Kenya Darrick Caldwell v. City of Selma et al

Filing 21

Stipulation for protective order and Order, signed by Magistrate Judge Stanley A. Boone on 06/11/2014. (Figueroa, O)

1

DAVID M. OVERSTREET, IV, No. 103039

OVERSTREET & ASSOCIATES
Attorneys At Law
1530 E. Shaw Avenue, Suite 102
Fresno, CA 93710
_______________
Telephone [phone]
Facsimile [phone]

2
3
4
5
6

Defendants, CITY OF SELMA, THOMAS H. WHITESIDE AND STEVE
BURGAMY
ATTORNEYS FOR

7
UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA - FRESNO DIVISION

9
10
11

KENYA DARRICK CALDWELL, an
incompetent person by EVER JEAN
KELLEY, his conservator,

14
15
16
17
18
19

STIPULATION FOR PROTECTIVE
ORDER AND ORDER

Plaintiff,

12
13

CASE NO. 1:13-CV-00465-SAB

vs.
CITY OF SELMA, a government entity,
THOMAS H. WHITESIDE, in his official
capacity as Chief of Police for the City of
Selma. STEVE BURGAMY, individually,
and in his capacity as a police officer for
the City of Selma, and DOES 1 through
20, inclusive,
Defendants.
WHEREAS

Plaintiff

KENYA DARRICK CALDWELL, an incompetent

20

person by EVER JEAN KELLEY, his conservator has requested that Defendants, CITY OF

21

SELMA, a government entity, THOMAS H. WHITESIDE, in his official capacity as Chief of

22
23

Police for the City of Selma, STEVE BURGAMY, individually, and in his capacity as a police
officer for the City of Selma (collectively, the ADefendants@) provide the following documents in

24
25

the course of initial disclosures or discovery:

26

1. Ambulance Field Report (COS 000001-000004);

27

2. Reports contained in the otherwise privileged County of Fresno Sheriff=s Internal

28

Affairs file, further identified as:
1

1

a)

Fresno County Law Enforcement Arrest Report (COS 000018);

2

b)

California Department of Motor Vehicles Image of Kenya Darrick

3
4

Caldwell (COS 000019);
c)

5
6

000020-000024);
d)

7
8

e)

f)

15
16

g)

3. Reports contained in the otherwise privileged City of Selma=s Officer Involved
Shooting file, further identified as:
a)

b)

Selma Police Department Crime Report for the subject incident, prepared
by Sgt. Frank Santillan (COS 000140-000143);

c)

21
22

Selma Police Department Crime Report for the subject incident, prepared
by Officer Ben Gonzalez (COS 000137-000139);

19
20

Selma Police Department Crime Report for the subject incident, prepared
by Investigator Gary Gass (COS 000035-000038);

17
18

Selma Police Department Crime Report for the subject incident, prepared
by Officer Paul Ross (COS 000032-000034);

13
14

Selma Police Department Crime Report for the subject incident, prepared
by Sgt. Frank Santillan (COS 000028-000031);

11
12

Selma Police Department Crime Report for the subject incident, prepare
by Officer Ben Gonzalez (COS 000025-000027);

9
10

City of Selma Complaint History for #N060410112 (COS

Selma Police Department Crime Report for the subject incident, prepared
by Investigator Gary Gass (COS 000144-000147);

d)

City of Selma Complaint History for #N060410112, which includes color

23

photographs of Officer Steve Burgamy=s facial bites (COS

24

000151-000154);

25

e)

City of Chowchilla Police Department Incident/Occurrence Report No.

26

C2006-0278, dated February 5, 2006, for report of a missing person

27

(Kenya Darrick Caldwell) by Ever Jean Hendricks (COS

28

000155-000156);
2

1

f)

2
3

[Redacted] email with imbedded Field Report (COS 000170-000171);

4. County of Fresno Sheriff=s Department photographs of the clothing worn by
Kenya Darrick Caldwell (COS 000173);

4

5. EMS Agency Incident Report (COS 000174);

5

6. Criminal Docket Report for County of Fresno Superior Court Case No.

6

F06800074-7, regarding the subject incident (COS 000175-000189);

7
8

7. Audio recording of police radio traffic regarding the subject incident and printed
list of contents thereof (COS 000190-000192);

9

8. Defendants will further disclose, within thirty (30) days of receipt, the images,

10

videos and photographs resulting from a laser scan of Plaintiff, which took place on February 25,

11

2014.

12

WHEREAS, Defendants assert and believe, in good faith that the County of Fresno

13

Sheriff=s Internal Affairs file and the City of Selma=s Officer Involved Shooting investigation file

14

contains additional information that is:

15

1. Confidential, sensitive, or potentially invasive of an individual's privacy interests

16

as protected by Article I, section 1 to the California Constitution, including those

17

protected by the Public Safety Officers Procedural Bill of Rights Act under

18

California Government Code section 330 et seq.;

19

2. Protected from disclosure pursuant to the provisions of California Government

20

3. Code section 6254(f) as the reports contain the names, addresses and contact

21

information for witnesses and further contain other identifying information that is

22

not to be disclosed to the general public;

23
24

4. Protected from disclosure pursuant to 45 Code of Federal Regulations Parts 160
and 164 (the AHIPAA Security and Privacy Rule@)

25

4. Not generally known or available to the general public; and/or

26

5. Not normally revealed to the public or third parties or, if disclosed to third parties,

27

would require such third parties to maintain the information in confidence.

28
3

1

IT IS HEREBY STIPULATED, by, among and between the undersigned parties

2

through their counsel of record, that the County of Fresno Sheriff=s Internal Affairs file and the

3

City of Selma=s Officer Involved Shooting investigation file may be designated as

4

ACONFIDENTIAL@ by Defendants and produced, if warranted, subject to the following

5

Stipulated Protective Order (Athe Stipulation@).

6

1. The County of Fresno Sheriff=s Department Internal Affairs Investigation file and

7

reports relating to Steve Burgamy and concerning the incident which is the subject of this suit,

8

further identified as:

9

a)

10
11

Letter dated 04/15/08 from City of Selma Police Chief Thomas H.
Whiteside to Ever Jean Hendricks (COS 000005);

b)

Memorandum dated 12/01/06 from Fresno County Sheriff Special

12

Investigator Ramiro Alvarez to City of Selma Police Chief Thomas H.

13

Whiteside (COS 000006);

14

c)

15
16

Letter dated 07/27/06 from City of Selma Police Chief Thomas H.
Whiteside to Ever Jean Hendricks (COS 000007);

d)

Memorandum dated 07/27/06 from City of Selma Police Chief Thomas H.

17

Whiteside to Fresno County Sheriff Special Investigator Ramiro Alvarez

18

(COS 000008-000009);

19

e)

20
21

000010-000011);
f)

22
23

h)

28

City of Chowchilla Incident/Occurrence Report dated 02/05/06 (COS
000016-000017);

i)

26
27

Letter dated 01/18/07 from Fresno County District Attorney Lisa Gamoian
to Fresno County Sheriff Margaret Mims (COS 000012-000015);

24
25

Suggestion form submitted on 06/26/06 by Ever Jean Hendricks (COS

Fresno County Sheriff=s Incident Report dated 02/13/06, completed by
Det. Robert Buenrostro (COS 000039-000045);

j)

Fresno County Sheriff=s Crime Report dated 02/13/06, completed by Det.
Mark Eaton (COS 000046-000050);
4

1

k)

2

Fresno County Sheriff=s Crime Report dated 02/14/06, completed by IB
Mary Tigh (COS 000051-000053);

3

l)

4

Fresno County Sheriff=s Technical Services Report dated 02/14/06,
completed by Sgt. Leo Lopez (COS 000054-000055);

5

m)

6

Fresno County Sheriff=s Recovered Property/Evidence Report dated
02/14/06, completed by IB Mary Tigh (COS 000056-000057);

7

n)

8

Fresno County Sheriff=s Crime Report dated 02/10/06, completed by IB
Hector Tello (COS 000058-000061);

9

o)

10

Fresno County Sheriff=s Technical Services Report dated 02/10/06,
completed by Det. Mark Eaton (COS 000062-000063);

11

p)

12

Fresno County Sheriff=s Recovered Property/Evidence Report dated
02/10/06, completed by IB Hector Tello (COS 000064-000065);

13

q)

Fresno County Sheriff=s Department FAX with attached Physical

14

Evidence Examination Report dated 06/21/06 from Inv. Robert Benavides

15

to Det. Robert Buenrostro with attached Physical Evidence Report (for

16

shell casing) and Armorer=s Report (COS 000066-000073);

17

r)

18

Fresno County Sheriff=s Officer Involved Shooting Diagram, drawn by IB
Hector Tello (COS 000074-000075);

19

s)

20

Audio Transcript of statement made by Kenya Darrick Caldwell on
02/10/06 (COS 000076-000092);

21

t)

22

Audio and Transcript of statement made by Officer Steve Burgamy on
02/10/06 (COS 000093-000122);

23

u)

Fresno County Sheriff=s Forensic Laboratory Physical Evidence

24

Examination Report dated 03/07/06 re toxicology of blood taken from

25

Kenya Darrick Caldwell (COS 000123);

26

v)

27
28

Mineral King Laboratory Toxicology Report for blood taken from Kenya
Darrick Caldwell (COS 000124);

///
5

1

w)

Fresno County Sheriff=s Forensic Laboratory Physical Evidence

2

Examination Report for shell casing (COS 000125);

3

shall be produced to counsel for Plaintiff within thirty (30) days from the date that this

4

Stipulation is filed with the Court, to be produced, designated, used and handled in the manner

5

set forth in this Stipulation.

6

2. The City of Selma Officer Involved Shooting (OIS) investigation file and reports

7

relating to Steve Burgamy and concerning the incident which is the subject of this suit, further

8

identified as:

9

a)

10
11

prepared by Chief Thomas H. Whiteside (COS 000127-000128);
b)

12
13

c)

d)

f)

g)

h)

i)

28

Internal Memorandum, dated 02/11/06 from Lt. Bob Johnson to Officer
Steve Burgamy (COS 000166);

j)

26
27

Drug Testing Custody and Control Form for blood test taken of Officer
Steve Burgamy (COS 000164-000165);

24
25

[5 copies of] Workers= Compensation Claim Form (DWC 1) dated
02/11/06, completed by Officer Steve Burgamy (COS 000159-000163);

22
23

City of Selma Accident/Incident Investigation Report dated 02/10/06
(COS 000157-000158);

20
21

City of Selma Police Department Section 304 - Shooting Policy (COS
000135-000136);

18
19

City of Selma Police Department Section 302 - Deadly Force Review
(COS 000133-000134);

16
17

City of Selma Police Department Section 300 - Use of Force (COS
000129-000132);

14
15

City of Selma Police Department Administrative Report dated 02/13/06,

Confidential Department of Community Health Communicable Disease
Exposure Report, dated 02/10/06 (COS 000167-000168);

k)

Memorandum/Fax, dated 02/13/06 from Fresno County Sheriff=s Det.
Robert Buenrostro to Selma Police Department Records (COS 000169);
6

1

l)

Email, dated 04/15/13 with embedded computer report referred to as a
AField Report@ regarding subject incident (COS 000170-000171); and

2
3

m)

Selma Police Photos of Scene [96 images] (COS 000172);

4

shall be produced to counsel for Plaintiff within thirty (30) days from the date that this

5

Stipulation is filed with the Court, to be produced, designated, used and handled in the manner

6

set forth in this Stipulation.

7
8
9

WHEREAS, Defendants assert and believe, in good faith that the City of Selma
and/or its counsel of record has and/or potentially has additional information that is:
1.

10
11

Unrelated to Plaintiff=s claim(s) and therefore not relevant and/or probative,
unnecessarily confusing, inflammatory and therefore unduly prejudicial;

2.

Confidential, sensitive, or potentially invasive of an individual's privacy

12

interests as protected by Article I, section 1 to the California Constitution,

13

including those protected by the Public Safety Officers Procedural Bill of

14

Rights Act under California Government Code section 330 et seq.;

15

3.

Protected from disclosure pursuant to the provisions of California Government

16

Code section 6254(f) as the reports contain the names, addresses and contact

17

information for witnesses and further contain other identifying information

18

that is not to be disclosed to the general public;

19

4.

and 164 (the AHIPAA Security and Privacy Rule@)

20
21

5.

22
23

Protected from disclosure pursuant to 45 Code of Federal Regulations Parts 160

Privileged as attorney-client communication under California Evidence Code
section 952;

6.

24

Privileged as attorney work product under California Evidence Code sections
2018.020 and 2018.030;

25

7.

Not generally known or available to the general public; and/or

26

8.

Not normally revealed to the public or third parties or, if disclosed to third

27

parties, would require such third parties to maintain the information in

28

confidence;
7

1

production of the documents listed below shall be provided to Plaintiff only upon Plaintiff=s

2

motion for same, pursuant to California Evidence Code sections 1043 and 1045.

3

documents ordered to be disclosed and produced after the Court=s in camera review, if any, shall

4

be produced, designated, used and handled in the manner set forth in this Stipulation.

5

documents not subject to disclosure and production after the Court’s in camera review shall be

6

returned to counsel for the Defendants.

Those

Those

7

1.

City of Selma Police Department Policy Manual [Ed. 2006] (COS 000193);

8

2.

City of Selma Police Department Personnel File for Officer Steve Burgamy (COS

9
10

000194);
3.

11

City of Selma Police Department Training File for Officer Steve Burgamy (COS
000195);

12

5.

13

Officer Steve Burgamy regarding the subject incident (COS 000196);

14

6.

Jane Woodcock Esq.=s [counsel for City of Selma]

15

7.

Claim file for Officer Steve Burgamy regarding the subject incident (COS

16
17

Gary J. Hills Esq.=s [counsel for Burgamy] Workers= Compensation Claim file for

Workers= Compensation

000197);
6.

18

Tort Claims filed with the City of Selma, and which name Steve Burgamy was a
party to the Tort Claim, if any there be;

19

7.

The City of Selma=s prior Internal Affairs Investigation(s), if any there be; and

20

8.

Deposition transcripts of any Internal Affairs Department witness(es), if any there

21
22

be.
IT IS FURTHER STIPULATED:

23

1.

24

"CONFIDENTIAL".

25

civil case of Caldwell v. City of Selma, et al., U.S. District Court, Eastern Dist. Case No.

26

1:13-CV-00465-SAB, and in the preparation and trial of this case, or any related motions.

27
28

2.

All documents produced under this Stipulation shall be designated as
The disclosed documents shall be used solely in connection with the

A party producing the documents and materials described above shall

designate those materials by affixing a mark labeling them as "CONFIDENTIAL."
8

If any

1

CONFIDENTIAL materials cannot be labeled with the aforementioned marking, those

2

materials shall be placed in a sealed envelope or other container that is in turn marked

3

"CONFIDENTIAL" in a manner agreed upon by the disclosing and requesting Parties.

4

Documents or copies provided by one party to the other containing CONFIDENTIAL

5

information may be designated by marking the page or pages on which the CONFIDENTIAL

6

information appears with the legend "CONFIDENTIAL".

7

3.

During the course of any deposition or other proceeding in the course of the

8

litigation which is the subject matter of this suit, at any time the information sought consists of

9

"CONFIDENTIAL" information, the court reporter will note said reference on the record and

10

will thereafter designate that portion of the transcript and/or document involved as

11

"CONFIDENTIAL" and all such portions of transcripts supplied it shall be so designated.

12

If any document or information designated as "CONFIDENTIAL" pursuant to this

13

Stipulation is used or disclosed during a deposition, that portion of the deposition record

14

reflecting such material shall be stamped with the appropriate designation and access shall be

15

limited pursuant to the terms of this Stipulation. The Court reporter for the deposition shall

16

mark the deposition transcript cover page and all appropriate pages or exhibits, and each copy

17

thereof, in accordance with paragraph 3 of this Stipulation. Only individuals who are authorized

18

by this Stipulation to see or receive such material may be present during the discussion or

19

disclosure of such material.

20

It is agreed that counsel will not disclose "CONFIDENTIAL" information except for

21

its use in depositions, trial or with investigators or experts.

22

CONFIDENTIAL information at any deposition, trial, or other proceeding, will be sealed in a

23

separate envelope, which is marked on the outside, "CONFIDENTIAL".

24

4.

Any exhibits containing

If "CONFIDENTIAL" information is contained in any responses to

25

interrogatories, other discovery requests, or responses, any memorandum, briefs, affidavits,

26

declaration, or other papers or documents filed by the court, they shall be designated as

27

ACONFIDENTIAL@

28

CONFIDENTIAL information with the legend "CONFIDENTIAL".

information

by

prominently

9

marking

each

page

containing

1

5.

All "CONFIDENTIAL" information filed, exchanged or produced during the

2

course of the litigation shall be used solely for the purpose of litigation.

3

provided in this order, no "CONFIDENTIAL" information shall be disclosed.

4
5
6

6.

or

materials

designated

under

this

Stipulation

as

"CONFIDENTIAL" may only be disclosed to the following persons:
a. Counsel for Plaintiff, KENYA DARRICK CALDWELL, an incompetent
person by EVER JEAN KELLEY, his conservator;

7

b. Counsel for Defendants, CITY OF SELMA, a government entity, THOMAS
H. WHITESIDE, in his official capacity as Chief of Police for the City of
Selma. STEVE BURGAMY, individually, and in his capacity as a police
officer for the City of Selma;

8
9

c. Paralegal, clerical, and secretarial personnel regularly employed by counsel
referred to in subparts (a) and (b) directly above;

10
11

d. Court personnel including stenographic reporters or videographers engaged in
proceedings as are necessarily incidental to the preparation for the trial of the
civil action all subject to the restrictions set forth in this Stipulation;

12
13

e. Any expert, investigator or consultant retained in connection with this action,
subject to the restrictions set forth in this Stipulation;

14

f. The finder of fact at the time of trial, subject to the court's rulings on in limine
motions and objections of counsel;

15
16

g. Plaintiff, only to the extent reasonably necessary to assist his counsel in this
litigation or for his counsel to advise him with respect to the litigation.
Plaintiff shall not physically possess, outside of his counsel=s office, in any
physical form, whether paper, video, audio, electronic or otherwise, any
CONFIDENTIAL item and to the extent a CONFIDENTIAL item is
disclosed to Plaintiff, he is not to disclose ACONFIDENTIAL@ information or
materials to any other persons without prior court permission or by prior
stipulation by the Defendant.

17
18
19
20
21

Documents

Except as otherwise

7.

Prior to the disclosure of any CONFIDENTIAL information to any person

22

identified in paragraph 6 (f), each such recipient of CONFIDENTIAL information shall be

23

provided with a copy of this Stipulated Confidentiality Agreement, which he or she shall read.

24

Upon reading this Stipulation, such person shall acknowledge in writing that he or she has read

25

this Stipulation and shall abide by its terms. Such person must also consent to be subject to the

26

jurisdiction of the State of California with respect to any proceeding related to enforcement of

27

this Stipulation, including without limitation, any proceeding for contempt.

28

Stipulation, insofar as they restrict disclosure and use of the material, shall be in effect until
10

Provisions of this

1

further order of this Court. Plaintiff shall be responsible for internally tracking the identities of

2

those individuals to whom copies of documents marked CONFIDENTIAL are given.

3

Defendants may not request the identities of said individuals, however, until the final termination

4

of the litigation or if it is able to demonstrate a good faith basis that Plaintiff, or an agent thereof,

5

has breached the Stipulated Confidentiality Agreement.

6

8.

All documents or materials designated as ACONFIDENTIAL@ pursuant to this

7

Stipulation, and all papers or documents containing information or materials designated as

8

"CONFIDENTIAL," that are filed with the Court for any purpose shall be filed and served

9

under seal, with the following statement affixed to the document or other information: "This

10

envelope is sealed pursuant to order of the Court and contains CONFIDENTIAL Information

11

filed in this case by [name of party] and is not to be opened or the contents thereof to be

12

displayed or revealed except by order of the Court."

13

9.

The designation of information as "CONFIDENTIAL” and the subsequent

14

production thereof, is without prejudice to the right of any party to oppose the admissibility of

15

the designated information.

16

10.

A party may apply to the Court for an order that information or materials labeled

17

ACONFIDENTIAL@ are not, in fact, CONFIDENTIAL. Prior to so applying, the party seeking

18

to reclassify ACONFIDENTIAL@ information shall meet and confer with the producing party.

19

Until the matter is resolved by the Parties or the Court, the information in question shall continue

20

to be treated according to its designation under the terms of this Order.

21

shall have the burden of establishing the propriety of the ACONFIDENTIAL@ designation.

22

party shall not be obligated to challenge the propriety of a confidentiality designation at the time

23

made, and a failure to do so shall not preclude a subsequent challenge thereto.

24
25
26
27
28

11.

The producing party
A

Additional copies shall be provided for, and requests for further copies shall be

made, as set forth in this paragraph 11, as follows:
a. Plaintiff shall notify counsel for Defendants the specific number of copies of
documents marked ACONFIDENTIAL@ they seek for production. Said
number of copies shall constitute the number of copies that Plaintiff
reasonably believes is needed in preparation of his case, including any copies
for attorney work product, copies for experts and copies for court filings.
Defendants shall, in a timely manner, produce said number of copies to
Plaintiff.
11

1

b. Plaintiff shall be billed for the copying of the CONFIDENTIAL documents
at Defendants= actual cost.

2

c. If Plaintiff, in good faith, requires additional copies of documents marked
ACONFIDENTIAL@ in preparation of his case, he shall make a further
request to counsel for the Defendants.

3
4

d. Upon agreement with counsel for Defendants, copies will be produced in a
timely manner to Plaintiff, pursuant to the procedures of this Stipulated
Confidentiality. Agreement shall not be unreasonably withheld by counsel
for the Defendants.

5
6
7

e. Defendants shall produce CONFIDENTIAL information to Plaintiff with a
red marking labeled "CONFIDENTIAL@.

8

Notwithstanding the provisions of paragraph 6, CONFIDENTIAL information produced
9
pursuant to this Stipulation may not be delivered, exhibited or otherwise disclosed to any
10
reporter, writer or employee of any trade publication, newspaper, magazine or other media
11
organization.
12
12.

Should any information designated CONFIDENTIAL be disclosed, through

13
inadvertence or otherwise, to any person not authorized to receive it under this Stipulation, the
14
disclosing person(s) shall promptly (a) inform Defendants of the recipient(s) and the
15
circumstances of the unauthorized disclosure to the relevant producing person(s), (b) use best
16
efforts to bind the recipient(s) to the terms of this Stipulation and (c) use all efforts to retrieve
17
any and all copies of the unauthorized disclosure or document. No information shall lose its
18
CONFIDENTIAL status because it was disclosed to a person not authorized to receive it under
19
this Stipulation.

Absent a showing of good cause for the unauthorized disclosure, Defendants

20
reserve the ability to bring a motion for contempt for violation of this Stipulation.
21
13.
22

After the conclusion of this litigation, all documents, in whatever form stored or

reproduced, containing ACONFIDENTIAL@ information will remain CONFIDENTIAL, and if

23
filed with the Court, shall remain under seal.
24

All parties hereto also ensure that all persons to

whom ACONFIDENTIAL@ documents were disclosed shall be returned to counsel for the

25
producing party. The conclusion of this litigation means a termination of the case following
26
applicable post-trial motions, appeal and/or retrial.

After the conclusion of this litigation, all

27
CONFIDENTIAL documents received under the provisions of this Stipulation, including all
28
copies made, shall be tendered back to the attorneys for the Defendants in a manner in which
12

1
2

Defendants will be able to reasonably identify that all documents were returned.
14.

This Stipulation shall remain in full force and effect and shall continue to be

3

binding on all parties hereto and affected persons after this litigation terminates, subject to any

4

subsequent modifications of this Stipulation for good cause shown by this Court or any Court

5

having jurisdiction over an appeal of this action.

6

seek to modify or dissolve this Stipulation by Court order for good cause shown or by the parties'

7

stipulation.

8

15.

After this action terminates, any party may

Defendant Steve Burgamy specifically agrees and affirms that he consents to the

9

disclosure and use of the documents and information to be produced pursuant to this Stipulation

10

and that he shall not initiate a claim or an action of any type, against the City of Selma or the

11

Plaintiff or their respective attorneys, agents, employees, investigators, consultants and experts

12

as a result of the City of Selma=s disclosure of CONFIDENTIAL documents, pursuant to this

13

protective order or further order of the Court.

14

16.

The Court shall retain jurisdiction, even after this lawsuit terminates, (a) to

15

make such amendments, modifications and additions to this Stipulation as it may from time to

16

time deem appropriate upon good cause shown and (b) to adjudicate any dispute respecting

17

improper use or disclosure of CONFIDENTIAL material.

18
19

LAW OFFICE OF M. GREG MULLANAX
DATE: ___________, 2014

By:

20

M. GREG MULLANAX
Attorneys for Plaintiff,
KENYA DARRICK CALDWELL, an
incompetent person, by EVER JEAN
KELLEY, his conservator

21
22
23

OVERSTREET & ASSOCIATES

24
25
26
27
28

DATE: ___________, 2014

By:
DAVID M. OVERSTREET, IV
Attorneys for Defendants,
CITY OF SELMA, THOMAS H.
WHITESIDE and STEVE BURGAMY
ORDER
13

1

Based on the foregoing Stipulation of the parties, and good cause having been

2

found, IT IS HEREBY ORDERED that a Protective Order is hereby issued as to the following

3

documents:

4

1.

The County of Fresno Sheriff=s Department Internal Affairs Investigation file and

5

reports relating to Steve Burgamy and concerning the incident which is the subject of this suit,

6

further identified as:
a)
Letter dated 04/15/08 from City of Selma Police Chief Thomas H.
Whiteside to Ever Jean Hendricks (COS 000005);

7
8

b)

Memorandum dated 12/01/06 from Fresno County Sheriff Special
Investigator Ramiro Alvarez to City of Selma Police Chief Thomas H.
Whiteside (COS 000006);

c)

Letter dated 07/27/06 from City of Selma Police Chief Thomas H.
Whiteside to Ever Jean Hendricks (COS 000007);

d)

Memorandum dated 07/27/06 from City of Selma Police Chief Thomas H.
Whiteside to Fresno County Sheriff Special Investigator Ramiro Alvarez
(COS 000008-000009);

e)

Suggestion form submitted on 06/26/06 by Ever Jean Hendricks (COS
000010-000011);

f)

Letter dated 01/18/07 from Fresno County District Attorney Lisa Gamoian
to Fresno County Sheriff Margaret Mims (COS 000012-000015);

h)

City of Chowchilla Incident/Occurrence Report dated 02/05/06 (COS
000016-000017);

i)

Fresno County Sheriff=s Incident Report dated 02/13/06, completed by
Det. Robert Buenrostro (COS 000039-000045);

j)

Fresno County Sheriff=s Crime Report dated 02/13/06, completed by Det.
Mark Eaton (COS 000046-000050);

k)

Fresno County Sheriff=s Crime Report dated 02/14/06, completed by IB
Mary Tigh (COS 000051-000053);

l)

Fresno County Sheriff=s Technical Services Report dated 02/14/06,
completed by Sgt. Leo Lopez (COS 000054-000055);

m)

Fresno County Sheriff=s Recovered Property/Evidence Report dated
02/14/06, completed by IB Mary Tigh (COS 000056-000057);

n)

Fresno County Sheriff=s Crime Report dated 02/10/06, completed by IB
Hector Tello (COS 000058-000061);

o)

Fresno County Sheriff=s Technical Services Report dated 02/10/06,
completed by Det. Mark Eaton (COS 000062-000063);

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

14

1

p)

Fresno County Sheriff=s Recovered Property/Evidence Report dated
02/10/06, completed by IB Hector Tello (COS 000064-000065);

q)

Fresno County Sheriff=s Department FAX with attached Physical
Evidence Examination Report dated 06/21/06 from Inv. Robert Benavides
to Det. Robert Buenrostro with attached Physical Evidence Report (for
shell casing) and Armorer=s Report (COS 000066-000073);

r)

Fresno County Sheriff=s Officer Involved Shooting Diagram, drawn by IB
Hector Tello (COS 000074-000075);

s)

Audio and Transcript of statement made by Kenya Darrick Caldwell on
02/10/06 (COS 000076-000092);

t)

Audio and Transcript of statement made by Officer Steve Burgamy on
02/10/06 (COS 000093-000122);

u)

Fresno County Sheriff=s Forensic Laboratory Physical Evidence
Examination Report dated 03/07/06 re toxicology of blood taken from
Kenya Darrick Caldwell (COS 000123);

v)

Mineral King Laboratory Toxicology Report for blood taken from Kenya
Darrick Caldwell (COS 000124);

w)

Fresno County Sheriff=s Forensic Laboratory Physical Evidence
Examination Report for shell casing (COS 000125);

2
3
4
5
6
7
8
9
10
11
12
13
14
2.

The City of Selma Officer Involved Shooting (OIS) investigation file and reports

15
relating to Steve Burgamy and concerning the incident which is the subject of this suit, further
16
identified as:
17

a)

City of Selma Police Department Administrative Report dated 02/13/06,
prepared by Chief Thomas H. Whiteside (COS 000127-000128);

b)

City of Selma Police Department Section 300 - Use of Force (COS
000129-000132);

20

c)

21

d)

City of Selma Police Department Section 302 - Deadly Force Review
(COS 000133-000134);
City of Selma Police Department Section 304 - Shooting Policy (COS
000135-000136);

18
19

22
23
24

f)

City of Selma Accident/Incident Investigation Report dated 02/10/06
(COS 000157-000158);

g)

[5 copies of] Workers= Compensation Claim Form (DWC 1) dated
02/11/06, completed by Officer Steve Burgamy (COS 000159-000163);

h)

Drug Testing Custody and Control Form for blood test taken of Officer
Steve Burgamy (COS 000164-000165);

i)

Internal Memorandum, dated 02/11/06 from Lt. Bob Johnson to Officer
Steve Burgamy (COS 000166);

25
26
27
28

15

1
2

j)

Confidential Department of Community Health Communicable Disease
Exposure Report, dated 02/10/06 (COS 000167-000168);

k)

Memorandum/Fax, dated 02/13/06 from Fresno County Sheriff=s Det.
Robert Buenrostro to Selma Police Department Records (COS 000169);

l)

Email, dated 04/15/13 with embedded computer report referred to as a
AField Report@ regarding subject incident (COS 000170-000171); and

m)

Selma Police Photos of Scene [96 images] (COS 000172).

3
4
5
6
7

IT IS FURTHER ORDERED that production of the documents listed in Paragraphs 1 and

8

2 above, shall be produced to counsel for Plaintiff within thirty (30) days from the date that this

9

Stipulation is filed with the Court, to be produced, designated, used and handled in the manner

10

set forth in this Stipulation.

11
12

IT IS FURTHER ORDERED that production of the documents listed below shall be

13

provided to Plaintiff only upon Plaintiff=s motion for same, pursuant to California Evidence Code

14

sections 1043 and 1045. Those documents ordered to be disclosed and produced after the

15

Court’s in camera review, if any, shall be produced, designated, used and handled in the manner

16

set forth in this Stipulation. Those documents not subject to disclosure and production after the

17

Court’s in camera review shall be returned to counsel for the Defendants.

18

1.

City of Selma Police Department Policy Manual [Ed. 2006] (COS
000193);

2.

City of Selma Police Department Personnel File for Officer Steve
Burgamy (COS 000194);

3.

City of Selma Police Department Training File for Officer Steve Burgamy
(COS 000195);

4.

Gary J. Hills Esq.=s [counsel for Burgamy] Workers= Compensation Claim
file for Officer Steve Burgamy regarding the subject incident (COS
000196);

5.

Jane Woodcock Esq.=s [counsel for City of Selma]
Workers=
Compensation Claim file for Officer Steve Burgamy regarding the subject
incident (COS 000197);

6.

Tort Claims filed with the City of Selma, and which name Steve Burgamy
was a party to the Tort Claim, if any there be;

7.

The City of Selma=s prior Internal Affairs Investigation(s), if any there be;

19
20
21
22
23
24
25
26
27
28

16

and

1
8.

2

Deposition transcripts of any Internal Affairs Department witness(es), if
any there be.

3
4
5

Any request for documents to be filed under seal with the Court must comply with Local
Rule 141.

6
7
8
9

IT IS SO ORDERED.
Dated:

June 11, 2014
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17