Cathey v. City of Vallejo, et al.

Filing 62

PROTECTIVE ORDER signed by Magistrate Judge Allison Claire on 12/4/2015. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DESHAWN CATHEY,

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No. 2:14-cv-01749-JAM-AC

Plaintiff,
v.

ORDER

CITY OF VALLEJO, et al.,
Defendants.

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This matter is before the undersigned pursuant to Local Rule 302(c)(21). Currently before
the court is defendants’ proposed protective order.

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On August 26, 2015, the court held a hearing on motions to compel by both parties, along

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with plaintiff’s self-styled motion to include Frederick “Marc” Cooley in a protective order. ECF

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No. 41. At that hearing, the court explained that it could not grant plaintiff’s protective order

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motion because a protective order was not yet in place. Nevertheless, in light of the sensitive

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discoverable information in this matter, the court agreed that a protective order was warranted.

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Accordingly, in the court’s September 29, 2015, order disposing of the parties’ motions it

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instructed defendants to file a proposed protective order within thirty days. ECF No. 46. The

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court also instructed plaintiff to file his objections, if any, within fourteen days of the filing of the

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proposed protective order. Id. Once that protective order is in place defendants will have thirty

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days to respond to plaintiff’s discovery requests. Id.
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On October 28, 2015, defendants filed a proposed protective order and on November 10,

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2015, plaintiff filed his objections. ECF Nos. 48, 49. Plaintiff objects to the proposed protective

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order on a number of grounds. First, plaintiff argues that defendants have not made a showing

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that a protective order is required. As plaintiff correctly points out, the moving party bears the

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burden to show good cause for issuance of a protective order. Phillips ex rel. Estates of Byrd v.

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Gen. Motors Corp., 307 F.3d 1206, 1211 n.1 (9th Cir. 2002). However, plaintiff ignores the

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court’s August 26, 2015 hearing and the instructions that followed, which explicitly included

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findings that a protective order was appropriate. ECF No. 46 at 11 (“[S]ome of the above

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information is sensitive and private, and accordingly should not be disclosed in the absence of a

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protective order.”). Even if the court had not already made such a finding, it is well-settled that

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official police department records should be subject to a protective order to protect the privacy of

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the officers involved and prevent undue annoyance and embarrassment to the police department.

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See, e.g., Macias v. City of Clovis, No. 1:13-CV-01819-BAM, 2015 U.S. Dist. LEXIS 156106, at

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*17 (E.D. Cal. Nov. 18, 2015) (M.J. McAuliffe) (noting that courts routinely endorse the use of

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protective orders to prevent the disclosure of sensitive information in § 1983 actions based on

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allegations of excessive force).

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Plaintiff also argues that the proposed protective order should allow him to share

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documents with Mr. Cooley, who has assisted him in the filing of his complaint and the ensuing

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litigation. Defendants, on the other hand, argued both at the court’s August 26, 2015, hearing and

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in their papers that any protective order should not allow plaintiff to share protected documents

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with Mr. Cooley because Mr. Cooley cannot be trusted to keep these documents confidential. Mr.

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Cooley assists a number of other pro se plaintiffs in cases against the City of Vallejo, and

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defendants contend that he is likely to share whatever documents he receives with those plaintiffs.

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In light of plaintiff’s pro se status, the court finds it is appropriate to allow Mr. Cooley

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access to documents produced subject to the protective order. While Mr. Cooley’s involvement

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in other cases may create a risk of unauthorized disclosure, that risk can be managed by the

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availability of sanctions for violation of the protective order. Accordingly, the court will include

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language in the protective order allowing plaintiff to designate one person with whom he can
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share confidential documents, as long as that person agrees to be bound by the protective order

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and subject to this court’s jurisdiction for purposes of enforcement of that order. Both plaintiff

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and Mr. Cooley are advised that if Mr. Cooley were to share confidential documents with even a

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single plaintiff in another case, both he and Mr. Cathey could be subject to monetary sanctions.

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Any violation of the protective order by Mr. Cooley could also result in him being precluded from

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further involvement in this and potentially other cases before this court. The court finds the

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availability of the foregoing sanctions sufficient at this time to ensure the confidentiality of

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protected documents.

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Finally, plaintiff argues that he should not be required to seek the sealing of documents he

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wishes to file with the court which have been deemed confidential pursuant to the protective

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order. The court agrees. Defendants’ proposed protective order includes a provision requiring

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plaintiff to move to seal any protected document that he wishes to file with this court. As plaintiff

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points out, it is not appropriate to require him to move for the sealing of documents that he does

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not believe should be under seal. Accordingly, the court will adopt a provision similar to that

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ordered in Cooley v. Vallejo, 2:12-cv-00591 LKK AC, at ECF No. 54, requiring that any party

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wishing to file confidential discovery documents provide advance notice to all parties. Any party

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wishing the material to be filed under seal can then make the appropriate request.

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For the reasons stated above, and good cause appearing, the court adopts a modified
version of the defendants’ proposed protective order, as follows:
1. In order to protect the confidentiality of the records described below, the following

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discovery materials are to be disclosed pursuant to protective order and designated as

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“Confidential Material”:

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Vallejo Police Department Internal Affairs records regarding complaints of non-

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lethal excessive force, including conduct alleged to have occurred while an

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arrestee was in police custody, investigation thereof and official resolution from

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March 2005 through March 2015.

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2. Confidential Material may not be disclosed except as set forth in paragraphs 3–7.

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3. Prior to the release of Confidential Material, defendants shall redact any birth dates,
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Social Security numbers, driver’s license numbers and home addresses.

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4. Confidential Material may be disclosed only to the following persons:

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a. Counsel for any party to this action;

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b. Paralegal, stenographic, clerical and secretarial personnel regularly employed

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by counsel referred to in 4(a);

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c. One designee of the pro se plaintiff, if plaintiff deems the disclosure necessary

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to aid plaintiff’s prosecution of the case. No Confidential Material shall be

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disclosed to this designee unless and until (1) the designee completes the

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND that is attached

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to this Protective Order as EXHIBIT A; AND plaintiff files a copy of the

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completed ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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with the Court;

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d. Court personnel including stenographic reporters engaged in such proceedings
as are necessarily incidental to preparation for the trial of this action;
e. Any outside expert or consultant retained in connection with this action and not
otherwise employed by either party;

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f. Any “in house” expert designated by Defendant to testify at trial in this matter;

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g. Witnesses, other than the Plaintiff herein, who may have the documents

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disclosed to them during deposition proceedings; the witnesses may not leave

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the depositions with copies of the documents, and shall be bound by the

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provisions of paragraph 5;

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h. Any neutral evaluator or other designated ADR provider;

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i. Parties to this action; and

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j. The jury, should this matter go to trial.

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5. Each person to whom disclosure is made, with the exception of counsel who are

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presumed to know of the contents of this protective order, shall, prior to disclosure:

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(1) be provided with a copy of this order by the person furnishing him/her such

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material, and (2) agree on the record or in writing that she/he has read the protective
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order and that she/he understand the provisions of the protective order. Such person

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must also consent to be subject to the jurisdiction of the United States District Court,

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Eastern District, with respect to any proceeding relating to the enforcement of this

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order. Defendants City of Vallejo and the named Defendants herein shall be entitled

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to retain possession of the original writings described above. Nothing in this

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paragraph is intended to prevent officials or employees of the City of Vallejo or other

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authorized government officials or any other persons from having access to the

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documents if they would have had access in the normal course of their job duties or

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rights as a citizen. Further, nothing in this order prevents a witness from disclosing

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events or activities personal to them, i.e., a witness can disclose to others previous

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information given to the City of Vallejo with respect to what she/he saw, heard, or

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otherwise sensed.

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6. Confidential Material disclosed may be used in the litigation of this action only, and
not for any other purpose.

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7. At the conclusion of the trial and of any appeal or upon other termination of this

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litigation, all Confidential Material received under the provision of this order

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(including any copies made) shall be delivered back to the City of Vallejo. Provisions

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of this order insofar as they restrict disclosure and use of the material shall be in effect

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until all Confidential Material (including all copies thereof) are returned to

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Defendants.

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8. Should a party intend to file Confidential Material with the court, as an exhibit to a

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pleading or otherwise, that party must first notify all other parties (defendants through

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their attorneys or plaintiff pro se), no less than fourteen days before the intended filing

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date, giving any such party reasonable notice and an opportunity to apply to the court

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for an order to file the material under seal.

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9. No document shall be filed under seal unless a party secures a court order allowing the

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filing of a document under seal in accordance with the provisions of E.D. Local Rule

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141.
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10. Nothing in this order shall preclude a party from showing or disclosing any

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documents, e.g., deposition transcript, pleading or brief, which otherwise contain

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Confidential Material as defined in paragraph 1, as long as such document has been

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redacted so as to prevent disclosure of such Confidential Material.

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11. The foregoing is without prejudice to the right of any party (a) to apply to the Court

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for a further protective order relating to any Confidential Material or relating to

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discovery in this litigation; (b) to apply to the Court for an order removing the

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Confidential Material designation from any document; and (c) to apply to the Court

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for an order compelling production of documents or modification of this order or for

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any order permitting disclosure of Confidential Materials beyond the terms of this

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order.

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12. Upon receipt of this Protective Order and disclosure of the Confidential Material it

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will be presumed that plaintiff knows of the contents of this Protective Order,

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understands the provisions of this Protective Order and consents to be subject to the

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jurisdiction of the United States District Court, Eastern District, with respect to any

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proceeding relating to the enforcement of this Protective Order.

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13. Violation of the terms of this Protective Order may subject a party, or any non-party

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to whom disclosure is made pursuant to this protective order, to any and all

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permissible sanctions, including dismissal.

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IT IS SO ORDERED.
DATED: December 4, 2015

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Protective Order that was issued by the United States District Court for the Eastern

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District of California on ___________________ [date] in the case of Deshawn Cathey v. City of

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Vallejo, et al., No. 2:14-cv-01749-JAM-AC. I agree to comply with and to be bound by all the

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terms of this Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Protective Order to any

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person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Eastern District of California for the purpose of enforcing the terms of this Protective Order, even

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if such enforcement proceedings occur after termination of this action.

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Date: _________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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Signature: __________________________________

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