Ettienne Glynn Carter v. County of San Bernardino et al
Filing
29
PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation for Protective Order 28 (SEE ORDER FOR DETAILS) (dts)
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JEAN-RENE BASLE, CA Bar No. 134107
County Counsel
RICHARD D. LUCZAK, CA Bar No. 216197
Deputy County Counsel
385 North Arrowhead Avenue, 4th Floor
San Bernardino, CA 92415-0140
Telephone: (909) 387-0228
Fax: (909) 387-4069
Exempt per Gov. Code §6103
Attorneys for Defendants COUNTY OF SAN BERNARDINO, DEPUTY ALEX
BARRERO, and DEPUTY STACY RAY TARVER
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ETTIENNE GLYNN CARTER,
Plaintiff,
vs.
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COUNTY OF SAN
BERNARDINO; DEPUTY ALEX
BARRERO; DEPUTY STACY
RAY TARVER, and DOES 3-20,
Inclusive,
Defendants.
) CASE NO. 5:15-cv-01206 SJO (KKx)
)
) [PROPOSED] PROTECTIVE
) ORDER
)
) Case assigned to:
)
) District Judge S. James Otero and to
) Magistrate Judge Kenly Kiya Kato
)
)PLEASE NOTE CHANGES MADE BY THE COURT
)
Pursuant to the parties’ stipulation, the Court makes the following
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protective order:
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1. A. PURPOSES AND LIMITATIONS
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proprietary, or private information for which special protection from public
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disclosure and from use for any purpose other than prosecuting this litigation may
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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
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Discovery in this action is likely to involve production of confidential,
enter the following Stipulated Protective Order. The parties acknowledge that this
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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
under the applicable legal principles. The parties further acknowledge, as set forth
in Section 12.3, below, that this Stipulated Protective Order does not entitle them
to file confidential information under seal; Civil Local Rule 79-5 sets forth the
procedures that must be followed and the standards that will be applied when a
party seeks permission from the court to file material under seal.
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B. GOOD CAUSE STATEMENT
Defendants COUNTY OF SAN BERNARDINO, DEPUTY ALEX
BARRERO, and DEPUTY STACY RAY TARVER and plaintiff ETTIENNE
GLYNN CARTER submitted a stipulation and protective order in relation to
plaintiff’s request for production of documents seeking disclosure of the Internal
Affairs investigation (the “information”) related to this case. Defendants claim the
documents are protected by, inter alia, the official information privilege. This
action is likely to involve the Defendants’ personnel file information for which
special protection from public disclosure and from use for any purpose other than
prosecution of this action is warranted. Such confidential and proprietary
materials and information consist of, among other things, confidential business or
financial information, information regarding confidential business practices, or
other confidential research, development, or commercial information (including
information implicating privacy rights of third parties), information otherwise
generally unavailable to the public, or which may be privileged or otherwise
protected from disclosure under state or federal statutes, court rules, case
decisions, or common law. Accordingly, to expedite the flow of information, to
facilitate the prompt resolution of disputes over confidentiality of discovery
materials, to adequately protect information the parties are entitled to keep
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confidential, to ensure that the parties are permitted reasonable necessary uses of
such material in preparation for and in the conduct of trial, to address their
handling at the end of the litigation, and serve the ends of justice, a protective
order for such information is justified in this matter. It is the intent of the parties
that information will not be designated as confidential for tactical reasons and that
nothing be so designated without a good faith belief that it has been maintained in
a confidential, non-public manner, and there is good cause why it should not be
part of the public record of this case.
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2. DEFINITIONS
2.1 Action: This pending federal law suit
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
how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
the Good Cause Statement.
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
items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
2.6 Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced
or generated in disclosures or responses to discovery in this matter.
2.7 Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to serve
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as an expert witness or as a consultant in this Action.
2.8 House Counsel: attorneys who are employees of a party to this Action.
House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.9 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
party to this Action but are retained to represent or advise a party to this Action
and have appeared in this Action on behalf of that party or are affiliated with a law
firm 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,
employees, consultants, retained experts, and Outside Counsel of Record (and
their support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits
or demonstrations, and organizing, storing, or retrieving data in any form or
medium) and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.15 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 Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
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compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material. Any
use of Protected Material at trial shall be governed by the orders of the trial judge.
This Order does not govern the use of Protected Material at trial.
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4. DURATION
Any use of Protected Material at trial or other court hearings or proceedings
shall be governed by the orders of the trial judge. Even after final disposition of
this litigation, the confidentiality obligations imposed by this Order shall remain
in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal
of all claims and defenses in this Action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all appeals, rehearings,
remands, trials, or reviews of this Action, including the time limits for filing any
motions or applications for extension of time pursuant to applicable law.
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5. DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate
for protection only those parts of material, documents, items, or oral or written
communications that qualify so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized
designations are prohibited. Designations that are shown to be clearly unjustified
or that have been made for an improper purpose (e.g., to unnecessarily encumber
the case development process or to impose unnecessary expenses and burdens on
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other parties) may expose the Designating Party to sanctions. If it comes to a
Designating Party’s attention that information or items that it designated for
protection do not qualify for protection, that Designating Party must promptly
notify all other Parties that it is withdrawing the inapplicable designation.
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
stipulated or ordered, Disclosure or Discovery Material that qualifies for
protection under this Order must be clearly so designated before the material is
disclosed or produced. Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix at a minimum, the legend
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
contains protected material. If only a portion or portions of the material on a page
qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins). A
Party or Non-Party that makes original documents available for inspection need
not designate them for protection until after the inspecting Party has indicated
which documents it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must determine
which documents, or portions thereof, qualify for protection under this Order.
Then, before producing the specified documents, the Producing Party must affix
the “CONFIDENTIAL legend” to each page that contains Protected Material. If
only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by
making appropriate markings in the margins).
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(b) for testimony given in depositions that the Designating Party identify
the Disclosure or Discovery Material on the record, before the close of the
deposition all protected testimony.
(c) for information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on
the exterior of the container or containers in which the information is stored the
legend “CONFIDENTIAL.” If only a portion or portions of the information
warrants protection, the Producing Party, to the extent practicable, shall identify
the protected portion(s).
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such
material. Upon timely correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.
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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a
designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order.
6.2 Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local Rule 37.1 et seq.
6.3 The burden of persuasion in any such challenge proceeding shall be on
the Designating Party. Frivolous challenges, and those made for an improper
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the Challenging Party to sanctions. Unless the Designating
Party has waived or withdrawn the confidentiality designation, all parties shall
continue to afford the material in question the level of protection to which it is
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entitled under the Producing Party’s designation until the Court rules on the
challenge.
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7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending, or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION). Protected Material must be stored and maintained by a
Receiving Party at a location and in a secure manner that ensures that access is
limited to the persons authorized under this Order.
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving
Party
may
disclose
any
information
or
item
designated
“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well
as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff;
(f) professional jury or trial consultants, mock jurors, and Professional
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Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses ,and attorneys for witnesses, in the
Action to whom disclosure is reasonably necessary provided:
(1) the deposing party requests that the witness sign the form attached as
Exhibit 1 hereto; and
(2) they will not be permitted to keep any confidential information unless
they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
otherwise agreed by the Designating Party or ordered by the court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal Protected
Material may be separately bound by the court reporter and may not be disclosed
to anyone except as permitted under this Stipulated Protective Order; and (i) any
mediator or settlement officer, and their supporting personnel, mutually agreed
upon by any of the parties engaged in settlement discussions.
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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other
litigation that compels disclosure of any information or items designated in this
Action as “CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order
to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification shall
include a copy of this Stipulated Protective Order; and
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(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served
with the subpoena or court order shall not produce any information designated in
this action as “CONFIDENTIAL” before a determination by the court from which
the subpoena or order issued, unless the Party has obtained the Designating
Party’s permission. The Designating Party shall bear the burden and expense of
seeking protection in that court of its confidential material and nothing in these
provisions should be construed as authorizing or encouraging a Receiving Party in
this Action to disobey a lawful directive from another court.
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9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement
with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective
Order in this Action, the relevant discovery request(s), and a reasonably specific
description of the information requested; and (3) make the information requested
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available for inspection by the Non-Party, if requested. (c) If the Non-Party fails
to seek a protective order from this court within 14 days of receiving the notice
and accompanying information, the Receiving Party may produce the Non-Party’s
confidential information responsive to the discovery request. If the Non-Party
timely seeks a protective order, the Receiving Party shall not produce any
information in its possession or control that is subject to the confidentiality
agreement with the Non-Party before a determination by the court. Absent a court
order to the contrary, the Non-Party shall bear the burden and expense 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 Protected Material to any person or in any circumstance not authorized
under this Stipulated Protective Order, the Receiving Party must immediately (a)
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
best efforts to retrieve all unauthorized copies of the Protected Material, (c)
inform the person or persons to whom unauthorized disclosures were made of all
the terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as
Exhibit A.
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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for
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production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the parties reach an agreement on the effect of
disclosure of a communication or information covered by the attorney-client
privilege or work product protection, the parties may incorporate their agreement
in the stipulated protective order submitted to the court.
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12. MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
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
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in
this Stipulated Protective Order. Similarly, no Party waives any right to object on
any 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
Protected Material must comply with Civil Local Rule 79-5. Protected Material
may only be filed under seal pursuant to a court order authorizing the sealing of
the specific Protected Material at issue. If a Party's request to file Protected
Material under seal is denied by the court, then the Receiving Party may file the
information in the public record unless otherwise instructed by the court.
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13. FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within
60 days of a written request by the Designating Party, each Receiving Party must
return all Protected Material to the Producing Party or destroy such material. As
used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of
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the Protected Material. Whether the Protected Material is returned or destroyed,
the Receiving Party must submit a written certification to the Producing Party
(and, if not the same person or entity, to the Designating Party) by the 60 day
deadline that (1) identifies (by category, where appropriate) all the Protected
Material that was returned or destroyed and (2)affirms that the Receiving Party
has not retained any copies, abstracts, compilations, summaries or any other
format reproducing or capturing any of the Protected Material. Notwithstanding
this provision, Counsel are entitled to retain an archival copy of all pleadings,
motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work
product, and consultant and expert work product, even if such materials contain
Protected Material. Any such archival copies that contain or constitute Protected
Material remain subject to this Protective Order as set forth in Section 4
(DURATION).
14. Any violation of this Order may be punished by any and all appropriate
measures including, without limitation, contempt proceedings and/or monetary
sanctions.
15.
The agreement of the parties embodied in this Protective Order does
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not constitute an admission or agreement that any documents or information is
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subject to discovery, or is admissible as evidence, in this case. Designation of any
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information as subject to this Protective Order shall have no meaning or effect
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whatsoever with respect to the substantive issues in this proceeding or the claims
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or defenses of any party hereto.
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16.
Nothing in the protective order shall be construed as authorizing a
party to disobey a lawful subpoena or court order issued in another action.
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IT IS SO ORDERED.
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DATED: June 7, 2016
___________________________________
HON. KENLY KIYA KATO
UNITED STATES MAGISTRATE JUDGE
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