R. A. et al v. County of Riverside et al

Filing 71

PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh 70 . SEE ORDER. (im)

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LAW OFFICES OF DALE K. GALIPO
Dale K. Galipo, Esq. (SBN 144074)
[e-mail]
Thomas C. Seabaugh, Esq. (SBN 272458)
[e-mail]
21800 Burbank Boulevard, Suite 310
Woodland Hills, CA 91367
Telephone: [phone]
Facsimile: [phone]
Darrell J. York, Esq. (SBN 145601)
Sarah L. Garvey, Esq. (SBN 202491)
Law Offices of York & Garvey
137 N. Larchmont Blvd. #506
Los Angeles, CA 90004
Telephone: [phone]
Telecopier: [phone]
Attorneys for Plaintiff
R.A., a minor, by and through his guardian ad litem Adrianne Penrose, individually
and as a successor in interest to John C. Armes, deceased.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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R.A., a minor, by and through his guardian
ad litem Adrianne Penrose, individually
and as a successor in interest to John C.
Armes, deceased,

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vs.

Plaintiff,

C. MORRIS, an individual, et al.
Defendants.

Case No. 5:14-cv-00077-ODW(PJWx)
Hon. Patrick J. Walsh
JOINT STIPULATION AND
PROTECTIVE ORDER

PROTECTIVE ORDER

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1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production

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of confidential, proprietary, or private information for which special protection from

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

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may be warranted. Accordingly, the parties have jointly petitioned the Court to enter

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the following Protective Order. Good cause appearing, the Court ORDERS as follows:

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This Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. As set forth in Section 12.3, below, this

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Protective Order does not entitle the parties to file confidential information under seal.

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2.

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DEFINITIONS
2.1

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

of information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of

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

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under Federal Rule of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

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

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

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“CONFIDENTIAL.”

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2.5

Disclosure or Discovery Material: all items or information, regardless of

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

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

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generated in disclosures or responses to discovery in this matter.

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2.6

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

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

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expert witness or as a consultant in this action.

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2.7

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

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.8

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

other legal entity not named as a Party to this action.
2.9

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

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

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appeared in this action on behalf of that party or are affiliated with a law firm which

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has appeared on behalf of that party.

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2.10 Party: any party to this action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support

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

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

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and their employees and subcontractors.

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2.13 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.

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3.

SCOPE
The protections conferred by this Order cover not only Protected Material (as

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

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

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and (3) any testimony, conversations, or presentations by Parties or their Counsel that

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might reveal Protected Material. However, the protections conferred by this Order do

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not cover the following information: (a) any information that is in the public domain

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at the time of disclosure to a Receiving Party or becomes part of the public domain

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after its disclosure to a Receiving Party as a result of publication not involving a

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violation of this Order, including becoming part of the public record through trial or

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otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source who

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obtained the information lawfully and under no obligation of confidentiality to the

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Designating Party. Any use of Protected Material at trial shall be governed by a

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separate agreement or order.

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4.

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

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this action, with or

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without prejudice; and (2) final judgment herein after the completion and exhaustion

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of all appeals, rehearings, remands, trials, or reviews of this action, including the time

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limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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

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Order must take care to limit any such designation to specific material that qualifies
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under the appropriate standards.
In connection with discovery proceedings in this action, the parties may

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designate any document, thing, material, testimony, or other information derived

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from them, as “Confidential” under the terms of this Order. Confidential

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information is information that has not been made public or that concerns or relates

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to the processes, operations, investigations, or other information relating to the

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California Department of Corrections and Rehabilitation, disclosure of which may

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have the effect of causing harm to the safety and security of law enforcement

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officers, the public, or Defendant. Confidential information is also personal

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information of the Defendant, including but not limited to home address, social

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security number, telephone number, email address, names or identifying information

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of family members, the disclosure of which places the safety of Defendant, who is a

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current peace officer, and his family members at risk. Confidential information also

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includes all personal identifying information of any current or former California

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Department of Corrections employee, and any third party entitled to confidential

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protection of personal identifying information under California and/or applicable

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federal law. Defendant reserves the right to redact such personal identifying

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information from any “Confidential” document.

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By designating a document, thing, material, testimony or other information

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derived from the record as “Confidential,” under the terms of this Order, the party

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making the designation is certifying to the Court that there is a good-faith basis both

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in law and in fact for the designation within the meaning of Federal Rule of Civil

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Procedure 26.

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

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

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

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5.2

Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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

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produced.

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Designation in conformity with this Order requires:

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

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each

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page that contains protected material.
(b) for testimony given in deposition or in other pretrial or trial proceedings,

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that the Designating Party identify on the record, before the close of the deposition,

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hearing, or other proceeding, all protected testimony. Arrangements will be made

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with the court reporter taking and transcribing the proceeding to separately bind

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portions of the transcript containing information designated as Confidential, and to

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label the separately bound portions appropriately. Defendant, and employees of the

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California Department of Corrections and Rehabilitation, will not be required to

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disclose confidential personal information, as described in paragraph 5.1, in response

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to discovery, including questioning at deposition, or trial, without the protections for

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Protected Material required by this Order.
(c) for information produced in some form other than documentary and for

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

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL.” If only a portion or portions of the information or item

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

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protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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Upon timely correction of a designation, the Receiving Party must make reasonable
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efforts to assure that the material is treated in accordance with the provisions of this

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Order.
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Nothing in this Order will impose any restrictions on the use or

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disclosure by a party of material obtained by the party independent of discovery in

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this action, or from disclosing its own Confidential material as it deems appropriate.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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designation of confidentiality at any time. Unless a prompt challenge to a Designating

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Party’s confidentiality designation is necessary to avoid foreseeable, substantial

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unfairness, unnecessary economic burdens, or a significant disruption or delay of the

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litigation, a Party does not waive its right to challenge a confidentiality designation by

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electing not to mount a challenge promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging

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and describing the basis for each challenge. To avoid ambiguity as to whether a

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challenge has been made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The parties shall attempt to resolve each challenge in good faith and

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must begin the process by conferring directly (in voice to voice dialogue; other forms

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of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the

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confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if

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no change in designation is offered, to explain the basis for the chosen designation. A

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Challenging Party may proceed to the next stage of the challenge process only if it has

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engaged in this meet and confer process first or establishes that the Designating Party

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is unwilling to participate in the meet and confer process in a timely manner.

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6.3

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Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Challenging Party may file a motion challenging a

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confidentiality designation at any time prior to the discovery motion deadline if there

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is good cause for doing so, including a challenge to the designation of a deposition

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transcript or any portions thereof. Any motion brought pursuant to this provision must

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be accompanied by a competent declaration affirming that the movant has complied

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with the meet and confer requirements imposed by the preceding paragraph.
In response to a motion brought to challenge a confidentiality designation, the

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Producing Party may seek to submit the Protected Material to the Court for in camera

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review. Frivolous challenges, and those made for an improper purpose (e.g., to harass

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or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. All parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

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

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

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described in this Order. When the litigation has been terminated, a Receiving Party

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

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

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

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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

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only to:
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(a) the Receiving Party’s Outside Counsel of Record in this action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom

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

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants,

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mock jurors, and Professional Vendors to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered

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by the court. Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material must be separately bound by the court reporter and may not

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be disclosed to anyone except as permitted under this Protective Order.
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:
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(a) promptly notify in writing the Designating Party. Such notification shall

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include a copy of the subpoena or court order;

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

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

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order is subject to this Protective Order. Such notification shall include a copy of this

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Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued

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by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION

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

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Non-Party in this action and designated as “CONFIDENTIAL.” Such information

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

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

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construed as prohibiting a Non-Party from seeking additional protections.

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

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party
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that some or all of the information requested is subject to a confidentiality agreement

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with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Protective Order

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in this litigation, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and
(3) make the information requested available for inspection by the Non-

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Party.
(c) If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving

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Party may produce the Non-Party’s confidential information responsive to the

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discovery request. If the Non-Party timely seeks a protective order, the Receiving

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Party shall not produce any information in its possession or control that is subject to

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

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Absent a court order to the contrary, the Non-Party shall bear the burden and expense

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of seeking protection in this court of its Protected Material.

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10.

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

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

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

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

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

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

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

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Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,
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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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

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

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

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

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

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

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the court.

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12.

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

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person to seek its modification by the court in the future. This Order will be without

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prejudice to the right of the parties (i) to bring before the Court at any time a question

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of whether any particular document or information is confidential or whether its use

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should be restricted or (ii) to present a motion to the Court under FRCP 26(c) for a

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separate protective order as to any particular document or information, including

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restrictions differing from those as specified herein.

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12.2 Right to Assert Other Objections. The entry of this Protective Order does

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not imply any Party’s waiver of any right it otherwise would have to object to

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

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

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

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12.3 Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record in this action any Protected Material.

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A Party that seeks to file under seal any Protected Material must comply with the

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applicable local rules. Protected Material may only be filed under seal pursuant to a

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court order authorizing the sealing of the specific Protected Material at issue. A

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sealing order will issue only upon a request establishing that the Protected Material at
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issue is privileged, protectable as a trade secret, or otherwise entitled to protection

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under the law. If a Receiving Party's request to file Protected Material under seal is

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

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record unless otherwise instructed by the court.
12.4 In the event that any Protected Material is used in any court proceeding

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in this action, it will not lose its confidential status through such use, and the party

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using the material will take all reasonable steps to maintain its confidentiality during

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such use.
12.5 This Order is entered solely for the purpose of facilitating the exchange

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of documents and information between the parties to this action. Nothing in this

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Order, or the production of any information or document under the terms of this

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Order, or any proceedings under this Order, will be deemed as an admission or a

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waiver by any party, and will not alter the confidentiality or nonconfidentiality or

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any such document or information or alter any existing obligation of any party or the

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absence of obligation.

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13.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph

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4, each Receiving Party must return all Protected Material to the Producing Party or

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destroy such material. As used in this subdivision, “all Protected Material” includes

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all copies, abstracts, compilations, summaries, and any other format reproducing or

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capturing any of the Protected Material. Whether the Protected Material is returned or

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destroyed, the Receiving Party must submit a written certification to the Producing

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Party (and, if not the same person or entity, to the Designating Party) by the 60 day

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deadline that (1) identifies (by category, where appropriate) all the Protected Material

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that was returned or destroyed and (2) affirms that the Receiving Party has not

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retained any copies, abstracts, compilations, summaries or any other format

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reproducing or capturing any of the Protected Material. Notwithstanding this

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provision, Counsel are entitled to retain an archival copy of all pleadings, motion
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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and

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expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4 (DURATION).

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SO STIPULATED.

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Respectfully submitted,
DATED: July 28, 2015

LAW OFFICES OF DALE K. GALIPO

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By

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/s/ Thomas C. Seabaugh
Dale K. Galipo
Thomas C. Seabaugh
Attorneys for Plaintiff

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DATED: July 28, 2015

OFFICE OF THE ATTORNEY GENERAL

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By

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/s/ Leena M. Sheet
Leena M. Sheet
Deputy Attorney General
Attorneys for Defendant

IT IS SO ORDERED.

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DATED: July 29, 2015

____________________________________
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury that

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I have read in its entirety and understand the Protective Order that was issued by the

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United States District Court for the Central District of California on [date] in the case

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of R.A. v. Chris Morris, Case No. 5:14-cv-00077-ODW-PJW. I agree to comply with

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and to be bound by all the terms of this Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment

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in the nature of contempt. I solemnly promise that I will not disclose in any manner

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any information or item that is subject to this Protective Order to any person or entity

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except in strict compliance with the provisions of this Order.

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

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Central District of California for the purpose of enforcing the terms of this Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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