Sim v. Duran et al

Filing 24

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))