Graham v. Runnels, et al

Filing 76

STIPULATION and ORDER signed by Magistrate Judge Gregory G. Hollows on 05/09/11 regarding confidential material and filing of documents under seal. (see order for further details) (Plummer, M)

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1 2 3 4 5 6 7 KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California DAVID A. CARRASCO, State Bar No. 160460 Supervising Deputy Attorney General JAIME M. GANSON, State Bar No. 230206 Deputy Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-6421 Fax: (916) 324-5205 E-mail: Attorneys for Defendants Kopec and Martin 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SACRAMENTO DIVISION 11 12 13 LEVON GRAHAM, 14 15 2:07-cv-2291 LKK GGH P Plaintiff, STIPULATION AND PROTECTIVE ORDER v. 16 D. L. RUNNELS, ET AL., 17 Defendants. 18 19 The Parties Stipulate as Follows: 20 A. Confidential material subject to this Protective Order. 21 In response to Plaintiff’s document requests 5, 8, 21, 24, 25, and 23, Defendants produced a 22 document titled “High Desert State Prison Institutional Head Use of Force Critique and 23 Qualitative Evaluation Analysis Final Review” (“the Confidential Material”). The California 24 Department of Corrections and Rehabilitation (“CDCR”) deems this document confidential and 25 does not permit individuals who are incarcerated, as the Plaintiff, to retain a copy of the 26 Confidential Material based on institutional safety and security grounds. Thus, it was produced 27 for his inspection only. Plaintiff has since obtained counsel. The Parties stipulate that the 28 1 Stipulation and [Proposed] Protective Order (2:07-cv-2291 LKK GGH P) 1 Confidential Material shall be disclosed to Plaintiff’s counsel, subject to the following protective 2 order. 3 4 Defendants represent that: 1. The Confidential Material was prepared on the basis of, among other things, 5 statements correctional officers made with the understanding that the information would remain 6 confidential; 7 2. The disclosure of the document without a protective order would undermine 8 CDCR’s ability to assure its employees and inmate that their statements will be maintained in 9 confidence; 10 3. The likely result of unprotected disclosure would be that CDCR employees and 11 inmates, whether subjects of investigations or witnesses to incidents being investigated, will be 12 unwilling or less willing to cooperate with investigators; and 13 4. The Confidential Material is protected by the Deliberative Process Privilege as it 14 contains pre-decisional, deliberative information prepared to assist the agency decision-maker in 15 evaluating the force used. 16 Accordingly, Defendants believe a protective order is warranted. Based upon these 17 representations, but in no way admitting their truth, Plaintiff Graham is willing to stipulate to a 18 protective order. 19 B. Conditions for release of confidential material. 20 Because of its relevance to this action, counsel for Defendants will produce the Confidential 21 Material, subject to this protective order, on the following conditions: 22 1. Before producing the Confidential Material to Plaintiff, Defendants shall 23 conspicuously mark the Confidential Material: “CONFIDENTIAL – 24 SUBJECT TO PROTECTIVE ORDER.” 25 26 2. The Confidential Material may be disclosed only to the following persons: a. Plaintiff Levon Graham, provided that Plaintiff may not retain 27 possession of any of the Confidential Material, and shall be informed 28 and agree to be bound by the terms of this order; 2 Stipulation and [Proposed] Protective Order (2:07-cv-2291 LKK GGH P) 1 b. Plaintiff’s attorneys; 2 c. Experts engaged in connection with this litigation; 3 d. Defendants Martin and Kopec, and their attorneys; and 4 e. Court personnel and stenographic reporters engaged in proceedings 5 incidental to the preparation for the trial in this action; 6 3. The Confidential Material shall not be disclosed to any incarcerated 7 individual, other than Plaintiff Graham, whether or not a witness in this 8 action, for any reason. 9 4. The Confidential Material shall not be disclosed except as is necessary in 10 connection with this litigation, including appeals, and not for any other 11 purpose, including any other litigation. 12 5. To the extent the Confidential Material is filed with the Court, it will be filed 13 and maintained under seal. 14 6. Upon request from Defendants, Plaintiff and his counsel shall destroy all 15 copies of the Confidential Material—or return them to the attorney for 16 Defendants Martin and Kopec within 5 days of the time it is no longer 17 needed for purposes of this litigation. 18 Nothing in this protective order is intended to prevent officials or employees of the State of 19 California, or other authorized government officials, from having access to the Confidential 20 Material in the normal course of their official duties. 21 The provisions of this protective order are without prejudice to the right of any party: (1) 22 to apply to the Court for a further protective order relating to the Confidential Material or any 23 other confidential material relating to discovery in this litigation; (2) to apply to the Court for an 24 /// 25 /// 26 27 28 3 Stipulation and [Proposed] Protective Order (2:07-cv-2291 LKK GGH P) 1 order removing the Confidential Material designation as “CONFIDENTIAL – SUBJECT TO 2 PROTECTIVE ORDER”; (3) to object to a discovery request. 3 4 5 The provisions of this order shall remain in full force and effect until further order of this Court. So stipulated. 6 7 8 /s/ Brian Berry Brian Berry, Counsel for Plaintiff 9 11 /s/ Jaime Ganson Jaime Ganson, Counsel for Defendants Martin and Kopec 12 The confidential material will not be automatically filed under seal, notwithstanding the 10 13 previous stipulation herein to do so. Filings under seal may only be done pursuant to the Local 14 Rules and pursuant to the applicable substantive standards for filing under seal.. 15 16 So Ordered. 17 18 Dated: May 9, 2011 19 20 /s/ Gregory G. Hollows __________________________________ The Honorable Gregory G. Hollows Grah2291.po 21 22 23 24 25 26 27 28 4 Stipulation and [Proposed] Protective Order (2:07-cv-2291 LKK GGH P)

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