Juan Jose Bermudez v. County of San Bernardino et al

Filing 28

PROTECTIVE ORDER by Magistrate Judge Shashi H. Kewalramani re Stipulation for Protective Order 27 . (see document for details) (hr)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 11 12 JUAN JOSE BERMUDEZ, 13 14 Case No. 5:20-CV-438 JGB (SHKx) [Honorable Jesus G. Bernal] Plaintiff, v. [PROPOSED] PROTECTIVE ORDER 15 COUNTY OF SAN BERNARDINO, M. 16 IZQULERDO (#F2753), N. SOUSA (#D2875) and DOES 1-10, 17 INCLUSIVE, 18 Defendant. 19 20 21 22 23 24 25 26 27 28 PURSUANT TO THE STIPULATION OF THE PARTIES (“Stipulation for Entry of Protective Order re Confidential Documents”), and pursuant to the Court’s inherent and statutory authority, including but not limited to the Court’s authority under the applicable Federal Rules of Civil Procedure and the United States District Court, Central District of California Local Rules; after due consideration of all of the relevant pleadings, papers, and records in this action; and upon such other evidence or argument as was presented to the Court; Good Cause appearing therefor, and in furtherance of the interests of justice, 1 1 IT IS HEREBY ORDERED that: 2 A. 3 Discovery in this action is likely to involve production of confidential, PURPOSES AND LIMITATIONS 4 proprietary, or private information for which special protection from public disclosure 5 and from use for any purpose other than prosecuting this litigation may be warranted. 6 Accordingly, the parties hereby stipulate to and petition the Court to enter the 7 following Stipulated Protective Order. The parties acknowledge that this Order does 8 not confer blanket protections on all disclosures or responses to discovery and that the 9 protection it affords from public disclosure and use extends only to the limited 10 information or items that are entitled to confidential treatment under the applicable 11 legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 12 that this Stipulated Protective Order does not entitle them to file confidential 13 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 14 followed and the standards that will be applied when a party seeks permission from 15 the court to file material under seal. 16 B. GOOD CAUSE STATEMENT 17 This action is likely to involve confidential peace officer personnel file 18 documents, plaintiff’s medical records, as well as personal identifying information of 19 third party witnesses (i.e. addresses, telephone numbers, etc.), for which special 20 protection from public disclosure and from use for any purpose other than prosecution 21 of this action is warranted. Such confidential and proprietary materials and 22 information consist of, among other things, personnel file information; plaintiff’s 23 confidential medical and/or psychotherapeutic treatment information; and personal 24 identifying information of any third party witnesses, otherwise generally unavailable 25 to the public, or which may be privileged or otherwise protected from disclosure under 26 state or federal statutes, court rules, case decisions, or common law. 27 Accordingly, to expedite the flow of information, to facilitate the prompt 28 resolution of disputes over confidentiality of discovery materials, to adequately 2 1 protect information the parties are entitled to keep confidential, to ensure that the 2 parties are permitted reasonable necessary uses of such material in preparation for and 3 in the conduct of trial, to address their handling at the end of the litigation, and serve 4 the ends of justice, a protective order for such information is justified in this matter. 5 It is the intent of the parties that information will not be designated as confidential for 6 tactical reasons and that nothing be so designated without a good faith belief that it 7 has been maintained in a confidential, non-public manner, and there is good cause 8 why it should not be part of the public record of this case. 9 2. DEFINITIONS 10 2.1 Action: this pending federal law suit. 11 2.2 Challenging Party: a Party or Non-Party that challenges the 12 designation of information or items under this Order. 13 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 14 how it is generated, stored or maintained) or tangible things that qualify for protection 15 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 16 Statement. 17 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 18 their support staff). 19 2.5 Designating Party: a Party or Non-Party that designates information or 20 items that it produces in disclosures or in responses to discovery as 21 “CONFIDENTIAL.” 22 2.6 Disclosure or Discovery Material: all items or information, regardless 23 of the medium or manner in which it is generated, stored, or maintained (including, 24 among other things, testimony, transcripts, and tangible things), that are produced or 25 generated in disclosures or responses to discovery in this matter. 26 2.7 Expert: a person with specialized knowledge or experience in a matter 27 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 28 expert witness or as a consultant in this Action. 3 1 2.8 House Counsel: attorneys who are employees of a party to this Action. 2 House Counsel does not include Outside Counsel of Record or any other outside 3 counsel. 4 2.9 Non-Party: any natural person, partnership, corporation, association, or 5 other legal entity not named as a Party to this action. 6 2.10 Outside Counsel of Record: attorneys who are not employees of a party 7 to this Action but are retained to represent or advise a party to this Action and have 8 appeared in this Action on behalf of that party or are affiliated with a law firm which 9 has appeared on behalf of that party, and includes support staff. 10 2.11 Party: any party to this Action, including all of its officers, directors, 11 employees, consultants, retained experts, and Outside Counsel of Record (and their 12 support staffs). 13 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 14 Discovery Material in this Action. 15 2.13 Professional Vendors: persons or entities that provide litigation support 16 services (e.g., photocopying, videotaping, translating, preparing exhibits or 17 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 18 their employees and subcontractors. 19 2.14 Protected Material: any Disclosure or Discovery Material that is 20 designated as “CONFIDENTIAL.” 21 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 22 from a Producing Party. 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only Protected 25 Material (as defined above), but also (1) any information copied or extracted from 26 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 27 Material; and (3) any testimony, conversations, or presentations by Parties or their 28 Counsel that might reveal Protected Material. 4 1 Any use of Protected Material at trial shall be governed by the orders of the trial 2 judge. This Order does not govern the use of Protected Material at trial. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations 5 imposed by this Order shall remain in effect until a Designating Party agrees otherwise 6 in writing or a court order otherwise directs. Final disposition shall be deemed to be 7 the later of (1) dismissal of all claims and defenses in this Action, with or without 8 prejudice; and (2) final judgment herein after the completion and exhaustion of all 9 appeals, rehearings, remands, trials, or reviews of this Action, including the time limits 10 for filing any motions or applications for extension of time pursuant to applicable law. 11 5. DESIGNATING PROTECTED MATERIAL 12 5.1 Exercise of Restraint and Care in Designating Material for Protection. 13 Each Party or Non-Party that designates information or items for protection under this 14 Order must take care to limit any such designation to specific material that qualifies 15 under the appropriate standards. The Designating Party must designate for protection 16 only those parts of material, documents, items, or oral or written communications that 17 qualify so that other portions of the material, documents, items, or communications for 18 which protection is not warranted are not swept unjustifiably within the ambit of this 19 Order. 20 Mass, indiscriminate, or routinized designations are prohibited. Designations 21 that are shown to be clearly unjustified or that have been made for an improper purpose 22 (e.g., to unnecessarily encumber the case development process or to impose 23 unnecessary expenses and burdens on other parties) may expose the Designating Party 24 to sanctions. 25 If it comes to a Designating Party’s attention that information or items that it 26 designated for protection do not qualify for protection, that Designating Party must 27 promptly notify all other Parties that it is withdrawing the inapplicable designation. 28 5.2 Manner and Timing of Designations. Except as otherwise provided in 5 1 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 2 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 3 under this Order must be clearly so designated before the material is disclosed or 4 produced. 5 Designation in conformity with this Order requires: 6 (a) for information in documentary form (e.g., paper or electronic 7 documents, but excluding transcripts of depositions or other pretrial or trial 8 proceedings), that the Producing Party affix at a minimum, the legend 9 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 10 contains protected material. If only a portion or portions of the material on a page 11 qualifies for protection, the Producing Party also must clearly identify the protected 12 portion(s) (e.g., by making appropriate markings in the margins). 13 A Party or Non-Party that makes original documents available for inspection 14 need not designate them for protection until after the inspecting Party has indicated 15 which documents it would like copied and produced. During the inspection and before 16 the designation, all of the material made available for inspection shall be deemed 17 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 18 copied and produced, the Producing Party must determine which documents, or 19 portions thereof, qualify for protection under this Order. Then, before producing the 20 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” 21 to each page that contains Protected Material. If only a portion or portions of the 22 material on a page qualifies for protection, the Producing Party also must clearly 23 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 24 (b) for testimony given in depositions that the Designating Party identify the 25 Disclosure or Discovery Material on the record, before the close of the deposition all 26 protected testimony. 27 (c) for information produced in some form other than documentary and for 28 any other tangible items, that the Producing Party affix in a prominent place on the 6 1 exterior of the container or containers in which the information is stored the legend 2 “CONFIDENTIAL.” If only a portion or portions of the information warrants 3 protection, the Producing Party, to the extent practicable, shall identify the protected 4 portion(s). 5 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 6 failure to designate qualified information or items does not, standing alone, waive the 7 Designating Party’s right to secure protection under this Order for such material. Upon 8 timely correction of a designation, the Receiving Party must make reasonable efforts 9 to assure that the material is treated in accordance with the provisions of this Order. 10 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 11 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 12 designation of confidentiality at any time that is consistent with the Court’s Scheduling 13 Order and associated deadlines. 14 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 15 resolution process under Local Rule 37.1 et seq. 16 6.3 The burden of persuasion in any such challenge proceeding shall be on 17 the Designating Party. Frivolous challenges, and those made for an improper purpose 18 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 19 expose the Challenging Party to sanctions. Unless the Designating Party has waived 20 or withdrawn the confidentiality designation, all parties shall continue to afford the 21 material in question the level of protection to which it is entitled under the Producing 22 Party’s designation until the Court rules on the challenge. 23 7. ACCESS TO AND USE OF PROTECTED MATERIAL 24 7.1 Basic Principles. A Receiving Party may use Protected Material that is 25 disclosed or produced by another Party or by a Non-Party in connection with this 26 Action only for prosecuting, defending, or attempting to settle this Action. Such 27 Protected Material may be disclosed only to the categories of persons and under the 28 conditions described in this Order. When the Action has been terminated, a Receiving 7 1 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 2 Protected Material must be stored and maintained by a Receiving Party at a 3 location and in a secure manner that ensures that access is limited to the persons 4 authorized under this Order. 5 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 6 otherwise ordered by the court or permitted in writing by the Designating Party, a 7 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 8 only to: 9 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 10 as employees of said Outside Counsel of Record to whom it is reasonably necessary 11 to disclose the information for this Action; 12 (b) the officers, directors, and employees (including House Counsel) of the 13 Receiving Party to whom disclosure is reasonably necessary for this Action; 14 (c) Experts (as defined in this Order) of the Receiving Party to whom 15 disclosure is reasonably necessary for this Action and who have signed the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (d) the court and its personnel; 18 (e) court reporters and their staff; 19 (f) professional jury or trial consultants, mock jurors, and Professional 20 Vendors to whom disclosure is reasonably necessary for this Action and who have 21 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 22 (g) the author or recipient of a document containing the information or a 23 custodian or other person who otherwise possessed or knew the information; 24 (h) in preparation for and during their depositions, witnesses, and attorneys 25 for witnesses, in the Action to whom disclosure is reasonably necessary provided: (1) 26 the deposing party requests that the witness sign the form attached as Exhibit A hereto; 27 and (2) they will not be permitted to keep any confidential information unless they 28 sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 8 1 otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 2 deposition testimony or exhibits to depositions that reveal Protected Material may be 3 separately bound by the court reporter and may not be disclosed to anyone except as 4 permitted under this Stipulated Protective Order; and 5 (i) any mediator or settlement officer, and their supporting personnel, 6 mutually agreed upon by any of the parties engaged in settlement discussions. 7 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 8 PRODUCED IN OTHER LITIGATION 9 If a Party is served with a subpoena or a court order issued in other litigation 10 that compels disclosure of any information or items designated in this Action as 11 “CONFIDENTIAL,” that Party must: 12 (a) promptly notify in writing the Designating Party. Such notification shall 13 include a copy of the subpoena or court order; 14 (b) promptly notify in writing the party who caused the subpoena or order to 15 issue in the other litigation that some or all of the material covered by the subpoena or 16 order is subject to this Protective Order. Such notification shall include a copy of this 17 Stipulated Protective Order; and 18 (c) cooperate with respect to all reasonable procedures sought to be pursued 19 by the Designating Party whose Protected Material may be affected. 20 If the Designating Party timely seeks a protective order, the Party served with 21 the subpoena or court order shall not produce any information designated in this action 22 as “CONFIDENTIAL” before a determination by the court from which the subpoena 23 or order issued, unless the Party has obtained the Designating Party’s permission. The 24 Designating Party shall bear the burden and expense of seeking protection in that court 25 of its confidential material and nothing in these provisions should be construed as 26 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 27 directive from another court. 28 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 9 1 PRODUCED IN THIS LITIGATION 2 (a) The terms of this Order are applicable to information produced by a Non- 3 Party in this Action and designated as “CONFIDENTIAL.” Such information 4 produced by Non-Parties in connection with this litigation is protected by the remedies 5 and relief provided by this Order. Nothing in these provisions should be construed as 6 prohibiting a Non-Party from seeking additional protections. 7 (b) In the event that a Party is required, by a valid discovery request, to 8 produce a Non-Party’s confidential information in its possession, and the Party is 9 subject to an agreement with the Non-Party not to produce the Non-Party’s 10 confidential information, then the Party shall: 11 (1) promptly notify in writing the Requesting Party and the Non-Party that 12 some or all of the information requested is subject to a confidentiality agreement with 13 a Non-Party; 14 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 15 Order in this Action, the relevant discovery request(s), and a reasonably specific 16 description of the information requested; and 17 (3) make the information requested available for inspection by the Non- 18 Party, if requested. 19 (c) If the Non-Party fails to seek a protective order from this court within 14 20 days of receiving the notice and accompanying information, the Receiving Party may 21 produce the Non-Party’s confidential information responsive to the discovery request. 22 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce 23 any information in its possession or control that is subject to the confidentiality 24 agreement with the Non-Party before a determination by the court. Absent a court 25 order to the contrary, the Non-Party shall bear the burden and expense of seeking 26 protection in this court of its Protected Material. 27 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 28 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 10 1 Protected Material to any person or in any circumstance not authorized under this 2 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 3 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 4 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 5 persons to whom unauthorized disclosures were made of all the terms of this Order, 6 and (d) request such person or persons to execute the “Acknowledgment and 7 Agreement to Be Bound” that is attached hereto as Exhibit A. 8 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 9 PROTECTED MATERIAL 10 When a Producing Party gives notice to Receiving Parties that certain 11 inadvertently produced material is subject to a claim of privilege or other protection, 12 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 13 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 14 may be established in an e-discovery order that provides for production without prior 15 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 16 parties reach an agreement on the effect of disclosure of a communication or 17 information covered by the attorney-client privilege or work product protection, the 18 parties may incorporate their agreement in the stipulated protective order submitted to 19 the court. 20 12. MISCELLANEOUS 21 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 22 person to seek its modification by the Court in the future. 23 12.2 Right to Assert Other Objections. By stipulating to the entry of this 24 Protective Order no Party waives any right it otherwise would have to object to 25 disclosing or producing any information or item on any ground not addressed in this 26 Stipulated Protective Order. Similarly, no Party waives any right to object on any 27 ground to use in evidence of any of the material covered by this Protective Order. 28 12.3 Filing Protected Material. A Party that seeks to file under seal any 11 1 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 2 only be filed under seal pursuant to a court order authorizing the sealing of the specific 3 Protected Material at issue. If a Party's request to file Protected Material under seal is 4 denied by the court, then the Receiving Party may file the information in the public 5 record unless otherwise instructed by the court. 6 13. FINAL DISPOSITION 7 After the final disposition of this Action, as defined in paragraph 4, within 60 8 days of a written request by the Designating Party, each Receiving Party must return 9 all Protected Material to the Producing Party or destroy such material. As used in this 10 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 11 summaries, and any other format reproducing or capturing any of the Protected 12 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 13 must submit a written certification to the Producing Party (and, if not the same person 14 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 15 category, where appropriate) all the Protected Material that was returned or destroyed 16 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 17 compilations, summaries or any other format reproducing or capturing any of the 18 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 19 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 20 legal memoranda, correspondence, deposition and trial exhibits, expert reports, 21 attorney work product, and consultant and expert work product, even if such materials 22 contain Protected Material. Any such archival copies that contain or constitute 23 Protected Material remain subject to this Protective Order as set forth in Section 4 24 (DURATION). 25 /// 26 /// 27 /// 28 12 1 2 14. Any violation of this Order may be punished by any and all appropriate 3 measures including, without limitation, contempt proceedings and/or monetary 4 sanctions. 5 The provisions of the parties’ Stipulation and this Protective Order shall be in 6 effect until further Order of the Court. 7 IT IS SO ORDERED. 8 DATED: November ___, 2020 20 9 UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 By: Hon. Shashi H. Kewalramani U.S. MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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