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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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: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants
Kopec and Martin

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SACRAMENTO DIVISION
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LEVON GRAHAM,

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2:07-cv-2291 LKK GGH P
Plaintiff, STIPULATION AND PROTECTIVE
ORDER

v.

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D. L. RUNNELS, ET AL.,
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Defendants.
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The Parties Stipulate as Follows:

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A. Confidential material subject to this Protective Order.

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In response to Plaintiff’s document requests 5, 8, 21, 24, 25, and 23, Defendants produced a

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document titled “High Desert State Prison Institutional Head Use of Force Critique and

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Qualitative Evaluation Analysis Final Review” (“the Confidential Material”). The California

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Department of Corrections and Rehabilitation (“CDCR”) deems this document confidential and

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does not permit individuals who are incarcerated, as the Plaintiff, to retain a copy of the

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Confidential Material based on institutional safety and security grounds. Thus, it was produced

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for his inspection only. Plaintiff has since obtained counsel. The Parties stipulate that the

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Stipulation and [Proposed] Protective Order (2:07-cv-2291 LKK GGH P)

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Confidential Material shall be disclosed to Plaintiff’s counsel, subject to the following protective

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order.

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Defendants represent that:
1. The Confidential Material was prepared on the basis of, among other things,

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statements correctional officers made with the understanding that the information would remain

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confidential;

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2. The disclosure of the document without a protective order would undermine

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CDCR’s ability to assure its employees and inmate that their statements will be maintained in

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confidence;

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3. The likely result of unprotected disclosure would be that CDCR employees and

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inmates, whether subjects of investigations or witnesses to incidents being investigated, will be

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unwilling or less willing to cooperate with investigators; and

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4. The Confidential Material is protected by the Deliberative Process Privilege as it

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contains pre-decisional, deliberative information prepared to assist the agency decision-maker in

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evaluating the force used.

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Accordingly, Defendants believe a protective order is warranted. Based upon these

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representations, but in no way admitting their truth, Plaintiff Graham is willing to stipulate to a

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protective order.

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B. Conditions for release of confidential material.

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Because of its relevance to this action, counsel for Defendants will produce the Confidential

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Material, subject to this protective order, on the following conditions:

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1. Before producing the Confidential Material to Plaintiff, Defendants shall

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conspicuously mark the Confidential Material: “CONFIDENTIAL –

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SUBJECT TO PROTECTIVE ORDER.”

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2. The Confidential Material may be disclosed only to the following persons:
a. Plaintiff Levon Graham, provided that Plaintiff may not retain

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possession of any of the Confidential Material, and shall be informed

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and agree to be bound by the terms of this order;
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Stipulation and [Proposed] Protective Order (2:07-cv-2291 LKK GGH P)

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b.

Plaintiff’s attorneys;

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c.

Experts engaged in connection with this litigation;

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d.

Defendants Martin and Kopec, and their attorneys; and

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e.

Court personnel and stenographic reporters engaged in proceedings

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incidental to the preparation for the trial in this action;

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3. The Confidential Material shall not be disclosed to any incarcerated

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individual, other than Plaintiff Graham, whether or not a witness in this

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action, for any reason.

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4. The Confidential Material shall not be disclosed except as is necessary in

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connection with this litigation, including appeals, and not for any other

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purpose, including any other litigation.

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5. To the extent the Confidential Material is filed with the Court, it will be filed

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and maintained under seal.

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6. Upon request from Defendants, Plaintiff and his counsel shall destroy all

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copies of the Confidential Material—or return them to the attorney for

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Defendants Martin and Kopec within 5 days of the time it is no longer

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needed for purposes of this litigation.

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Nothing in this protective order is intended to prevent officials or employees of the State of

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California, or other authorized government officials, from having access to the Confidential

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Material in the normal course of their official duties.

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The provisions of this protective order are without prejudice to the right of any party: (1)

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to apply to the Court for a further protective order relating to the Confidential Material or any

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other confidential material relating to discovery in this litigation; (2) to apply to the Court for an

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///

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///

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Stipulation and [Proposed] Protective Order (2:07-cv-2291 LKK GGH P)

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order removing the Confidential Material designation as “CONFIDENTIAL – SUBJECT TO

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PROTECTIVE ORDER”; (3) to object to a discovery request.

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The provisions of this order shall remain in full force and effect until further order of this
Court.
So stipulated.

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/s/ Brian Berry
Brian Berry, Counsel for Plaintiff

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/s/ Jaime Ganson
Jaime Ganson, Counsel for Defendants
Martin and Kopec

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The confidential material will not be automatically filed under seal, notwithstanding the

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previous stipulation herein to do so. Filings under seal may only be done pursuant to the Local

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Rules and pursuant to the applicable substantive standards for filing under seal..

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So Ordered.

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Dated: May 9, 2011

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/s/ Gregory G. Hollows
__________________________________
The Honorable Gregory G. Hollows

Grah2291.po

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Stipulation and [Proposed] Protective Order (2:07-cv-2291 LKK GGH P)