Victor Manuel Mondragon v. City of Anaheim et al

Filing 52

PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 49 . (kh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 VICTOR MANUEL MONDRAGON, ) Case No.: SACV16-0834 DOC (JCGx) an individual, ) ) PROTECTIVE ORDER RE PEACE Plaintiff, ) OFFICER PERSONNEL FILES ) vs. ) ) CITY OF ANAHEIM, a governmental ) entity; INVESTIGATOR JAMES ) RODRIGUEZ, an individual; and ) DOES 1-10, inclusive, ) ) Defendants. ) ) 18 IT IS HEREBY ORDERED, pursuant to stipulation of counsel, as follows: 19 20 21 1. GOOD CAUSE GOOD CAUSE exists to enter the proposed protective order to balance the 22 defendants’ concerns that the documents consist of confidential and privileged 23 information concerning the parties to this litigation, was created for purpose of 24 obtaining legal advice and guidance from the City’s legal adviser (City Attorney) 25 and is protected by the attorney-client private, work-product doctrine, official 26 information privilege, law enforcement privilege and the right to privacy, as 27 protected by the California and United States Constitution, with plaintiffs’ right to 28 discovery in this litigation. All documents marked confidential and produced -1PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES 1 pursuant to this protective order are subject to the terms of this protective unless 2 otherwise ordered by the Court. 3 2. DEFINITIONS 4 2.1 “Action”: this pending federal law suit. 5 2.2 “Challenging Party”: a Party or Non-Party that challenges the 6 7 designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 8 how it is generated, stored or maintained) or tangible things that qualify for 9 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 10 11 12 13 the Good Cause Statement. 2.4 “Counsel”: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 “Designating Party”: a Party or Non-Party that designates information 14 or items that it produces in disclosures or in responses to discovery as 15 “CONFIDENTIAL.” 16 2.6 “Disclosure or Discovery Material”: all items or information, 17 regardless of the medium or manner in which it is generated, stored, or maintained 18 (including, among other things, testimony, transcripts, and tangible things), that are 19 produced or generated in disclosures or responses to discovery in this matter. 20 2.7 “Expert”: a person with specialized knowledge or experience in a 21 matter pertinent to the litigation who has been retained by a Party or its counsel to 22 serve as an expert witness or as a consultant in this Action. 23 2.8 “House Counsel”: attorneys who are employees of a party to this 24 Action. House Counsel does not include Outside Counsel of Record or any other 25 outside counsel. 26 2.9 27 28 “Non-Party”: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 “Outside Counsel of Record”: attorneys who are not employees of a -2PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES 1 party to this Action but are retained to represent or advise a party to this Action 2 and have appeared in this Action on behalf of that party or are affiliated with a law 3 firm which has appeared on behalf of that party, and includes support staff. 4 2.11 “Party”: any party to this Action, including all of its officers, 5 directors, employees, consultants, retained experts, and Outside Counsel of Record 6 (and their support staffs). 2.12 “Producing Party”: a Party or Non-Party that produces Disclosure or 7 8 Discovery Material in this Action. 9 2.13 “Professional Vendors”: persons or entities that provide litigation 10 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 11 demonstrations, and organizing, storing, or retrieving data in any form or medium) 12 and their employees and subcontractors. 2.14 “Protected Material”: any Disclosure or Discovery Material that is 13 14 designated as “CONFIDENTIAL.” 2.15 “Receiving Party”: a Party that receives Disclosure or Discovery 15 16 Material from a Producing Party. 17 3. SCOPE 18 The protections conferred by this Stipulation and Order cover not only 19 Protected Material (as defined above), but also (1) any information copied or 20 extracted from Protected Material; (2) all copies, excerpts, summaries, or 21 compilations of Protected Material; and (3) any testimony, conversations, or 22 presentations by Parties or their Counsel that might reveal Protected Material. 23 Any use of Protected Material at trial shall be governed by the orders of the trial 24 judge. This Order does not govern the use of Protected Material at trial. 25 4. 26 DURATION Even after final disposition of this litigation, the confidentiality obligations 27 imposed by this Order shall remain in effect until a Designating Party agrees 28 otherwise in writing or a court order otherwise directs. Final disposition shall be -3PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES 1 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 2 with or without prejudice; and (2) final judgment herein after the completion and 3 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 4 including the time limits for filing any motions or applications for extension of 5 time pursuant to applicable law. 6 5. 7 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 8 Each Party or Non-Party that designates information or items for protection under 9 this Order must take care to limit any such designation to specific material that 10 qualifies under the appropriate standards. The Designating Party must designate 11 for protection only those parts of material, documents, items, or oral or written 12 communications that qualify so that other portions of the material, documents, 13 items, or communications for which protection is not warranted are not swept 14 unjustifiably within the ambit of this Order. 15 If it comes to a Designating Party’s attention that information or items that it 16 designated for protection do not qualify for protection, the Designating Party must 17 promptly notify all other Parties that it is withdrawing the inapplicable designation. 18 5.2 Manner and Timing of Designations. Except as otherwise provided in 19 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 20 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 21 under this Order must be clearly so designated before the material is disclosed or 22 produced. 23 Designation in conformity with this Order requires: 24 (a) for information in documentary form (e.g., paper or electronic 25 documents, but excluding transcripts of depositions or other pretrial or trial 26 proceedings), that the Producing Party affix at a minimum, the legend 27 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 28 contains protected material. If only a portion or portions of the material on a page -4PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES 1 qualifies for protection, the Producing Party also must clearly identify the 2 protected portion(s) (e.g., by making appropriate markings in the margins). (b) for testimony given in depositions that the Designating Party identify the 3 4 Disclosure or Discovery Material on the record, before the close of the deposition 5 all protected testimony. (c) for information produced in some form other than documentary and for 6 7 any other tangible items, that the Producing Party affix in a prominent place on the 8 exterior of the container or containers in which the information is stored the legend 9 “CONFIDENTIAL.” If only a portion or portions of the information warrants 10 protection, the Producing Party, to the extent practicable, shall identify the 11 protected portion(s). 5.3 12 Inadvertent Failures to Designate. If timely corrected, an inadvertent 13 failure to designate qualified information or items does not, standing alone, waive 14 the Designating Party’s right to secure protection under this Order for such 15 material. Upon timely correction of a designation, the Receiving Party must make 16 reasonable efforts to assure that the material is treated in accordance with the 17 provisions of this Order. 18 6. 19 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 20 designation of confidentiality at any time that is consistent with the Court’s 21 Scheduling Order. 22 23 24 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 The burden of persuasion in any such challenge proceeding shall be 25 on the Designating Party. Frivolous challenges, and those made for an improper 26 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 27 parties) may expose the Challenging Party to sanctions. Unless the Designating 28 Party has waived or withdrawn the confidentiality designation, all parties shall -5PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES 1 continue to afford the material in question the level of protection to which it is 2 entitled under the Producing Party’s designation until the Court rules on the 3 challenge. 4 7. 5 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that 6 is disclosed or produced by another Party or by a Non-Party in connection with 7 this Action only for prosecuting, defending, or attempting to settle this Action. 8 Such Protected Material may be disclosed only to the categories of persons and 9 under the conditions described in this Order. When the Action has been 10 terminated, a Receiving Party must comply with the provisions of section 13 11 below. Protected Material must be stored and maintained by a Receiving Party at a 12 location and in a secure manner that ensures that access is limited to the persons 13 authorized under this Order. 14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 15 otherwise ordered by the court or permitted in writing by the Designating Party, a 16 Receiving Party may disclose any information or item designated 17 “CONFIDENTIAL” only to: 18 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 19 as employees of said Outside Counsel of Record to whom it is reasonably 20 necessary to disclose the information for this Action; 21 (b) the officers, directors, and employees (including House Counsel) of the 22 Receiving Party to whom disclosure is reasonably necessary for this Action; 23 (c) Experts (as defined in this Order) of the Receiving Party to whom 24 disclosure is reasonably necessary for this Action and who have signed the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 26 (d) the court and its personnel; 27 (e) court reporters and their staff; 28 (f) professional jury or trial consultants, mock jurors, and Professional -6PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES 1 Vendors to whom disclosure is reasonably necessary for this Action and who have 2 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 3 4 custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses, and attorneys for witnesses, in the 5 6 Action to whom disclosure is reasonably necessary provided: (1) the deposing 7 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 8 they will not be permitted to keep any confidential information unless they sign the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 10 agreed by the Designating Party or ordered by the court. Pages of transcribed 11 deposition testimony or exhibits to depositions that reveal Protected Material may 12 be separately bound by the court reporter and may not be disclosed to anyone 13 except as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 14 15 mutually agreed upon by any of the parties engaged in settlement discussions. 16 8. 17 IN OTHER LITIGATION 18 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED If a Party is served with a subpoena or a court order issued in other litigation 19 that compels disclosure of any information or items designated in this Action as 20 “CONFIDENTIAL,” that Party must: 21 22 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 23 (b) promptly notify in writing the party who caused the subpoena or order to 24 issue in the other litigation that some or all of the material covered by the subpoena 25 or order is subject to this Protective Order. Such notification shall include a copy 26 of this Stipulated Protective Order; and 27 28 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. -7PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES 1 If the Designating Party timely seeks a protective order, the Party served with the 2 subpoena or court order shall not produce any information designated in this action 3 as “CONFIDENTIAL” before a determination by the court from which the 4 subpoena or order issued, unless the Party has obtained the Designating Party’s 5 permission. The Designating Party shall bear the burden and expense of seeking 6 protection in that court of its confidential material and nothing in these provisions 7 should be construed as authorizing or encouraging a Receiving Party in this Action 8 to disobey a lawful directive from another court. 9 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 10 If a Receiving Party learns that, by inadvertence or otherwise, it has 11 disclosed Protected Material to any person or in any circumstance not authorized 12 under this Stipulated Protective Order, the Receiving Party must immediately (a) 13 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 14 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 15 the person or persons to whom unauthorized disclosures were made of all the terms 16 of this Order, and (d) request such person or persons to execute the 17 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 18 A. 19 10. 20 PROTECTED MATERIAL 21 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE When a Producing Party gives notice to Receiving Parties that certain 22 inadvertently produced material is subject to a claim of privilege or other 23 protection, the obligations of the Receiving Parties are those set forth in Federal 24 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 25 whatever procedure may be established in an e-discovery order that provides for 26 production without prior privilege review. Pursuant to Federal Rule of Evidence 27 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 28 of a communication or information covered by the attorney-client privilege or -8PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES 1 work product protection, the parties may incorporate their agreement in the 2 stipulated protective order submitted to the court. 3 11. 4 5 MISCELLANEOUS 11.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 11.2 Right to Assert Other Objections. By stipulating to the entry of this 6 7 Protective Order no Party waives any right it otherwise would have to object to 8 disclosing or producing any information or item on any ground not addressed in 9 this Stipulated Protective Order. Similarly, no Party waives any right to object on 10 any ground to use in evidence of any of the material covered by this Protective 11 Order. 11.3 Filing Protected Material. A Party that seeks to file under seal any 12 13 Protected Material must comply with Civil Local Rule 79-5. Protected Material 14 may only be filed under seal pursuant to a court order authorizing the sealing of the 15 specific Protected Material at issue. If a Party’s request to file Protected Material 16 under seal is denied by the court, then the Receiving Party may file the information 17 in the public record unless otherwise instructed by the court. 18 12. FINAL DISPOSITION 19 After the final disposition of this Action, as defined in paragraph 4, within 20 60 days of a written request by the Designating Party, each Receiving Party must 21 return all Protected Material to the Producing Party or destroy such material. As 22 used in this subdivision, “all Protected Material” includes all copies, abstracts, 23 compilations, summaries, and any other format reproducing or capturing any of the 24 Protected Material. Whether the Protected Material is returned or destroyed, the 25 Receiving Party must submit a written certification to the Producing Party (and, if 26 not the same person or entity, to the Designating Party) by the 60 day deadline that 27 (1) identifies (by category, where appropriate) all the Protected Material that was 28 returned or destroyed and (2) affirms that the Receiving Party has not retained any -9PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of Mondragon v. City of Anaheim, et al., United States 8 District Court case number SACV16-0834 DOC (JCGx). I agree to comply with 9 and to be bound by all the terms of this Stipulated Protective Order and I 10 understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for the purpose of enforcing the terms 17 of this Stipulated Protective Order, even if such enforcement proceedings occur 18 after termination of this action. I hereby appoint __________________________ 19 [print or type full name] of _______________________________________ [print 20 or type full address and telephone number] as my California agent for service of 21 process in connection with this action or any proceedings related to enforcement of 22 this Stipulated Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 Printed name: _______________________________ 26 Signature: __________________________________ 27 28 - 11 PROTECTIVE ORDER RE PEACE OFFICER PERSONNEL FILES

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