Sheri Graves et al v. California Department of Corrections and Rehabilitation et al

Filing 96

PLAINTIFFS AND DEFENDANTS CDCR, HUGHES, WHITMORE,AND BROWNS STIPULATED PROTECTIVE ORDER (SEE ORDER FOR DETAILS). (kca)

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Xavier Becerra
Attorney General of California
GRETCHEN K. BUECHSENSCHUETZ
Supervising Deputy Attorney General
DEBORAH B. WADLEIGH
Deputy Attorney General
State Bar No. 239550
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants
Hughes, Whitmore, Brown, and California
Department of Corrections and Rehabilitation
IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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CIVIL DIVISION

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SHERI GRAVES, an Individual;
A.C.H. a minor, by and through his
guardian ad litem,

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v.

5:17-cv-01086-JGB-SP

PLAINTIFFS AND DEFENDANTS
CDCR, HUGHES, WHITMORE,
Plaintiffs, AND BROWN’S [PROPOSED]
STIPULATED PROTECTIVE
ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et. al.,

Judge:

Defendants.

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The Honorable Sheri
Pym
Trial Date: None Assigned
Action Filed: 5/31/2017

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I.

A.

PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,
proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties acknowledge that this

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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. The parties further acknowledge, as set forth

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in Section 12.3, below, that this Stipulated Protective Order does not entitle them to

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file confidential information under seal; Civil Local Rule 79-5 sets forth procedures

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that must be followed and the standards that will be applied when a party seeks

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permission from the court to file material under seal.

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B.

Good Cause Statement

This action is likely to involve production of confidential, proprietary, or

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private information for which special protection from public disclosure and from

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use for any purpose other than the defense or prosecution of this action is

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warranted. Such confidential and proprietary materials and information consist of:

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(1) California Department of Corrections and Rehabilitation (“CDCR”)

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records regarding the internal investigation into the death of Shaylene Graves which

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may have the affect of causing harm to the safety and security of prison officials,

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the public, or Defendants. All birthdates, social security numbers, home and work

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addresses, drivers’ license numbers, home and work telephone numbers, and

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identifying information of confidential informants and CDCR employees will be

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redacted;

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(2) records regarding processes, operations, investigations or other

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information relating to CDCR, disclosure of which may have the affect of causing

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harm to the safety and security of prison officials, the public, or Defendants. This

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includes, but is not limited to, institutional records, maps and diagrams,

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photographs, audio or video recordings, witness statements, SMS or text messages,

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and emails and other written correspondence. Confidential information is also

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personal information of Defendants, including but not limited to home address,

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social security number, telephone number, email address, names or identifying
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information of family members, the disclosure of which places the safety of

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Defendants, who are current and former peace officers, and their family members at

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risk. Confidential information also includes all personal identifying information of

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any current or former CDCR 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. All birthdates, social security numbers, home and work telephone

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numbers, information about family members, and material identifying a

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confidential informant will be redacted.

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(3) Confidential information is also personal information of Plaintiffs

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generally, including but not limited to home address, social security numbers, home

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and work telephone number, email addresses, birthdates, and social security

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numbers, all of which will be redacted. Furthermore, any pictures or documents

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portraying minor A.C.H., will be redacted.

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(4) portions of Shaylene Graves’ prison records that includes confidential

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information related to third parties that is subject to privacy rights, such as other

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inmates’ names or identifying information;

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(5) any material that would reveal the identity of a confidential informant;

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(6) information not generally made available to the public, or which may be

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privileged or otherwise protected from disclosure under state or federal statutes,

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court rules, case decisions, or common law.

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Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality or discovery materials, to adequately

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protect information the parties are entitled to keep confidential, to ensure that the

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parties are permitted reasonable necessary uses of such material in preparation for

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and in the conduct of trial, to address their handling at the end of the litigation, and

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serve the ends of justice, a protective order for such information is justified in this

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matter. It is the intent of the parties that information will not be designated as

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confidential for tactical reasons and that nothing be so designated without a good
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faith belief that it has been maintained in a confidential, non-public manner, and

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there is good cause why it should not be part of the public record in this case.

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II.

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DEFINITIONS
2.1 Action:

this pending federal suit, Graves v. CDCR, Case No. 5:17-cv-

01086-JGB-SP.
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

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protection under Federal Rule of Civil Procedure 26 (c), and as specified above in

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the Good Cause Statement.

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2.4. Counsel: 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

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

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“CONFIDENTIAL.”

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2.6. 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

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or generated in informal discovery, disclosures or responses to discovery in this

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matter.

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2.7. 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

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an expert witness or as a consultant in this Action.

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2.8 House Counsel:

attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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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

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party to this Action but are retained to represent or advise a party to this Action and

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have appeared in this Action on behalf of that party or are affiliated with a law firm

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which 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,

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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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2.12 Producing Party:

a Party or Non-Party that produces Disclosures or

Discovery Material in this Action.
2.13 Professional Vendors:

persons or entities that provide litigation

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support 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 ands subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”

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2.15 Receiving Party:

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Material from a Producing Party.

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III. SCOPE

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a Party that receives Disclosure or Discovery

The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conservations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by orders of the trial
judge. This Order does not govern the use of Protected Material at trial.

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IV. DURATION
Even after the 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 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

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extensions of

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time pursuant to applicable law.

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V.

DESIGNATING PROTECTED MATERIAL

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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

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under this Order must take care to limit any such designation to specific material

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that qualifies under the appropriate standards. The Designating Party must

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designate for protection only those parts of material, documents, items, or oral or

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written communications that qualify so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to

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

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Designating Party to sanctions.

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

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

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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5.2 Manner and Timing of Designations.

Except as otherwise provided in

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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:
(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 at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings on the margins).

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A Party or Non-Party that makes original documents available for inspection

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party must also clearly identify the protected portions(s) (e.g., by making

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appropriate markings on the margins).

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(b) for testimony given in depositions that the Designating Party

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identify the Disclosure or Discovery Material on the record, before the close of the

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deposition all protected testimony.
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(c) for information produced in some form other than documentary and

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

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

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

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warrants 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

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

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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VI. CHALLENGING CONFIDENTIAL DESIGNATIONS

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6.1 Timing of Challenges.

Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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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

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the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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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

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challenge.

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VII. 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

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

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

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conditions described in this Order. When the Action is terminated, a Receiving

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Party must comply with the provisions of section 13 below (FINAL

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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 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

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as

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

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necessary to disclose this information for this Action;

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(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 by this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reports and their staff;

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(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

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signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A);
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(g) the author or recipient or 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

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the Action to whom disclosure is reasonably necessary provided the witness and

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attorneys for the witness have signed the “Acknowledgment and Agreement to Be

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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

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that reveal Protected Material must be separately bound by the court reporter and

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may not be disclosed to anyone except as permitted under this Protective Order; and

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(i)

any mediator or settlement officer, and their supporting personnel,

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

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VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

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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
(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
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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

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to disobey a lawful directive from another court.

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IX. 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
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 NonParty that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2) promptly notify 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 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
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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

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expense of seeking protection in this court of its Protected Material.

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X.

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

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the

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“Acknowledgement and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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XI. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

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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
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.
XII. 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.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives 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

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this Stipulated Protective Order. Similarly, no Party waives any right to object on

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any ground to use in evidence of any of the material covered by this Protective

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Order.

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12.3 Filing Protective Material.

A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5. Protected Material

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may only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. If a Party’s request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information

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in the public record unless otherwise instructed by the court.

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XIII. FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4, within 60

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days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material. As

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used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of the

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Protected Material. Whether the Protected Material is returned or destroyed, the

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Receiving Party must submit a written certification to the Producing Party (and, if

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not the same person or entity, to the Designating Party) by the 60 day deadline that

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

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

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

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capturing any of the Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert
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work product, even if such materials contained 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 IV (DURATION).

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XIV.

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measures including, without limitation, contempt proceedings and /or monetary

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sanctions.

Any violation of this Order may be punished by any and all appropriate

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Respectfully submitted,

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DATED:

February 8, 2019

XAVIER BECERRA
Attorney General of California
GIAM NGUYEN
Supervising Deputy Attorney General

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By:

/s/ Deborah B. Wadleigh
DEBORAH B. WADLEIGH
Deputy Attorney General
Attorneys for Defendants
Hughes, Whitmore, Brown, and
California Department of
Corrections and Rehabilitation

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DATED:

February 7, 2019

BOHM LAW GROUP, INC.
V. JAMES DESIMONE LAW

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By:

/s/Nazanin Farahdel__
Lawrance Bohm
James DeSimone
Nazanin Farahdel
Attorneys for Plaintiffs

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
February
DATED: _______ 12, 2019

________________________________________
Honorable Sheri Pym
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],

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declare under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protective Order that was issued by the United States District Court for

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the Central District of California on [date] in the case of Sheri Graves, et. al. v.

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California Department of Corrections and Rehabilitation, et. al., Case No. 5:17-cv-

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01086-JGB-SP. I agree to comply with and to be bound by all the terms in this

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Stipulated Protective Order and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item

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that is subject to this Stipulated Protective Order to any person or entity except in

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strict compliance with the provisions of this Order. I further agree to submit to the

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jurisdiction of the United States District Court for the Central District of California

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for the purpose of enforcing the terms of this Stipulated Protective Order, even if

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such enforcement proceedings occur after termination of this action. I hereby

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appoint_____________________________________________________________

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[print or type full address and telephone number] as my California agent for service

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of process in connection with this action or any proceedings related to enforcement

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of this Stipulated 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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