Buffkin v. Fisk

Filing 17

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Edmund F. Brennan on 10/6/15. (Dillon, M)

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KAMALA D. HARRIS, State Bar No. 146672
Attorney General of California
MONICA N. ANDERSON, State Bar No. 182970
Supervising Deputy Attorney General
R. LAWRENCE BRAGG, State Bar No. 119194
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 Defendant Fisk

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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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JOSEPH BUFFKIN,

2:15-cv-0802-MCE-EFB P

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Plaintiff, [PROPOSED] STIPULATED
PROTECTIVE ORDER

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v.
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Judge:

The Honorable Edmund F.
Brennan
Trial Date:
October 3, 2016
Action Filed: April 14, 2015

J. FISK,

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Defendant.

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IT IS STIPULATED BY THE PARTIES, BY AND THROUGH THEIR
RESPECTIVE COUNSEL, AND ORDERED BY THE COURT AS FOLLOWS:

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A.

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ORDER.

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CONFIDENTIAL MATERIAL SUBJECT TO THIS PROTECTIVE

In this action Defendant Fisk, an employee of the California Department of Corrections

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and Rehabilitation (CDCR), fired a 40 mm direct impact round which struck Plaintiff in the head

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during an incident involving a fist fight between other inmates at Mule Creek State Prison

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(MCSP) on April 21, 2014. This incident and the use of force by Fisk were investigated by

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CDCR personnel who prepared confidential reports documenting the results of these

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investigations.
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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:15-cv-0802 MCE EFB P)

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CDCR also maintains a personnel file concerning Defendant Fisk.

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B.

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CDCR contends that the investigative reports are protected by the official information and

NEED FOR PROTECTION OF CONFIDENTIAL MATERIAL.

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deliberative process privileges. CDCR asserts that maintaining confidentiality of these

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investigative reports is necessary to encourage witnesses to provide candid and truthful

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statements and that the release of the information to inmates would endanger institutional safety

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by disclosing the processes and procedures used to respond to inmate violence. Disclosure also

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could inform inmates of CDCR’s investigatory techniques and could hamper future

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investigations.

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CDCR maintains that the personnel file of Defendant Fisk is protected by the official

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information privilege, the right of privacy, under Cal. Const. Art. I, § 1, Penal Code sections

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832.5, 832.7, 832.8, Government Code section 6254, Civil Code sections 1798.24 and 1798.40,

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and California Code of Regulations Title, 15 section 3400. CDCR further maintains that the

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personnel files also are protected under California Evidence Code section 1040, et. seq., including

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section 1043. In addition, CDCR asserts that the personnel file of Fisk is considered as

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confidential under Cal. Code Regs. tit. 15, § 3321, the disclosure of which to an inmate could: (1)

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endanger the safety of other inmates and staff of the CDCR, or (2) jeopardize the security of the

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institution.

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C.

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In the course of this litigation, Plaintiff Buffkin has demanded the production of the

NEED FOR A COURT ORDER.

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investigative reports prepared by CDCR personnel concerning the incident of April 21, 2014, and

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the use of force by Fisk, as well as the personnel file maintained by CDCR concerning Fisk. Since

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CDCR is not a party to this litigation, a private agreement among the parties is not sufficient to

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protect CDCR’s interests in maintaining the confidentiality of these investigative documents.

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D.

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The Court orders the following to protect the confidentiality of the confidential documents

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CONDITIONS FOR RELEASE OF CONFIDENTIAL DOCUMENTS

described above:

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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:15-cv-0802 MCE EFB P)

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1.

The provisions of this Protective Order apply to the confidential records and

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information (“confidential material”) designated by Defendant and/or CDCR as “Confidential,”

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and those confidential records and information which the Court orders Defendant and/or CDCR

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to produce following an in camera hearing. The Court-issued Protective Order applies because

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those documents contain confidential information, which if shared, could jeopardize the safety

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and security of CDCR institutions, its employees, inmates, informants and their families, the

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Defendants, or other individuals.

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2.

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The confidential material may be disclosed only to the following persons:
(a) Plaintiff Buffkin’s retained attorney(s) of record;

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(b) The attorney(s) of record for Defendant and CDCR;

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(c) Any paralegal, secretarial, or clerical personnel regularly employed by counsel

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for Buffkin, Defendant, and CDCR, who are necessary to aid counsel for Buffkin, Defendant, and

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CDCR in the litigation of this matter;

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(d) Court personnel and stenographic reporters necessarily involved in these
proceedings; and

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(e) Any outside expert or consultant retained by counsel for Buffkin, Defendant,
and/or CDCR for purposes of this action.
3.

None of the confidential material or information contained within the confidential

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material shall be shown to Buffkin, or shown to, discussed with, or disclosed in any other manner

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to any other inmate or former inmate, any parolee or former parolee, or any other person not

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indicated in paragraph 2, unless a written waiver expressly authorizing such disclosure has been

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obtained from counsel for Defendant and CDCR, who maintain possession and control over the

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original confidential material.

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4.

No person who has access to the confidential material, as set forth in paragraph 2,

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shall copy any portion of the confidential material, except as necessary to provide a copy of the

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confidential material to any other authorized individual listed in paragraph 2, or to submit copies

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to the Court under seal in connection with this matter. Any copies made for such purpose will be

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subject to this order. A copy of this order must be provided to any individual authorized to access
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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:15-cv-0802 MCE EFB P)

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the confidential material before providing that individual with access to the confidential material,

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and that individual must agree in writing to comply with this order. Counsel for the parties shall

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maintain a record of all persons to whom access to the confidential material has been

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provided. The Court and counsel for Defendant and CDCR may request a copy of such record at

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any time to determine compliance with the Court’s order.

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5.

Any exhibits or documents filed with the Court that reveal confidential material, or

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the contents of any confidential material, shall be submitted on purple or pink paper, filed under

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seal, labeled with a cover sheet bearing the case name and number and the statement: “This

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document is subject to a Protective Order issued by the Court and may not be copied or examined

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except in compliance with that Order.” Documents so labeled shall be kept by the Clerk of this

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Court under seal and shall be made available only to the Court or counsel of record for the

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parties. If any party fails to file confidential material in accordance with this paragraph, any party

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may request that the Court place the filing under seal.

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6.

The portion(s) of any transcript of a deposition of any witness testifying about

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confidential information shall be designated as confidential by the court reporter at the request of

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Defendant and/or CDCR and kept under seal subject to a further order of the Court. Information

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or material designated as confidential by Defendant and/or CDCR may be disclosed or discussed

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in open court, subject to a Motion in Limine and/or Motion for Protective Order filed by

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Defendant and/or CDCR.

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7.

At the conclusion of the proceedings in this case, including any period for appeal

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or collateral review, or upon other termination of this litigation, counsel for Buffkin shall destroy

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all confidential materials and all copies of such material in counsel’s possession or return such

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materials to counsel for Defendant.

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8.

All confidential material in this matter shall be used solely in connection with the

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litigation of this matter, or any related appellate proceeding and collateral review, and not for any

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other purpose, including any other litigation or proceeding.

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9.

Any violation of this order may result in sanctions by this Court, including

contempt, and may be punishable by state or federal law.
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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:15-cv-0802 MCE EFB P)

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10.

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a.

b.

To apply to the Court for an order removing the confidential material

designation from any documents; or

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To apply to the Court for a further protective order relating to any other

confidential documents or material, or relating to discovery in this litigation;

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The provisions of this order are without prejudice to the right of any party:

c.
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To object to a discovery request.

The provisions of this order shall remain in effect until further order of this

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Court. The Court will provide counsel for Defendant and/or CDCR an opportunity to be heard

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should the Court find modification of this order necessary.

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SO STIPULATED.
Dated: September 28, 2015

PROVENCHER & FLATT, LLP

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/S/ GAIL F. FLATT

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GAIL F. FLATT
Attorneys for Plaintiff Buffkin

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KAMALA D. HARRIS
Attorney General of California
MONICA N. ANDERSON
Supervising Deputy Attorney General

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/S/ R. LAWRENCE BRAGG

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R. LAWRENCE BRAGG
Deputy Attorney General
Attorneys for Defendant Fisk

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IT IS SO ORDERED.
Dated: October 6, 2015.

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SA2015300506
32202498_5.doc

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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:15-cv-0802 MCE EFB P)