Kenya Darrick Caldwell v. City of Selma et al

Filing 23

ORDER ON SECOND STIPULATION FOR PROTECTIVE ORDER, Signed by Magistrate Judge Stanley A. Boone on 7/11/2014. (Arellano, S.)

DAVID M. OVERSTREET, IV, No. 103039

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

ATTORNEYS FOR

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA - FRESNO DIVISION

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

CASE NO. 1:13-CV-00465-SAB
ORDER ON SECOND STIPULATION FOR
PROTECTIVE ORDER

Plaintiff,
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 person by
EVER JEAN KELLEY, his conservator has requested that 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 (collectively, the ADefendants@) provide the following documents in the course of
discovery:
1.

POST Training Record for Defendant, Steve Burgamy (COS 000201);

2.

2003 Edition City of Selma Police Policy No. 1020 (COS 000211-000217);

which are collectively referred to as the “DOCUMENTS.”
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WHEREAS, Defendants assert and believe, in good faith that the DOCUMENTS are:
1.

Confidential, sensitive, or potentially invasive of an individual's privacy interests,
as protected by Article I, section 1 to the California Constitution, including those
protected by the Public Safety Officers Procedural Bill of Rights Act under
California Government Code section 330 et seq.;

2.

Protected from disclosure pursuant to the provisions of California Government

3.

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

4.

Not normally revealed to the public or third parties or, if disclosed to third parties,
would require such third parties to maintain the information in confidence.

IT IS HEREBY STIPULATED, by, among and between the undersigned parties
through their counsel of record, that the DOCUMENTS may be designated as
ACONFIDENTIAL@ by Defendants and produced, if warranted, subject to the following 2nd
Stipulation for Protective Order (Athe Stipulation@).
IT IS FURTHER STIPULATED:
1.

All DOCUMENTS produced under this Stipulation shall be designated as

"CONFIDENTIAL". The disclosed documents shall be used solely in connection with the civil
case of Caldwell v. City of Selma, et al., U.S. District Court, Eastern Dist. Case No. 1:13-CV00465-SAB, and in the preparation and trial of this case, or any related motions.
2.

A party producing the DOCUMENTS and materials described above shall

designate those materials by affixing a mark labeling them as "CONFIDENTIAL." If any
CONFIDENTIAL materials cannot be labeled with the aforementioned marking, those
materials shall be placed in a sealed envelope or other container that is in turn marked
"CONFIDENTIAL" in a manner agreed upon by the disclosing and requesting Parties.
Documents or copies provided by one party to the other containing CONFIDENTIAL
information may be designated by marking the page or pages on which the CONFIDENTIAL
information appears with the legend "CONFIDENTIAL".
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3.

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

litigation which is the subject matter of this suit, at any time the information sought consists of
"CONFIDENTIAL" information, the court reporter will note said reference on the record and
will thereafter designate that portion of the transcript and/or document involved as
"CONFIDENTIAL" and all such portions of transcripts supplied it shall be so designated.
If any document or information designated as "CONFIDENTIAL" pursuant to this
Stipulation is used or disclosed during a deposition, that portion of the deposition record
reflecting such material shall be stamped with the appropriate designation and access shall be
limited pursuant to the terms of this Stipulation. The Court reporter for the deposition shall mark
the deposition transcript cover page and all appropriate pages or exhibits, and each copy thereof,
in accordance with paragraph 3 of this Stipulation. Only individuals who are authorized by this
Stipulation to see or receive such material may be present during the discussion or disclosure of
such material.
It is agreed that counsel will not disclose "CONFIDENTIAL" information except for its
use in depositions, trial or with investigators or experts.

Any exhibits containing

CONFIDENTIAL information at any deposition, trial, or other proceeding, will be sealed in a
separate envelope, which is marked on the outside, "CONFIDENTIAL".
4.

If "CONFIDENTIAL" information is contained in any responses to

interrogatories, other discovery requests, or responses, any memorandum, briefs, affidavits,
declaration, or other papers or documents filed by the court, they shall be designated as
ACONFIDENTIAL@

information

by

prominently

marking

each

page

containing

CONFIDENTIAL information with the legend "CONFIDENTIAL".
5.

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

course of the litigation shall be used solely for the purpose of litigation. Except as otherwise
provided in this order, no "CONFIDENTIAL" information shall be disclosed.
6.

Documents

or

materials

designated

under

"CONFIDENTIAL" may only be disclosed to the following persons:
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this

Stipulation

as

a.

Counsel for Plaintiff, KENYA DARRICK CALDWELL, an incompetent
person by EVER JEAN KELLEY, his conservator;

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;

c.

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

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;

e.

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

f.

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

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.

7.

Prior to the disclosure of any CONFIDENTIAL information to any person

identified in paragraph 6, each such recipient of CONFIDENTIAL information shall be
provided with a copy of this Stipulated Confidentiality Agreement, which he or she shall read.
Upon reading this Stipulation, such person shall acknowledge in writing that he or she has read
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this Stipulation and shall abide by its terms. Such person must also consent to be subject to the
jurisdiction of the State of California with respect to any proceeding related to enforcement of
this Stipulation, including without limitation, any proceeding for contempt. Provisions of this
Stipulation, insofar as they restrict disclosure and use of the material, shall be in effect until
further order of this Court. Plaintiff shall be responsible for internally tracking the identities of
those individuals to whom copies of documents marked CONFIDENTIAL are given.
Defendants may not request the identities of said individuals, however, until the final termination
of the litigation or if it is able to demonstrate a good faith basis that Plaintiff, or an agent thereof,
has breached the Stipulated Confidentiality Agreement.
8.

All documents or materials designated as ACONFIDENTIAL@ pursuant to this

Stipulation, and all papers or documents containing information or materials designated as
"CONFIDENTIAL," that are filed with the Court for any purpose shall be filed and served
under seal, with the following statement affixed to the document or other information: "This
envelope is sealed pursuant to order of the Court and contains CONFIDENTIAL Information
filed in this case by [name of party] and is not to be opened or the contents thereof to be
displayed or revealed except by order of the Court."
9.

The designation of information as "CONFIDENTIAL” and the subsequent

production thereof, is without prejudice to the right of any party to oppose the admissibility of
the designated information.
10.

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

ACONFIDENTIAL@ are not, in fact, CONFIDENTIAL. Prior to so applying, the party seeking
to reclassify ACONFIDENTIAL@ information shall meet and confer with the producing party.
Until the matter is resolved by the Parties or the Court, the information in question shall continue
to be treated according to its designation under the terms of this Order. The producing party
shall have the burden of establishing the propriety of the ACONFIDENTIAL@ designation. A
party shall not be obligated to challenge the propriety of a confidentiality designation at the time
made, and a failure to do so shall not preclude a subsequent challenge thereto.
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11.

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.
b. Plaintiff shall be billed for the copying of the CONFIDENTIAL documents
at Defendants= actual cost.
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.
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.
e. Defendants shall produce CONFIDENTIAL information to Plaintiff with a
red marking labeled "CONFIDENTIAL@.
Notwithstanding the provisions of paragraph 6, CONFIDENTIAL information produced
pursuant to this Stipulation may not be delivered, exhibited or otherwise disclosed to any
reporter, writer or employee of any trade publication, newspaper, magazine or other media
organization.
12.

Should any information designated CONFIDENTIAL be disclosed, through

inadvertence or otherwise, to any person not authorized to receive it under this Stipulation, the
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disclosing person(s) shall promptly (a) inform Defendants of the recipient(s) and the
circumstances of the unauthorized disclosure to the relevant producing person(s), (b) use best
efforts to bind the recipient(s) to the terms of this Stipulation and (c) use all efforts to retrieve
any and all copies of the unauthorized disclosure or document. No information shall lose its
CONFIDENTIAL status because it was disclosed to a person not authorized to receive it under
this Stipulation. Absent a showing of good cause for the unauthorized disclosure, Defendants
reserve the ability to bring a motion for contempt for violation of this Stipulation.
13.

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

reproduced, containing ACONFIDENTIAL@ information will remain CONFIDENTIAL, and if
filed with the Court, shall remain under seal. All parties hereto also ensure that all persons to
whom ACONFIDENTIAL@ documents were disclosed shall be returned to counsel for the
producing party. The conclusion of this litigation means a termination of the case following
applicable post-trial motions, appeal and/or retrial. After the conclusion of this litigation, all
CONFIDENTIAL documents received under the provisions of this Stipulation, including all
copies made, shall be tendered back to the attorneys for the Defendants in a manner in which
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

binding on all parties hereto and affected persons after this litigation terminates, subject to any
subsequent modifications of this Stipulation for good cause shown by this Court or any Court
having jurisdiction over an appeal of this action. After this action terminates, any party may seek
to modify or dissolve this Stipulation by Court order for good cause shown or by the parties'
stipulation.
15.

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

disclosure and use of the documents and information to be produced pursuant to this Stipulation
and that he shall not initiate a claim or an action of any type, against the City of Selma or the
Plaintiff or their respective attorneys, agents, employees, investigators, consultants and experts

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as a result of the City of Selma=s disclosure of CONFIDENTIAL documents, pursuant to this
protective order or further order of the Court.
16.

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

such amendments, modifications and additions to this Stipulation as it may from time to time
deem appropriate upon good cause shown and (b) to adjudicate any dispute respecting improper
use or disclosure of CONFIDENTIAL material.
LAW OFFICE OF M. GREG MULLANAX

DATE: ___________, 2014

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

OVERSTREET & ASSOCIATES

DATE: ___________, 2014

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

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ORDER
Based on the foregoing Stipulation of the parties, and good cause having been
found, IT IS HEREBY ORDERED that a Protective Order is hereby issued as to the following
documents:
1. POST Training Record for Defendant, Steve Burgamy (COS 000201);
2. 2003 Edition City of Selma Police Policy No. 1020 (COS 000211-000217);
and which are collectively referred to as the “DOCUMENTS.”

The DOCUMENTS shall be produced to counsel for Plaintiff within thirty (30) days
from the date that this Stipulation is filed with the Court, to be produced, designated, used and
handled in the manner set forth in this Stipulation.
IT IS FURTHER ORDERED that any request for documents to be filed under seal with
the Court must comply with Local Rule 141.
IT IS SO ORDERED.
Dated:

July 11, 2014
UNITED STATES MAGISTRATE JUDGE

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