Macias v. City of Clovis et al
Filing
70
PROTECTIVE ORDER, signed by Magistrate Judge Barbara A. McAuliffe on 11/20/2015. (Herman, H)
1
2
3
4
5
6
James D. Weakley, Esq.
Bar No. 082853
Brande L. Gustafson, Esq. Bar No. 267130
Weakley & Arendt, LLP
1630 East Shaw Ave., Suite 176
Fresno, California 93710
Telephone: (559) 221-5256
Facsimile: (559) 221-5262
E-Mail: Jim@walaw-fresno.com
E-Mail: Brande@walaw-fresno.com
Attorneys for Defendants, City of Clovis, Ofc. C. Gonzalez, Ofc E. Taifane, Ofc. A. Velasquez,
and Steve Cleaver
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
GEORGE MICHAEL MACIAS, JR.
12
Plaintiff,
13
14
15
)
)
)
)
)
)
)
)
)
)
)
)
vs.
STEVE CLEAVER, CESAR GONZALEZ,
ERIC TAIFANE, ANGEL VELASQUEZ,
THE CITY OF CLOVIS and DOES 1-10,
inclusive,
16
Defendants.
CASE NO. 1:13-CV-01819-BAM
PROTECTIVE ORDER
Complaint Filed: November 11, 2013
Trial Date: September 27, 2016
17
18
1.
19
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action involve production of confidential,
20
proprietary, or private information for which special protection from public disclosure and from
21
use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
22
Defendants, City of Clovis (“City”), Officer Cesar Gonzalez (“Officer Gonzalez”), Officer E.
23
Taifane (“Officer Taifane”), Officer A. Velasquez (“Officer Velasquez”), and Officer Steve
24
Cleaver (“Officer Cleaver”) have petitioned the Court to enter the following Protective Order
25
after Plaintiff represented that he would not enter into a private agreement for protection of
26
these documents. Good cause appearing, the Court ORDERS as follows:
27
///
28
///
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
1
1
2.
SCOPE
2
The protections conferred by this Order cover not only Protected Material (as identified
3
in paragraph 4.1), but also (1) any information copied or extracted from Protected Material; (2)
4
all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
5
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
6
However, the protections conferred by this Order do not cover the following information: (a)
7
any information that is in the public domain at the time of disclosure to Plaintiff or becomes
8
part of the public domain after its disclosure to Plaintiff as a result of publication not involving
9
a violation of this Order, including becoming part of the public record through trial or
10
otherwise; and (b) any information known to the Plaintiff prior to the disclosure or obtained by
11
the Plaintiff after the disclosure from a source who obtained the information lawfully and under
12
no obligation of confidentiality to the Defendants. Any use of Protected Material at trial shall be
13
governed by a separate agreement or order.
14
3.
DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by
15
16
this Order shall remain in effect until Defendants agree otherwise in writing or a court order
17
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
18
and defenses in this action, with or without prejudice; and (2) final judgment herein after the
19
completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
20
including the time limits for filing any motions or applications for extension of time pursuant to
21
applicable law.
22
4.
PROTECTED MATERIAL
23
4.1
24
Defendants shall produce the confidential material, subject to this Protective Order on
25
26
Protected Materials
the following conditions:
(a)
Documents Subject to Disclosure Limited to This Action. The
27
documents requested by Plaintiff through discovery come from Clovis Police Department’s
28
policies and procedures adopted at the time of Plaintiff’s arrest on September 30, 2012; Clovis
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
2
1
Police Department’s training materials in use at the time of Plaintiff’s arrest on September 30,
2
2012); and the Defendants’ personnel files and from citizen complaints, accident review boards,
3
and internal investigations relating to Defendant Officers Steve Cleaver, Cesar Gonzalez, Eric
4
Taifane, and Angel Velasquez and non-defendant officers. The following confidential
5
documents and the information contained therein shall be used solely in connection with this
6
litigation, including appeals, and not for any other purpose, including other litigation:
7
Personnel File Records of Officer Steve Cleaver:
8
-
Application of Officer Steve Cleaver for concealed weapon carry license
9
-
Resignation Letter
10
-
Personnel File Audit Trail
11
-
Administrative Leave
12
-
City of Clovis Personnel Action Forms
13
-
Advanced POST Certificate Application
14
-
Letter Accepting Employment
15
-
Job Offer Letter
16
-
Reassignment Requests
17
-
Letters of Commendation
18
-
Memorandum Notice of Final Action
19
-
Bio for Swearing In
20
-
Background Investigation Report Ronald Stephen Cleaver
21
-
Personal History Statement – Peace Officer
22
-
Law Enforcement Pre-Employment Polygraph Questionnaire of Officer
Steve Cleaver
23
24
-
Illegal Drug Use Disclosure
25
-
Polygraph Questionnaire Employment History
26
-
Supplemental Polygraph Questionnaire
27
-
City of Clovis Application Responses Email of Officer Steve Cleaver
28
-
Resume of Ronald Stephen Cleaver
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
3
1
-
Local Criminal Records Check
2
-
ECN Polygraph and Investigations Letter
3
-
Affidavit of Psychological Screening of Law Enforcement Applicants
4
-
Copy of Memorandum of Direction of Officer Steve Cleaver
5
-
Memorandum of Direction
6
-
Notice of Appointment/Termination
7
-
Motorcycle Enforcement and Safety Certificate of Completion
8
-
CHP Appointment Certificate
9
-
Clovis Police Department Performance Evaluations for Officer Steve
10
Cleaver
11
-
Accident Review Board (“ARB”) # 11-09
12
-
Internal Affairs (“IA”) #11-04
13
-
IA # 13-06
14
-
IA # 14-02
15
-
Citizen Complaint # 12-08
16
Personnel File Records of Officer Cesar Gonzalez:
17
-
City of Clovis Personnel Action Form
18
-
Letters of Commendation
19
-
Clovis Police Department Performance Evaluations for Officer Cesar
Gonzalez
20
21
-
Reassignment Request
22
-
Citizen Complaint # 13-03
23
Personnel File Records of Officer Eric Taifane:
24
-
Letters of Commendation
25
-
Clovis Police Department Performance Evaluations for Officer Eric
Taifane
26
-
27
28
Citizen Complaint # 13-03
///
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
4
1
Personnel File Records of Officer Angel Velasquez:
2
-
Letters of Commendation
3
-
Clovis Police Department Performance Evaluations for Officer Angel
4
Velasquez
5
-
Reassignment Requests
6
-
Citizen Complaint # 12-09
7
Clovis Police Department Policies
8
-
Policy No. 102 - Chief Executive Officer
9
-
Policy No. 106 - Policy Manual
10
-
Policy No. 200 - Organizational Structure and Responsibility
11
-
Policy No. 208 - Training Policy
12
-
Policy No. 302 - Deadly Force Review
13
-
Policy No. 306 - Restraint Devices
14
-
Policy No. 308 - Control Devices and Techniques
15
-
Policy No. 340 - Disciplinary Policy
16
-
Policy No. 344 - Report Preparation
17
Clovis Police Department Training Materials
18
-
Plan
19
20
Building Searches/Simunitions (9/01/2011) In-Service Training Lesson
-
Pistol - Fundamentals. Rifle - Perishable Skills (2-11-2010) In-Service
Training Lesson Plan
21
22
-
Department Range Training (6-21-2012) Lesson Plan
23
-
Department Range Training - Shotgun Course (6-21-2012) Lesson Plan
24
-
Duty Pistol, Rifle Course (9-26-2012) In-Service Training Lesson Plan
25
(b)
Redaction of Confidential Information. Considering the privacy concerns
26
contained in the personnel and Internal Investigation Records, Defendants shall redact the
27
personal identifying information (social security numbers, dates of birth, driver’s license
28
number, home addresses, telephone numbers, financial and credit histories, medical and
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
5
1
psychological information) for defendant officers and non-defendant officers. For victims,
2
witnesses, complainants, detainees, and arrestees, the last four digits of the social security
3
number, date of birth, driver’s license number, home address, and telephone number will be
4
provided without redaction. Defendants shall also redact the identities of domestic violence
5
victims electing to remain confidential under California Penal Code section 293.
6
7
4.2
requires:
8
9
10
Manner and Timing of Designations. Designation in conformity with this Order
(a)
For information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that
the Defendants affix “CONFIDENTIAL” to each page of the protected material.
11
(b)
For testimony given in deposition or in other pretrial or trial proceedings,
12
that the Defendants identify on the record, before the close of the deposition, hearing, or other
13
proceeding, all protected testimony.
(c)
14
For information produced in some form other than documentary and for
15
any other tangible items, that the Defendants affix in a prominent place on the exterior of the
16
container or containers in which the information or item is stored the legend
17
“CONFIDENTIAL.”
4.3
18
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
19
designate qualified information or items does not, standing alone, waive the Defendants’ right
20
to secure protection under this Order for such material. Upon timely correction of a designation,
21
Plaintiff must make reasonable efforts to assure that the material is treated in accordance with
22
the provisions of this Order.
23
5.
24
ACCESS TO AND USE OF PROTECTED MATERIAL
5.1
Basic Principles. The Parties may use Protected Material that is disclosed or
25
produced in connection with this case only for prosecuting, defending, or attempting to settle
26
this litigation. Such Protected Material may be disclosed only to the categories of persons and
27
under the conditions described in this Order. When the litigation has been terminated, Plaintiff
28
must comply with the provisions of section 9 below (FINAL DISPOSITION).
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
6
1
2
Protected Material must be stored and maintained by the Parties at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Order.
3
5.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless the Court Orders
4
otherwise, confidential documents and the information contained therein may be disclosed only
5
to the following persons:
6
(a)
Counsel of record and the named parties;
7
(b)
Paralegal, attorney, stenographic, clerical, and secretarial personnel
8
employed by counsel of record;
9
(c)
The court and its personnel;
10
(d)
Stenographic reporters and videographers engaged in such proceedings
11
that are incidental to preparation for the trial in this action;
(e)
13
Any outside expert or consultant retained by the parties for purposes of
(f)
12
Witnesses to whom the documents and the information contained in the
this litigation;
14
15
documents may be disclosed during, or in preparation for, a deposition taken in this matter, or
16
otherwise during the preparation for trial and during trial, provided that the witness may not
17
leave any deposition with copies of any of the confidential documents, and shall be informed of
18
and shall agree to be bound by the terms of this order;
19
(g)
Any person expressly named and agreed to in writing by the parties.
20
(h)
Notwithstanding the foregoing, protected health information may be
21
disclosed to the person about whose health the information refers.
(i)
22
Nothing in this protective order is intended to prevent officials or
23
employees of the City of Clovis, or other authorized government officials, from having access
24
to confidential documents to which they would have access in the normal course of their official
25
duties.
26
///
27
///
28
///
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
7
1
6.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
2
OTHER LITIGATION
3
If a Party is served with a subpoena or a court order issued in other litigation that
4
compels disclosure of any information or items designated in this action as
5
“CONFIDENTIAL,” that Party must:
6
7
(a)
of the subpoena or court order;
8
9
10
(b)
Promptly notify in writing the party who caused the subpoena or order to issue in
the other litigation that some or all of the material covered by the subpoena or order is subject to
this Protective Order. Such notification shall include a copy of this Protective Order; and
11
12
Promptly notify in writing the Defendants. Such notification shall include a copy
(c)
Cooperate with respect to all reasonable procedures sought to be pursued by the
Defendants who’s Protected Material may be affected.
If the Defendants timely seek a protective order, the Plaintiff shall not produce any
13
14
information designated in this action as “CONFIDENTIAL” before a determination by the court
15
from which the subpoena or order issued, unless Plaintiff has obtained the Defendants’
16
permission. The Defendants shall bear the burden and expense of seeking protection in that
17
court of its confidential material – and nothing in these provisions should be construed as
18
authorizing or encouraging a Plaintiff in this action to disobey a lawful directive from another
19
court.
20
7.
21
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
(a)
With the exception of disclosure pursuant to paragraphs 5.2(a), (b), (c), and (h)
22
above, each person to whom the parties’ counsel discloses confidential information or Protected
23
Material shall, prior to the time of disclosure, be provided with a copy of this Protective Order
24
and shall sign the “Acknowledgment and Agreement to Be Bound” that is attached hereto as
25
Exhibit A.
26
(b)
Plaintiffs’ and Defendants’ counsel, including paralegal, stenographic, clerical,
27
and secretarial personnel employed by counsel of record shall not make copies of the
28
confidential documents, or provide originals to anybody, except as necessary for purposes of
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
8
1
this litigation, including appeals. Plaintiffs’ and Defendants’ counsel are responsible to ensure
2
that these individuals comply with this protective order.
3
(c)
If Plaintiff learns that, by inadvertence or otherwise, he has disclosed Protected
4
Material to any person or in any circumstance not authorized under this Protective Order, the
5
Plaintiff must immediately (a) notify the Defendants in writing of the unauthorized
6
disclosure(s), (b) use his best efforts to retrieve all unauthorized copies of the Protected
7
Material, (c) inform the person or persons to whom unauthorized disclosure(s) were made of all
8
the terms of this Protective Order and provide them with a copy, (d) request that person or
9
persons execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as
10
Exhibit A.
11
8.
12
MISCELLANEOUS
8.1
Right to Assert Other Objections. With the entry of this Protective Order no
13
Party waives any right it otherwise would have to object to disclosing or producing any
14
information or item on any ground not addressed in this Protective Order. Similarly, no Party
15
waives any right to object on any ground to use in evidence of any of the material covered by
16
this Protective Order.
8.2
17
Filing Protected Material. All Protected Material that is filed with the Court shall
18
be filed with a request to seal documents in accordance with Eastern District of California Local
19
Rule 141. Upon failure of the filing party to file confidential documents under seal in
20
accordance with Local Rule 141, any party may request that the Court place the document under
21
seal.
22
9.
23
FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 3,
24
Plaintiff must return all Protected Material to Defendants or destroy such material. As used in
25
this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
26
summaries, and any other format reproducing or capturing any of the Protected Material.
27
Whether the Protected Material is returned or destroyed, Plaintiff must submit a written
28
certification to the Defendants by the 60 day deadline that (1) identifies (by category, where
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
9
1
appropriate) all the Protected Material that was returned or destroyed and (2) affirms that
2
Plaintiff has not retained any copies, abstracts, compilations, summaries or any other format
3
reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel
4
are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
5
hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
6
reports, attorney work product, and consultant and expert work product, even if such materials
7
contain Protected Material. Any such archival copies that contain or constitute Protected
8
Material remain subject to this Protective Order as set forth in Section 3 (DURATION).
9
10
11
IT IS SO ORDERED.
/s/ Barbara
Dated: November 20, 2015
A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
10
1
EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, _________________________________________ [print or type full name], of
4
________________________________________________________ [print or type full address],
5
declare under penalty of perjury that I have read in its entirety and understand the Protective Order
6
that was issued by the United States District Court for the Eastern District of California on
7
November __, 2015 in the case of George Michael Macias, Jr. v. Steve Cleaver, et al., Case No.
8
1:13-CV-01819-BAM. I agree to comply with and to be bound by all the terms of this Protective
9
Order and I understand and acknowledge that failure to so comply could expose me to sanctions
10
and punishment in the nature of contempt. I solemnly promise that I will not disclose in any
11
manner any information or item that is subject to this Stipulated Protective Order to any person or
12
entity except in strict compliance with the provisions of this Order.
13
I further agree to submit to the jurisdiction of the United States District Court for the
14
Northern District of California for the purpose of enforcing the terms of this Stipulated Protective
15
Order, even if such enforcement proceedings occur after termination of this action.
16
I hereby appoint __________________________________ [print or type full name] of
17
__________________________________________________________________ [print or type
18
full address and telephone number] as my California agent for service of process in connection
19
with this action or any proceedings related to enforcement of this Stipulated Protective Order.
20
21
Date: ______________________________________
22
23
City and State where sworn and signed: _________________________________
24
25
Printed name: _______________________________
26
27
Signature: __________________________________
28
\PROTECTIVE ORDER
Macias v. Cleaver, et al.
Case No. 1:13-CV-01819-BAM
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?