Jose Martin Hernandez Gonzalez et al v. City of Fullerton et al

Filing 20

STIPULATED PROTECTIVE ORDER by Judge Josephine Staton Tucker re Stipulation for Protective Order 19 . (twdb)

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James R. Touchstone, SBN 184584
[e-mail]
Denise L. Rocawich, SBN 232792
[e-mail]
JONES & MAYER
3777 North Harbor Boulevard
Fullerton, CA 92835
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant,
CITY OF FULLERTON, JOSE TORRES,
STEPHEN RODRIGUEZ, CYTHINA MENDEZ
RICHARD HERRERA

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSE MARTIN HERNANDEZ
GONZALEZ; HORACIO
HERNANDEZ DE LOS SANTOS,

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Plaintiffs,

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Case No: SACV10-01763 JST(MLGx)

STIPULATED PROTECTIVE
ORDER

vs.

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CITY OF FULLERTON, JOSE
TORRES; STEPHEN RODRIGUEZ;
CYTHIA MENDEZ; RICHARD
HERRERA; and DOES 1-10,
inclusive,

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Defendants.

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STIPULATED PROTECTIVE ORDER

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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Pursuant to Rule 26(c), Defendants City of Fullerton, Jose Torres, Stephen

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Rodriguez, Cynthia Mendez and Richard Herrera ("City Defendants") and Plaintiffs Jose

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Martin Hernandez Gonzalez and Horacio Hernandez De Los Santos (collectively "the

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Parties"), by their undersigned counsel, agree to be bound to the terms of the following

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Protective Order. The Parties represent that pre-trial discovery in this case may include

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matters that are confidential and privileged and may require the production of Peace

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Officer Personnel File Information and/or Documents which the Parties agree includes:

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(1) Personal data, including marital status, family members, educational and employment

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history, home addresses, or similar information; (2) Medical history; (3) Election of

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employee benefits; (4) Employee advancement, appraisal, or discipline; and (5)

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Complaints, or investigations of complaints, concerning an event or transaction in which

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a peace officer participated, or which a peace officer perceived, and pertaining to the

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manner in which the peace officer performed his or her duties. Such information is

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privileged as official information. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033

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(9th Cir. Cal. 1990); see also Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192,

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198 (9th Cir.1975), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Peace

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Officer Personnel File Information and/or Documents is hereinafter referred to as

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"Confidential Information".

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The Parties represent that public disclosure of such material poses a substantial

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risk of embarrassment, oppression and/or physical harm to peace officers whose

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Confidential Information is disclosed. The Parties further represent that the risk of harm

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to peace officers is greater than with other government employees due to the nature of

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their profession. Finally, the Parties represent that the benefit of public disclosure of

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Confidential Information is minimal while the potential disadvantages are great.

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STIPULATED PROTECTIVE ORDER

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Accordingly, good cause exists for entry of this Protective Order to facilitate pre-

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trial disclosure while assuring the safety of these sensitive disclosures. See Fed. R. Civ.

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Proc. 26(c).

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SO STIPULATED

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Dated:

Respectfully submitted,
JONES & MAYER

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By:
JAMES R. TOUCHSTONE
DENISE L. ROCAWICH
Attorneys for City of Fullerton, Jose
Torres, Stephen Rodriguez, Cynthia
Mendez and Richard Herrera

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Dated:

Respectfully submitted,
STOCK LAW CORPORATION

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By:
JOSHUA R. STOCK
Attorney for Plaintiffs
Jose Martin Hernandez Gonzalez and
Horacio Hernandez De Los Santos

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STIPULATED PROTECTIVE ORDER

[PROPOSED] PROTECTIVE ORDER

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PER THE STIPULATION OF THE PARTIES AND GOOD CAUSE

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APPEARING, IT IS HEREBY ORDERED that the terms and conditions of this

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Protective Order shall govern the handling of Discovery Materials containing

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Confidential Information in matter of Gonzalez et al. v. City of Fullerton et al. USCD

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Case No. SACV09-1347 JVS(RNBX) ("the Litigation"):

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1.

Applicability of Order: This Order does not and will not govern any trial

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proceedings in this Litigation, but will otherwise be applicable to and govern the handling

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of documents, depositions, deposition exhibits, interrogatory responses, responses to

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requests for admissions, responses to requests for production of documents, and all other

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discovery obtained pursuant to the Federal Rules of Civil Procedure by Plaintiffs in

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connection with the Litigation (this information hereinafter referred to as “Discovery

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Material”).

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2.

Designation of Material: City Defendants may designate Discovery

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Material that is in their possession, custody or control to be produced to Plaintiffs as

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“Confidential Information” under the terms of this Order if City Defendants in good faith

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reasonably believe that such Discovery Material contains non-public, confidential

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material as defined in section 4 below.

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3.

Exercise of Restraint and Care in Designating Material for Protection:

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When designating Discovery Material for protection as Confidential Information under

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this Order, City Defendants must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. Mass, indiscriminate, or

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routinized designations are prohibited.

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4.

Confidential Information: For purposes of this Order, Confidential

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Information is any information and/or documents that City Defendants believe in good

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faith to be Peace Officer Personnel File Information and/or Documents including: (1)

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Personal data, including marital status, family members, educational and employment

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history, home addresses, or similar information; (2) Medical history; (3) Election of
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STIPULATED PROTECTIVE ORDER

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employee benefits; (4) Employee advancement, appraisal, or discipline; and (5)

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Complaints, or investigations of complaints, concerning an event or transaction in which

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a peace officer participated, or which a peace officer perceived, and pertaining to the

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manner in which the peace officer performed his or her duties.

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5.

Designating Confidential Information: The designation of Discovery

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Material as Confidential Information for purposes of this Order shall be made in the

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following manner:

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a.

Documents: In the case of documents or other materials (apart from
depositions or other pre-trial testimony), designation shall be made

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by stamping “Confidential” to each page containing any

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Confidential Information.

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b.

Deposition and Other Proceedings: In the case of depositions or

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other pre-trial testimony, designation of the portion of the transcript

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(including exhibits) which contains Confidential Information shall

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be made (i) by a statement to such effect on the record during the

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proceeding in which the testimony is received, or (ii) by written

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notice served on counsel of record in this Litigation within thirty

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(30) business days after the receipt of the draft transcript of such

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deposition or other pre-trial proceeding. However, before such thirty

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(30) day period expires, all testimony, exhibits and transcripts of

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depositions or other testimony shall be treated as Confidential

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Information. Thereafter, only those portions properly designated

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shall be deemed Confidential Information.

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c.

Non-Written Materials: Any non-written Confidential Information

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(e.g., videotape, audio tape, computer disk, etc.) may be designated

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as such by labeling the outside of such non-written material

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designated as “Confidential”. In the event Plaintiffs generate any

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“hard copy” transcription or printout from any such designated non4
STIPULATED PROTECTIVE ORDER

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written materials, the person who generates such “hard copy”

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transcription shall take reasonable steps to maintain the

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confidentiality of such materials.

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6.

Inadvertent Disclosure: The inadvertent failure to designate Discovery

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Information as "Confidential" does not constitute a waiver of such claim and may be

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remedied by prompt supplemental written notice upon discovery of the inadvertent

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disclosure, with the effect that such Discovery Material will be subject to the protections

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of this Order. Plaintiffs shall exercise good faith efforts to ensure that copies they make

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of Confidential Information produced to them, and copies made by others who obtained

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such Confidential Information directly or indirectly from the Plaintiffs include the

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appropriate confidentiality legend, to the same extent that the Confidential Information

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has been marked with the appropriate confidentiality legend by the City Defendants.

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7.

No Waiver of Privilege: Inadvertent disclosure of Confidential

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Information or otherwise privileged information shall not constitute a waiver of, or

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estoppel as to any claim of privilege. This Order is intended to provide the full protection

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afforded by Federal Rule of Evidence 502(d).

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8.

Claw-Back: Pursuant to Federal Rule of Civil Procedure 26(b)(5), upon

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learning it may have produced Confidential or otherwise privileged Information, City

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Defendants shall, within ten (10) days of such discovery, request the return of such

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Information in writing by indentifying the Confidential or otherwise privileged

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Information and stating the basis on which the Information should be withheld from

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production. After being notified, Plaintiffs must promptly return, sequester, or destroy the

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Confidential or otherwise privileged Information and any copies, must not use or disclose

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the Information until the claim is resolved and must take reasonable steps to retrieve the

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Confidential or otherwise privileged Information if he disclosed the Information before

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being notified. If Plaintiffs dispute City Defendants' claim of confidentiality or privilege;

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they shall notify City Defendants of the dispute and the basis therefore in writing within

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thirty (30) days of receipt of the request for the return of the Confidential or otherwise
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STIPULATED PROTECTIVE ORDER

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privileged Information. The Parties thereafter shall meet and confer in good faith

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regarding the disputed claim within thirty (30) days. In the event that the Parties do not

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resolve their dispute, either party may bring a motion for a determination of whether a

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privilege applies. If such a motion is made, City Defendants shall submit to the Court for

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in camera review under seal a copy of the disputed Information in connection with its

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motion papers. The submission to the Court shall not constitute a waiver of any privilege

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or protection. City Defendants must preserve the Information claimed to be privileged or

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otherwise protected until the claim is resolved.

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9.

Notes of Confidential Information: Any notes, lists, memoranda, indices,

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compilations prepared or based on an examination of Confidential Information that quote

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from or paraphrase, Confidential Information with such specificity that the Confidential

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Information can be identified, or by reasonable logical extension can be identified, shall

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be accorded the same status of confidentiality as the underlying Confidential Information

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from which they are made and shall be subject to all of the terms of this Order.

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10.

Persons Authorized To Receive Confidential Information: Discovery

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Material designated “Confidential” may be disclosed, summarized, described,

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characterized or otherwise communicated or made available in whole or in part only to

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the following persons:

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a.

The Court, persons employed by the Court who are necessary for the

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handling of the Litigation, and court reporters transcribing the

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testimony or argument at a hearing, trial or deposition in this

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Litigation or any appeal there from;

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b.

Counsel of record in this Litigation, as well as paralegals, technical,

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administrative and clerical employees working under the direct

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supervision of such counsel;

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c.

Experts or consultants assisting any counsel of record in this

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Litigation, provided such experts and consultants have signed the

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“Agreement Concerning Information Covered by Protective Order”
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STIPULATED PROTECTIVE ORDER

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attached hereto as Exhibit "A" prior to the time such Information is

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disclosed; and
d.

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Any other person, only upon order of the Court or upon stipulation

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of the City, and who has signed the “Agreement Concerning

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Information Covered by Protective Order” attached hereto as Exhibit

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"A" prior to the time such Information is disclosed. However, under

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no circumstances shall home addresses or telephone numbers of

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individual defendants be provided to Plaintiffs .

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Use of Confidential Discovery Material: Discovery Material containing

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Confidential Information shall be used solely for purposes of the Litigation, including

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any appeal and re-trial. Any person or entity in possession of Discovery Material

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designated Confidential shall maintain those materials in accordance with Paragraph

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(storage) below.

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12.

Storage Of Confidential Information: The recipient of any Confidential

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Information that is provided under this Protective Order shall maintain such information

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in a reasonably secure and safe manner that ensures that access is limited to the persons

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authorized under this Order.

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13.

Filing of Confidential Information: Without written permission from City

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Defendants or a Court order, Plaintiffs may not file in the public record in this action any

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Confidential Information. The Parties shall comply with Local Rule 79-5 when seeking to

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file Confidential Information under seal. The party desiring to place any Confidential

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Information before the Court shall lodge the information in a sealed envelope along with

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an application to file the papers or the portion thereof containing Confidential

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Information under seal and a copy of a Proposed Order Sealing Documents. Said

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envelope shall be endorsed with the title of the Litigation, an indication of the nature of

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the contents of such sealed envelope, the identity of the party filing the materials, the

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phrase “Confidential Information” and a statement substantially in the following form:

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STIPULATED PROTECTIVE ORDER

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THIS ENVELOPE CONTAINS MATERIALS SUBJECT TO A

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PROTECTIVE ORDER ENTERED IN THIS LITIGATION. IT

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IS NOT TO BE OPENED NOR ARE ITS CONTENTS TO BE

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DISPLAYED,REVEALED, OR MADE PULBIC, EXCEPT BY

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ORDER OF THE COURT. UNLESS THE COURT ORDERS THAT IT

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NOT BE FILED, IT SHALL BE FILED UNDER SEAL.

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Additionally, within seven (7) days from the date that the papers (or portions

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thereof) were filed under seal consistent with the above procedures, the party who filed

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the papers under seal also shall file in the public record a version of the papers that has

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been redacted to omit the Confidential Information or any references thereto).

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The Parties shall also comply with Local Rule 79-5.4 with respect to the

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appropriate treatment of personal identifier information in connection with any filing

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with the Court.

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No Prejudice: Agreeing to be bound by this Protective Order, agreeing to

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and/or producing or receiving Confidential Information or otherwise complying with the

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terms of this Order shall not:

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a.

Prejudice in any way the rights of City Defendants to object to the

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production of documents it considers not subject to discovery, or

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operate as an admission by City Defendants that the restrictions and

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procedures set forth herein constitute adequate protection for any

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particular information deemed by City Defendants to be Confidential

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Information;

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b.

Prejudice in any way the rights of City Defendants to object to the

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authenticity or admissibility into evidence of any document,

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testimony or other evidence subject to this Order;

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c.

Prejudice in any way the rights of City Defendants to seek a

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determination by the Court whether any Confidential Information

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should be subject to the terms of this Order;
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STIPULATED PROTECTIVE ORDER

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15.

Challenging Designation of Information: Plaintiffs may challenge the

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propriety of a Confidential Information designation by providing to City Defendants a

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writing which briefly: (i) identifies with reasonable particularity the documents and/or

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information which are the subject of the challenge; and (ii) describes the basic legal or

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factual grounds for the challenge. Once a challenge is made, City Defendants will bear

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the burden of initiating and conducting a sufficient meet and confer (per Local Rule 37-

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1); and, if necessary, City Defendants will bear the burdens of proof and persuasion in

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moving for a Protective Order (per Local Rule 37-2) to uphold the challenged

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Confidential Information designation(s). Until the Court rules on the timely filed Motion

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for Protective Order, all parties shall continue to afford the material in question the level

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of protection to which it is entitled under the City’s designation.

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Additional Parties or Attorneys: In the event additional parties join or

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intervene in this action, the newly joined party(ies) shall not have access to Confidential

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Information until its counsel has executed an agreement to be fully bound by this Order.

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If any additional attorneys make appearances in this Litigation, those attorneys shall not

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have access to Confidential Information until they execute the “Agreement Concerning

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Information Covered by Protective Order” attached hereto as Exhibit "A".

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Protective Order Remains In Force: This Protective Order shall remain

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in force and effect until modified, superseded, or terminated by consent of the Parties or

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by order of the Court made upon reasonable written notice. Unless otherwise ordered, or

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agreed upon by the parties, this Protective Order shall survive the termination of this

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action. The Court retains jurisdiction even after termination of this action to enforce this

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Protective Order and to make such amendments, modifications, deletions and additions to

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this Protective Order as the Court may from time to time deem appropriate.

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18.

Conclusion of Litigation: Within ninety (90) days after receiving notice of

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the entry of an order, judgment or decree finally disposing of this Litigation, all persons

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having received Confidential Information shall either return such material and all copies

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thereof to counsel for City Defendants or destroy all such Confidential Information
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STIPULATED PROTECTIVE ORDER

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including the Confidential Information Plaintiffs provided to other persons. In either

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case, counsel for Plaintiffs must certify that fact to counsel for the City.

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19.

Redaction Allowed: City Defendants may redact Confidential Information

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from documents and things produced. City Defendants shall mark each thing where

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matter has been redacted with a legend stating “REDACTED,” as appropriate, or a

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comparable notice.

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20.

Violations of Protective Order: In the event that any person or party

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should violate the terms of this Protective Order, the aggrieved party should apply to the

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Court obtain relief against any such person or party violating or threatening to violate any

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of the terms of this Protective Order. In the event that the aggrieved party seeks

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injunctive relief, it must petition the District Judge for such relief, which may be granted

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at the sole discretion of the District Judge.

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IT IS SO ORDERED.

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Dated: December 8, 2011

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_____________________________
MARC L. GOLDMAN
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER

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EXHIBIT "A"TO STIPULATED PROTECTIVE ORDER

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSE MARTIN HERNANDEZ
GONZALEZ; HORACIO
HERNANDEZ DE LOS SANTOS,

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Plaintiffs,

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Case No: SACV10-01763 JST(MLGx)

AGREEMENT CONCERNING
INFORMATION COVERED BY
STIPULATED PROTECTIVE ORDER

vs.
CITY OF FULLERTON, JOSE
TORRES; STEPHEN RODRIGUEZ;
CYTHIA MENDEZ; RICHARD
HERRERA; and DOES 1-10, inclusive,
Defendants.

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1.

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I, __________________________________, hereby acknowledge that I

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have received a copy of the Stipulated Protective Order entered in this Litigation (Case

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No. SACV09-1347 JVS(RNBX) by the United States District Court for the Central

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District of California (hereinafter, “the Protective Order”).
2.

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Protective Order explained to me by my attorney.
3.

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I have either read the Protective Order or have had the terms of the

I understand the terms of the Protective Order and agree to comply with

and to be bound by such terms.
4.

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If I receive documents or information designated as Confidential

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Information (as that term is defined in the Protective Order), I understand that such

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Information is provided to me pursuant to the terms and restrictions of the Protective

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Order.

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STIPULATED PROTECTIVE ORDER

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5.

I agree to hold in confidence and not further disclose or use for any purpose

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(other than is permitted by the Protective Order) any Confidential Information disclosed

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to me pursuant to the terms of the Protective Order.

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6.

I hereby submit myself to the jurisdiction of the United States District

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Court for the Central District of California for resolution of any matters pertaining to the

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Protective Order.

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My address is:____________________________________

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My present employer is: ________________________________

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Dated: ______________

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Signed: _________________________

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STIPULATED PROTECTIVE ORDER