Vincent Clark v. County of Los Angeles et al

Filing 24

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner re Stipulation for Protective Order 23 . (see document for details) (hr)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 VINCENT CLARK, an individual, 11 Plaintiff, 12 v. 13 COUNTY OF LOS ANGELES; LOS ANGELES COUNTY SHERIFF’S DEPARTMENT; and DOES 1 through 50, inclusive 14 15 16 Defendant. Case No. 2:20-cv-00304 DMG (MRWx) STIPULATED PROTECTIVE ORDER (MRW VERSION 4/19) ☒ Check if submitted without material modifications to MRW form 17 18 19 20 21 22 23 24 25 26 27 28 1. INTRODUCTION 1.1 PURPOSES 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 discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment 1 under the applicable legal principles. The parties further acknowledge, as set forth 2 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 3 file confidential information under seal; Civil Local Rule 79-5 sets forth the 4 procedures that must be followed and the standards that will be applied when a party 5 seeks permission from the court to file material under seal. 6 1.2 GOOD CAUSE STATEMENT 7 This case arises from a use of force incident in October of 2018 between Los 8 Angeles County Sheriff deputies and Plaintiff. The gravamen of Plaintiff’s 9 complaint is that deputies used excessive force during the incident. 10 As explained below, this action is likely to involve materials protected by 11 California Evidence Code section 1040, California Code of Civil Procedure section 12 129, California Penal Code section 632, the official information privilege or other 13 state or federal statutes, court rules, case decisions, or common law prohibiting 14 dissemination and disclosure. Additionally, this action may involve other 15 proprietary information concerning police practices and security protocols for which 16 special protection from public disclosure and from use for any purpose other than 17 prosecution of this action is warranted. 18 In terms of discovery, Defendants anticipate that a protective order will be 19 necessary in connection with the following items of evidence: 1) personnel and 20 administrative records of peace officers; 2) mental health and medical records 21 protected by HIPPA; 3) law enforcement investigative records which reveal the 22 identity of third party witnesses; and 4) such other evidence for which dissemination 23 should be limited for use in this action only. 24 Accordingly, to expedite the flow of information, to facilitate the prompt 25 resolution of disputes over confidentiality of discovery materials, to adequately 26 protect information the parties are entitled to keep confidential, to ensure that the 27 parties are permitted reasonable necessary uses of such material in preparation for 28 and in the conduct of trial, to address their handling at the end of the litigation, and 2 1 serve the ends of justice, a protective order for such information is justified in this 2 matter. It is the intent of the parties that information will not be designated as 3 confidential for tactical reasons and that nothing be so designated without a good 4 faith belief that it has been maintained in a confidential, non-public manner, and 5 there is good cause why it should not be part of the public record of this case. 6 2. 7 8 9 10 11 DEFINITIONS 2.1 Action: Vincent Clark v. County of Los Angeles, et al., Case No. 2:20-cv-00304 DMG (MRWx) 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 12 how it is generated, stored or maintained) or tangible things that qualify for 13 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 14 the Good Cause Statement. [Note: any request for a two-tiered, attorney-eyes- 15 only protective order that designates certain material as “Highly Confidential” 16 will require a separate and detailed showing of need.] 17 18 19 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 20 items that it produces in disclosures or in responses to discovery as 21 “CONFIDENTIAL.” 22 2.6 Disclosure or Discovery Material: all items or information, regardless 23 of the medium or manner in which it is generated, stored, or maintained (including, 24 among other things, testimony, transcripts, and tangible things), that are produced or 25 generated in disclosures or responses to discovery in this matter. 26 2.7 Expert: a person with specialized knowledge or experience in a matter 27 pertinent to the litigation who has been retained by a Party or its counsel to serve as 28 an expert witness or as a consultant in this Action. 3 2.8 1 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. 2.9 4 5 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a 6 7 party to this Action but are retained to represent or advise a party to this Action and 8 have appeared in this Action on behalf of that party or are affiliated with a law firm 9 which has appeared on behalf of that party, and includes support staff. 2.11 Party: any party to this Action, including all of its officers, directors, 10 11 employees, consultants, retained experts, and Outside Counsel of Record (and their 12 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 13 14 Discovery Material in this Action. 15 2.13 Professional Vendors: persons or entities that provide litigation 16 support 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. 2.14 Protected Material: any Disclosure or Discovery Material that is 19 20 designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery 21 22 Material 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. 4 Any use of Protected Material at trial will be governed by the orders of the 1 2 trial judge. This Order does not govern the use of Protected Material at trial. 3 4. DURATION Even after final disposition of this litigation, the confidentiality obligations 4 5 imposed by this Order will remain in effect until a Designating Party agrees 6 otherwise in writing or a court order otherwise directs. Final disposition will be 7 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 8 or without prejudice; and (2) final judgment herein after the completion and 9 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 10 including the time limits for filing any motions or applications for extension of time 11 pursuant to applicable law. 12 5. 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 14 Each Party or Non-Party that designates information or items for protection under 15 this Order must take care to limit any such designation to specific material that 16 qualifies under the appropriate standards. The Designating Party must designate for 17 protection only those parts of material, documents, items, or oral or written 18 communications that qualify so that other portions of the material, documents, 19 items, or communications for which protection is not warranted are not swept 20 unjustifiably within the ambit of this Order. 21 Mass, indiscriminate, or routinized designations are prohibited. Designations 22 that are shown to be clearly unjustified or that have been made for an improper 23 purpose (e.g., to unnecessarily encumber the case development process or to impose 24 unnecessary expenses and burdens on other parties) may expose the Designating 25 Party to sanctions. 26 If it comes to a Designating Party’s attention that information or items that it 27 designated for protection do not qualify for protection, that Designating Party must 28 promptly notify all other Parties that it is withdrawing the inapplicable designation. 5 1 5.2 Manner and Timing of Designations. Except as otherwise provided in 2 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 4 under this Order must be clearly so designated before the material is disclosed or 5 produced. 6 Designation in conformity with this Order requires: 7 (a) for information in documentary form (e.g., paper or electronic documents, 8 but excluding transcripts of depositions or other pretrial or trial proceedings), that 9 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 10 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 11 portion or portions of the material on a page qualifies for protection, the Producing 12 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 13 markings in the margins). 14 A Party or Non-Party that makes original documents available for 15 inspection need not designate them for protection until after the inspecting Party has 16 indicated which documents it would like copied and produced. During the 17 inspection and before the designation, all of the material made available for 18 inspection will be deemed “CONFIDENTIAL.” After the inspecting Party has 19 identified the documents it wants copied and produced, the Producing Party must 20 determine which documents, or portions thereof, qualify for protection under this 21 Order. Then, before producing the specified documents, the Producing Party must 22 affix the “CONFIDENTIAL legend” to each page that contains Protected Material. 23 If only a portion or portions of the material on a page qualifies for protection, the 24 Producing Party also must clearly identify the protected portion(s) (e.g., by making 25 appropriate markings in the margins). 26 (b) for testimony given in depositions that the Designating Party identify the 27 Disclosure or Discovery Material on the record, before the close of the deposition all 28 protected testimony. 6 (c) for information produced in some form other than documentary and for 1 2 any other tangible items, that the Producing Party affix in a prominent place on the 3 exterior of the container or containers in which the information is stored the legend 4 “CONFIDENTIAL.” If only a portion or portions of the information warrants 5 protection, the Producing Party, to the extent practicable, will identify the protected 6 portion(s). 5.3 7 Inadvertent Failures to Designate. If timely corrected, an inadvertent 8 failure to designate qualified information or items does not, standing alone, waive 9 the Designating Party’s right to secure protection under this Order for such material. 10 Upon timely correction of a designation, the Receiving Party must make reasonable 11 efforts to assure that the material is treated in accordance with the provisions of this 12 Order. 13 14 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 15 Timing of Challenges. Any Party or Non-Party may challenge a 16 designation of confidentiality at any time that is consistent with the Court’s 17 Scheduling Order. 6.2 18 Meet and Confer. The Challenging Party will initiate the dispute 19 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1 20 et seq. 21 6.3 The burden of persuasion in any such challenge proceeding will be on 22 the Designating Party. Frivolous challenges, and those made for an improper 23 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 24 parties) may expose the Challenging Party to sanctions. Unless the Designating 25 Party has waived or withdrawn the confidentiality designation, all parties will 26 continue to afford the material in question the level of protection to which it is 27 entitled under the Producing Party’s designation until the Court rules on the 28 challenge. 7 1 2 3 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 4 disclosed or produced by another Party or by a Non-Party in connection with this 5 Action only for prosecuting, defending, or attempting to settle this Action. Such 6 Protected Material may be disclosed only to the categories of persons and under the 7 conditions described in this Order. When the Action has been terminated, a 8 Receiving Party must comply with the provisions of section 13 below (FINAL 9 DISPOSITION). 10 Protected Material must be stored and maintained by a Receiving Party at a 11 location and in a secure manner that ensures that access is limited to the persons 12 authorized under this Order. 13 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 14 otherwise ordered by the court or permitted in writing by the Designating Party, a 15 Receiving Party may disclose any information or item designated 16 “CONFIDENTIAL” only to: 17 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 18 well as employees of said Outside Counsel of Record to whom it is reasonably 19 necessary to disclose the information for this Action; 20 (b) the officers, directors, and employees (including House Counsel) of 21 the Receiving Party to whom disclosure is reasonably necessary for this Action; 22 (c) Experts (as defined in this Order) of the Receiving Party to whom 23 disclosure is reasonably necessary for this Action and who have signed the 24 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 (d) the Court and its personnel; 26 (e) court reporters and their staff; 27 28 8 (f) professional jury or trial consultants, mock jurors, and Professional 1 2 Vendors to whom disclosure is reasonably necessary for this Action and who have 3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 4 5 custodian or other person who otherwise possessed or knew the information; 6 (h) during their depositions, witnesses ,and attorneys for witnesses, in the 7 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 8 requests that the witness sign the form attached as Exhibit A hereto; and (2) they 9 will not be permitted to keep any confidential information unless they sign the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 11 agreed by the Designating Party or ordered by the court. Pages of transcribed 12 deposition testimony or exhibits to depositions that reveal Protected Material may 13 be separately bound by the court reporter and may not be disclosed to anyone except 14 as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 15 16 mutually agreed upon by any of the parties engaged in settlement discussions. 17 8. 18 IN OTHER LITIGATION 19 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED If a Party is served with a subpoena or a court order issued in other litigation 20 that compels disclosure of any information or items designated in this Action as 21 “CONFIDENTIAL,” that Party must: 22 23 24 (a) promptly notify in writing the Designating Party. Such notification will include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order 25 to issue in the other litigation that some or all of the material covered by the 26 subpoena or order is subject to this Protective Order. Such notification will include 27 a copy of this Stipulated Protective Order; and 28 9 (c) cooperate with respect to all reasonable procedures sought to be 1 2 pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 3 4 the subpoena or court order will not produce any information designated in this 5 action as “CONFIDENTIAL” before a determination by the court from which the 6 subpoena or order issued, unless the Party has obtained the Designating Party’s 7 permission. The Designating Party will bear the burden and expense of seeking 8 protection in that court of its confidential material and nothing in these provisions 9 should be construed as authorizing or encouraging a Receiving Party in this Action 10 to disobey a lawful directive from another court. 11 9. 12 PRODUCED IN THIS LITIGATION 13 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE (a) The terms of this Order are applicable to information produced by a 14 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 15 produced by Non-Parties in connection with this litigation is protected by the 16 remedies and relief provided by this Order. Nothing in these provisions should be 17 construed as prohibiting a Non-Party from seeking additional protections. 18 (b) In the event that a Party is required, by a valid discovery request, to 19 produce a Non-Party’s confidential information in its possession, and the Party is 20 subject to an agreement with the Non-Party not to produce the Non-Party’s 21 confidential information, then the Party will: 22 (1) promptly notify in writing the Requesting Party and the Non-Party 23 that some or all of the information requested is subject to a confidentiality 24 agreement with a Non-Party; 25 (2) promptly provide the Non-Party with a copy of the Stipulated 26 Protective Order in this Action, the relevant discovery request(s), and a reasonably 27 specific description of the information requested; and 28 10 (3) make the information requested available for inspection by the 1 2 Non-Party, if requested. 3 (c) If the Non-Party fails to seek a protective order from this court within 4 14 days of receiving the notice and accompanying information, the Receiving Party 5 may produce the Non-Party’s confidential information responsive to the discovery 6 request. If the Non-Party timely seeks a protective order, the Receiving Party will 7 not produce any information in its possession or control that is subject to the 8 confidentiality agreement with the Non-Party before a determination by the court. 9 Absent a court order to the contrary, the Non-Party will bear the burden and expense 10 of seeking protection in this court of its Protected Material. 11 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 12 13 Protected Material to any person or in any circumstance not authorized under this 14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 15 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 16 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 17 persons to whom unauthorized disclosures were made of all the terms of this Order, 18 and (d) request such person or persons to execute the “Acknowledgment and 19 Agreement to Be Bound” that is attached hereto as Exhibit A. 20 11. 21 PROTECTED MATERIAL 22 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE When a Producing Party gives notice to Receiving Parties that certain 23 inadvertently produced material is subject to a claim of privilege or other protection, 24 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 26 procedure may be established in an e-discovery order that provides for production 27 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 28 (e), insofar as the parties reach an agreement on the effect of disclosure of a 11 1 communication or information covered by the attorney-client privilege or work 2 product protection, the parties may incorporate their agreement in the stipulated 3 protective order submitted to the court. 4 12. 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 5 6 MISCELLANEOUS person to seek its modification by the Court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this 7 8 Protective Order no Party waives any right it otherwise would have to object to 9 disclosing or producing any information or item on any ground not addressed in this 10 Stipulated Protective Order. Similarly, no Party waives any right to object on any 11 ground to use in evidence of any of the material covered by this Protective Order. 12.3 Filing Protected Material. A Party that seeks to file under seal any 12 13 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 14 only be filed under seal pursuant to a court order authorizing the sealing of the 15 specific Protected Material at issue. If a Party's request to file Protected Material 16 under seal is denied by the court, then the Receiving Party may file the information 17 in the public record unless otherwise instructed by the court. 18 13. 19 FINAL DISPOSITION After the final disposition of this Action, as defined in paragraph 4, within 60 20 days of a written request by the Designating Party, each Receiving Party must return 21 all Protected Material to the Producing Party or destroy such material. As used in 22 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 23 summaries, and any other format reproducing or capturing any of the Protected 24 Material. Whether the Protected Material is returned or destroyed, the Receiving 25 Party must submit a written certification to the Producing Party (and, if not the same 26 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 27 (by category, where appropriate) all the Protected Material that was returned or 28 destroyed and (2) affirms that the Receiving Party has not retained any copies, 12 1 abstracts, compilations, summaries or any other format reproducing or capturing any 2 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 3 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 4 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 5 reports, attorney work product, and consultant and expert work product, even if such 6 materials contain Protected Material. Any such archival copies that contain or 7 constitute Protected Material remain subject to this Protective Order as set forth in 8 Section 4 (DURATION). 9 14. Any willful violation of this Order may be punished by civil or criminal 10 contempt proceedings, financial or evidentiary sanctions, reference to disciplinary 11 authorities, or other appropriate action at the discretion of the Court. 12 13 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 14 15 DATED: October 13, 2020 _/s/ Adrianos Facchetti____________ Attorneys for Plaintiff, VINCENT CLARK DATED: October 13, 2020 _/s/ Chandler A. Parker__________ Attorneys for Defendant, COUNTY OF LOS ANGELES 16 17 18 19 20 21 22 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 23 24 25 26 DATED: October 13, 2020 __________________________________ HON. MICHAEL R. WILNER United States Magistrate Judge 27 28 13 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [full name], of _________________ 5 [full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States 7 District Court for the Central District of California on [date] in the case of 2:20-cv- 8 00304 DMG (MRWx). I agree to comply with and to be bound by all the terms of 9 this Stipulated Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I 11 solemnly promise that I will not disclose in any manner any information or item that 12 is subject to this Stipulated Protective Order to any person or entity except in strict 13 compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint __________________________ [full 18 name] of _______________________________________ [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 signed: _________________________________ 24 25 Printed name: _______________________________ 26 27 Signature: __________________________________ 28 14

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