Couch v. State of California, et al

Filing 201

ORDER Regarding 161 Motion for Entry of Protective Order signed by Magistrate Judge Dennis L. Beck on 9/23/2011. (Figueroa, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RYAN COUCH, et al.,
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Plaintiffs,
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v.
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TOMMY WAN, KIMBERLI BONCORE, )
and RALPH DIAZ
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Defendants.
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1:08cv1621 LJO DLB
ORDER REGARDING MOTION FOR ENTRY
OF PROTECTIVE ORDER
(Document 161)

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On August 26, 2011, Plaintiffs Ryan Couch and Kenneth Jimenez (“Plaintiffs”) filed the
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instant motion to modify the protective order. The motion was heard before the Honorable
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Dennis L. Beck, United States Magistrate Judge, on September 23, 2011. Daniel Zlatnik and
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Edward Caden appeared on behalf of Plaintiffs. Mary Horst, Deputy Attorney General, appeared
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on behalf non-party California Department of Corrections and Rehabilitation (“CDCR”) and on
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behalf of Defendants Tommy Wan, Kimberli Boncore and Ralph Diaz.
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BACKGROUND
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Officers Couch and Jimenez allege violations of their free speech rights and violations of
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the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964, against
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Defendants Tommy Wan, Kimberli Boncore and Ralph Diaz in their individual and official
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capacities.
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On June 24, 2011, the Court issued an order in connection with discovery of confidential

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memoranda and debrief reports contained in inmate central files. Doc. 153. In the order, the

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Court indicated that the existing protective order addressed concerns regarding the production of

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confidential information and debriefing reports. However, the Court found that additional

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measures were appropriate, including “modifying the protective order to allow . . . documents to

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be produced as ‘Attorneys’ Eyes Only.’” Doc. 153, p. 5.

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Following the Court’s order, Plaintiffs submitted an initial proposal for modification of

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the protective order to Defendants and CDCR (who are represented by the same counsel) on July

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18, 2011. Defendants and CDCR submitted a counterproposal on July 28, 2011. The same day,

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Plaintiffs responded to the counterproposal explaining why the changes were unacceptable.

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Plaintiffs believed the counterproposal was flawed because (1) it contained changes that had

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nothing to do with the Court’s Order or the need to add an AEO designation and (2) it rejected all

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of Plaintiffs’ proposed changes and prohibited Plaintiffs from showing AEO documents to

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experts or using any AEO document in a deposition.

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On August 9, 2011, the parties met and conferred regarding the need for a modified

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protective order. Defendants and CDCR explained that they would respond to Plaintiffs’ July 28

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letter. On August 19, 2011, Defendants and CDCR responded and provided another proposal for

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a modified order. Under that proposal, Plaintiffs’ counsel would not be able to show any AEO

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document to anyone–not even the authors of the documents or individuals to whom the

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documents had already been disclosed. Defendants and CDCR also rejected any provision that

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would allow Plaintiffs to use such documents in discovery proceedings with other witnesses.

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Thereafter, on August 26, 2011, Plaintiffs filed the instant motion to modify the

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protective order to add an AEO designation, with provisions allowing disclosure of such

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documents to retained experts who sign the protective order certification, authors of the

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documents, and individuals to whom the documents have previously been disclosed. Exhibit B

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to Joint Statement.

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The parties submitted a joint statement regarding the motion on September 16, 2011.

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Based on the discussion at the hearing, the existing protective order will be modified to

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include an “Attorneys’ Eyes Only” provision, which allows the designated documents to be

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disclosed to the authors of the documents, expert witnesses and persons identified by the

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documents as having previously seen the documents.

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Given the parties’ agreement, the motion for entry of a protective order is RESOLVED

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and therefore DENIED AS MOOT. The parties shall submit a proposed protective order to the

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Court within fourteen (14) days of the date of this Order.

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IT IS SO ORDERED.
Dated:
3b142a

September 23, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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