 order by Superior Court of California, containing juvenile case transcripts of court
22 proceedings, Internal Affairs investigation into the Aguilar complaint against the
23 Defendants in this action, police reports and digital media in the same matter. These
24 records contain private information, official information, attorney work product,
25 private government information including deliberative processes of government
26 employees. Accordingly, to expedite the flow of information, to facilitate the prompt
27 resolution of disputes over confidentiality of discovery materials, to adequately
28 protect information the parties are entitled to keep confidential, to ensure that the
Stipulated Protective Order
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1 parties are permitted reasonable necessary uses of such material in preparation for
2 and in the conduct of trial, to address their handling at the end of the litigation, and
3 serve the ends of justice, a protective order for such information is justified in this
4 matter. It is the intent of the parties that information will not be designated as
5 confidential for tactical reasons and that nothing be so designated without a good
6 faith belief that it has been maintained in a confidential, non-public manner, and
7 there is good cause why it should not be part of the public record of this case.
8
2. DEFINITIONS
9
2.1 Action: Jose Pelayo et al. v. City of Pomona et al.
10
2.2 Challenging Party: GERAGOS & GERAGOS AND CHRISTIAN
11 AGUILAR that challenges the designation of information or items under this Order.
12
2.3 “CONFIDENTIAL” Information or Items: information (regardless of how
13 it is generated, stored or maintained) or tangible things that qualify for protection
14 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
15 Cause Statement.
16
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
17 support staff).
18
2.5 Designating Party: a Party or Non-Party that designates information or
19 items that it produces in disclosures or in responses to discovery as
20 “CONFIDENTIAL.”
21
2.6 Disclosure or Discovery Material: all items or information, regardless of
22 the medium or manner in which it is generated, stored, or maintained (including,
23 among other things, testimony, transcripts, and tangible things), that are produced or
24 generated in disclosures or responses to discovery in this matter.
25
2.7 Expert: a person with specialized knowledge or experience in a matter
26 pertinent to the litigation who has been retained by a Party or its counsel to serve as
27 an expert witness or as a consultant in this Action.
28
Stipulated Protective Order
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1
2.8 House Counsel: attorneys who are employees of a party to this Action.
2 House Counsel does not include Outside Counsel of Record or any other outside
3 counsel.
4
2.9 Non-Party: any natural person, partnership, corporation, association, or
5 other legal entity not named as a Party to this action.
6
2.10 Outside Counsel of Record: attorneys who are not employees of a party
7 to this Action but are retained to represent or advise a party to this Action and have
8 appeared in this Action on behalf of that party or are affiliated with a law firm which
9 has appeared on behalf of that party, and includes support staff.
10
2.11 Party: any party to this Action, including all of its officers, directors,
11 employees, consultants, retained experts, and Outside Counsel of Record (and their
12 support staffs).
13
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
14 Discovery Material in this Action.
15
2.13 Professional Vendors: persons or entities that provide litigation support
16 services (e.g., photocopying, videotaping, translating, preparing exhibits or
17 demonstrations, and organizing, storing, or retrieving data in any form or medium)
18 and their employees and subcontractors.
19
2.14 Protected Material: any Disclosure or Discovery Material that is
20 designated as “CONFIDENTIAL.”
21
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
22 from a Producing Party.
23
3.
SCOPE
24
The protections conferred by this Stipulation and Order cover not only
25 Protected Material (as defined above), but also (1) any information copied or
26 extracted from Protected Material; (2) all copies, excerpts, summaries, or
27 compilations of Protected Material; and (3) any testimony, conversations, or
28 presentations by Parties or their Counsel that might reveal Protected Material.
Stipulated Protective Order
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1
Any use of Protected Material at trial shall be governed by the orders of the
2 trial judge. This Order does not govern the use of Protected Material at trial.
3
4.
DURATION
4
Once a case proceeds to trial, all of the information that was designated as
5 confidential or maintained pursuant to this protective order becomes public and will
6 be presumptively available to all members of the public, including the press, unless
7 compelling reasons supported by specific factual findings to proceed otherwise are
8 made to the trial judge in advance of the trial. See Kamakana v. City and County of
9 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
10 showing for sealing documents produced in discovery from “compelling reasons”
11 standard when merits-related documents are part of court record). Accordingly, the
12 terms of this protective order do not extend beyond the commencement of the trial.
13
Even after final disposition of this litigation, the confidentiality obligations
14 imposed by this Order shall remain in effect until a Designating Party agrees
15 otherwise in writing or a court order otherwise directs. Final disposition shall be
16 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
17 or without prejudice; and (2) final judgment herein after the completion and
18 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
19 including the time limits for filing any motions or applications for extension of time
20 pursuant to applicable law.
21
5.
DESIGNATING PROTECTED MATERIAL
22
5.1 Exercise of Restraint and Care in Designating Material for Protection.
23 Each Party or Non-Party that designates information or items for protection under
24 this Order must take care to limit any such designation to specific material that
25 qualifies under the appropriate standards. The Designating Party must designate for
26 protection only those parts of material, documents, items, or oral or written
27 communications that qualify so that other portions of the material, documents,
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Stipulated Protective Order
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1 items, or communications for which protection is not warranted are not swept
2 unjustifiably within the ambit of this Order.
3
Mass, indiscriminate, or routinized designations are prohibited. Designations
4 that are shown to be clearly unjustified or that have been made for an improper
5 purpose (e.g., to unnecessarily encumber the case development process or to impose
6 unnecessary expenses and burdens on other parties) may expose the Designating
7 Party to sanctions.
8
If it comes to a Designating Party’s attention that information or items that it
9 designated for protection do not qualify for protection, that Designating Party must
10 promptly notify all other Parties that it is withdrawing the inapplicable designation.
11
5.2 Manner and Timing of Designations. Except as otherwise provided in this
12 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
13 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
14 under this Order must be clearly so designated before the material is disclosed or
15 produced.
16
Designation in conformity with this Order requires:
17
(a) for information in documentary form (e.g., paper or electronic documents,
18 but excluding transcripts of depositions or other pretrial or trial proceedings), that
19 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
20 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
21 portion or portions of the material on a page qualifies for protection, the Producing
22 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
23 markings in the margins).
24
A Party or Non-Party that makes original documents available for inspection
25 need not designate them for protection until after the inspecting Party has indicated
26 which documents it would like copied and produced. During the inspection and
27 before the designation, all of the material made available for inspection shall be
28 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
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1 documents it wants copied and produced, the Producing Party must determine which
2 documents, or portions thereof, qualify for protection under this Order. Then, before
3 producing the specified documents, the Producing Party must affix the
4 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
5 portion or portions of the material on a page qualifies for protection, the Producing
6 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
7 markings in the margins).
8
(b)
for testimony given in depositions that the Designating Party identify
9 the Disclosure or Discovery Material on the record, before the close of the
10 deposition all protected testimony.
11
(c)
for information produced in some form other than documentary and for
12 any other tangible items, that the Producing Party affix in a prominent place on the
13 exterior of the container or containers in which the information is stored the legend
14 “CONFIDENTIAL.” If only a portion or portions of the information warrants
15 protection, the Producing Party, to the extent practicable, shall identify the protected
16 portion(s).
17
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
18 failure to designate qualified information or items does not, standing alone, waive
19 the Designating Party’s right to secure protection under this Order for such material.
20 Upon timely correction of a designation, the Receiving Party must make reasonable
21 efforts to assure that the material is treated in accordance with the provisions of this
22 Order.
23
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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6.1 Timing of Challenges. Any Party or Non-Party may challenge a
25 designation of confidentiality at any time that is consistent with the Court’s
26 Scheduling Order.
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6.2 Meet and Confer. The Challenging Party shall initiate the dispute
28 resolution process under Local Rule 37.1 et seq.
Stipulated Protective Order
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1
6.3 The burden of persuasion in any such challenge proceeding shall be on the
2 Designating Party. Frivolous challenges, and those made for an improper purpose
3 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
4 expose the Challenging Party to sanctions. Unless the Designating Party has waived
5 or withdrawn the confidentiality designation, all parties shall continue to afford the
6 material in question the level of protection to which it is entitled under the
7 Producing Party’s designation until the Court rules on the challenge.
8
7. ACCESS TO AND USE OF PROTECTED MATERIAL
9
7.1 Basic Principles. A Receiving Party may use Protected Material that is
10 disclosed or produced by another Party or by a Non-Party in connection with this
11 Action only for prosecuting, defending, or attempting to settle this Action. Such
12 Protected Material may be disclosed only to the categories of persons and under the
13 conditions described in this Order. When the Action has been terminated, a
14 Receiving Party must comply with the provisions of section 13 below (FINAL
15 DISPOSITION).
16
Protected Material must be stored and maintained by a Receiving Party at a
17 location and in a secure manner that ensures that access is limited to the persons
18 authorized under this Order.
19
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
20 ordered by the court or permitted in writing by the Designating Party, a Receiving
21 Party may disclose any information or item designated “CONFIDENTIAL” only to:
22
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
23 employees of said Outside Counsel of Record to whom it is reasonably necessary to
24 disclose the information for this Action;
25
(b)
the officers, directors, and employees (including House Counsel) of the
26 Receiving Party to whom disclosure is reasonably necessary for this Action;
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1
(c)
Experts (as defined in this Order) of the Receiving Party to whom
2 disclosure is reasonably necessary for this Action and who have signed the
3 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
4
(d)
the court and its personnel;
5
(e)
court reporters and their staff;
6
(f)
professional jury or trial consultants, mock jurors, and Professional
7 Vendors to whom disclosure is reasonably necessary for this Action and who have
8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9
(g)
the author or recipient of a document containing the information or a
10 custodian or other person who otherwise possessed or knew the information;
11
(h)
during their depositions, witnesses ,and attorneys for witnesses, in the
12 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
13 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
14 not be permitted to keep any confidential information unless they sign the
15 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
16 agreed by the Designating Party or ordered by the court. Pages of transcribed
17 deposition testimony or exhibits to depositions that reveal Protected Material may
18 be separately bound by the court reporter and may not be disclosed to anyone except
19 as permitted under this Stipulated Protective Order; and
20
(i)
any mediator or settlement officer, and their supporting personnel,
21 mutually agreed upon by any of the parties engaged in settlement discussions.
22
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
23 IN OTHER LITIGATION
24
If a Party is served with a subpoena or a court order issued in other litigation
25 that compels disclosure of any information or items designated in this Action a
26 “CONFIDENTIAL,” that Party must:
27
(a)
promptly notify in writing the Designating Party. Such notification
28 shall include a copy of the subpoena or court order;
Stipulated Protective Order
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1
(b)
promptly notify in writing the party who caused the subpoena or order
2 to issue in the other litigation that some or all of the material covered by the
3 subpoena or order is subject to this Protective Order. Such notification shall include
4 a copy of this Stipulated Protective Order; and
5
(c)
cooperate with respect to all reasonable procedures sought to be
6 pursued by the Designating Party whose Protected Material may be affected.
7
If the Designating Party timely seeks a protective order, the Party served with
8 the subpoena or court order shall not produce any information designated in this
9 action as “CONFIDENTIAL” before a determination by the court from which the
10 subpoena or order issued, unless the Party has obtained the Designating Party’s
11 permission. The Designating Party shall bear the burden and expense of seeking
12 protection in that court of its confidential material and nothing in these provisions
13 should be construed as authorizing or encouraging a Receiving Party in this Action
14 to disobey a lawful directive from another court.
15
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
16 PRODUCED IN THIS LITIGATION
17
(a)
The terms of this Order are applicable to information produced by a
18 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
19 produced by Non-Parties in connection with this litigation is protected by the
20 remedies and relief provided by this Order. Nothing in these provisions should be
21 construed as prohibiting a Non-Party from seeking additional protections.
22
(b)
In the event that a Party is required, by a valid discovery request, to
23 produce a Non-Party’s confidential information in its possession, and the Party is
24 subject to an agreement with the Non-Party not to produce the Non-Party’s
25 confidential information, then the Party shall:
26
(1)
promptly notify in writing the Requesting Party and the Non-Party that
27 some or all of the information requested is subject to a confidentiality agreement
28 with a Non-Party;
Stipulated Protective Order
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1
(2)
promptly provide the Non-Party with a copy of the Stipulated
2 Protective Order in this Action, the relevant discovery request(s), and a reasonably
3 specific description of the information requested; and
4
(3)
make the information requested available for inspection by the Non-
5 Party, if requested.
6
(c) If the Non-Party fails to seek a protective order from this court within 14
7 days of receiving the notice and accompanying information, the Receiving Party
8 may produce the Non-Party’s confidential information responsive to the discovery
9 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
10 not produce any information in its possession or control that is subject to the
11 confidentiality agreement with the Non-Party before a determination by the court.
12 Absent a court order to the contrary, the Non-Party shall bear the burden and
13 expense of seeking protection in this court of its Protected Material.
14
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
15
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
16 Protected Material to any person or in any circumstance not authorized under this
17 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
18 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
19 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
20 persons to whom unauthorized disclosures were made of all the terms of this Order,
21 and (d) request such person or persons to execute the “Acknowledgment and
22 Agreement to Be Bound” that is attached hereto as Exhibit A.
23
11.
INADVERTENT PRODUCTION OF PRIVILEGED OR
24 OTHERWISE PROTECTED MATERIAL
25
When a Producing Party gives notice to Receiving Parties that certain
26 inadvertently produced material is subject to a claim of privilege or other protection,
27 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
28 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
Stipulated Protective Order
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1 may be established in an e-discovery order that provides for production without
2 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
3 as the parties reach an agreement on the effect of disclosure of a communication or
4 information covered by the attorney-client privilege or work product protection, the
5 parties may incorporate their agreement in the stipulated protective order submitted
6 to the court.
7
12.
MISCELLANEOUS
8
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
9 person to seek its modification by the Court in the future.
10
12.2 Right to Assert Other Objections. By stipulating to the entry of this
11 Protective Order no Party waives any right it otherwise would have to object to
12 disclosing or producing any information or item on any ground not addressed in this
13 Stipulated Protective Order. Similarly, no Party waives any right to object on any
14 ground to use in evidence of any of the material covered by this Protective Order.
15
12.3 Filing Protected Material. A Party that seeks to file under seal any
16 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
17 only be filed under seal pursuant to a court order authorizing the sealing of the
18 specific Protected Material at issue. If a Party's request to file Protected Material
19 under seal is denied by the court, then the Receiving Party may file the information
20 in the public record unless otherwise instructed by the court.
21
13. FINAL DISPOSITION
22
After the final disposition of this Action, as defined in paragraph 4, within 60
23 days of a written request by the Designating Party, each Receiving Party must return
24 all Protected Material to the Producing Party or destroy such material. As used in
25 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
26 summaries, and any other format reproducing or capturing any of the Protected
27 Material. Whether the Protected Material is returned or destroyed, the Receiving
28 Party must submit a written certification to the Producing Party (and, if not the same
Stipulated Protective Order
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1 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
2 (by category, where appropriate) all the Protected Material that was returned or
3 destroyed and (2)affirms that the Receiving Party has not retained any copies,
4 abstracts, compilations, summaries or any other format reproducing or capturing any
5 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
6 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
7 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
8 reports, attorney work product, and consultant and expert work product, even if such
9 materials contain Protected Material. Any such archival copies that contain or
10 constitute Protected Material remain subject to this Protective Order as set forth in
11 Section 4 (DURATION).
14. Any violation of this Order may be punished by any and all appropriate
12
13 measures including, without limitation, contempt proceedings and/or monetary
14 sanctions.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD, NON-
15
16 PARTY CHRISTIAN AGUILAR.
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Stipulated Protective Order
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1
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DATED: April 24, 2018
DAVID GAMMILL
Counsel for non-party Christian Aguilar
3
4
By
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6
7
/s/
DAVID GAMMILL
Counsel for Christian Aguilar
Attorney at Geragos & Geragos
8 DATED: April 24, 2018
9
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CHRISTIAN AGUILAR
By
11
/s/
Non-Party
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DATED: April 24, 2018
17
MKRTCHYAN LAW
By
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/s/ Narine Mkrtchyan
Attorney for PLAINTIFF
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
Date: May 22, 2018
__________________________
Honorable Steve Kim
U.S. Magistrate Judge
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