Isadore Webb v. Ontario et al

Filing 21


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5 James R. Touchstone, SBN 184584 Denise L. Rocawich, SBN 232792 JONES & MAYER 3777 North Harbor Boulevard Fullerton, CA 92835 Telephone: (714) 446-1400 Facsimile: (714) 446-1448 6 Attorneys for Defendants CITY OF ONTARIO 7 Jonathan Daniel Evans, SBN 302887 THE LAW FIRM OF JONATHAN D. EVANS 155 N Lake Ave, Ste 800 Pasadena, CA 91101-1857 Telephone: (323) 515-9981 1 2 3 4 8 9 10 11 Attorneys for Plaintiff ISADORE WEBB 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 ISADORE WEBB, an individual; 15 16 17 18 19 Plaintiff, vs. CITY OF ONTARIO, and DOES 1 through 10 Inclusive, Defendants. Case No.: 5:21-cv-00341 JWH (SP) Judge: Hon. Judge John W. Holcomb STIPULATED PROTECTIVE ORDER [NOTE CHANGES MADED BY THE COURT TO PARAGRAPHS 8 AND 13 OF THE ORDER] 20 21 22 23 24 25 26 27 28 -1- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 STIPULATED PROTECTIVE ORDER 2 Pursuant to Federal Rule of Civil Procedure 26(c), Defendant CITY OF 3 ONTARIO and Plaintiff ISADORE WEBB (collectively "the Parties"), by their 4 undersigned counsel, agree to be bound to the terms of the following Protective 5 Order. The Parties represent that pre-trial discovery in this case is likely to include 6 the production of information and/or documents that are confidential and/or 7 privileged including the production of peace officer personnel file information 8 and/or documents which the Parties agree includes: (1) Personal data, including 9 marital status, family members, educational and employment history, home 10 addresses, or similar information; (2) Medical history; (3) Election of employee 11 benefits; (4) Employee advancement, appraisal, or discipline; and (5) Complaints, 12 or investigations of complaints, concerning an event or transaction in which a 13 peace officer participated, or which a peace officer perceived, and pertaining to the 14 manner in which the peace officer performed his or her duties including compelled 15 statements by peace officers. Defendants contend that such information is 16 privileged as official information. Sanchez v. City of Santa Ana, 936 F.2d 1027, 17 1033 (9th Cir. Cal. 1990); see also Kerr v. United States Dist. Ct. for N.D. Cal., 18 511 F.2d 192, 198 (9th Cir.1975), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 19 725 (1976). Further, discovery may require the production of certain Ontario 20 Police Department Policies and Procedures not available to the public and the 21 public disclosure of which could comprise officer safety, raise security issues, 22 and/or impede investigations. Peace officer personnel file information and/or 23 documents and security-sensitive policies and procedures are hereinafter referred 24 to as "Confidential Information". 25 Defendants contend that that public disclosure of such material poses a 26 substantial risk of embarrassment, oppression and/or physical harm to peace 27 officers whose Confidential Information is disclosed. The Parties further agree that 28 the risk of harm to peace officers is greater than with other government employees -2- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 due to the nature of their profession. Finally, the Defendants contend that the 2 benefit of public disclosure of Confidential Information is minimal while the 3 potential disadvantages are great. 4 Accordingly, good cause exists for entry of this Protective Order to facilitate 5 pre-trial disclosure while assuring the safety of these sensitive disclosures. See 6 Fed. R. Civ. Proc. 26(c). 7 8 9 SO STIPULATED Dated: January 3, 2022 JONES & MAYER 10 11 By: /s/ Denise L. Rocawich JAMES R. TOUCHSTONE DENISE L. ROCAWICH Attorneys for Defendant City of Ontario 12 13 14 15 Respectfully submitted, Dated: January 3, 2022 Respectfully submitted, 16 17 THE LAW FIRM OF JONATHAN D. EVANS 18 19 20 21 By: /s/ Jonathan D. Evans JONATHAN D. EVANS Attorneys for Plaintiff Isadore Webb 22 23 24 25 26 27 28 -3- [PROPOSED] STIPULATED PROTECTIVE ORDER PROTECTIVE ORDER 1 2 PER THE STIPULATION OF THE PARTIES AND GOOD CAUSE 3 APPEARING, IT IS HEREBY ORDERED that the terms and conditions of this 4 Protective Order shall govern the handling of Discovery Materials containing 5 Confidential Information in matter of Webb v. City of Ontario USCD Case No. 6 CV21-00341 JWH (SP) ("the Litigation"): 7 1. Applicability of Order: This Order does not and will not govern any 8 trial proceedings in this Litigation, but will otherwise be applicable to and govern 9 the handling of documents, depositions, deposition exhibits, interrogatory 10 responses, responses to requests for admissions, responses to requests for 11 production of documents, and all other discovery obtained pursuant to the Federal 12 Rules of Civil Procedure by Plaintiff in connection with the Litigation (this 13 information hereinafter referred to as “Discovery Material”). 14 2. Designation of Material: Defendants may designate Discovery 15 Material that is in their possession, custody or control to be produced to Plaintiff as 16 “Confidential Information” under the terms of this Order if Defendants in good 17 faith reasonably believe that such Discovery Material contains non-public, 18 confidential material as defined in section 4 below. 19 3. Exercise of Restraint and Care in Designating Material for 20 Protection: When designating Discovery Material for protection as Confidential 21 Information under this Order, Defendants must take care to limit any such 22 designation to specific material that qualifies under the appropriate standards. 23 Mass, indiscriminate, or routinized designations are prohibited. 24 4. Confidential Information: For purposes of this Order, Confidential 25 Information is any information and/or documents that Defendants believe in good 26 faith to be Peace Officer Personnel File Information and/or Documents including: 27 (1) Personal data, including marital status, family members, educational and 28 employment history, home addresses, or similar information; (2) Medical history; -4- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 (3) Election of employee benefits; (4) Employee advancement, appraisal, or 2 discipline; and (5) Complaints, or investigations of complaints, concerning an 3 event or transaction in which a peace officer participated, or which a peace officer 4 perceived, and pertaining to the manner in which the peace officer performed his 5 or her duties including compelled statements. Confidential Information is also any 6 Ontario Police Department Policies and Procedures not available to the public and 7 the public disclosure of which could comprise officer safety, raise security issues, 8 and/or impede investigations. 9 5. Designating Confidential Information: The designation of 10 Discovery Material as Confidential Information for purposes of this Order shall be 11 made in the following manner: 12 a. Documents: In the case of documents or other materials (apart from 13 depositions or other pre-trial testimony), designation shall be made by 14 stamping “Confidential” to each page containing any Confidential 15 Information. Any such stamp shall not overwrite or otherwise 16 obscure the text or images of any page. 17 b. Deposition and Other Proceedings: In the case of depositions or other 18 pre-trial testimony, designation of the portion of the transcript 19 (including exhibits) which contains Confidential Information shall be 20 made (i) by a statement to such effect on the record during the 21 proceeding in which the testimony is received, or (ii) by written notice 22 served on counsel of record in this Litigation within thirty (30) 23 business days after the receipt of the draft transcript of such 24 deposition or other pre-trial proceeding. However, before such thirty 25 (30) day period expires, all testimony, exhibits and transcripts of 26 depositions or other testimony shall be treated as Confidential 27 Information. Thereafter, only those portions properly designated shall 28 be deemed Confidential Information. -5- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 c. Non-Written Materials: Any non-written Confidential Information 2 (e.g., videotape, audio tape, computer disk, etc.) may be designated 3 as such by labeling the outside of such non-written material 4 designated as “Confidential”. In the event Plaintiff generates any 5 “hard copy” transcription or printout from any such designated non- 6 written materials, the person who generates such “hard copy” 7 transcription shall take reasonable steps to maintain the 8 confidentiality of such materials. 9 6. Inadvertent Disclosure: The inadvertent failure to designate 10 Discovery Information as "Confidential" does not constitute a waiver of such claim 11 and may be remedied by prompt supplemental written notice upon discovery of the 12 inadvertent disclosure, with the effect that such Discovery Material will be subject 13 to the protections of this Order. Plaintiff shall exercise good faith efforts to ensure 14 that copies they make of Confidential Information produced to him, and copies 15 made by others who obtained such Confidential Information directly or indirectly 16 from the Plaintiff include the appropriate confidentiality legend, to the same extent 17 that the Confidential Information has been marked with the appropriate 18 confidentiality legend by the Defendants. 19 7. No Waiver of Privilege: Inadvertent disclosure of Confidential 20 Information or otherwise privileged information shall not constitute a waiver of, or 21 estoppel as to any claim of privilege. This Order is intended to provide the full 22 protection afforded by Federal Rule of Evidence 502(d). 23 8. Claw-Back: Pursuant to Federal Rule of Civil Procedure 26(b)(5), 24 upon learning it may have produced Confidential or otherwise privileged 25 Information, Defendants shall, within ten (10) days of such discovery, request the 26 return of such Information in writing by identifying the Confidential or otherwise 27 privileged Information and stating the basis on which the Information should be 28 withheld from production. After being notified, Plaintiff must promptly return, -6- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 sequester, or destroy the Confidential or otherwise privileged Information and any 2 copies, must not use or disclose the Information until the claim is resolved and 3 must take reasonable steps to retrieve the Confidential or otherwise privileged 4 Information if he disclosed the Information before being notified. If Plaintiff 5 disputes Defendants' claim of confidentiality or privilege, they shall notify the 6 Defendant claiming confidentiality of the dispute and the basis therefore in writing 7 within thirty (30) days of receipt of the request for the return of the Confidential or 8 otherwise privileged Information. The Plaintiff and the Defendant claiming 9 confidentiality shall meet and confer in good faith regarding the disputed claim 10 within thirty (30) days. In the event that the Plaintiff and the Defendant claiming 11 confidentiality do not resolve their dispute, either party may bring a motion for a 12 determination of whether a privilege applies in compliance with Local Rule 37. If 13 such a motion is made, the Defendant claiming confidentiality shall submit to the 14 Court for in camera review under seal a copy of the disputed Information in 15 connection with its motion papers. The submission to the Court shall not constitute 16 a waiver of any privilege or protection. Defendants must preserve the Information 17 claimed to be privileged or otherwise protected until the claim is resolved. 9. 18 Notes of Confidential Information: Any notes, lists, memoranda, 19 indices, compilations prepared or based on an examination of Confidential 20 Information that quote from or paraphrase, Confidential Information with such 21 specificity that the Confidential Information can be identified, or by reasonable 22 logical extension can be identified, shall be accorded the same status of 23 confidentiality as the underlying Confidential Information from which they are 24 made and shall be subject to all of the terms of this Order. 25 // 26 // 27 // 28 // -7- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 10. Persons Authorized to Receive Confidential Information: 2 Discovery Material designated “Confidential” may be disclosed, summarized, 3 described, characterized or otherwise communicated or made available in whole or 4 in part only to the following persons: 5 a. The Court, persons employed by the Court who are necessary for the 6 handling of the Litigation, and court reporters transcribing the 7 testimony or argument at a hearing, trial or deposition in this 8 Litigation or any appeal there from; 9 b. Counsel of record in this Litigation, as well as paralegals, technical, 10 administrative and clerical employees working under the direct 11 supervision of such counsel; 12 c. Experts or consultants assisting any counsel of record in this 13 Litigation, provided such experts and consultants agree to be bound 14 by the terms and conditions set forth in the “Agreement Concerning 15 Information Covered by Protective Order” attached hereto as 16 Exhibit "A" prior to the time such information is disclosed; and 17 d. Any other person, only upon order of the Court or upon stipulation 18 of the Parties, and who agrees to be bound by the terms and conditions 19 set forth in the “Agreement Concerning Information Covered by 20 Protective Order” attached hereto as Exhibit "A" prior to the time such 21 Information is disclosed. However, under no circumstances shall 22 home addresses or telephone numbers of individual Defendants be 23 provided to Plaintiff. 24 11. Use of Confidential Discovery Material: Discovery Material 25 containing Confidential Information shall be used solely for purposes of the 26 Litigation, including any appeal and re-trial. Any person or entity in possession of 27 Discovery Material designated Confidential shall maintain those materials in 28 accordance with Paragraph (storage) below. -8- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 12. Storage of Confidential Information: The recipient of any 2 Confidential Information that is provided under this Protective Order shall 3 maintain such information in a reasonably secure and safe manner that ensures that 4 access is limited to the persons authorized under this Order. 5 13. Filing of Confidential Information: Without written permission 6 from Defendants or a Court order, Plaintiff may not file in the public record in this 7 action any Confidential Information. Filing this information in the public record 8 must occur with an application to file under seal in compliance with Local Rule 9 79-5 when seeking to file Confidential Information under seal. Confidential 10 Information may only be filed under seal pursuant to a court order authorizing the 11 sealing of the specific Confidential Information at issue. 12 As for any other information disclosed during discovery and marked 13 “Confidential” that either party wishes to file in the public record in this action in 14 support of or in opposition to any motion, the parties shall specifically identify any 15 such documents and seek a stipulation concerning any sealing requirement 16 therefore during the parties Local Rule 7-3 conference of counsel. If no agreement 17 can be reached, the party advancing the “confidential” designation bears the 18 burden of moving to have those documents sealed by the court. 19 14. No Prejudice: Agreeing to be bound by this Protective Order, 20 agreeing to and/or producing or receiving Confidential Information or otherwise 21 complying with the terms of this Order shall not: 22 a. Prejudice in any way the rights of Defendants to object to the 23 production of documents it considers not subject to discovery, or 24 operate as an admission by Defendants that the restrictions and 25 procedures set forth herein constitute adequate protection for any 26 particular information deemed by Defendants to be Confidential 27 Information; 28 b. Prejudice in any way the rights of Defendants to object to the -9- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 authenticity or admissibility into evidence of any document, 2 testimony or other evidence subject to this Order; 3 c. Prejudice in any way the rights of Defendants to seek a determination 4 by the Court whether any Confidential Information should be subject 5 to the terms of this Order; 6 15. Challenging Designation of Information: Plaintiff may challenge 7 the propriety of a Confidential Information designation by providing to the 8 Defendant claiming confidentiality a writing which briefly: (i) identifies with 9 reasonable particularity the documents and/or information which are the subject of 10 the challenge; and (ii) describes the basic legal or factual grounds for the 11 challenge. Once a challenge is made, the Defendant claiming confidentiality will 12 bear the burden of initiating and conducting a sufficient meet and confer (per Local 13 Rule 37-1); and, if necessary, Defendant claiming confidentiality will bear the 14 burdens of proof and persuasion in moving for a Protective Order (per Local Rule 15 37-2) to uphold the challenged Confidential Information designation(s). Until the 16 Court rules on the timely filed Motion for Protective Order, all parties shall 17 continue to afford the material in question the level of protection to which it is 18 entitled under the claiming Defendants’ designation. 19 16. Additional Parties or Attorneys: In the event additional parties join 20 or intervene in this action, the newly joined party(ies) shall not have access to 21 Confidential Information until its counsel has executed an agreement to be fully 22 bound by this Order. If any additional attorneys make appearances in this 23 Litigation, those attorneys shall not have access to Confidential Information until 24 they execute the “Agreement Concerning Information Covered by Protective 25 Order” attached hereto as Exhibit "A". 26 17. Protective Order Remains in Force: This Protective Order shall 27 remain in force and effect until modified, superseded, or terminated by consent of 28 the Parties or by order of the Court made upon reasonable written notice. Unless -10- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 otherwise ordered, or agreed upon by the parties, this Protective Order shall 2 survive the termination of this action. The Court retains jurisdiction even after 3 termination of this action to enforce this Protective Order and to make such 4 amendments, modifications, deletions and additions to this Protective Order as the 5 Court may from time to time deem appropriate. 6 18. Conclusion of Litigation: Within ninety (90) days after receiving 7 notice of the entry of an order, judgment or decree finally disposing of this 8 Litigation, all persons having received Confidential Information shall either return 9 such material and all copies thereof to the counsel of the Defendant who 10 designated the information as Confidential or destroy all such Confidential 11 Information including the Confidential Information Plaintiff provided to other 12 persons. In either case, counsel for Plaintiff must certify that fact to the counsel of 13 the Defendant who designated the information as Confidential. 14 19. Redaction Allowed: Defendants may redact Confidential Information 15 from documents and things produced to the extent that such information consists of 16 personal identifying information of third parties per Federal Rule of Civil 17 Procedure 5.2 and Central District Local Rule 5.2-1 and/or personal identifying 18 information of peace officers or their family members, such as ID numbers, phone 19 numbers, addresses, or medical history which is unrelated to any claim or defense 20 raised in the instant action. Defendants shall mark each thing where matter has 21 been redacted with a legend stating “REDACTED,” as appropriate, or a 22 comparable notice. 23 20. Violations of Protective Order: In the event that any person or party 24 should violate the terms of this Protective Order, the aggrieved party may apply to 25 the Court obtain relief against any such person or party violating or threatening to 26 violate any of the terms of this Protective Order. 27 28 In the event that the aggrieved party seeks injunctive relief, it must petition the District Judge for such relief, which may be granted at the sole discretion of the -11- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 District Judge. 2 3 IT IS SO ORDERED. 4 5 Dated: January 7, 2022 6 7 8 9 __________________________________ Hon. Sheri Pym United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 EXHIBIT "A"TO STIPULATED PROTECTIVE ORDER 2 3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5 ISADORE WEBB, an individual; 6 7 8 9 Plaintiff, vs. CITY OF ONTARIO, and DOES 1 through 10 Inclusive, Case No: CV21-00341 JWH (SP) AGREEMENT CONCERNING INFORMATION COVERED BY STIPULATED PROTECTIVE ORDER Defendants. 10 11 12 13 1. I, __________________________________, hereby acknowledge 14 that I have received a copy of the Stipulated Protective Order entered in this 15 Litigation [Case No: CV21-00341 JWH (SP)] by the United States District Court 16 for the Central District of California (hereinafter, “the Protective Order”). 17 18 19 20 21 2. I have either read the Protective Order or have had the terms of the Protective Order explained to me by my attorney. 3. I understand the terms of the Protective Order and agree to comply with and to be bound by such terms. 4. If I receive documents or information designated as Confidential 22 Information (as that term is defined in the Protective Order), I understand that such 23 Information is provided to me pursuant to the terms and restrictions of the 24 Protective Order. 25 5. I agree to hold in confidence and not further disclose or use for any 26 purpose (other than is permitted by the Protective Order) any Confidential 27 Information disclosed to me pursuant to the terms of the Protective Order. 28 6. I hereby submit myself to the jurisdiction of the United States District -13- [PROPOSED] STIPULATED PROTECTIVE ORDER 1 Court for the Central District of California for resolution of any matters pertaining 2 to the Protective Order. 3 4 My address is:____________________________________ 5 6 My present employer is: ________________________________ 7 8 Dated: ______________ 9 10 11 Signed: _________________________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- [PROPOSED] STIPULATED PROTECTIVE ORDER

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