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)

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:
[phone]
Facsimile:
[phone]
E-Mail:
[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: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
(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: [phone]
Email: [e-mail]
WILLIAM M. SIMPICH, JR., ESQ., State Bar #106672
1736 Franklin Street, 10th Floor
Oakland, CA 94612
Telephone: [phone]
Email: [e-mail]

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