Kenneth Glover et al v. City of Laguna Beach et al

Filing 131

STIPULATED PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick: See document for further information. (lwag)

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RUTAN & TUCKER, LLP
Philip D. Kohn (State Bar No. 90158)
City Attorney, City of Laguna Beach
[e-mail]
Ajit Singh Thind (State Bar No. 268018)
Deputy City Attorney, City of Laguna Beach
[e-mail]
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626-1931
Telephone: [phone]
Facsimile: 714-546-9035
O’MELVENY & MYERS LLP
Michael G. Yoder (State Bar. No, 83059)
[e-mail]
Christopher S. Whittaker (State Bar No, 274699)
[e-mail]
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660-6429
Telephone: [phone]
Facsimile: 949-823-6994
Attorneys for Defendants
CITY OF LAGUNA BEACH and
LAGUNA BEACH POLICE DEPARTMENT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAVID SESTINI, RICHARD OWENS, Case No.: 8:15-CV-01332 AG (DFMx)
and MICHAEL NEWMAN, individually
Assigned for all purposes to:
and on behalf of all others similarly
Hon. Judge Andrew J. Guilford
situated,

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Plaintiffs,
vs.

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CITY OF LAGUNA BEACH and
LAGUNA BEACH POLICE
DEPARTMENT, a California charter
city,

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STIPULATED PROTECTIVE
ORDER
Date Action Filed: August 20, 2015
Trial Date:
February 7, 2017
Judge:
Hon. Andrew J.
Guilford
Courtroom:
10D

Defendants.

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[PROPOSED] STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)

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PURPOSE AND LIMITS OF THIS ORDER
Discovery in this action is likely to involve confidential, proprietary,

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sensitive, or private information requiring special protection from public disclosure

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and from use for any purpose other than this litigation. Thus, the Court enters this

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Protective Order. This Order does not confer blanket protections on all disclosures

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or responses to discovery, and the protection it gives from public disclosure and use

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extends only to the specific material entitled to confidential treatment under the

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applicable legal principles. This Order does not limit or otherwise affect any

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objections that a party may have to the production or disclosure of information in

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this action except as expressly stated. This Order does not automatically authorize

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the filing under seal of material designated under this Order. Instead, the parties

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must comply with L.R. 79-5.2 and this Court’s Guide to Electronically Filing

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Under-Seal Documents in Civil Cases if they seek to file anything under seal. This

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Order does not govern the use at trial of material designated under this Order.

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2.

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DESIGNATING PROTECTED MATERIAL
2.1

Over-Designation Prohibited. Any party or non-party who

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designates information or items for protection under this Order as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY” (a “designator”) must only designate specific material that qualifies under

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the appropriate standards. To the extent practicable, only those parts of documents,

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items, or oral or written communications that require protection shall be designated.

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Designations with a higher confidentiality level when a lower level would suffice

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are prohibited. Mass, indiscriminate, or routinized designations are prohibited.

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Unjustified designations expose the designator to sanctions, including the Court’s

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striking all confidentiality designations made by that designator. Designation under

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this Order is allowed only if the designation is necessary to protect material that, if

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disclosed to persons not authorized to view it, would cause competitive or other

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recognized harm or if protection of the information is required by law. Material
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STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)

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may not be designated if it has been made public, or if designation is otherwise

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unnecessary to protect a secrecy or privacy interest. If a designator learns that

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information or items that it designated for protection do not qualify for protection at

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all or do not qualify for the level of protection initially asserted, that designator

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must promptly notify all parties that it is withdrawing the mistaken designation.

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2.2

Manner and Timing of Designations. Designation under this Order

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requires the designator to affix the applicable legend (“CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY”) to each page that

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contains protected material. For testimony given in deposition or other proceeding,

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the designator shall specify all protected testimony and the level of protection being

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asserted. It may make that designation during the deposition or proceeding, or may

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invoke, on the record or by written notice to all parties on or before the next

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business day, a right to have up to 21 days from the deposition or proceeding to

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make its designation.

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2.2.1 A party or non-party that makes original documents or materials

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available for inspection need not designate them for protection until after the

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inspecting party has identified which material it would like copied and

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produced. During the inspection and before the designation, all material

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shall be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY. After the inspecting party has identified the documents it wants

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copied and produced, the producing party must designate the documents, or

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portions thereof, that qualify for protection under this Order.

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2.2.2 Parties shall give advance notice if they expect a deposition or

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other proceeding to include designated material so that the other parties can

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ensure that only authorized individuals are present at those proceedings when

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such material is disclosed or used. The use of a document as an exhibit at a

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deposition shall not in any way affect its designation. Transcripts containing

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designated material shall have a legend on the title page noting the presence
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STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)

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of designated material, and the title page shall be followed by a list of all

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pages (including line numbers as appropriate) that have been designated, and

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the level of protection being asserted. The designator shall inform the court

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reporter of these requirements. Any transcript that is prepared before the

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expiration of the 21-day period for designation shall be treated during that

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period as if it had been designated HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY unless otherwise agreed. After the expiration of

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the 21-day period, the transcript shall be treated only as actually designated.

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2.3

Inadvertent Failures to Designate. An inadvertent failure to

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designate does not, standing alone, waive protection under this Order. Upon timely

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assertion or correction of a designation, all recipients must make reasonable efforts

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to ensure that the material is treated according to this Order.

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3.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1

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through L.R. 37-4. Until the Court enters an order changing the designation of

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specified information or documents, they shall be afforded the “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY ” treatment

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described in this Order.

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4.

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ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material only

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for this litigation. Designated material may be disclosed only to the categories of

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persons and under the conditions described in this Order.

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4.2

Disclosure of CONFIDENTIAL Material Without Further

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Approval. Unless otherwise ordered by the Court or permitted in writing by the

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designator, a receiving party may disclose any material designated

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CONFIDENTIAL only to:

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STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)

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4.2.1 The receiving party’s outside counsel of record in this action

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and employees of outside counsel of record to whom disclosure is reasonably

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necessary;

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4.2.2 The receiving party (if an individual) or the officers, directors,

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and employees of the receiving party (if an entity) to whom disclosure is

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reasonably necessary, and who have signed the Agreement to Be Bound

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(Exhibit A);

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4.2.3 Experts and consultants retained by the receiving party’s outside

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counsel of record to whom disclosure is reasonably necessary, and who have

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signed the Agreement to Be Bound (Exhibit A);

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4.2.4 The Court and its personnel;

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4.2.5 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A);

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4.2.6 During their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the Agreement to Be

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Bound (Exhibit A); and

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4.2.7 The author or recipient of a document containing the material, or

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a custodian or other person who otherwise possessed or knew the

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information.

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4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY Material Without Further Approval. Unless permitted in writing by the

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designator, a receiving party may disclose material designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY without further approval only to:

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4.3.1 The receiving party’s outside counsel of record in this action

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and employees of outside counsel of record to whom it is reasonably

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necessary to disclose the information;

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STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)

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4.3.2 Experts and consultants retained by the receiving party’s outside

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counsel of record to whom disclosure is reasonably necessary, and who have

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signed the Agreement to Be Bound (Exhibit A);

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4.3.3 The Court and its personnel;

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4.3.4 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A); and

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4.3.5 The author or recipient of a document containing the material, or

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a custodian or other person who otherwise possessed or knew the

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information.
5.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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5.1

Subpoenas and Court Orders. This Order in no way excuses non-

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compliance with a lawful subpoena or court order. The purpose of the duties

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described in this section is to alert the interested parties to the existence of this

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Order and to give the designator an opportunity to protect its confidentiality

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interests in the court where the subpoena or order issued.

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5.2

Notification Requirement. If a party is served with a subpoena or a

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court order issued in other litigation that compels disclosure of any information or

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items designated in this action as CONFIDENTIAL or HIGHLY CONFIDENTIAL

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– ATTORNEY EYES ONLY, that party must:

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5.2.1 Promptly notify the designator in writing. Such notification
shall include a copy of the subpoena or court order;

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5.2.2 Promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered

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by the subpoena or order is subject to this Order. Such notification shall

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include a copy of this Order; and

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STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)

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5.2.3 Cooperate with all reasonable procedures sought by the

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designator whose material may be affected.

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5.3

Wait For Resolution of Protective Order. If the designator timely

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seeks a protective order, the party served with the subpoena or court order shall not

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produce any information designated in this action as CONFIDENTIAL or HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY before a determination by the

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court where the subpoena or order issued, unless the party has obtained the

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designator’s permission. The designator shall bear the burden and expense of

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seeking protection of its confidential material in that court.

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6.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed

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designated material to any person or in any circumstance not authorized under this

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Order, it must immediately (1) notify in writing the designator of the unauthorized

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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the

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designated material, (3) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (4) use reasonable efforts

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to have such person or persons execute the Agreement to Be Bound (Exhibit A).

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7.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a producing party gives notice that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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This provision is not intended to modify whatever procedure may be established in

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an e-discovery order that provides for production without prior privilege review

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pursuant to Federal Rule of Evidence 502(d) and (e).

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8.

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FILING UNDER SEAL
Without written permission from the designator or a Court order, a party may

not file in the public record in this action any designated material. A party seeking
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STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)

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to file under seal any designated material must comply with L.R. 79-5.2 and this

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Court’s Guide to Electronically Filing Under-Seal Documents in Civil Cases .

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Filings may be made under seal only pursuant to a court order authorizing the

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sealing of the specific material at issue. The fact that a document has been

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designated under this Order is insufficient to justify filing under seal. Instead,

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parties must explain the basis for confidentiality of each document sought to be

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filed under seal. Because a party other than the designator will often be seeking to

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file designated material, cooperation between the parties in preparing, and in

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reducing the number and extent of, requests for under seal filing is essential. See

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L.R. 79-5.2.2(b). If a receiving party’s request to file designated material under

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seal pursuant to L.R. 79-5.2is denied by the Court, then the receiving party may file

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the material in the public record unless (1) the designator seeks reconsideration

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within four days of the denial, or (2) as otherwise instructed by the Court.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, each party shall

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return all designated material to the designator or destroy such material, including

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

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capturing any designated material. The receiving party must submit a written

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certification to the designator by the 60- day deadline that (1) identifies (by

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category, where appropriate) all the designated material that was returned or

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destroyed, and (2) affirms that the receiving party has not retained any copies,

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

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any of the designated material. This provision shall not prevent counsel from

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retaining an archival copy of all pleadings, motion papers, trial, deposition, and

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

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expert reports, attorney work product, and consultant and expert work product, even

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STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)

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if such materials contain designated material. Any such archival copies remain

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subject to this Order.

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IT IS SO ORDERED.

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DATED: September 2, 2016

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Douglas F. McCormick
United States Magistrate Judge

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STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)

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EXHIBIT A

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AGREEMENT TO BE BOUND

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I, __________________________ [print or type full name], of

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____________________ [print or type full address], declare under penalty of

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perjury that I have read in its entirety and understand the Protective Order that was

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issued by the United States District Court for the Central District of California on

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__________ [date] in the case of Glover, et al. v. City of Laguna Beach, et al., Case

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No.: 8:15-CV-01332 AG (DFMx). I agree to comply with and to be bound by all

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the terms of this Protective Order, and I understand and acknowledge that failure to

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so comply could expose me to sanctions and punishment for contempt. I solemnly

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

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subject to this Protective Order to any person or entity except in strict compliance

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with this Order.

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I further agree to submit to the jurisdiction of the United States District Court

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for the Central District of California for the purpose of enforcing this Order, even if

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such enforcement proceedings occur after termination of this action.

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I hereby appoint ________________________ [print or type full name] of

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________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action

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or any proceedings related to enforcement of this Order.

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Date: ____________________

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City and State where sworn and signed: _____________________________

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Printed name: ____________________

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[printed name]
Signature: ____________________

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STIPULATED
PROTECTIVE ORDER
CASE NO. 8:15-CV-01332 AG (DFMX)