Elliott, et al. v. Solis, et al.

Filing 29

ORDER re 28 Stipulated Protective Order signed by Magistrate Judge Stanley A. Boone on 2/20/2018. (Jessen, A)

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James D. Weakley, Esq.
Ashley N. Torres, Esq.

Bar No. 082853
Bar No. 312120

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Weakley & Arendt
A Professional Corporation
1630 East Shaw Ave., Suite 176
Fresno, California 93710
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants, County of Fresno and Deputy Andres Solis

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SOPHIA ELLIOTT, ET AL.,
Plaintiffs,
vs.
ROBERT ROSS, ET AL,
Defendants.

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CASE NO. 1:17-cv-01214-LJO-SAB
ORDER RE STIPULATED PROTECTIVE
ORDER
(ECF No. 28)

The parties jointly present this Stipulated Protective Order for the Court’s approval.
1. PURPOSE AND LIMITATIONS

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

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties in this matter have petitioned the Court to enter the following

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Protective Order. Good cause appearing, the Court ORDERS as follows:

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2. SCOPE

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The protections conferred by this Order cover not only Protected Material (as defined in

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paragraph 4.1), but also (1) any information copied or extracted from Protected Material; (2) all

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

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
Stipulated Protective Order

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However, the protections conferred by this Order do not cover the following information:
(a) any information that is in the public domain at the time of disclosure to the Parties or
becomes part of the public domain after its disclosure to the Parties as a result of publication not
involving a violation of this Order, including becoming part of the public record through trial or
otherwise; and (b) any information known to the Parties prior to the disclosure or obtained by
the Parties after the disclosure from a source who obtained the information lawfully and under
no obligation of confidentiality to the Parties. Any use of Protected Material at trial shall be
governed by a separate agreement or order.
3. DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by
this Order shall remain in effect until the Parties agree otherwise in writing or a court order
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
and defenses in this action, with or without prejudice; and (2) final judgment herein after the
completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time pursuant to
applicable law.
4. BASIS FOR PROTECTIVE ORDER (LOCAL RULE 141.1(c)
The Parties contend that certain documents that may be requested in discovery are
eligible for protection under a protective order, including, but not limited to, information from
peace officer personnel files. Under California law, peace officer personnel files are subject to
statutory protection by the Peace Officer Bill of Rights (Cal. Gov. Code §3301), the Official
Information Privilege, as well as other statutes and doctrines.
4.1.

Defendants shall produce the Protected Material, subject to this Protective Order

on the following conditions:
Redaction of Confidential Information. Considering the privacy concerns contained in
the personnel and Internal Investigation Records, Defendants shall redact the personal
identifying information (social security numbers, dates of birth, driver’s license number, home

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Stipulated Protective Order

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addresses, telephone numbers, financial and credit histories, medical and psychological
information) for defendant officers and non-defendant officers. For victims, witnesses,
complainants, detainees, and arrestees, the last four digits of the social security number, date of
birth, driver’s license number, home address, and telephone number will be provided without
redaction. Defendants shall also redact the identities of domestic violence victims electing to
remain confidential under California Penal Code section 293.
4.2

Manner and Timing of Designations. Designation in conformity with this Order

requires:
(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 Material Subject to Protective Order” or “Confidential Material Subject to
Protective Order – Counsel Only” (hereinafter collectively “Protected Material”) to each page
of the protected material.
(b) “Protected Material” shall be defined as documents or information for which the
designating party would be entitled to have protected from public disclosure by Court order
under Rule 26(c) of the Federal Rules of Civil Procedure and the relevant case law. Protected
Material labeled “Confidential – Counsel Only” are documents that also contain sensitive
personal information, including, for example, personnel records and medical records.
(c) For testimony given in deposition or in other pretrial or trial proceedings, that the
Defendants identify on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony.
(d) For information produced in some form other than documentary and for any other
tangible items, that the Defendants affix the confidential designation in a prominent place on the
exterior of the container or containers in which the information or item is stored.
4.3

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

designate qualified information or items does not, standing alone, waive the Defendants’ right
to secure protection under this Order for such material. Upon timely correction of a designation,

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Stipulated Protective Order

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Plaintiff must make reasonable efforts to assure that the material is treated in accordance with
the provisions of this Order.
5. ACCESS TO AND USE OF PROTECTED MATERIAL
5.1

produced in connection with this case only for prosecuting, defending, or attempting to settle
this litigation. Such Protected Material may be disclosed only to the categories of persons and
under the conditions described in this Order. When the litigation has been terminated, Parties
must comply with the provisions of section 9 below (FINAL DISPOSITION).
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.
5.2

(a) Counsel of record and the named parties;

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(b) Paralegal, attorney, stenographic, clerical, and secretarial personnel employed
by counsel of record;

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(c) The court and its personnel;

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(d) Stenographic reporters and videographers engaged in such proceedings that
are incidental to preparation for the trial in this action;

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Disclosure of Protected Material Unless the Court Orders otherwise, Protected

Material and the information contained therein may be disclosed only to the following persons:

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Basic Principles. The Parties may use Protected Material that is disclosed or

(e) Any outside expert or consultant retained by the parties for purposes of this
litigation;
(f) Witnesses to whom the documents and the information contained in the
documents may be disclosed during, or in preparation for, a deposition taken in this matter, or
otherwise during the preparation for trial and during trial, provided that the witness may not
leave any deposition with copies of any of the confidential documents, and shall be informed of
and shall agree to be bound by the terms of this order;
(g) Any person expressly named and agreed to in writing by the parties.
(h) Notwithstanding the foregoing, protected health information may be

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Stipulated Protective Order

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disclosed to the person about whose health the information refers.

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(i) Nothing in this protective order is intended to prevent officials or employees of the
County of Fresno, or other authorized government officials, from having access to confidential
documents to which they would have access in the normal course of their official duties.
6. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in any other litigation that
compels disclosure of any information or items designated in this action as Protected Material
that Party must:

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

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(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

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(c) Cooperate with respect to all reasonable procedures sought to be pursued by the
Defendants who’s Protected Material may be affected.

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If the Defendants timely seek a protective order, the Parties shall not produce any
information designated in this action as Protected Material before a determination by the court
from which the subpoena or order issued, unless the Parties have obtained the Defendants’
permission. The Defendants shall bear the burden and expense of seeking protection in that
court of its confidential material – and nothing in these provisions should be construed as
authorizing or encouraging a Party in this action to disobey a lawful directive from another
court.
7. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
(a) With the exception of disclosure pursuant to paragraphs 5.2(a), (b), (c), and (h)
above, each person to whom the parties’ counsel discloses confidential information or Protected
Material shall, prior to the time of disclosure, be provided with a copy of this Protective Order

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Stipulated Protective Order

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and shall sign the “Acknowledgment and Agreement to Be Bound” that is attached hereto as
Exhibit A.

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(b) Plaintiffs’ and Defendants’ counsel, including paralegal, stenographic, clerical, and
secretarial personnel employed by counsel of record shall not make copies of the confidential
documents, or provide originals to anybody, except as necessary for purposes of this litigation,
including appeals. Plaintiffs’ and Defendants’ counsel are responsible to ensure that these
individuals comply with this protective order.

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(c) If a Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Protective Order, the
Party must immediately (a) notify the Defendants in writing of the unauthorized disclosure(s),
(b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
the person or persons to whom unauthorized disclosure(s) were made of all the terms of this
Protective Order and provide them with a copy, (d) request that person or persons execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
8. MISCELLANEOUS

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8.1

Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Protective Order. Similarly, no Party
waives any right to object on any ground to use in evidence of any of the material covered by
this Protective Order.

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Right to Assert Other Objections. With the entry of this Protective Order no

8.2

Filing Protected Material. All Protected Material that is filed with the Court shall

be filed with a request to seal documents in accordance with Eastern District of California Local
Rule 141. Upon failure of the filing party to file confidential documents under seal in
accordance with Local Rule 141, any party may request that the Court place the document under
seal.
9. FINAL DISPOSITION

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Stipulated Protective Order

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Within 60 days after the final disposition of this action, as defined in Section 3,
Plaintiffs must return all Protected Material to Defendants or destroy such material. As used in
this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected Material.
Whether the Protected Material is returned or destroyed, Plaintiffs must submit a written
certification to the Defendants by the 60 day deadline that (1) identifies (by category, where
appropriate) all the Protected Material that was returned or destroyed and (2) affirms that
Plaintiffs have not retained any copies, abstracts, compilations, summaries or any other format
reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel
are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if such materials
contain Protected Material. Any such archival copies that contain or constitute Protected
Material remain subject to this Protective Order as set forth in Section 3 (DURATION).
DATED: February 14, 2018

WEAKLEY & ARENDT,
A Professional Corporation

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By:

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DATED: February 14, 2018

/s/ Ashley N. Torres
James D. Weakley
Ashley N. Torres
Attorneys for Defendants County of
Fresno, Fresno County Sheriff’s
Department, and Deputy Andres Solis
ERICKSEN ARBUTHNOT

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By:

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/s/ Michael E. Lehman1
David J. Frankenburger
Michael E. Lehman
Attorneys for Defendant/Cross-Complainants,
Richard Ross and Patrick J. McComb, dba
Drive America

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Electronic signature authorized via email on February 14, 2018.

Stipulated Protective Order

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DATED: February 16, 2018

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NUTTAL & COLEMAN
By:

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/s/ Mark W. Colman2
Mark W. Coleman
Attorney for Dominic Elliott by and thru
His GAL Sophia Elliott

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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

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be filed under seal will require a written request which complies with Local

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Rule 141; and

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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

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compelling reasons for documents attached to a dispositive motion. Pintos v.

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Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009).

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IT IS SO ORDERED.

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Dated:

February 20, 2018

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UNITED STATES MAGISTRATE JUDGE

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Electronic signature authorized via email on February 16, 2018.

Stipulated Protective Order

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