Sim v. Duran et al
Filing
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STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Stanley A. Boone on 12/4/2017. (Lundstrom, T)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FRESNO DIVISION
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HWA SUNG SIM,
Case No. 1:16-cv-01051 SAB (PC)
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Plaintiff, STIPULATED PROTECTIVE ORDER
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v.
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MONICA DURAN, et al.,
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Defendants.
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I.
CONFIDENTIAL MATERIAL SUBJECT TO THIS PROTECTIVE ORDER
Plaintiff Hwa Sung Sim alleges that Defendant Duran used excessive force against him, in
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violation of the Eighth Amendment, on August 31, 2014, at Wasco State Prison. Sim also alleges
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that Defendant Johal acted with deliberate indifference to his serious medical needs, in violation
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of the Eighth Amendment, following the incident on August 31, 2014. These claims were
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investigated by California Department of Corrections and Rehabilitation (CDCR) personnel who
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prepared confidential reports documenting the results of the investigation.
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Stipulated Protective Order (1:16-cv-01051 SAB (PC))
In the course of investigating and responding to Sim’s discovery responses, Defendants’
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counsel came into possession of the following responsive records:
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First Level Review package for incident WSP-FAY-14-08-0423;
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Second Level Review package for incident WSP-FAY-14-08-0423;
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Incident Closure package for incident WSP-FAY-14-08-0423;
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Director’s Executive Review Committee package for incident WSP-FAY-14-08-
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0423; and
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II.
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Confidential staff investigation portion of grievance number WSP-A-14-03653.
NEED FOR A COURT ORDER
Defendants, CDCR, and California Correctional Health Care Services (CCHCS) contend
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that the investigative reports are protected by qualified privilege as official information under
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federal common law, and, in California, the material is confidential under state statutes and
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regulations. Defendants, CDCR, and CCHCS also contend that the unprotected disclosure of
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these documents could cause individuals to be less willing to cooperate in confidential
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investigations, jeopardize the safety and security of inmates and staff, and decrease the efficacy of
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such investigations. Sim demands production of these documents over Defendants’ objections.
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Counsel for both Sim and Defendants met and conferred regarding the dispute. Since
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CDCR and CCHCS are not parties to this litigation, a private agreement among the parties is not
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sufficient to protect the interests of CDCR or CCHCS in maintaining the confidentiality of these
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investigative documents. Nonetheless, because of the potential relevance of the documents to this
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action, the parties now stipulate that the production of the confidential documents is appropriate
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but subject to a protective order under the following conditions:
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III. CONDITIONS FOR RELEASE OF CONFIDENTIAL MATERIAL
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The Court orders the following to protect the confidentiality of the documents described
above:
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1.
The provisions of this Protective Order apply to the confidential records and
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information (“confidential material”) designated by Defendants and/or CDCR as “Confidential,”
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Stipulated Protective Order (1:16-cv-01051 SAB (PC))
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listed above. This Protective Order arises from an agreement between the parties to resolve the
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issues relating to the disclosure of the documents listed above under the following terms.
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2.
The confidential material may be disclosed only to the following persons:
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(a)
Plaintiff Sim’s retained attorney(s) of record;
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(b)
Paralegal, clerical, and secretarial personnel regularly employed by counsel for
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Sim, Defendants, CDCR, and CCHCS, who are necessary to aid Sim, Defendants, CDCR, and
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CCHCS in the litigation of this matter;
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(c)
proceedings;
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Court personnel and stenographic reporters necessarily involved in these
(d)
Any outside expert or consultant retained by counsel for Sim, Defendants,
CDCR, and CCHCS for purposes of this litigation; and
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(e)
Non-inmate witnesses to whom the confidential material may be disclosed
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during or in preparation for a deposition taken in this matter or otherwise during the preparation
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for trial and trial, provided that the witness may not leave any deposition or preparation with
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copies of any of the confidential material, and shall be informed of and agree to be bound by the
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terms of this order.
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3.
None of the confidential material or information contained within the confidential
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material shall be shown to Sim, or shown to, discussed with, or disclosed in any other manner to
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any other inmate or former inmate, any parolee or former parolee, or any other person not
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indicated in paragraph 2, unless a written waiver expressly authorizing such disclosure has been
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obtained from counsel for Defendants, CDCR, and CCHCS, who maintain possession and control
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over the original confidential material.
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4.
No person who has access to the confidential material, as set forth in paragraph 2,
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shall copy any portion of the confidential material, except as necessary to provide a copy of the
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confidential material to any other authorized individual listed in paragraph 2, or to submit copies
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to the Court under seal in connection with this matter. Any copies made for such purpose will be
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subject to this order. A copy of this order must be provided to any individual authorized to access
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the confidential material before providing that individual with access to the confidential material,
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Stipulated Protective Order (1:16-cv-01051 SAB (PC))
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and that individual must agree in writing to comply with this order. Plaintiff’s counsel shall
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maintain a record of all persons to whom access to the confidential material has been
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provided. The Court and counsel for Defendants, CCHCS and CDCR may request a copy of
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such record at any time to determine compliance with the Court’s order.
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5.
Any exhibits or documents filed with the Court that reveal confidential material, or
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the contents of any confidential material, shall be submitted on purple or pink paper, filed under
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seal, labeled with a cover sheet bearing the case name and number and the statement: “This
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document is subject to a Protective Order issued by the Court and may not be copied or examined
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except in compliance with that Order.” Documents so labeled shall be kept by the Clerk of this
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Court under seal and shall be made available only to the Court or counsel of record for the
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parties. If any party fails to file confidential material in accordance with this paragraph, any party
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may request that the Court place the filing under seal.
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6.
Within sixty days after the conclusion of the proceedings in this case, including any
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period for appeal or collateral review, or upon other termination of this litigation, counsel for Sim
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shall destroy all confidential materials and all copies of such material in counsel’s possession, or
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return such materials to counsel for Defendants.
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7.
When counsel for Sim returns or destroys the confidential material, they shall provide
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Defendants’ counsel with a declaration stating that all confidential material has been returned or
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destroyed.
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8.
All confidential material in this matter shall be used solely in connection with the
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litigation of this matter, or any related appellate proceeding and collateral review, and not for any
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other purpose, including any other litigation or proceeding.
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9.
Nothing in this Protective Order is intended to prevent officials or employees of the
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State of California, or other authorized government officials, from having access to confidential
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material to which they would have access to in the normal course of their official duties.
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10.
Any violation of this order may result in sanctions by this Court, including contempt,
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and may be punishable by state or federal law.
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Stipulated Protective Order (1:16-cv-01051 SAB (PC))
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11.
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(a)
To apply to the Court for a further protective order relating to any confidential
material or relating to discovery in this litigation;
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The provisions of this Protective Order are without prejudice to the right of any party:
(b)
To apply to the Court for an order removing the confidential material
designation from any documents;
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(c)
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To object to a discovery request.
The provisions of this order shall remain in effect until further order of this Court.
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IT IS SO STIPULATED.
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Respectfully submitted,
Dated: November 30, 2017
/s/ Kevin S. Conlogue
(as authorized on 11/30/2017)
Kevin S. Conlogue
Law Office of Kevin S. Conlogue
Attorney for Plaintiff Hwa Sung Sim
Dated: December 1, 2017
/s/ David C. Goodwin
DAVID C. GOODWIN
Deputy Attorney General
Attorney for Defendants Duran and Johal
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ORDER
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Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that:
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1.
The protective order is entered;
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2.
The parties are advised that pursuant to the Local Rules of the United States
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District Court, Eastern District of California, any documents which are to be filed under
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seal will require a written request which complies with Local Rule 141; and
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Stipulated Protective Order (1:16-cv-01051 SAB (PC))
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3.
The party making a request to file documents under seal shall be required to
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show good cause for documents attached to a nondispositive motion or compelling reasons
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for documents attached to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d
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665, 677-78 (9th Cir. 2009).
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IT IS SO ORDERED.
Dated:
December 4, 2017
UNITED STATES MAGISTRATE JUDGE
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Stipulated Protective Order (1:16-cv-01051 SAB (PC))
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