David Powell, Sr. et al v. City of Barstow et al

Filing 34

ORDER APPROVING STIPULATED PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation for Protective Order 33 (SEE ORDER FOR DETAILS) (dts)

1 ARTHUR K. CUNNINGHAM, SB# 97506
E-Mail: [e-mail]
2 JOHN M. PORTER, SB# 62427
E-Mail: [e-mail]
3 ERIC T. ANGEL, SB# 293157
E-Mail: [e-mail]
4 LEWIS BRISBOIS BISGAARD & SMITH LLP
650 East Hospitality Lane, Suite 600
5 San Bernardino, California 92408
Telephone: [phone]
6 Facsimile: 909.387.1138
7 Attorneys for Defendant
CITY OF BARSTOW
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 DAVID POWELL, SR., et al.,
Plaintiffs,

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vs.

CASE NO: 16-CV-01472-JGB (KKx)
STIPULATED PROTECTIVE
ORDER

15 CITY OF BARSTOW, et al.,
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Defendants.

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STIPULATED PROTECTIVE ORDER

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

3 proprietary, or private information for which special protection from public
4 disclosure and from use for any purpose other than prosecuting this litigation may
5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
6 enter the following Stipulated Protective Order. The parties acknowledge that this
7 Order does not confer blanket protections on all disclosures or responses to
8 discovery and that the protection it affords from public disclosure and use extends
9 only to the limited information or items that are entitled to confidential treatment
10 under the applicable legal principles. The parties further acknowledge, as set forth in
11 Section 12.3, below, that this Stipulated Protective Order does not entitle them to
12 file confidential information under seal; Civil Local Rule 79-5 sets forth the
13 procedures that must be followed and the standards that will be applied when a party
14 seeks permission from the court to file material under seal.
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B. GOOD CAUSE STATEMENT

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Plaintiffs have requested, by way of written discovery, materials pertaining to

17 the City of Barstow Police Department’s and/or District Attorney’s investigation
18 into the shooting death of David Powell, Jr. Defendants assert that these documents
19 contain information of a privileged, confidential, private, or sensitive nature, and the
20 public dissemination of which Defendants believe jeopardize compelling interests in
21 preserving the integrity of the investigation. This confidential information is in the
22 possession of the Defendants. Defendants have agreed to produce this information
23 pursuant to the terms and conditions found in the instant protective order.
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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
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STIPULATED PROTECTIVE ORDER

1 and in the conduct of trial, to address their handling at the end of the litigation, and
2 serve the ends of justice, a protective order for such information is justified in this
3 matter. It is the intent of the parties that information will not be designated as
4 confidential for tactical reasons and that nothing be so designated without a good
5 faith belief that it has been maintained in a confidential, non-public manner, and
6 there is good cause why it should not be part of the public record of this case.
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DEFINITIONS
2.1

Action: this pending federal law suit, David Powell, Sr., et al. v. City

of Barstow, et al., case number 16-CV-01472-JGB (KKx).
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 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 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.
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STIPULATED PROTECTIVE ORDER

1 House Counsel does not include Outside Counsel of Record or any other outside
2 counsel.
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2.9 Non-Party: any natural person, partnership, corporation, association, or

4 other legal entity not named as a Party to this action.
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2.10 Outside Counsel of Record: attorneys who are not employees of a party

6 to this Action but are retained to represent or advise a party to this Action and have
7 appeared in this Action on behalf of that party or are affiliated with a law firm which
8 has appeared on behalf of that party, and includes support staff.
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2.11 Party: any party to this Action, including all of its officers, directors,

10 employees, consultants, retained experts, and Outside Counsel of Record (and their
11 support staffs).
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2.12 Producing Party: a Party or Non-Party that produces Disclosure or

13 Discovery Material in this Action.
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2.13 Professional Vendors: persons or entities that provide litigation

15 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
16 demonstrations, and organizing, storing, or retrieving data in any form or
17 medium)and their employees and subcontractors.
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2.14 Protected Material: any Disclosure or Discovery Material that is

19 designated as “CONFIDENTIAL.”
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2.15 Receiving Party:

a Party that receives Disclosure or Discovery

21 Material from a Producing Party, except as to the Court and its personnel as they are
22 not bound by this Protective Order.
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3.

SCOPE
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
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STIPULATED PROTECTIVE ORDER

1 presentations by Parties or their Counsel that might reveal Protected Material. Any
2 use of Protected Material at trial shall be governed by the orders of the trial judge.
3 This Order does not govern the use of Protected Material at trial.
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4. DURATION

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Even after final disposition of this litigation, the confidentiality obligations

6 imposed by this Order shall remain In effect until a Designating Party agrees
7 otherwise in writing or a court order otherwise directs. Final disposition shall
8 be deemed to be the later of (1) dismissal of all claims and defenses in this
9 Action, with or without prejudice; and (2) final judgment herein after the
10 completion and exhaustion of all appeals, re-hearings, remands, trials, or reviews
11 of this Action, including the time limits for filing any motions or applications for
12 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.

15 Each Party or Non-Party that designates information or items for protection under
16 this Order must take care to limit any such designation to specific material that
17 qualifies under the appropriate standards. The Designating Party must designate for
18 protection only those parts of material, documents, items, or oral or written
19 communications that qualify so that other portions of the material, documents,
20 items, or communications for which protection is not warranted are not swept
21 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized
22 designations are prohibited. Designations that are shown to be clearly unjustified
23 or that have been made for an improper purpose (e.g., to unnecessarily encumber
24 the case development process or to impose unnecessary expenses and burdens on
25 other parties) may expose the Designating Party to sanctions. If it comes to a
26 Designating Party’s attention that information or items that it designated for
27 protection do not qualify for protection, that Designating Party must promptly
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STIPULATED PROTECTIVE ORDER

1 notify all other Parties that it is withdrawing the inapplicable designation.
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5.2 Manner and Timing of Designations. Except as otherwise provided in

3 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
4 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
5 under this Order must be clearly so designated before the material is disclosed or
6 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

9 documents, but excluding transcripts of depositions or other pretrial or trial
10 proceedings), that the Producing Party affix at a minimum, the legend
11 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
12 contains protected material. If only a portion or portions of the material on a page
13 qualifies for protection, the Producing Party also must clearly identify the protected
14 portion(s) (e.g., by making appropriate markings in the margins).
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A Party or Non-Party that makes original documents available for

16 inspection need not designate them for protection until after the inspecting Party
17 has indicated which documents it would like copied and produced. During the
18 inspection and before the designation, all of the material made available for
19 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
20 identified the documents it wants copied and produced, the Producing Party must
21 determine which documents, or portions thereof, qualify for protection under this
22 Order. Then, before producing the specified documents, the Producing Party must
23 affix the “CONFIDENTIAL legend” to each page that contains Protected Material.
24 If only a portion or portions of the material on a page qualifies for protection, the
25 Producing Party also must clearly identify the protected portion(s) (e.g., by making
26 appropriate markings in the margins).
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(b) for testimony given in depositions that the Designating Party identify
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STIPULATED PROTECTIVE ORDER

1 the Disclosure or Discovery Material on the record, before the close of the
2 deposition all protected testimony.
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(c) for information produced in some form other than documentary and for

4 any other tangible items, that the Producing Party affix in a prominent place on the
5 exterior of the container or containers in which the information is stored the
6 legend “CONFIDENTIAL.” If only a portion or portions of the information
7 warrants protection, the Producing Party, to the extent practicable, shall identify the
8 protected portion(s).
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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

10 failure to designate qualified information or items does not, standing alone, waive
11 the Designating Party’s right to secure protection under this Order for such material.
12 Upon timely correction of a designation, the Receiving Party must make reasonable
13 efforts to assure that the material is treated in accordance with the provisions of this
14 Order.
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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a

17 designation of confidentiality at any time that is consistent with the Court’s
18 Scheduling Order.
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6.2 Meet and Confer. The Challenging Party shall initiate the dispute

20 resolution process under Local Rule 37.1 et seq.
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6.3 The burden of persuasion in any such challenge proceeding shall be on the

22 Designating Party. Frivolous challenges, and those made for an improper purpose
23 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
24 expose the Challenging Party to sanctions. Unless the Designating Party has waived
25 or withdrawn the confidentiality designation, all parties shall continue to afford the
26 material in question the level of protection to which it is entitled under the
27 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

3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under the
6 conditions described in this Order. When the Action has been terminated, a
7 Receiving Party must comply with the provisions of section 13 below (FINAL
8 DISPOSITION). Protected Material must be stored and maintained by a Receiving
9 Party at a location and in a secure manner that ensures that access is limited to the
10 persons authorized under this Order.
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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

12 ordered by the court or permitted in writing by the Designating Party, a Receiving
13 Party may disclose any information or item designated “CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as

15 employees of said Outside Counsel of Record to whom it is reasonably necessary to
16 disclose the information for this Action;
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(b) the officers, directors, and employees (including House Counsel) of the

18 Receiving Party to whom disclosure is reasonably necessary for this Action;
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(c) Experts (as defined in this Order) of the Receiving Party to whom

20 disclosure is reasonably necessary for this Action and who have signed the
21 “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;

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(f) professional jury or trial consultants, mock jurors, and Professional

25 Vendors to whom disclosure is reasonably necessary for this Action and who have
26 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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STIPULATED PROTECTIVE ORDER

(g) the author or recipient of a document containing the information or a

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2 custodian or other person who otherwise possessed or knew the information;
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(h) during their depositions, witnesses and attorneys for witnesses, in the

4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
5 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
6 not be permitted to keep any confidential information unless they sign the
7 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
8 agreed by the Designating Party or ordered by the court. Pages of transcribed
9 deposition testimony or exhibits to depositions that reveal Protected Material may
10 be separately bound by the court reporter and may not be disclosed to anyone except
11 as permitted under this Stipulated Protective Order; and
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(i) any mediator or settlement officer, and their supporting personnel,

13 mutually agreed upon by any of the parties engaged in settlement discussions.
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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

15 IN OTHER LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation

17 that compels disclosure of any information or items designated in this Action as
18 “CONFIDENTIAL,” that Party must:
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(a) promptly notify in writing the Designating Party. Such notification shall

20 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
22 issue in the other litigation that some or all of the material covered by the subpoena
23 or order is subject to this Protective Order. Such notification shall include a copy of
24 this Stipulated Protective Order; and
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(c) cooperate with respect to all reasonable procedures sought to be pursued
26 by the Designating Party whose Protected Material may be affected.
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1 If the Designating Party timely seeks a protective order, the Party served with the
2 subpoena or court order shall not produce any information designated in this action
3 as “CONFIDENTIAL” before a determination by the court from which the
4 subpoena or order issued, unless the Party has obtained the Designating Party’s
5 permission. The Designating Party shall bear the burden and expense of seeking
6 protection in that court of its confidential material and nothing in these provisions
7 should be construed as authorizing or encouraging a Receiving Party in this Action
8 to disobey a lawful directive from another court.
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9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

10 IN THIS LITIGATION
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(a) The terms of this Order are applicable to information produced by a Non-

12 Party in this Action and designated as “CONFIDENTIAL.” Such information
13 produced by Non-Parties in connection with this litigation is protected by the
14 remedies and relief provided by this Order. Nothing in these provisions should be
15 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

17 produce a Non-Party’s confidential information in its possession, and the Party is
18 subject to an agreement with the Non-Party not to produce the Non-Party’s
19 confidential information, then the Party shall:
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(1) promptly notify in writing the Requesting Party and the Non-Party

21 that some or all of the information requested is subject to a confidentiality
22 agreement with a Non-Party;
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(2) promptly provide the Non-Party with a copy of the Stipulated

24 Protective Order in this Action, the relevant discovery request(s), and a reasonably
25 specific description of the information requested; and
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(3) make the information requested available for inspection by the Non-

27 Party, if requested.
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(c) If the Non-Party fails to seek a protective order from this court within 14

2 days of receiving the notice and accompanying information, the Receiving Party
3 may produce the Non-Party’s confidential information responsive to the discovery
4 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
5 not produce any information in its possession or control that is subject to the
6 confidentiality agreement with the Non-Party before a determination by the court.
7 Absent a court order to the contrary, the Non-Party shall bear the burden and
8 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

11 Protected Material to any person or in any circumstance not authorized under this
12 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
13 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
14 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
15 persons to whom unauthorized disclosures were made of all the terms of this Order,
16 and (d) request such person or persons to execute the “Acknowledgment and
17 Agreement to Be Bound” that is attached hereto as Exhibit A.
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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

19 PROTECTED MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain

21 inadvertently produced material is subject to a claim of privilege or other protection,
22 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
23 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
24 may be established in an e-discovery order that provides for production without
25 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
26 as the parties reach an agreement on the effect of disclosure of a communication or
27 information covered by the attorney-client privilege or work product protection, the
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1 parties may incorporate their agreement in the stipulated protective order submitted
2 to the court.
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12. MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

5 person to seek its modification by the Court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this

7 Protective Order no Party waives any right it otherwise would have to object to
8 disclosing or producing any information or item on any ground not addressed in this
9 Stipulated Protective Order. Similarly, no Party waives any right to object on any
10 ground to use in evidence of any of the material covered by this Protective Order.
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12.3 Filing Protected Material. A Party that seeks to file under seal any

12 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
13 only be filed under seal pursuant to a court order authorizing the sealing of the
14 specific Protected Material at issue. If a Party's request to file Protected Material
15 under seal is denied by the court, then the Receiving Party may file the information
16 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

19 days of a written request by the Designating Party, each Receiving Party must return
20 all Protected Material to the Producing Party or destroy such material. As used in
21 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
22 summaries, and any other format reproducing or capturing any of the Protected
23 Material. Whether the Protected Material is returned or destroyed, the Receiving
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Party must submit a written certification to the Producing Party (and, if not the same
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person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
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(by category, where appropriate) all the Protected Material that was returned or
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destroyed and (2) affirms that the Receiving Party has not retained any copies,
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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 //
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14. Any violation of this Order may be punished by any and all appropriate

2 measures including, without limitation, contempt proceedings and/or monetary
3 sanctions.
4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
5
6 DATED February 10, 2017

/s/ Renee V. Masongsong

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Dale K. Galipo
Renee V. Masongsong
Donald C. Randolph
Paal H. Bakstad
Attorneys for Plaintiffs

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11 DATED: February 10, 2017

/s/ John M. Porter

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Arthur K. Cunningham
John M. Porter
Attorneys for Defendants

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED: February 13, 2017

________________________________
Hon. Kenly Kiya Kato
United States Magistrate Judge

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1 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
2 I, _____________________________ [print or type full name], of
3 _____________________________________________ [print or type full address],
4 declare under penalty of perjury that I have read in its entirety and understand the
5 Stipulated Protective Order that was issued by the United States District Court for
6 the Central District of California on [date] in the case of David Powell, Sr., et al. v.
7 City of Barstow, et al., case number 16-CV-01472-JGB (KKx). I agree to comply
8 with and to be bound by all the terms of this Stipulated Protective Order and I
9 understand and acknowledge that failure to so comply could expose me to sanctions
10 and punishment in the nature of contempt. I solemnly promise that I will not
11 disclose in any manner any information or item that is subject to this Stipulated
12 Protective Order to any person or entity except in strict compliance with the
13 provisions of this Order. I further agree to submit to the jurisdiction of the United
14 States District Court for the Central District of California for the purpose of
15 enforcing the terms of this Stipulated Protective Order, even if such enforcement
16 proceedings occur after termination of this action. I hereby appoint
17 __________________________ [print or type full name] of
18 ____________________________________________________ [print or type full
19 address and telephone number] as my California agent for service of process in
20 connection with this action or any proceedings related to enforcement of this
21 Stipulated Protective Order.
22 Date: ______________________________________
23 City and State where sworn and signed: _________________________________
24 Printed name: _______________________________
25 Signature: __________________________________
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