McNeil v. Funk, et al.

Filing 17

ORDER Re Stipulated Protective Order, signed by Magistrate Judge Stanley A. Boone on 4/18/2018: PROTECTIVE ORDER is GRANTED. (Hellings, J)

1
2

James D. Weakley, Esq.
Brande L. Gustafson, Esq.

Bar No. 082853
Bar No. 267130

5

Weakley & Arendt
A Professional Corporation
1630 East Shaw Ave., Suite 176
Fresno, California 93710
Telephone: [phone]
Facsimile: [phone]

6

[e-mail]
[e-mail]

7

Attorneys for Defendants

3
4

8
UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

KEITH ALLEN McNEIL,

)
)
Plaintiff,
)
)
vs.
)
DEPUTY JAMES FUNK; DEPUTY FLORES; )
)
UNKNOWN LAW ENFORCEMENT
)
OFFICERS; COUNTY OF FRESNO,
)
)
Defendants.

CASE NO. 1:17-cv-00799-SAB
ORDER RE STIPULATED PROTECTIVE
ORDER

Complaint Filed: June 12, 2017
Trial Date: February 5, 2019

17
STIPULATED PROTECTIVE ORDER

18
19

1.

PURPOSES AND LIMITATIONS

20

Disclosure and discovery activity in this action are likely to involve production of

21

confidential or private information for which special protection from public disclosure and from

22

use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the

23

parties hereby stipulate to and petition the court to enter the following Stipulated Protective

24

Order, so the documents can be used by the parties in preparation for trial and shared with

25

witnesses and expert witnesses, who would not be subject to a private agreement between the

26

parties.

27

The parties acknowledge that this Order does not confer blanket protections on all

28

disclosures or responses to discovery and that the protection it affords from public disclosure

1

1

and use extends only to the limited information or items that are entitled to confidential

2

treatment under the applicable legal principles. The parties further acknowledge, as set forth in

3

Section 12.3, below, that this Stipulated Protective Order does not entitle them to file

4

confidential information under seal. Local Rule 141.1 sets forth the procedures that must be

5

followed and the standards that will be applied when a party seeks permission from the court to

6

file material under seal.

7

2.

8
9

DEFINITIONS
2.1 Challenging Party: A Party or Non-Party that challenges the designation of

information or items under this Order.

10

2.2 Confidential Information or Items: Information (regardless of how it is generated,

11

stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil

12

Procedure 26(c).

13

2.3 Counsel: Attorneys (and their support staff) who are retained to represent or advise a

14

party to this action and have appeared in this action on behalf of that party or are affiliated with

15

a law firm which has appeared on behalf of that party.

16

2.4 Designating Party: A Party or Non-Party that designates information or items that it

17

produces in disclosures or in responses to discovery. The information or items shall be

18

identified as follows: CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE ORDER,

19

McNeil v. County of Fresno USDC Case No. 1:17-cv-00799-SAB.

20

2.5 Disclosure or Discovery Material: All items or information, regardless of the

21

medium or manner in which it is generated, stored, or maintained (including, among other

22

things, testimony, transcripts, and tangible things), that are produced or generated in disclosures

23

or responses to discovery in this matter.

24

2.6 Expert: A person with specialized knowledge or experience in a matter pertinent to

25

the litigation who has been retained by a Party or its counsel to serve as an expert witness or as

26

a consultant in this action.

27
28

2.7 Non-Party: Any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.

2

1
2

2.8 Party: Any party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).

3
4

2.9 Producing Party: A Party or Non-Party that produces Disclosure or Discovery
Material in this action.

5

2.10 Professional Vendors: Persons or entities that provide litigation support services

6

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

7

organizing, storing, or retrieving data in any form or medium) and their employees and

8

subcontractors.

9
10

2.11 Protected Material: Any Disclosure or Discovery Material that is designated as
“Confidential Material.”

11

2.12 Receiving Party: A Party that receives Disclosure or Discovery Material from a

12

Producing Party.

13

3.

SCOPE

14

The protections conferred by this Stipulation and Order cover not only Protected

15

Material (as defined above), but also (1) any information copied or extracted from Protected

16

Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any

17

testimony, conversations, or presentations by Parties or their Counsel that might reveal

18

Protected Material. However, the protections conferred by this Stipulation and Order do not

19

cover the following information: (a) any information that is in the public domain at the time of

20

disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a

21

Receiving Party as a result of publication not involving a violation of this Order, including

22

becoming part of the public record through trial or otherwise; and (b) any information known to

23

the Receiving Party prior to the disclosure or obtained by the Receiving Party after the

24

disclosure from a source who obtained the information lawfully and under no obligation of

25

confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed

26

by a separate agreement or order.

27

4.

28

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by

3

1

this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

2

order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

3

claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

4

the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

5

action, including the time limits for filing any motions or applications for extension of time

6

pursuant to applicable law.

7

5.

PROTECTED MATERIAL

8

5.1 Protected Materials

9

Defendants shall produce the confidential material, subject to this Protective Order on

10
11

the following conditions:
(a)

Documents Subject to Disclosure Limited to This Action.

The

12

documents requested by Plaintiff through discovery come from Fresno County Sheriff’s

13

Office’s personnel files, citizen complaints, and internal investigations relating to Deputy James

14

Funk and non-defendant Fresno County Sheriff’s Office employees, which are protected by the

15

California Peace Officers Bill of Rights, the federal common law qualified privilege known as

16

the Official Information Privilege, California Evidence Code §1040, et seq., California Penal

17

Code §§832.7 and 832.8, the Right to Privacy of Deputy James Funk, third-party non-defendant

18

Fresno County Sheriff’s Office employees, domestic violence victims, minors as guaranteed by

19

the United States Constitution and the California Constitution (Cal. Const., Art. 1, §1); and from

20

photographic evidence taken from a gang shooting documented in Fresno Sheriff’s Office Case

21

Report Numbers 160011897.1 – 160011897.17, which are protected by the Right to Privacy of

22

the third-party victims and witnesses of a gang shooting as guaranteed by the United States

23

Constitution and the California Constitution (Cal. Const., Art. 1, §1).

24

The following confidential documents and the information contained therein shall be

25

used solely in connection with this litigation, including appeals, and not for any other purpose,

26

including other litigation:

27

Personnel File Records of Deputy James Funk:

28

-

IA No. 16-29 RTB

4

1

Fresno Sheriff’s Office Case Report Numbers 160011897.1 – 160011897.17:

2

-

Photographs of third-party victims’ gunshot injuries

3

-

Photographs of third-party witnesses to gang shooting

4

-

Photographs of Driver’s License cards of third-party witnesses to gang

5

shooting

6

(b)

Redaction of Confidential Information. Considering the privacy concerns

7

contained in the personnel and Internal Investigation Records, Defendants shall redact the

8

identities and personal identifying information (social security numbers, dates of birth, driver’s

9

license number, home addresses, and telephone numbers) for non-defendant Fresno County

10

Sheriff’s Office employees, minors, and domestic violence victims.

11

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order, or

12

as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

13

under this Order must be clearly so designated before the material is disclosed or produced.

14

Designation in conformity with this Order requires:

15

(a) for information in documentary form (e.g., paper or electronic documents, but

16

excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

17

Party affix the designation “CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE

18

ORDER, McNeil v. County of Fresno, et al., USDC Case No. 1:17-cv-00799-SAB” pursuant to

19

section 2.4 above, to each page that contains protected material.

20

(b) for testimony given in deposition or in other pretrial or trial proceedings, that

21

the Designating Party identify on the record, before the close of the deposition, hearing, or other

22

proceeding, all protected testimony.

23

(c) for information produced in some form other than documentary and for any

24

other tangible items, that the Producing Party affix in a prominent place on the exterior of the

25

container or containers in which the information or item is stored the CONFIDENTIAL

26

designation. If only a portion or portions of the information or item warrant protection, the

27

Producing Party, to the extent practicable, shall identify the protected portion(s).

28

///

5

1

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

2

designate qualified information or items does not, standing alone, waive the Designating Party’s

3

right to secure protection under this Order for such material. Upon timely correction of a

4

designation, the Receiving Party must make reasonable efforts to assure that the material is

5

treated in accordance with the provisions of this Order.

6

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

7

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of

8

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

9

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

10

burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

11

challenge a confidentiality designation by electing not to mount a challenge promptly after the

12

original designation is disclosed.

13

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process

14

by providing written notice of each designation it is challenging and describing the basis for

15

each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice

16

must recite that the challenge to confidentiality is being made in accordance with this specific

17

paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good

18

faith and must begin the process by conferring directly (in voice to voice dialogue; other forms

19

of communication are not sufficient) within 14 days of the date of service of notice. In

20

conferring, the Challenging Party must explain the basis for its belief that the confidentiality

21

designation was not proper and must give the Designating Party an opportunity to review the

22

designated material, to reconsider the circumstances, and, if no change in designation is offered,

23

to explain the basis for the chosen designation. A Challenging Party may proceed to the next

24

stage of the challenge process only if it has engaged in this meet and confer process first or

25

establishes that the Designating Party is unwilling to participate in the meet and confer process

26

in a timely manner.

27

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court

28

intervention, the Designating Party shall file and serve a motion to retain confidentiality within

6

1

21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet

2

and confer process will not resolve their dispute, whichever is earlier. Each such motion must

3

be accompanied by a competent declaration affirming that the movant has complied with the

4

meet and confer requirements imposed in the preceding paragraph. Failure by the Designating

5

Party to make such a motion including the required declaration within 21 days (or 14 days, if

6

applicable) shall automatically waive the confidentiality designation for each challenged

7

designation. In addition, the Challenging Party may file a motion challenging a confidentiality

8

designation at any time if there is good cause for doing so, including a challenge to the

9

designation of a deposition transcript or any portions thereof. Any motion brought pursuant to

10

this provision must be accompanied by a competent declaration affirming that the movant has

11

complied with the meet and confer requirements imposed by the preceding paragraph.

12

The burden of persuasion in any such challenge proceeding shall be on the Designating

13

Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

14

unnecessary expenses and burdens on other parties) may expose the Challenging Party to

15

sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

16

file a motion to retain confidentiality as described above, all parties shall continue to afford the

17

material in question the level of protection to which it is entitled under the Producing Party’s

18

designation until the court rules on the challenge.

19

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

20

7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or

21

produced by another Party or by a Non-Party in connection with this case only for prosecuting,

22

defending, or attempting to settle this litigation. Such Protected Material may be disclosed only

23

to the categories of persons and under the conditions described in this Order. When the

24

litigation has been terminated, a Receiving Party must comply with the provisions of section 13

25

below (FINAL DISPOSITION).

26

Protected Material must be stored and maintained by a Receiving Party at a location and

27

in a secure manner that ensures that access is limited to the persons authorized under this Order.

28

///

7

1

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

2

by the court or permitted in writing by the Designating Party, a Receiving Party may disclose

3

any information or item designated “CONFIDENTIAL” only to:

4

(a) The Receiving Party’s Counsel of Record in this action, as well as employees of said

5

Counsel of Record to whom it is reasonably necessary to disclose the information for this

6

litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is

7

attached hereto as Exhibit A;

8

(b) The officers, directors, and employees of the Receiving Party to whom disclosure is

9

reasonably necessary for this litigation and who have signed the “Acknowledgment and

10

Agreement to Be Bound” (Exhibit A);

11

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

12

reasonably necessary for this litigation and who have signed the “Acknowledgment and

13

Agreement to Be Bound” (Exhibit A);

14

(d) The court and its personnel;

15

(e) Court reporters and their staff, professional jury or trial consultants, mock jurors, and

16

Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

17

have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

18

(f) During their depositions, witnesses in the action to whom disclosure is reasonably

19

necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

20

A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

21

transcribed deposition testimony or exhibits to depositions that reveal Protected Material must

22

be separately bound by the court reporter and may not be disclosed to anyone except as

23

permitted under this Stipulated Protective Order. Witnesses shall not leave the deposition with a

24

copy of Confidential documents unless expressly agreed to on the record by the Designating

25

Party.

26

(g) The author or recipient of a document containing the information or a custodian or

27

other person who otherwise possessed or knew the information.

28

///

8

1

8.

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

5

“CONFIDENTIAL,” that Party must:

6
7

disclosure

of

any

information

or

items

designated

in

this

action

as

(a) Promptly notify in writing the Designating Party. Such notification shall include a
copy of the subpoena or court order;

8

(b) Promptly notify in writing the party who caused the subpoena or order to issue in the

9

other litigation that some or all of the material covered by the subpoena or order is subject to

10

this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;

11

and

12
13

(c) Cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.

14

If the Designating Party timely seeks a protective order, the Party served with the

15

subpoena or court order shall not produce any information designated in this action as

16

CONFIDENTIAL before a determination by the court from which the subpoena or order issued,

17

unless the Party has obtained the Designating Party’s written permission. The Designating Party

18

shall bear the burden and expense of seeking protection in that court of its confidential material.

19

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

20

IN THIS LITIGATION

21

(a) The terms of this Order are also applicable to information produced by a Non-Party

22

in this action and designated as “CONFIDENTIAL.” Such information produced by Non-

23

Parties in connection with this litigation is protected by the remedies and relief provided by this

24

Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

25

additional protections.

26

(b) In the event that a Party is required, by a valid discovery request, to produce a Non-

27

Party’s confidential information in its possession, and the Party is subject to an agreement with

28

the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

9

1
2

(1) promptly notify in writing the Requesting Party and the Non-Party that some
or all of the information requested is subject to a confidentiality agreement with a Non-Party;

3

(2) promptly provide the Non-Party with a copy of the Stipulated Protective

4

Order in this litigation, the relevant discovery request(s), and a reasonably specific description

5

of the information requested; and

6

(3) make the information requested available for inspection by the Non-Party.

7

(c) If the Non-Party fails to object or seek a protective order from this court within 14

8

days of receiving the notice and accompanying information, the Receiving Party may produce

9

the Non-Party’s confidential information responsive to the discovery request. If the Non-Party

10

timely seeks a protective order, the Receiving Party shall not produce any information in its

11

possession or control that is subject to the confidentiality agreement with the Non-Party before a

12

determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

13

burden and expense of seeking protection in this court of its Protected Material.

14

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

15

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

16

Material to any person or in any circumstance not authorized under this Stipulated Protective

17

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

18

unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

19

Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

20

made of all the terms of this Order, (d) request such person or persons to execute the

21

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A and (e)

22

state in writing all efforts the Receiving Party made to retrieve the unauthorized copies.

23

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

24

MATERIAL

25

When a Producing Party gives notice to Receiving Parties that certain inadvertently

26

produced material is subject to a claim of privilege or other protection, the obligations of the

27

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

28

///

10

1

12.

2
3

MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the court in the future.

4

12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective

5

Order no Party waives any right it otherwise would have to object to disclosing or producing

6

any information or item on any ground not addressed in this Stipulated Protective Order.

7

Similarly, no Party waives any right to object on any ground to use in evidence of any of the

8

material covered by this Protective Order.

9

12.3 Filing Protected Material. Without written permission from the Designating Party

10

or a court order secured after appropriate notice to all interested persons, a Party may not file in

11

the public record in this action any Protected Material. A Party that seeks to file under seal any

12

Protected Material must comply with Local Rule 141.1. Protected Material may only be filed

13

under seal pursuant to a court order authorizing the sealing of the specific Protected Material at

14

issue. A sealing order will issue only upon a request establishing that the Protected Material at

15

issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the

16

law. If a Receiving Party's request to file Protected Material under seal is denied by the court,

17

then the Receiving Party may file the information in the public record unless otherwise

18

instructed by the court.

19

13.

FINAL DISPOSITION

20

Within 60 days after the final disposition of this action, as defined in paragraph 4, each

21

Receiving Party must return all Protected Material to the Producing Party or destroy such

22

material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

23

compilations, summaries, and any other format reproducing or capturing any of the Protected

24

Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

25

submit a written certification to the Producing Party (and, if not the same person or entity, to the

26

Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all

27

the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party

28

has not retained any copies, abstracts, compilations, summaries or any other format reproducing

11

1

or capturing any of the Protected Material.

2

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

3
4

DATED: April 17, 2018

WEAKLEY & ARENDT, LLP

5
By:

6
7

/s/ Brande L. Gustafson
James D. Weakley
Brande L. Gustafson
Attorneys for Defendants

8
9

DATED: April 17, 2018

10

LAW OFFICE OF KEVIN G. LITTLE
By:

11
12

/s/ Robert A. Fuentes (As authorized on 4/17/18)
Kevin G. Little
Robert A. Fuentes
Attorneys for Plaintiff
ORDER

13
Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that:
14
1.

The protective order is entered;

2.

The parties are advised that pursuant to the Local Rules of the United States

15
16
District Court, Eastern District of California, any documents which are to
17
be filed under seal will require a written request which complies with Local
18
Rule 141; and
19
3.

The party making a request to file documents under seal shall be required to

20
show good cause for documents attached to a nondispositive motion or
21
compelling reasons for documents attached to a dispositive motion. Pintos v.
22
Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009).
23
24
25

IT IS SO ORDERED.
Dated:

April 18, 2018
UNITED STATES MAGISTRATE JUDGE

26
27
28

12