Estate of Amilcar Perez Lopez et al v. Suhr et al

Filing 43

ORDER by Judge Haywood S. Gilliam, Jr. Granting 42 Stipulated PROTECTIVE ORDER. (ndrS, COURT STAFF) (Filed on 1/12/2016)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 DENNIS J. HERRERA, State Bar #139669 City Attorney CHERYL ADAMS, State Bar #164194 Chief Trial Deputy PETER J. KEITH, State Bar #206482 ELIZABETH PEDERSON, State Bar #288184 Deputy City Attorneys 1390 Market Street, 6th Floor San Francisco, California 94102-5408 Telephone: (415) 554-3908 Facsimile: (415) 554-3837 E-Mail: Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO (including SAN FRANCISCO POLICE DEPARTMENT), GREG SUHR, CRAIG TIFFE, and ERIC REBOLI ARNOLDO CASILLAS, ESQ., State Bar #158519 DENISSE O. GASTÉLUM, ESQ., State Bar #282771 CASILLAS & ASSOCIATES 3500 W. Beverly Blvd. Montebello, CA 90640 Telephone: (323) 725-0917 Fax: (323) 725-0350 Email: (Additional Counsel for Plaintiffs on following page) Attorneys for Plaintiffs ESTATE OF AMILCAR PEREZ LOPEZ, JUAN PEREZ, MARGARITA LOPEZ PEREZ 16 UNITED STATES DISTRICT COURT 17 18 19 20 21 22 23 24 25 26 27 NORTHERN DISTRICT OF CALIFORNIA ESTATE OF AMILCAR PEREZ LOPEZ, by and through successors in interest, Juan Perez and Margarita Lopez Perez; JUAN PEREZ, individually; MARGARITA LOPEZ PEREZ, individually, Case No. CV15-01846-HSG STIPULATED [PROPOSED] PROTECTIVE ORDER Plaintiffs, vs. CHIEF OF POLICE GREG SUHR; CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO POLICE DEPARTMENT; OFFICER CRAIG TIFFE (Badge No. 1312); OFFICER ERIC REBOLI (Badge No. 1651), and DOES 1 to 10, Defendants. 28 Stipulated Protective Order CASE NO. CV-15-01846 HSG 1 n:\lit\li2015\150912\01053490.doc 1 2 Additional Counsel for Plaintiffs: 3 4 5 6 7 8 9 JONATHAN D. MELROD, ESQ., State Bar #136441 1313 Scheibel Lane Sebastopol, CA 954 72 Telephone: (415) 806-0154 Email: WILLIAM M. SIMPICH, JR., ESQ., State Bar #106672 1736 Franklin Street, 10th Floor Oakland, CA 94612 Telephone: (510) 444-0226 Email: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulated Protective Order CASE NO. CV-15-01846 HSG 2 n:\lit\li2015\150912\01053490.doc 1 2 The parties, by and through their respective attorneys of record, hereby stipulate to the following protective order being issued in this matter: 3 1. PURPOSES AND LIMITATIONS 4 Disclosure and discovery activity in this action are likely to involve production of confidential 5 or private information for which special protection from public disclosure and from use for any 6 purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby 7 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 8 acknowledge that this Order does not confer blanket protections on all disclosures or responses to 9 discovery and that the protection it affords extends only to the limited information or items that are 10 entitled under the applicable legal principles to treatment as confidential. The parties further 11 acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates no 12 entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures 13 that must be followed and reflects the standards that will be applied when a party seeks permission 14 from the court to file material under seal. 15 2. DEFINITIONS 16 2.1 Party: any party to this action, including all of its officers, directors, employees, 17 18 consultants, retained experts, and outside counsel (and their support staff). 2.2 Disclosure or Discovery Material: all items or information, regardless of the medium or 19 manner generated, stored or maintained (including, among other things, testimony, transcripts, or 20 tangible things) that are produced or generated in disclosures or responses to discovery by any Party in 21 this matter. 22 2.3 “Confidential” Information or Items: information (regardless of how generated, stored 23 or maintained) or tangible things that qualify for protection under standards developed under Federal 24 Rule of Civil Procedure 26(c). This material may include, but is not limited to, medical records of the 25 parties, personnel information of San Francisco Police Department (hereinafter “SFPD”) employees, 26 materials involving other incidents contained in the personnel files of SFPD employees, and 27 photographs of a graphic nature marked "CONFIDENTIAL.” 28 Stipulated Protective Order CASE NO. CV-15-01846 HSG 3 n:\lit\li2015\150912\01053490.doc 1 2.4 2 Producing Party. 3 2.5 4 5 6 7 8 9 10 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 2.6 Designating Party: a Party or non-party that designates information or items that it produces in disclosures or in responses to discovery as “Confidential.” 2.7 Protected Material: any Disclosure or Discovery Material that is designated as “Confidential.” 2.8 Outside Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action. 11 2.9 House Counsel: attorneys who are employees of a Party. 12 2.10 Counsel (without qualifier): Outside Counsel and House Counsel (as well as their 13 support staffs). 14 2.11 Expert: a person with specialized knowledge or experience in a matter pertinent to the 15 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 16 consultant in this action and who is not a past or a current employee of a Party or of a competitor of a 17 Party’s and who, at the time of retention, is not anticipated to become an employee of a Party or a 18 competitor of a Party’s. 19 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., 20 photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, 21 retrieving data in any form or medium; etc.) and their employees and subcontractors. 22 3. SCOPE. The protections conferred by this Stipulation and Order cover not only 23 Protected Material (as defined above), but also any information copied or extracted therefrom, as well 24 as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or 25 presentations by parties or counsel to or in court or in other settings that might reveal Protected 26 Material. 27 28 Stipulated Protective Order CASE NO. CV-15-01846 HSG 4 n:\lit\li2015\150912\01053490.doc 1 4. DURATION. Even after the termination of this litigation, the confidentiality 2 obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in 3 writing or a court order otherwise directs. 4 5. DESIGNATING PROTECTED MATERIAL 5 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 6 non-party that designates information or items for protection under this Order must take care to limit 7 any such designation to specific material that qualifies under the appropriate standards. A Designating 8 Party must take care to designate for protection only those parts of material, documents, items, or oral 9 or written communications that qualify – so that other portions of the material, documents, items or 10 communications for which protection is not warranted are not swept unjustifiably within the ambit of 11 this Order. Mass, indiscriminate, or routine designations are prohibited. Designations that are shown 12 to be clearly unjustified, or that have been made for an improper purpose (e.g., to unnecessarily 13 encumber or retard the case development process, or to impose unnecessary expenses and burdens on 14 other parties), expose the Designating Party to sanctions. If it comes to a Party’s or a non-party’s 15 attention that information or items that it designated for protection do not qualify for protection at all, 16 that Party or non-party must promptly notify all other parties that it is withdrawing the mistaken 17 designation. 18 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 19 e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, material that 20 qualifies for protection under this Order must be clearly so designated before the material is disclosed 21 or produced. Designation in conformity with this Order requires: 22 (a) for information in documentary form (apart from transcripts of depositions or 23 other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” at the 24 top of each page that contains protected material and/or the first page of stapled/clipped materials if it 25 is a group of related documents. If only a portion or portions of the material on a page qualifies for 26 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 27 appropriate markings in the margins) and must specify, for each portion that it is “CONFIDENTIAL.” 28 A Party or non-party that makes original documents or materials available for inspection need not Stipulated Protective Order CASE NO. CV-15-01846 HSG 5 n:\lit\li2015\150912\01053490.doc 1 designate them for protection until after the inspecting Party has indicated which material it would like 2 copied and produced. After the inspecting Party has identified the documents it wants copied and 3 produced, the Producing Party must determine which documents, or portions thereof, qualify for 4 protection under this Order, then, before producing the specified documents, the Producing Party must 5 affix the designation “CONFIDENTIAL” on each page that contains Protected Material. If only a 6 portion or portions of the material on a page qualifies for protection, the Producing Party must clearly 7 identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must 8 specify that the material is “CONFIDENTIAL.” (b) 9 for testimony given in deposition or in other pretrial or trial proceedings, that 10 the Party or non-party offering or sponsoring the testimony identify on the record, before the close of 11 the deposition, hearing, or other proceeding, all protected testimony, and further specify any portions 12 of the testimony that qualify as “CONFIDENTIAL.” When it is impractical to identify separately each 13 portion of testimony that is entitled to protection, and when it appears that substantial portions of the 14 testimony may qualify for protection, the Party or non-party that sponsors, offers, or gives the 15 testimony may invoke on the record (before the deposition or proceeding is concluded) a right to have 16 up to twenty (20) days to identify the specific portions of the testimony as “CONFIDENTIAL.” Only 17 those portions of the testimony that are appropriately designated for protection within the 20 days shall 18 be covered by the provisions of this Stipulated Protective Order. Transcript pages containing Protected 19 Material must be separately bound by the court reporter, who must affix to the top of each such page 20 the legend “CONFIDENTIAL,” as instructed by the Party or non-party offering or sponsoring the 21 witness or presenting the testimony. (c) 22 for information produced in some form other than documentary, and for any 23 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 24 container or containers in which the information or item is stored the legend “CONFIDENTIAL.” If 25 only portions of the information or item warrant protection, the Producing Party, to the extent 26 practicable, shall identify the protected portions, specifying the material as “CONFIDENTIAL.” 27 28 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items as “CONFIDENTIAL” does not, standing alone, waive the Stipulated Protective Order CASE NO. CV-15-01846 HSG 6 n:\lit\li2015\150912\01053490.doc 1 Designating Party’s right to secure protection under this Order for such material. If material is 2 appropriately designated as “CONFIDENTIAL” after the material was initially produced, the 3 Receiving Party, on timely notification of the designation, must make reasonable efforts to assure that 4 the material is treated in accordance with this Order. 5 5.4 Privilege Logs. If a party withholds information that is responsive to a discovery 6 request by claiming that it is privileged or otherwise protected from discovery, that party shall 7 promptly prepare and provide a privilege log that is sufficiently detailed and informative for the 8 opposing party to assess whether a document’s designation as privileged is justified. See Fed.R.Civ.P. 9 26(b)(5). Communications among counsel or between counsel and client or client employees that 10 post-date the filing of the complaint, or that are protected under Rule 26(b)(4), need not be placed on a 11 privilege log. The privilege log shall set forth the privilege relied upon and specify separately for each 12 document or for each category of similarly situated documents: 13 (a) the title and description of the document; 14 (b) the subject matter addressed in the document; 15 (c) the identity and position of its author(s); 16 (d) for a document claimed to be privileged or protected as a communication, the identity and 17 18 position of the primary addressees and recipients; (e) the date the document was prepared; and for a document claimed to be privileged or 19 protected as a communication, the date on which it was sent to or shared with persons other than its 20 author(s), if different from the date the document was prepared. 21 (f) the specific basis for the claim that the document is privileged and protected. 22 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party’s 24 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 25 economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive its 26 right to challenge a confidentiality designation by electing not to mount a challenge promptly after the 27 original designation is disclosed. 28 Stipulated Protective Order CASE NO. CV-15-01846 HSG 7 n:\lit\li2015\150912\01053490.doc 1 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating Party’s 2 confidentiality designation must do so in good faith and must begin the process by conferring directly 3 either in person or by telephone, and may not meet and confer by letter, e-mail or fax, with counsel for 4 the Designating Party. In conferring, the challenging Party must explain the basis for its belief that the 5 confidentiality designation was not proper and must give the Designating Party an opportunity to 6 review the designated material, to reconsider the circumstances, and, if no change in designation is 7 offered, to explain the basis for the chosen designation. A challenging Party may proceed to the next 8 stage of the challenge process only if it has engaged in this meet and confer process first. 9 6.3 Judicial Intervention. If disagreements remain regarding a designation, the parties shall 10 follow the procedures in the Court’s standing order for resolving discovery disputes. Those 11 procedures are now at paragraphs 12 and 13 of the Court’s Civil Standing Order (rev. 2/6/15). The 12 burden of persuasion in any such challenge proceeding shall be on the Designating Party. Until the 13 Court rules on the challenge, all parties shall continue to treat the material in question as 14 “CONFIDENTIAL.” 15 7. ACCESS TO AND USE OF PROTECTED MATERIAL 16 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 17 produced by another Party or by a non-party in connection with this case only for prosecuting, 18 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the 19 categories of persons and under the conditions described in this Order. When the litigation has been 20 terminated, a Receiving Party must comply with the provisions of section 11, below (FINAL 21 DISPOSITION). 22 23 24 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 25 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 26 information or item designated CONFIDENTIAL only to: 27 28 (a) the Receiving Party’s counsel of record in this action, as well as employees of said Counsel to whom it is reasonably necessary to disclose the information for this litigation; Stipulated Protective Order CASE NO. CV-15-01846 HSG 8 n:\lit\li2015\150912\01053490.doc (b) 1 2 Receiving Party to whom disclosure is reasonably necessary for this litigation; (c) 3 4 the officers, directors, and employees (including House Counsel) of the experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation; 5 (d) the Court and its personnel; 6 (e) court reporters, their staffs, and professional vendors to whom disclosure is 7 reasonably necessary for this litigation; (f) 8 during their depositions, witnesses in the action to whom disclosure is 9 reasonably necessary. Pages of transcribed deposition testimony or exhibits to depositions that reveal 10 Protected Material must be separately bound by the court reporter and may not be disclosed to anyone 11 except as permitted under this Stipulated Protective Order. (g) 12 13 8. the author of the document or the original source of the information. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 14 LITIGATION. If a Receiving Party is served with a subpoena or an order issued in other litigation 15 that would compel disclosure of any information or items designated in this action as 16 “CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in writing (by fax 17 and/or e-mail) immediately and in no event more than three court days after receiving the subpoena or 18 order. Such notification must include a copy of the subpoena or court order. The Receiving Party also 19 must immediately inform in writing the Party who caused the subpoena or order to issue in the other 20 litigation that some or all of the material covered by the subpoena or order is the subject of this 21 Protective Order. In addition, the Receiving Party must deliver a copy of this Stipulated Protective 22 Order promptly to the Party in the other action that caused the subpoena or order to issue. The purpose 23 of imposing these duties is to alert the interested parties to the existence of this Protective Order and to 24 afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in 25 the court from which the subpoena or order issued. The Designating Party shall bear the burdens and 26 the expenses of seeking protection in that court of its confidential material – and nothing in these 27 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 28 disobey a lawful directive from another court. Stipulated Protective Order CASE NO. CV-15-01846 HSG 9 n:\lit\li2015\150912\01053490.doc 1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 2 THIS LITIGATION. The terms of this Order are applicable to information produced by a Non-Party 3 in this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 4 connection with this litigation is protected by the remedies and relief provided by this Order. Nothing 5 in these provisions should be construed as prohibiting a Non-Party from seeking additional 6 protections. In the event that a Party is required, by a valid discovery request, to produce a Non- 7 Party’s confidential information in its possession, and the Party is subject to an agreement with the 8 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party that some or all 9 10 of the information requested is subject to a confidentiality agreement with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in 11 12 this litigation, the relevant discovery request(s), and a reasonably specific description of the 13 information requested; and (3) make the information requested available for inspection by the Non-Party. If the 14 15 Non-Party fails to object or seek a protective order from this court within 14 days of receiving the 16 notice and accompanying information, the Receiving Party may produce the Non-Party’s confidential 17 information responsive to the discovery request. If the Non-Party timely seeks a protective order, the 18 Receiving Party shall not produce any information in its possession or control that is subject to the 19 confidentiality agreement with the Non-Party before a determination by the court. Absent a court 20 order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this 21 court of its Protected Material. 22 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving 23 Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in 24 any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must 25 immediately: (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its 26 best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom 27 unauthorized disclosures were made of all the terms of this Order, and (d) request such person or 28 persons to be bound by the Stipulated Protective Order. Stipulated Protective Order CASE NO. CV-15-01846 HSG 10 n:\lit\li2015\150912\01053490.doc 1 11. FILING PROTECTED MATERIAL. Without written permission from the Designating 2 Party or a court order secured after appropriate notice to all interested persons, a Party may not file in 3 the public record in this action any Protected Material. A Party that seeks to file under seal any 4 Protected Material must comply with Civil Local Rule 79-5. 5 12. USE OF PROTECTED MATERIAL AT TRIAL. In the event the Receiving Party 6 desires to exhibit documents or disclose Protected Material at trial, the Receiving Party shall provide 7 notice to the Designating Party of its intent to do so by following the Court’s procedures for meeting 8 and conferring and providing notice concerning evidence the parties intend to use at trial; except that 9 the meet and confer and notice requirements shall apply to all Protected Material intended to be used 10 at trial, even if it is offered solely for impeachment or rebuttal. Any remaining disputes regarding 11 exhibiting or disclosure of Protected Material at trial should be resolved by following the Court’s 12 procedures for motions in limine. The Court’s pretrial procedures are currently contained in in the 13 Court’s Civil Pretrial and Trial Standing Order (rev. 2/19/15). 14 13. FINAL DISPOSITION. Unless otherwise ordered or agreed in writing by the 15 Producing Party, within sixty (60) days after the final termination of this action, defined as the 16 dismissal or entry of judgment by the district court, or if an appeal is filed, the disposition of the 17 appeal, each Receiving Party must return all Protected Material to the Producing Party. As used in this 18 subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries or any 19 other form of reproducing or capturing any of the Protected Material. With permission in writing from 20 the Designating Party, the Receiving Party may destroy some or all of the Protected Material instead 21 of returning it. Whether the Protected Material is returned or destroyed, the Receiving Party must 22 submit a written certification to the Producing Party (and, if not the same person or entity, to the 23 Designating Party) by the sixty day deadline that identifies (by category, where appropriate) all the 24 Protected Material that was returned or destroyed and that affirms that the Receiving Party has not 25 retained any copies, abstracts, compilations, summaries or other forms of reproducing or capturing any 26 of the Protected material. Notwithstanding this provision, Counsel are entitled to retain an archival 27 copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work 28 product, even if such materials contain Protected Material. Any such archival copies that contain or Stipulated Protective Order CASE NO. CV-15-01846 HSG 11 n:\lit\li2015\150912\01053490.doc 1 constitute Protected Material remain subject to this Protective Order as set forth in Section 4 2 (DURATION), above. 3 14. MISCELLANEOUS 4 14.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 5 6 its modification by the Court in the future. 14.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 7 Party waives any right it otherwise would have to object to disclosing or producing any information or 8 item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any 9 right to object on any ground to use in evidence any of the material covered by this Protective Order. 10 11 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. Dated: January 11, 2016 12 DENNIS J. HERRERA City Attorney CHERYL ADAMS Chief Trial Deputy PETER J. KEITH Deputy City Attorney 13 14 15 By:/s/ Peter J. Keith PETER J. KEITH 16 17 Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO (including SAN FRANCISCO POLICE DEPARTMENT), GREG SUHR, CRAIG TIFFE, and ERIC REBOLI 18 19 20 Dated: January 11, 2016 21 CASILLAS & ASSOCIATES 22 By: /s/ Denisse O. Gastélum ARNOLDO CASILLAS, ESQ. DENISSE O. GASTÉLUM, ESQ. 23 24 Attorneys for Plaintiffs 25 ESTATE OF AMILCAR PEREZ LOPEZ, by and through successors in interest, Juan Perez and Margarita Lopez Perez; JUAN PEREZ, individually; MARGARITA LOPEZ PEREZ, individually 26 27 28 Stipulated Protective Order CASE NO. CV-15-01846 HSG 12 n:\lit\li2015\150912\01053490.doc ORDER 1 GOOD CAUSE APPEARING AND PURSUANT TO STIPULATION, 2 IT IS SO ORDERED. 3 4 Dated: _________________ 1/12/2016 5 ___________________________________________ THE HONORABLE HAYWOOD S. GILLIAM JR. UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulated Protective Order CASE NO. CV-15-01846 HSG 13 n:\lit\li2015\150912\01053490.doc

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