William Lawrence McGrann v. City of Seal Beach et al

Filing 71

STIPULATED PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re Stipulation for Protective Order 70 . (see order for details) (hr)

1
2
3
4
5
6
7
8
9

MARK D. RUTTER – State Bar No. 058194
DANIELLE C. FOSTER – State Bar No. 281385
CARPENTER, ROTHANS & DUMONT
500 S. Grand Avenue, 19th Floor
Los Angeles, CA 90071
[phone] / [phone] (fax)
[e-mail] / [e-mail]
Attorneys for Defendants City of Seal Beach, a public agency,
Corporal Brian Gray, and Todd DeVoe, public employees
GABRIEL H. AVINA – State Bar No. 216099
LAW OFFICES OF GABRIEL H. AVINA
3781 Cimarron Street
Los Angeles, CA 90018
[phone] / [phone] (fax)
[e-mail]
Attorney for Plaintiff William L. McGrann

10
11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13
14
15
16
17
18
19
20
21
22
23

William L. McGrann

)
)
Plaintiff,
)
)
vs.
)
)
CITY OF SEAL BEACH, JOE
)
STILINOVICH CHIEF, individually, )
as a peace officer, and a final
)
policymaker, BRIAN GRAY#365,
)
individually and as a peace officer,
)
TODD DEVOE#333, individually and )
as a police employee, DOES 1-10,
)
inclusive,
)
)
Defendants.
)
)
)

Case No.: SA CV17-941-VBF-RAOx

STIPULATED PROTECTIVE
ORDER1

Hon. Rozella A. Oliver
U.S. Magistrate Judge

IT IS HEREBY STIPULATED by and among the parties hereto, through

24
25

their respective counsel of record as follows:

26

///

27
1

28

This Stipulated Protective Order is substantially based on the model protective
order provided under Magistrate Judge Rozella A. Oliver’s Procedures.
1

STIPULATED PROTECTIVE ORDER

1
2

A.

Purpose
This civil litigation is based, in part, on allegations that Plaintiff William

3

McGrann was falsely arrested by the Seal Beach Police Department on July 9,

4

2012, and thereafter maliciously prosecuted for violating various provisions of the

5

California Penal Code, in People v. William McGrann, Orange County Superior

6

Court Case No. 13WM04856. Throughout the course of the criminal case in

7

People v. William McGrann, Mr. McGrann’s criminal defense attorney sought

8

discovery of confidential personnel records of Seal Beach Police Department

9

Officer Brian Gray and Emergency Services Coordinator Todd DeVoe, through the

10

procedures established under California Penal Code § 1054, et seq., or what is

11

commonly referred to as Pitchess motions. After in camera reviews were

12

conducted, the criminal court judge ordered the Seal Beach Police Department to

13

make three separate productions of the following confidential records and

14

information:

15

1.

(Bates Stamp Nos. SBPD 001 – SBPD 093);

16
17

Seal Beach Police Department Internal Affairs Investigation No. 12-4

2.

City of Seal Beach Notice of Intent to Terminate dated November 13,

18

2013 (Bates Stamp Nos. PLTF 000255 – PLTF 000266), which was

19

redacted by the criminal court; and

20

3.

The information contained within a letter addressed to Jared

21

Stephenson dated September 18, 2014 (Bates Stamp No. PLTF

22

000267).

23

These confidential documents were produced pursuant to protective orders

24

issued by the criminal court, which provided that the documents could only be

25

used for the defense in People v. William McGrann. Because these confidential

26

documents have relevance to the instant civil litigation, the parties now seek and

27

hereby stipulate to have these documents (hereinafter collectively referred to as

28

“Protected Documents”) protected by the instant Stipulated Protective Order.
2

STIPULATED PROTECTIVE ORDER

1

B.

Good Cause Statement
The Protected Documents warrant special protection from public disclosure

2
3

and from use for any purpose other than prosecution of this action. Specifically,

4

the Protected Documents are confidential personnel records protected by the right

5

to privacy under the California and U.S. Constitutions, the official information

6

privilege, the deliberative process privilege, the law enforcement privilege, as well

7

as California Evidence Code §§ 1043 through 1045 and California Penal Code §

8

832.5, et seq. Accordingly, to expedite the flow of information, to facilitate the

9

prompt resolution of disputes over confidentiality of discovery materials, to

10

adequately protect information the parties are entitled to keep confidential, to

11

ensure that the parties are permitted reasonable necessary uses of such material in

12

preparation for and in the conduct of trial, to address their handling at the end of

13

the litigation, and serve the ends of justice, a protective order for such information

14

is justified in this matter.

15

C.

Scope
The protections conferred by this Stipulated Protective Order cover not only

16
17

the Protected Documents, but also: (1) any information copied or extracted from

18

the Protected Documents; (2) all copies, excerpts, summaries, or compilations of

19

the Protected Documents; and (3) any testimony, conversations, or presentations

20

by parties or their counsel that might reveal the information contained in the

21

Protected Documents. Any use of the Protected Documents at trial shall be

22

governed by the orders of the trial judge. This Stipulated Protective Order does

23

not govern the use of the Protected Documents at trial.

24

D.

Designating Protected Documents

25

The Protected Documents covered by this Stipulated Protective Order have

26

been clearly designated and bear the notation of “CONFIDENTIAL – SUBJECT

27

TO PROTECTIVE ORDER” on the bottom of each page.

28

///
3

STIPULATED PROTECTIVE ORDER

1

E.

Access To And Use Of Protected Documents
The Protected Documents may only be used for purposes of prosecuting,

2
3

defending, or attempting to settle this civil action. The Protected Documents and

4

all information contained therein, may only be disclosed to the following persons:

5

1.

Counsel of record for the parties to this civil litigation;

6

2.

Paralegal, clerical, and secretarial personnel regularly employed by

7

counsel of record for the parties to this civil litigation;
3.

8

Investigators, expert witnesses, and other persons legitimately

9

involved in litigation-related activities for the counsel of record for the parties to

10

this civil litigation, who have signed the “Acknowledgment and Agreement to Be

11

Bound” (Exhibit A);
4.

12
13

Plaintiff William McGrann and Defendant City of Seal Beach and its

employees, including, but not limited to Officer Brian Gray and Todd DeVoe;

14

5.

The court and its personnel;

15

6.

Court reporters and their staff;

16

7.

During their depositions, witnesses, and attorneys for witnesses to

17

whom disclosure is reasonably necessary provided: (a) the deposing party requests

18

that the witness sign the “Acknowledgment and Agreement to Be Bound” form

19

(Exhibit A); and (b) they will not be permitted to keep any confidential

20

information unless they sign the “Acknowledgment and Agreement to Be Bound”

21

form (Exhibit A), unless otherwise agreed by the parties or ordered by the Court.

22

Pages of transcribed deposition testimony or exhibits to depositions that reveal the

23

Protected Documents, or any information contained therein, may be separately

24

bound by the court reporter and may not be disclosed to anyone except as

25

permitted under this Stipulated Protective Order; and
8.

26

Any mediator or settlement officer, and their supporting personnel,

27

mutually agreed upon by the parties.

28

///
4

STIPULATED PROTECTIVE ORDER

1

F.

Protected Documents Subpoenaed Or Ordered Produced In Other

2

Litigation

3

If a party is served with a subpoena or a court order issued in other litigation

4

that compels disclosure of the Protected Documents, that party must: (1) promptly

5

notify in writing the City of Seal Beach and include a copy of the subpoena or

6

court order; (2) promptly notify in writing the party who caused the subpoena or

7

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

8

subpoena or order is subject to this Stipulated Protective Order and include a copy

9

of this Stipulated Protective Order; and (3) cooperate with respect to all reasonable

10

procedures sought to be pursued by the City of Seal Beach whose Protected

11

Documents may be affected.

12

If the City of Seal Beach timely seeks a protective order, the party served

13

with the subpoena or court order shall not produce the Protected Documents, or

14

any information contained therein, before a determination by the court from which

15

the subpoena or order issued, unless the party has obtained the City of Seal

16

Beach’s permission. The City of Seal Beach shall bear the burden and expense of

17

seeking protection in that court of its Protected Documents and nothing in this

18

Stipulated Protective Order should be construed as authorizing or encouraging a

19

party to disobey a lawful directive from another court.

20

G.

21

Unauthorized Disclosure Of Protected Documents
If plaintiff learns that, by inadvertence or otherwise, he has disclosed the

22

Protected Documents to any person or in any circumstance not authorized under

23

this Stipulated Protective Order, plaintiff must immediately: (1) notify in writing

24

the City of Seal Beach of the unauthorized disclosures; (2) use his best efforts to

25

retrieve all unauthorized copies of the Protected Documents; (3) inform the person

26

or persons to whom unauthorized disclosures were made of all the terms of this

27

Stipulated Protective Order; and (4) request such person or persons to execute the

28

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
5

STIPULATED PROTECTIVE ORDER

1

A.

2

H.

Acknowledgment of Procedure For Filing Under Seal

3

The parties acknowledge that this Stipulated Protective Order does not

4

entitle them to file the Protected Documents under seal. Local Civil Rule 79-5 sets

5

forth the procedures that must be followed and the standards that will be applied

6

when a party seeks permission from the court to file material under seal.

7

There is a strong presumption that the public has a right of access to judicial

8

proceedings and records in civil cases. In connection with non-dispositive

9

motions, good cause must be shown to support a filing under seal. See Kamakana

10

v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v.

11

Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v.

12

Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated

13

protective orders require good cause showing). A specific showing of good cause

14

or compelling reasons with proper evidentiary support and legal justification, must

15

be made with respect to the Protected Documents a party seeks to file under seal.

16

The parties’ mere designation of the Protected Documents as

17

“CONFIDENTIAL” does not—without the submission of competent evidence by

18

declaration, establishing that the material sought to be filed under seal qualifies as

19

confidential, privileged, or otherwise protectable—constitute good cause. Further,

20

if a party requests sealing related to a dispositive motion or trial, then compelling

21

reasons, not only good cause, for the sealing must be shown, and the relief sought

22

shall be narrowly tailored to serve the specific interest to be protected. See Pintos

23

v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or

24

type of information, document, or thing sought to be filed or introduced under seal

25

in connection with a dispositive motion or trial, the party seeking protection must

26

articulate compelling reasons, supported by specific facts and legal justification,

27

for the requested sealing order. Again, competent evidence supporting the

28

application to file documents under seal must be provided by declaration.
6

STIPULATED PROTECTIVE ORDER

1

Any document that is not confidential, privileged, or otherwise protectable

2

in its entirety will not be filed under seal if the confidential portions can be

3

redacted. If documents can be redacted, then a redacted version for public

4

viewing, omitting only the confidential, privileged, or otherwise protectable

5

portions of the document, shall be filed. Any application that seeks to file

6

documents under seal in their entirety should include an explanation of why

7

redaction is not feasible.

8

I.

Duration And Trial
Once this case proceeds to trial, if the Protected Documents are used or

9
10

introduced as exhibits at trial, they will become public and will be presumptively

11

available to all members of the public, including the press, unless compelling

12

reasons supported by specific factual findings to proceed otherwise are made to the

13

trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81

14

(distinguishing “good cause” showing for sealing documents produced in

15

discovery from “compelling reasons” standard when merits-related documents are

16

part of court record). Accordingly, the terms of this Stipulated Protective Order do

17

not extend beyond the commencement of the trial.

18

J.

19
20
21

Miscellaneous
1.

Right to Further Relief. Nothing in this Stipulated Protective Order

abridges the right of any person to seek its modification by the Court in the future.
2.

Right to Assert Other Objections. By stipulating to the entry of this

22

Protective Order, no party waives any right it otherwise would have to object to

23

disclosing or producing any information or item on any ground not addressed in

24

this Stipulated Protective Order. Similarly, no party waives any right to object on

25

any ground to use in evidence of any of the material covered by this Protective

26

Order.

27
28

3.

The parties stipulate to the authenticity of the Protected Documents,

but do not stipulate to their admissibility.
7

STIPULATED PROTECTIVE ORDER

1

K.

Final Disposition

2

After the final disposition of this action, within 60 days of a written request

3

by the City of Seal Beach, the plaintiff must return all Protected Documents to the

4

City of Seal Beach or destroy such material. As used in this subdivision, “all

5

Protected Documents” includes all copies, abstracts, compilations, summaries, and

6

any other format reproducing or capturing any of the Protected Documents.

7

Whether the Protected Documents are returned or destroyed, the plaintiff must

8

submit a written certification to the City of Seal Beach by the 60 day deadline that:

9

(1) identifies (by category, where appropriate) all the Protected Documents that

10

were returned or destroyed; and (2) affirms that the plaintiff has not retained any

11

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

12

capturing any of the Protected Documents.

13

L.

Violation

14

Any violation of this Stipulated Protective Order may be punished by

15

appropriate measures including, without limitation, contempt proceedings and/or

16

monetary sanctions.

17

IT IS SO STIPULATED.

18
19

DATED: November 9, 2018

CARPENTER, ROTHANS & DUMONT
/s/ Danielle Foster
By: ___________________________________
MARK D. RUTTER
DANIELLE C. FOSTER
Attorneys for Defendants

20
21
22
23
24
25
26
27
28

DATED: November 9, 2018

LAW OFFICES OF GABRIEL H. AVINA
/s/ Gabriel Avina
By: ___________________________________
GABRIEL H. AVINA
Attorney for Plaintiff
8

STIPULATED PROTECTIVE ORDER

1
Local Rule 5-4.3.4

2
3
4

All signatories listed above, and on whose behalf this filing is submitted,
concur in the filing’s content and have authorized the filing.

5
6
7
8

ON GOOD CAUSE SHOWN, IT IS SO ORDERED.

9
10
11
12

DATED: November 13, 2018

___________________________________
HONORABLE ROZELLA A. OLIVER
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9

STIPULATED PROTECTIVE ORDER

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

5

penalty of perjury that I have read in its entirety and understand the Stipulated

6

Protective Order that was issued by the United States District Court for the Central

7

District of California on _________ [date] in the case of William McGrann v. City

8

of Seal Beach, et al., case no.: SA CV17-941-VBF-RAOx.

9

I agree to comply with and to be bound by all the terms of this Stipulated

10

Protective Order and I understand and acknowledge that failure to so comply could

11

expose me to sanctions and punishment in the nature of contempt. I solemnly

12

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

13

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

14

compliance with the 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 enforcing the terms of this

17

Stipulated Protective Order, even if such enforcement proceedings occur after

18

termination of this action.

19

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

20

_______________________________________ [print or type full address and

21

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

22

this action or any proceedings related to enforcement of this Stipulated Protective

23

Order.

24
25

Date: ______________________________________

26

City and State where sworn and signed: _________________________________

27

Printed name: _______________________________

28

Signature: __________________________________
10

STIPULATED PROTECTIVE ORDER