Estate of Ruben Guzman et al v. County of Riverside et al
Filing
25
PROTECTIVE ORDER by Magistrate Judge David T. Bristow re Stipulation for Protective Order 22 Granted. (see attached order for details) (rma)
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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
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ESTATE OF RUBEN GUZMAN, by
12 and through successor in interest Ruben
Guzman, Sr., individually,
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Plaintiff,
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v.
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COUNTY OF RIVERSIDE, a public
16 entity; RIVERSIDE COUNTY
SHERIFF’S DEPARTMENT;
17 SHERIFF CHAD BIANCO, in his
individual and official capacities;
18 EDWARD DELGADO; JAMES
KRACHMER; MARTIN TOCHTROP;
19 and DOES 1 through 10, individually,
jointly and severally,
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Defendants.
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Case No. 5:24-cv-01199-SSS-DTB
[PROPOSED] STIPULATED
PROTECTIVE ORDER
TO THE HONORABLE COURT:
By and through their counsel of record in this action, plaintiff ESTATE OF RUBEN
GUZMAN, by and through successor in interest Ruben Guzman, Sr., individually,
(hereinafter referred to as “Plaintiffs”) and defendants COUNTY OF RIVERSIDE,
a public entity; RIVERSIDE COUNTY SHERIFF’S DEPARTMENT; SHERIFF
CHAD BIANCO, in his individual and official capacities; EDWARD DELGADO;
1 JAMES KRACHMER; MARTIN TOCHTROP; and DOES 1 through 10,
2 individually, jointly and severally (hereinafter referred to collectively as
3 “Defendants”) – the parties – hereby stipulate for the purpose of jointly requesting
4 that the honorable Court enter a protective order re confidential documents in this
5 matter [and pursuant to Fed. R. Civ. P. 5.2, 7, and 26, as well as U.S. Dist. Ct., C.D.
6 Cal., Local Rules 7-1 and 52-4.1; and any applicable Orders of the Court] – as
7 follows:
8 1.
GOOD CAUSE STATEMENT
9
1.1.
10
Defendants contend that there is good cause and a particularized need for a
Contentions re Harm from Disclosure of Confidential Materials.
11 protective order to preserve the interests of confidentiality and privacy in peace officer
12 personnel file records and associated investigative or confidential records for the
13 following reasons.
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First, Defendants contend that peace officers have a federal privilege of privacy
15 in their personnel file records: a reasonable expectation of privacy therein that is
16 underscored, specified, and arguably heightened by the Pitchess protective procedure
17 of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 1027, 1033-1034
18 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 14665, *2-3, 1219 13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law applies to privilege based
20 discovery disputes involving federal claims,” the “state privilege law which is
21 consistent with its federal equivalent significantly assists in applying [federal]
22 privilege law to discovery disputes”); Soto v. City of Concord, 162 F.R.D. 603, 613
23 n. 4, 616 (N.D. Cal. 1995) (peace officers have constitutionally-based “privacy rights
24 [that] are not inconsequential” in their police personnel records); cf. Cal. Penal Code
25 §§ 832.7, 832.8; Cal. Evid. Code §§ 1040-1047. Defendants further contend that
26 uncontrolled disclosure of such personnel file information can threaten the safety of
27 non-party witnesses, officers, and their families/associates.
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Second, Defendants contend that municipalities and law enforcement agencies
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1 have federal deliberative-executive process privilege, federal official information
2 privilege, federal law enforcement privilege, and federal attorney-client privilege
3 (and/or attorney work product protection) interests in the personnel files of their peace
4 officers – particularly as to those portions of peace officer personnel files that contain
5 critical self-analysis, internal deliberation/decision-making or evaluation/analysis, or
6 communications for the purposes of obtaining or rendering legal advice or analysis –
7 potentially including but not limited to evaluative/analytical portions of Internal
8 Affairs type records or reports, evaluative/analytical portions of supervisory records
9 or reports, and/or reports prepared at the direction of counsel, or for the purpose of
10 obtaining or rendering legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa
11 Audubon Soc’y v. United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir.
12 1997); Soto, 162 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654,
13 668-671 (N.D. Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998);
14 Hamstreet v. Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co.
15 v. United States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants
16 further contend that such personnel file records are restricted from disclosure by the
17 public entity’s custodian of records pursuant to applicable California law and that
18 uncontrolled release is likely to result in needless intrusion of officer privacy;
19 impairment in the collection of third-party witness information and statements
20 and related legitimate law enforcement investigations/interests; and a chilling of
21 open and honest discussion regarding and/or investigation into alleged
22 misconduct that can erode a public entity’s ability to identify and/or implement
23 any remedial measures that may be required.
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Third, Defendants contend that, since peace officers do not have the same rights
25 as other private citizens to avoid giving compelled statements, it is contrary to the
26 fundamental principles of fairness to permit uncontrolled release of officers’
27 compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 822,
28 828-830 (1985); cf. U.S. Const., amend V.
3
1
Accordingly, Defendants contend that, without a protective order preventing
2 such, production of confidential records in the case can and will likely substantially
3 impair and harm defendant public entity’s interests in candid self-critical analysis,
4 frank internal deliberations, obtaining candid information from witnesses, preserving
5 the safety of witnesses, preserving the safety of peace officers and peace officers’
6 families and associates, protecting the privacy officers of peace officers, and
7 preventing pending investigations from being detrimentally undermined by
8 publication of private, sensitive, or confidential information – as can and often does
9 result in litigation.
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1.2.
Plaintiff does not agree with and does not stipulate to Defendants’
11 contentions herein above, and nothing in this Stipulation or its associated Order shall
12 resolve the parties’ disagreement, or bind them, concerning the legal statements and
13 claimed privileges set forth above.
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However, plaintiff agrees that there is Good Cause for a Protective Order so as
15 to preserve the respective interests of the parties without the need to further burden
16 the Court with such issues. Specifically, the parties jointly contend that, absent this
17 Stipulation and its associated Protective Order, the parties' respective privilege
18 interests may be impaired or harmed, and that this Stipulation and its associated
19 Protective Order may avoid such harm by permitting the parties to facilitate discovery
20 with reduced risk that privileged and/or sensitive/confidential information will
21 become matters of public record.
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1.3.
The parties jointly contend that there is typically a particularized need
23 for protection as to any medical or psychotherapeutic records and autopsy
24 photographs, because of the privacy interests at stake therein. Because of these
25 sensitive interests, a Court Order should address these documents rather than a private
26 agreement between the parties.
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1.4.
The parties therefore stipulate that there is Good Cause for, and hereby
28 jointly request that the honorable Court issue/enter, a Protective Order re confidential
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1 documents consistent with the terms and provisions of this Stipulation. However, the
2 entry of a Protective Order by the Court pursuant to this Stipulation shall not be
3 construed as any ruling by the Court on the aforementioned legal statements or
4 privilege claims in this section (§ 1), nor shall this section be construed as part of any
5 such Court Order.
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A.
PURPOSES AND LIMITATIONS.
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Disclosure and discovery activity in this action are likely to involve production
8 of confidential, proprietary, or private information for which special protection from
9 public disclosure and from use for any purpose other than prosecuting or defending
10 this litigation would be warranted. Accordingly, the parties hereby stipulate to and
11 petition the court to enter the following Stipulation and an associated Order.
12
The parties acknowledge that this Stipulation and associated Order does not
13 confer blanket protections on all disclosures or responses to discovery and that the
14 protection it affords extends only to the specified information or items that are entitled
15 to treatment as confidential.
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The parties further acknowledge, as set forth below, that this Stipulation and
17 Order creates no entitlement to file confidential information under seal, except to the
18 extent specified herein; Central District Local Rules 79-5.1 and 79-5.2 set(s) forth the
19 procedures that must be followed and reflects the standards that will be applied when
20 a party seeks permission from the court to file material under seal.
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Nothing in this Stipulation or associated Order shall be construed so as to
22 require or mandate that any Party disclose or produce privileged information or
23 records that could be designated as Confidential Documents/Protected Material
24 hereunder.
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STIPULATION FOR PROTECTIVE ORDER RE CONFIDENTIAL
RECORDS
27 2.
DEFINITIONS
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2.1.
Party: any party to this action, including all of its officers, directors,
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1 employees, agents, consultants, retained experts, house counsel and outside counsel
2 (and/or the support staff thereof).
3
2.2.
Disclosure or Discovery Material: all items or information, regardless
4 of the medium or manner generated, stored or maintained (including, among other
5 things, testimony, transcripts, or tangible things) that are produced – or generated in
6 disclosures or responses to discovery – by any Party in this matter.
7
2.3.
“Confidential” Information or Items: information (regardless of the
8 medium or how generated, stored, or maintained) or tangible things that qualify for
9 protection under standards developed under Federal Rule of Civil Procedure 26(c)
10 and/or applicable federal privileges. This material includes, but is not limited to,
11 medical records, psychotherapeutic records, and autopsy photographs; as well as
12 peace officer personnel records as defined by California Penal Code sections 832.8,
13 832.5, 832.7 and the associated case law; and other similar confidential records
14 designated as such.
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2.4.
Receiving Party: a Party that receives Disclosure or Discovery Material
16 from a Producing Party, including a Party that has noticed or subpoenaed and is taking
17 a deposition or comparable testimony.
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2.5.
Producing Party: a Party or non-party that produces Disclosure or
19 Discovery Material in this action, including a Party that is defending a deposition
20 noticed or subpoenaed by another Party; additionally, for the limited purpose of
21 designating testimony subject to this Stipulation and Order pursuant to section 6.2(b)
22 (infra), a “Producing Party” shall also be construed to include a Party that is attending
23 and/or participating in a non-party deposition noticed/subpoenaed by another Party.
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2.6.
Designating Party: a Party or non-party public entity employer of a Party
25 that designates information or items that it produces in disclosures or in responses to
26 discovery as “CONFIDENTIAL.”
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2.7.
Protected Material:
any Disclosure or Discovery Material that is
28 designated as “CONFIDENTIAL” under the provisions of this Stipulation and
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1 Protective Order. (The term “Confidential Document” shall be synonymous with the
2 term “Protected Material” for the purposes of this Stipulation and any associated
3 Protective Order.)
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2.8.
Outside Counsel: attorneys who are not employees of a Party but who
5 are retained to represent or advise a Party in this action (as well as their support staffs).
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2.9.
House Counsel: attorneys who are employees of a Party (as well as their
7 support staffs).
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2.10. Counsel (without qualifier): Outside Counsel and House Counsel (as
9 well as their support staffs).
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2.11. Expert: a person with specialized knowledge or experience in a matter
11 pertinent to the litigation who has been retained by a Party or its counsel to serve as
12 an expert witness or as a consultant in this action and who is not a past or a current
13 employee of a Party and who, at the time of retention, is not anticipated to become an
14 employee of a Party or a competitor of a Party’s; as well as any person retained,
15 designated, or disclosed by a Party as an expert pursuant to Federal Rule of Civil
16 Procedure 26(a)(2) or other applicable discovery Rules or statutes.
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2.12. Professional Vendors: persons or entities that provide litigation support
18 services (e.g., photocopying; videotaping; translating; preparing exhibits or
19 demonstrations; and/or organizing, storing, retrieving data in any form or medium;
20 etc.); and their employees and subcontractors.
21 3.
SCOPE OF PROTECTION
22
The protections conferred by this Stipulation and its associated Order cover not
23 only Protected Material/Confidential Documents (as defined above), but also (1) any
24 information copied or extracted from Protected Material; (2) all copies, excerpts,
25 summaries, or compilations of Protected Material; and (3) any testimony,
26 conversations, or presentations by Parties or their Counsel that might reveal Protected
27 Material. However, the protections conferred by this Stipulation and its associated
28 Order do not cover the following information: (a) any information that is in the public
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1 domain at the time of disclosure to a Receiving Party or becomes part of the public
2 domain after its disclosure to a Receiving Party as a result of publication not involving
3 a violation of this Order, including becoming part of the public record through trial or
4 otherwise; and (b) any information known to the Receiving Party prior to the
5 disclosure or obtained by the Receiving Party after the disclosure from a source who
6 obtained the information lawfully and under no obligation of confidentiality to the
7 Designating Party.
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Except to the extent specified herein (if any), any use of Protected Material at
9 trial shall not be governed by this Order, but may be governed by a separate agreement
10 or order.
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Any use of Protected Material at trial shall be governed by the Orders of the
12 trial judge: this Stipulation and its associated Protective Order do(es) not govern the
13 use of Protected Material at trial.
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Nothing in this Stipulation or its associated Order shall be construed as binding
15 upon the Court or its court personnel, who are subject only to the Court’s internal
16 procedures regarding the handling of materials filed or lodged, including materials
17 filed or lodged under seal.
18 4.
DURATION OF PROTECTION
19
Even after final disposition of this litigation, the confidentiality obligations
20 imposed by this Order shall remain in effect (1) unless the information designated
21 confidential was admitted into evidence at the time of trial, or (2) until Parties agree
22 otherwise in writing or a court order otherwise directs.
23
Final disposition shall be deemed to be the later of (1) dismissal of all claims
24 and defenses in this Action, with or without prejudice; and (2) final judgment herein
25 after the completion and exhaustion of all appeals, rehearings, remands, trials, or
26 reviews of this Action, including the time limits for filing any motions or
27 applications for extension of time pursuant to applicable law.
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1 5.
DESIGNATION OF PROTECTED MATERIAL/CONFIDENTIAL
2
DOCUMENTS
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5.1.
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Each Party or non-party that designates information or items for protection
Exercise of Restraint and Care in Designating Material for Protection.
5 under this Stipulation and its associated Order must take care to limit any such
6 designation to specific material that qualifies under the appropriate standards. A
7 Designating Party must take care to designate for protection only those parts of
8 material, documents, items, or oral or written communications that qualify – so that
9 other portions of the material, documents, items or communications for which
10 protection is not warranted are not swept unjustifiably within the ambit of this Order.
11
Mass, indiscriminate, or routine designations are prohibited. Designations that
12 are shown to be clearly unjustified, or that have been made for an improper purpose
13 (e.g., to unnecessarily encumber or retard the case development process, or to impose
14 unnecessary expenses and burdens on other parties), expose the Designating Party to
15 sanctions.
16
If it comes to a Party’s or a non-party’s attention that information or items that
17 it designated for protection do not qualify for protection at all, or do not qualify for
18 the level of protection initially asserted, that Party or non-party must promptly notify
19 all other parties that it is withdrawing the mistaken designation.
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5.2.
Manner and Timing of Designations. Except as otherwise provided in
21 this Order, or as otherwise stipulated or ordered, material that qualifies for protection
22 under this Order must be clearly so designated before the material is disclosed or
23 produced.
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Designation in conformity with this Order requires:
25
(a)
for information in documentary form (apart from transcripts of
26 depositions or other pretrial or trial proceedings, and regardless of whether produced
27 in hardcopy or electronic form), that the Producing Party affix the legend
28 “CONFIDENTIAL” to each page that contains Protected Material. If only a portion
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1 or portions of the material on a page qualifies for protection, the Producing Party also
2 must clearly identify the protected portion(s) (e.g., by making appropriate markings
3 in the margins) and must specify, for each portion that it is “CONFIDENTIAL.” The
4 placement of such “CONFIDENTIAL” stamp on such page(s) shall not obstruct the
5 substance of the page’s (or pages’) text or content.
6
A Party or Non-Party that makes original documents or materials available for
7 inspection need not designate them for protection until after the inspecting Party has
8 indicated which material it would like copied and produced. During the inspection
9 and before the designation, all of the material made available for inspection shall be
10 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
11 it wants copied and produced, the Producing Party must determine which documents,
12 or portions thereof, qualify for protection under this Order. Then, before producing
13 the specified documents, the Producing Party must affix the “CONFIDENTIAL”
14 legend to each page that contains Protected Material. If only a portion or portions of
15 the material on a page qualifies for protection, the Producing Party also must clearly
16 identify the protected portion(s) (e.g., by making appropriate markings in the
17 margins).
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(b)
for testimony given in deposition or in other pretrial or trial proceedings,
19 that the Party or non-party offering or sponsoring the testimony identify on the record,
20 before the close of the deposition, hearing, or other proceeding, all protected
21 testimony, and further specify any portions of the testimony that qualify as
22 “CONFIDENTIAL.” When it is impractical to identify separately each portion of
23 testimony that is entitled to protection, and when it appears that substantial portions
24 of the testimony may qualify for protection, the Producing Party may invoke on the
25 record (before the deposition or proceeding is concluded) a right to have up to twenty
26 (20) days to identify the specific portions of the testimony as “CONFIDENTIAL.”
27 Only those portions of the testimony that are appropriately designated as
28 “CONFIDENTIAL” for protection within the 20 days shall be covered by the
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1 provisions of this Stipulation and its associated Protective Order.
2
The court reporter must affix to each such transcript page containing Protected
3 Material the legend “CONFIDENTIAL,” as instructed by the Producing Party.
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(c)
for information produced in some form other than documentary, and for
5 any other tangible items (including but not limited to information produced on disc or
6 electronic data storage device), that the Producing Party affix in a prominent place on
7 the exterior of the container or containers in which the information or item is stored
8 the legend “CONFIDENTIAL.” If only portions of the information or item warrant
9 protection, the Producing Party, to the extent practicable, shall identify the protected
10 portions, specifying the material as “CONFIDENTIAL.”
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5.3.
Inadvertent Failures to Designate.
If timely corrected (preferably,
12 though not necessarily, within 30 days of production or disclosure of such material),
13 an
inadvertent
failure
to
designate
qualified
information
or
items
as
14 “CONFIDENTIAL” does not, standing alone, waive the Designating Party’s right to
15 secure protection under this Stipulation and its associated Order for such material.
16
If material is appropriately designated as “CONFIDENTIAL” after the material
17 was initially produced, the Receiving Party, on timely notification of the designation,
18 must make reasonable efforts to assure that the material is treated in accordance with
19 this Stipulation and its associated Order.
20
5.4.
Alteration of Confidentiality Stamp Prohibited. A Receiving Party shall
21 not alter, edit, or modify any Protected Material so as to conceal, obscure, or remove
22 a “CONFIDENTIAL” stamp or legend thereon; nor shall a Receiving Party take any
23 other action so as to make it appear that Protected Material is not subject to the terms
24 and provisions of this Stipulation and its associated Order. However, nothing in this
25 section shall be construed so as to prevent a Receiving Party from challenging a
26 confidentiality designation subject to the provisions of section 6, infra.
27 6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
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6.1.
Timing of Challenges.
Any Party or Non-Party may challenge a
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1 designation of confidentiality at any time that is consistent with the Court's
2 Scheduling Order. Unless a prompt challenge to a Designating Party’s confidentiality
3 designation is necessary to avoid foreseeable substantial unfairness, unnecessary
4 economic burdens, or a later significant disruption or delay of the litigation, a Party
5 does not waive its right to challenge a confidentiality designation by electing not to
6 mount a challenge promptly after the original designation is disclosed.
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6.2.
Meet and Confer. Prior to challenging a confidentiality designation, a
8 Challenging Party shall initiate a dispute resolution process by providing written
9 notice of each specific designation it is challenging, and describing the basis (and
10 supporting authority or argument) for each challenge. To avoid ambiguity as to
11 whether a challenge has been made, the written notice must recite that the challenge
12 to confidentiality is being made in accordance with this specific paragraph of the
13 associated Protective Order. The parties shall attempt to resolve each challenge in
14 good faith and must begin the process by conferring directly (in voice to voice
15 dialogue, either in person, telephonically, or by other comparable means, but not by
16 correspondence) within 14 days of the date of service of notice.
17
In conferring, the Challenging Party must explain the specific basis for its belief
18 that the confidentiality designation was not proper and must give the Designating
19 Party an opportunity to review the designated material, to reconsider the
20 circumstances, and, if no change in designation is offered, to explain the basis for the
21 chosen designation. A Challenging Party may proceed to the next stage of the
22 challenge process only if it has engaged in this meet and confer process first or
23 establishes that the Designating Party is unwilling to participate in the meet and confer
24 process in a timely manner.
25
Frivolous challenges, and those challenges made for an improper purpose (e.g.,
26 to harass or impose unnecessary expenses and burdens on other parties), may expose
27 the Challenging Party to sanctions.
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6.3.
Judicial Intervention. If the Parties cannot resolve a confidentiality
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1 challenge without court intervention, the Challenging Party shall file and serve a
2 motion to remove confidentiality (under the applicable rules for filing and service of
3 discovery motions) within 14 days of the parties agreeing that the meet and confer
4 process will not resolve their dispute, or by the first day of trial of this matter,
5 whichever date is earlier – unless the parties agree in writing to a longer time.
6
The parties must strictly comply with Central District Local Rules 37-1 and 37-
7 2 (including the joint stipulation re discovery dispute requirement) in any motion
8 associated with this Protective Order.
9
Each such motion must be accompanied by a competent declaration affirming
10 that the movant has complied with the meet and confer requirements imposed in the
11 preceding paragraph.
In addition, the Challenging Party may file a motion
12 challenging a confidentiality designation at any time if there is good cause for doing
13 so, including a challenge to the designation of a deposition transcript or any portions
14 thereof. Any motion brought pursuant to this provision must be accompanied by a
15 competent declaration affirming that the movant has complied with the meet and
16 confer requirements imposed by the preceding paragraph.
17
The burden of persuasion in any such challenge proceeding shall be on the
18 Designating Party, regardless of whether the Designating Party is the moving party or
19 whether such Party sought or opposes judicial intervention. Frivolous challenges, and
20 those made for an improper purpose (e.g., to harass or impose unnecessary expenses
21 and burdens on other parties) may expose the Challenging Party to sanctions. Unless
22 the Designating Party has waived the confidentiality designation by failing to oppose
23 a motion to remove confidentiality as described above, all parties shall continue to
24 afford the material in question the level of protection to which it is entitled under the
25 Producing Party’s designation until the court rules on the challenge.
26
6.4.
Withdrawal of “CONFIDENTIAL” Designation. At its discretion, a
27 Designating Party may remove Protected Material/Confidential Documents from
28 some or all of the protections and provisions of this Stipulation and its associated
13
1 Order at any time by any of the following methods:
2
(a)
Express Written Withdrawal. A Designating Party may withdraw a
3 “CONFIDENTIAL” designation made to any specified Protected Material
4 /Confidential Documents from some or all of the protections of this Stipulation and
5 its associated Order by an express withdrawal in a writing signed by such Party (or
6 such Party’s Counsel, but not including staff of such Counsel) that specifies and
7 itemizes the Disclosure or Discovery Material previously designated as Protected
8 Material/Confidential Documents that shall no longer be subject to all or some of the
9 provisions of this Stipulation and Order. Such express withdrawal shall be effective
10 when transmitted or served upon the Receiving Party. If a Designating Party is
11 withdrawing Protected Material from only some of the provisions/ protections of this
12 Stipulation and Order, such Party must state which specific provisions are no longer
13 to be enforced as to the specified material for which confidentiality protection
14 hereunder is withdrawn: otherwise, such withdrawal shall be construed as a
15 withdrawal of such material from all of the protections/provisions of this Stipulation
16 and Order;
17
18 a
(b)
Express Withdrawal on the Record. A Designating Party may withdraw
“CONFIDENTIAL”
designation
made
to
any
specified
Protected
19 Material/Confidential Documents from all of the provisions/protections of this
20 Stipulation and its associated Order by verbally consenting in court proceedings on
21 the record to such withdrawal – provided that such withdrawal specifies the
22 Disclosure or Discovery Material previously designated as Protected Material/
23 Confidential Documents that shall no longer be subject to any of the provisions of this
24 Stipulation and Order. A Designating Party is not permitted to withdraw Protected
25 Material from only some of the protections/provisions of this Stipulation and Order
26 by this method;
27
(c)
Implicit Withdrawal by Publication or Failure to Oppose Challenge. A
28 Designating Party shall be construed to have withdrawn a “CONFIDENTIAL”
14
1 designation made to any specified Protected Material/Confidential Documents from
2 all of the provisions/protections of this Stipulation and Order by either (1) making
3 such Protected Material/Confidential Records part of the public record – including
4 but not limited to attaching such as exhibits to any filing with the court without
5 moving, prior to such filing, for the court to seal such records; or (2) failing to timely
6 oppose a Challenging Party’s motion to remove a “CONFIDENTIAL” designation to
7 specified Protected Material/Confidential Documents. Nothing in this Stipulation and
8 Order shall be construed so as to require any Party to file Protected
9 Material/Confidential Documents under seal, unless expressly specified herein.
10 7.
ACCESS TO AND USE OF PROTECTED MATERIAL
11
7.1.
Basic Principles. A Receiving Party may use Protected Material that is
12 disclosed or produced by another Party or by a non-party in connection with this case
13 only for preparing, prosecuting, defending, or attempting to settle this litigation – up
14 to and including final disposition of the above-entitled action – and not for any other
15 purpose, including any other litigation or dispute outside the scope of this action.
16 Such Protected Material may be disclosed only to the categories of persons and under
17 the conditions described in this Stipulation and its associated Order. When the above
18 entitled litigation has been terminated, a Receiving Party must comply with the
19 provisions of section 11, below (FINAL DISPOSITION).
20
Protected Material must be stored and maintained by a Receiving Party at a
21 location and in a secure manner that ensures that access is limited to the persons
22 authorized under this Stipulation and its Order.
23
7.2.
Disclosure of “CONFIDENTIAL” Information or Items.
Unless
24 otherwise ordered by the Court or permitted in writing by the Designating Party, a
25 Receiving Party may disclose any information or item designated CONFIDENTIAL
26 only to:
27
(a)
the Receiving Party’s Outside Counsel of record in this action, as well
28 as employees of such Counsel to whom it is reasonably necessary to disclose the
15
1 information for this litigation;
2
(b)
the officers, directors, and employees (including House Counsel) of the
3 Receiving Party to whom disclosure is reasonably necessary for this litigation – each
4 of whom, by accepting receipt of such Protected Material, thereby agree to be bound
5 by this Stipulation and Order;
6
(c)
Experts (as defined in this Stipulation and Order) of the Receiving Party
7 to whom disclosure is reasonably necessary for this litigation – each of whom, by
8 accepting receipt of such Protected Material, thereby agree to be bound by this
9 Stipulation and Order;
10
(d)
court reporters, their staffs, and Professional Vendors to whom
11 disclosure is reasonably necessary for this litigation – each of whom, by accepting
12 receipt of such Protected Material, thereby agree to be bound by this Stipulation and
13 Order;
14
(e)
during their depositions, witnesses in the action to whom disclosure is
15 reasonably necessary – each of whom, by accepting receipt of such Protected
16 Material, thereby agree to be bound by this Stipulation and Order.
Pages of
17 transcribed deposition testimony or exhibits to depositions that reveal Protected
18 Material must have a confidential designation affixed by the court reporter to such
19 pages containing Protected Material and such may not be disclosed to anyone except
20 as permitted under this Stipulation and its Protective Order.
21
(f)
the author or custodian of a document containing the information that
22 constitutes Protected Material, or other person who otherwise possessed or knew the
23 information.
24
7.3.
Notice of Confidentiality. Prior to producing or disclosing Protected
25 Material/Confidential Documents to persons to whom this Stipulation and its Order
26 permits disclosure or production (see section 8.2, supra), a Receiving Party shall
27 provide a copy of this Stipulation and Order to such persons so as to put such persons
28 on notice as to the restrictions imposed upon them herein: except that, for court
16
1 reporters, Professional Vendors, and for witnesses being provided with Protected
2 Material during a deposition, it shall be sufficient notice for Counsel for the Receiving
3 Party to give the witness a verbal admonition (on the record, for witnesses) regarding
4 the provisions of this Stipulation and its Order and such provisions’ applicability to
5 specified Protected Material at issue.
6
7.4.
Reservation of Rights. Nothing in this Stipulation and Order shall be
7 construed so as to require any Producing Party to designate any records or materials
8 as “CONFIDENTIAL.” Nothing in this Stipulation and Order shall be construed so
9 as to prevent the admission of Protected Material into evidence at the trial of this
10 action, or in any appellate proceedings for this action, solely on the basis that such
11 Disclosure
or
Discovery
Material
has
been
designated
as
Protected
12 Material/Confidential Documents. Notwithstanding the foregoing, nothing in this
13 Stipulation and Order shall be construed as a waiver of any privileges or of any rights
14 to object to the use or admission into evidence of any Protected Material in any
15 proceeding; nor shall anything herein be construed as a concession that any privileges
16 asserted or objections made are valid or applicable. Nothing in this Stipulation and
17 Order shall be construed so as to prevent the Designating Party (or its Counsel or
18 custodian of records) from having access to and using Protected Material designated
19 by that Party in the manner in which such persons or entities would typically use such
20 materials in the normal course of their duties or profession – except that the waiver of
21 confidentiality provisions shall apply (see section 6.4(c), supra).
22
7.5.
Requirement to File Confidential Documents Under Seal. Confidential
23 Documents may be submitted in all law and motion proceedings before the Court if
24 done so under seal pursuant to Federal Rules of Civil Procedure 5.2 and 26 and/or
25 United States District Court, Central District of California Local Rules 79-5.1 and 7926 5.2 (as applicable) and pursuant to the provisions of this Stipulation and any
27 associated Order. If any Receiving Party attaches any Confidential Documents to any
28 pleading, motion, or other paper to be filed, lodged, or otherwise submitted to the
17
1 Court, such Confidential Document(s) shall be filed/lodged under seal pursuant to
2 Federal Rules of Civil Procedure 5.2 and 26 and/or United States District Court,
3 Central District of California Local Rules 79-5.1 and 79-5.2 to the extent applicable.
4
However, this paragraph (¶ 7.5) shall not be construed so as to prevent a
5 Designating Party or counsel from submitting, filing, lodging, or publishing any
6 document it has previously designated as a Confidential Document without
7 compliance with this paragraph’s requirement to do so under seal (i.e., a producing8 disclosing party or counsel may submit or publish its own Confidential Documents
9 without being in violation of the terms of this Stipulation and its Protective Order).
10
Furthermore, a Receiving Party shall be exempted from the requirements of
11 this paragraph as to any specifically identified Confidential Document(s) where –
12 prior to the submission or publication of the Confidential Document(s) at issue – the
13 Designating Party of such specifically identified Confidential Document(s) has
14 waived/withdrawn the protections of this Stipulation and its Order (pursuant to
15 paragraph 6.4, supra).
16
A Receiving Party shall also be exempt from the sealing requirements of this
17 paragraph (¶ 7.5) where the Confidential Documents/Protected Material at issue is/are
18 not documents, records, or information regarding or incorporating:
19
(1)
private, personal information contained in peace officer personnel files
20 (such as social security numbers, driver’s license numbers or comparable personal
21 government identification numbers, residential addresses, compensation or pension
22 or personal property information, credit card numbers or credit information, dates of
23 birth, tax records and information, information related to the identity of an officer’s
24 family members or co-residents, and comparable personal information about the
25 officer or his family);
26
(2)
any internal affairs or comparable investigation by any law enforcement
27 agency into alleged officer misconduct; and/or
28
(3)
the medical records or records of psychiatric or psychological treatment
18
1 of any peace officer or party to this action.
2
Nothing in this paragraph shall be construed to bind the Court or its authorized
3 staff so as to limit or prevent the publication of any Confidential Documents to the
4 jury or factfinder, at the time of trial of this matter, where the Court has deemed such
5 Confidential Documents to be admissible into evidence.
6
Nothing in this Stipulation or in any associated Order shall be construed as any
7 entitlement for the parties to file any documents or materials under seal; nor shall the
8 parties’ Stipulation or this Order be construed as any exemption from any of the
9 requirements of Central District Local Rule 79-5. The parties are required to comply
10 with the applicable Local Rules in their entirety. If the Court denies a party’s request
11 for filing material under seal, that material may be filed in the public record unless
12 otherwise instructed by the Court.
13 8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED
14
PRODUCED IN OTHER LITIGATION
15
If a Party is served with a subpoena or a court order issued in other litigation
16 that compels disclosure of any information or items designated in this action as
17 “CONFIDENTIAL,” that Party must:
18
(a)
promptly notify in writing the Designating Party, preferably (though not
19 necessarily) by facsimile or electronic mail. Such notification shall include a copy of
20 the subpoena or court order at issue;
21
(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 Stipulation and its Protective Order. Such notification shall
24 include a copy of this Stipulation and its Protective Order; and
25
(c)
cooperate with respect to all reasonable procedures sought to be pursued
26 by all sides in any such situation, while adhering to the terms of this Stipulation and
27 its Order.
28
If the Designating Party timely seeks a protective order, the Party served with
19
1 the subpoena or court order shall not produce any information designated in this action
2 as “CONFIDENTIAL” before a determination by the court from which the subpoena
3 or order issued, unless the Party has obtained the Designating Party’s permission. The
4 Designating Party shall bear the burden and expense of seeking protection in that court
5 of its confidential material – and nothing in these provisions should be construed as
6 authorizing or encouraging a Receiving Party in this action to disobey a lawful
7 directive from another court.
8
The purpose of this section is to ensure that the affected Party has a meaningful
9 opportunity to preserve its confidentiality interests in the court from which the
10 subpoena or court order issued.
11 9.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
12
9.1.
13
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Unauthorized Disclosure of Protected Material.
14 Protected Material to any person or in any circumstance not authorized under this
15 Stipulation and Order, the Receiving Party must immediately:
16
(a)
notify in writing the Designating Party of the unauthorized disclosures;
17
(b)
use its best efforts to retrieve all copies of the Protected Material;
18
(c)
inform the person or persons to whom unauthorized disclosures were
19 made of all the terms of this Order; and
20
(d)
request such person or persons consent to be bound by the Stipulation
21 and Order.
22
9.2.
23
When a Producing Party gives notice to Receiving Parties that certain
Inadvertent Production of Privileged or Otherwise Protected Material.
24 inadvertently produced material is subject to a claim of privilege or other protection,
25 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
26 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
27 may be established in an e-discovery order that provides for production without prior
28 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
20
1 parties reach an agreement on the effect of disclosure of a communication or
2 information covered by the attorney-client privilege or work product protection, the
3 parties may incorporate their agreement in the stipulated protective order submitted
4 to the court.
5 10.
PUBLICATION OF PROTECTED MATERIAL PROHIBITED
6
10.1. Filing of Protected Material.
7
Without advance written permission from the Designating Party, or a court
8 order secured after appropriate notice to all interested persons, a Receiving Party may
9 not file in the public record in this action any Protected Material. A Party that seeks
10 to file under seal any Protected Material must comply with the applicable Federal and
11 Local Rules.
12
10.2. Public Dissemination of Protected Material.
13
A Receiving Party shall not publish, release, post, or disseminate Protected
14 Material to any persons except those specifically delineated and authorized by this
15 Stipulation and its Order (see section 7, supra); nor shall a Receiving Party publish,
16 release, leak, post, or disseminate Protected Material/Confidential Documents to any
17 news media, member of the press, website, or public forum (except as permitted under
18 section 7.5 regarding filings with the court in this action and under seal).
19 11.
FINAL DISPOSITION
20
Unless otherwise ordered or agreed in writing by the Producing Party, within
21 thirty (30) days after the final termination of this action (defined as the dismissal or
22 entry of judgment by the above named court, or if an appeal is filed, the disposition
23 of the appeal), upon written request by the Producing Party, each Receiving Party
24 must return all Protected Material to the Producing Party – whether retained by the
25 Receiving Party or its Counsel, Experts, Professional Vendors, agents, or any non26 party to whom the Receiving Party produced or shared such records or information.
27
As used in this subdivision, “all Protected Material” includes all copies,
28 abstracts, compilations, summaries or any other form of reproducing or capturing any
21
1 of the Protected Material, regardless of the medium (hardcopy, electronic, or
2 otherwise) in which such Protected Material is stored or retained.
3
In the alternative, at the discretion of the Receiving Party, the Receiving Party
4 may destroy some or all of the Protected Material instead of returning it – unless such
5 Protected Material is an original, in which case, the Receiving Party must obtain the
6 Producing Party’s written consent before destroying such original Protected Material.
7
Whether the Protected Material is returned or destroyed, the Receiving Party
8 must submit a written certification to the Producing Party (and, if not the same person
9 or entity, to the Designating Party) within thirty (30) days of the aforementioned
10 written request by the Designating Party that specifically identifies (by category,
11 where appropriate) all the Protected Material that was returned or destroyed and that
12 affirms that the Receiving Party has not retained any copies, abstracts, compilations,
13 summaries or other forms of reproducing or capturing any of the Protected material
14 (in any medium, including but not limited to any hardcopy, electronic or digital copy,
15 or otherwise).
16
Notwithstanding this provision, Counsel are entitled to retain an archival copy
17 of all pleadings, motion papers, transcripts, legal memoranda filed with the court in
18 this action, as well as any correspondence or attorney work product prepared by
19 Counsel for the Receiving Party, even if such materials contain Protected Material;
20 however, any such archival copies that contain or constitute Protected Material remain
21 subject to this Protective Order as set forth in Section 4 (DURATION), above. This
22 court shall retain jurisdiction in the event that a Designating Party elects to seek court
23 sanctions for violation of this Stipulation and its Order.
24 12.
MISCELLANEOUS
25
12.1. Right to Further Relief.
Nothing in this Stipulation and its Order
26 abridges the right of any person to seek its modification by the Court in the future.
27
12.2. Right to Assert Other Objections. By stipulating to the entry of a
28 Protective Order pursuant to this Stipulation, no Party waives any right it otherwise
22
1 would have to object to disclosing or producing any information or item on any
2 ground not addressed in this Stipulation and its Order. Similarly, no Party waives any
3 right to object on any ground to use in evidence any of the material covered by this
4 Stipulation and its Protective Order.
12.3. This Stipulation may be signed in counterpart and a facsimile or
5
6 electronic signature shall be as valid as an original signature.
7
IT IS SO STIPULATED.
8
9
10
Dated: January 24, 2025
MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
11
12
By:
13
14
15
/s/ Eugene Hanrahan
Eugene P. Ramirez, Esq.
Andrea K. Kornblau, Esq.
Eugene P. Hanraha, Esq.1
Attorneys for Defendants
16
17
18
Dated: January 24, 2025
THE LAW OFFICES OF CHRISTIAN
CONTRERAS, A Professional Law Corporation
By: /s/ Christian Contreras
19
Christian Contreras, Esq.
Attorney for Plaintiff
20
21
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
22
23
24
25
Dated:
January 29, 2025
Hon. David T. Bristow
U.S. Magistrate Judge
26
27
28
1
Per Local Rule 5-4.3.4, as the filer of this document, I attest that all other signatories listed, and on whose behalf the
filing is submitted, concur in the filing’s content and have authorized the filing.
23
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