Armstrong, et al v. Davis, et al

Filing 2638

ORDER ON MOTION OF NON-PARTIES FOR LEAVE TO INTERVENE AND TO MODIFY PROTECTIVE ORDER by Hon. Claudia Wilken granting in part and denying in part 2625 Motion to Intervene.(dtmS, COURT STAFF) (Filed on 8/16/2016)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

JOHN ARMSTRONG et al.,

5
6
7

Plaintiffs,
v.
EDMUND G. BROWN, JR. et al.,

8
9

United States District Court
For the Northern District of California

10

No. C 94-2307 CW

Defendants.

ORDER ON MOTION OF
NON-PARTIES FOR
LEAVE TO INTERVENE
AND TO MODIFY
PROTECTIVE ORDER
(Docket No. 2625)

________________________________/
The California Correctional Peace Officers Association

11

(CCPOA) moves for leave to intervene and to modify the June 6,

12

2016 Stipulated Protective Order Regarding Disclosure of

13

Defendants’ Employees’ Personnel Information and Corrective Action

14

Plans (Docket No. 2625).1

15

Defendants Edmund G. Brown, Jr. et al. filed responses, and the

16

CCPOA filed a reply.

17

GRANTS the motion for leave to intervene and GRANTS the motion to

18

modify IN PART and DENIES it IN PART.

Plaintiffs John Armstrong et al. and

Having considered the filings, the Court

19

I.

20

Plaintiffs do not appear to object to the CCPOA intervening

21

Intervention

under Federal Rule of Civil Procedure 24(b)(1)(B) for the limited

22
1

23
24
25
26
27
28

Initially, Correctional Officers 1–13 also moved for leave
to intervene. Because the officers, the CCPOA and Plaintiffs
agree that the CCPOA adequately represents the officers’ interests
regarding the protective order, the Court DENIES as moot the
motion of Correctional Officers 1–13. See CCPOA Reply at 1 n.1;
Spangler v. Pasadena City Bd. of Ed., 552 F.2d 1326, 1329 (9th
Cir. 1977) (listing as Rule 24(b) consideration “whether the
intervenors’ interests are adequately represented by other
parties”).

1

purpose of seeking to modify the June 6 protective order.

2

Plaintiffs’ Opposition at 3.

3

is unnecessary because of the June 6, 2016 protective order’s

4

scope and Defendants’ willingness to make some modifications.

5

Defendants’ Response at 4.

6

See

Defendants assert that intervention

See

“On timely motion, the court may permit anyone to intervene

7

who: . . . (B) has a claim or defense that shares with the main

8

action a common question of law or fact.”

9

24(b)(1).

Fed. R. Civ. P.

“In exercising its discretion, the court must consider

United States District Court
For the Northern District of California

10

whether the intervention will unduly delay or prejudice the

11

adjudication of the original parties’ rights.”

12

24(b)(3).

13

purpose of challenging a protective order.”

14

v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992); see also id.

15

at 473–74.

16

Fed. R. Civ. P.

“Rule 24(b) permits limited intervention for the
Beckman Indus., Inc.

The CCPOA may intervene for this limited purpose, and its

17

intervention will not “unduly delay or prejudice the adjudication

18

of the original parties’ rights.”

19

Beckman Indus., 966 F.2d at 473–75; Blum v. Merrill Lynch Pierce

20

Fenner & Smith Inc., 712 F.3d 1349, 1353–54 (9th Cir. 2013).

21

Because the CCPOA may intervene under Rule 24(b), the Court need

22

not address its alternative argument for intervention as of right

23

to modify the protective order.

Fed. R. Civ. P. 24(b); see

24

II.

25

“As a general rule, the public is permitted ‘access to

26

litigation documents and information produced during discovery.’”

27

In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d

28

417, 424 (9th Cir. 2011) (quoting Phillips v. Gen. Motors Corp.,

Modification of Protective Order

2

1

307 F.3d 1206, 1210 (9th Cir. 2002)).

2

‘[t]he court may, for good cause, issue an order to protect a

3

party or person from annoyance, embarrassment, oppression, or

4

undue burden or expense.’”

5

26(c)(1)).

6

each particular document it seeks to protect, of showing that

7

specific prejudice or harm will result if no protective order is

8

granted.”

9

1130 (9th Cir. 2003).2

“Under Rule 26, however,

Id. (quoting Fed. R. Civ. P.

“A party asserting good cause bears the burden, for

Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,
In re Roman Catholic Archbishop explained

United States District Court
For the Northern District of California

10

that deciding whether to continue a protective order involves

11

three steps or considerations: (1) “whether the party seeking

12

protection has shown particularized harm” from public disclosure,

13

(2) “whether the balance of public and private interests weighs in

14

favor” of a protective order, and (3) “whether redacting portions

15

of the discovery material will nevertheless allow disclosure.”

16

re Roman Catholic Archbishop, 661 F.3d at 425.

17

listed seven factors for balancing the public and private

18

interests at step two.

19
20
21
22

In

The Ninth Circuit

See id. at 424 & n.5.

a. Modifications to which No Party Objects
Neither Plaintiffs nor Defendants object to the following
modifications to the June 6, 2016 protective order:
(1) a provision making clear that the receiving party

23
2

24
25
26
27

“While courts generally make a finding of good cause before
issuing a protective order, a court need not do so where (as here)
the parties stipulate to such an order.” In re Roman Catholic
Archbishop, 661 F.3d at 424. In circumstances involving such a
stipulated protective order, “‘the burden of proof . . . remain[s]
with the party seeking protection.’” Id. (quoting Phillips, 307
F.3d at 1211 n.1).

28
3

1
2
3
4
5
6
7

must store documents with confidential information in a
secure manner, (2) a provision requiring the producing
party to affix a legend or Bates stamp indicating that
the documents are confidential, (3) a provision
accounting for disclosure to outside experts, (4) a
deadline by which documents must be destroyed, and
(5) notice procedures in the event of subpoena.
Plaintiffs’ Opposition at 2 n.2; see Defendants’ Response at 4–5.
Accordingly, to the extent the CCPOA seeks an order incorporating
these modifications, such request is GRANTED.
b. Replacement of Employee Names with Unique Identifiers

8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19

The CCPOA argues that Defendants will produce material that
is protected under federal law, state law and prior orders of this
Court, including material from internal investigations that did
not result in a finding of misconduct, risking embarrassment and
reputational harm to correctional officers.

It adds that

including identifying information about employees is unnecessary
for Plaintiffs to identify potential Armstrong violations.
The Court agrees with Plaintiffs and Defendants that a
protective order with the modifications to which the parties agree
suffices to address the CCPOA’s privacy-related concerns.

See

Soto v. City of Concord, 162 F.R.D. 603, 617 (N.D. Cal. 1995).3

20
21
22
23
24
25
26
27

3

To the extent the CCPOA seeks application of the federal
official information privilege, the CCPOA has not followed the
Kelly protocol or explained how the CCPOA or individual
correctional officers could assert the official information
privilege on behalf of the Department of Corrections and
Rehabilitation. See Kelly v. City of San Jose, 114 F.R.D. 653,
669–70 (N.D. Cal. 1987). Even assuming the CCPOA could and did do
so, it has not described “how disclosure subject to a carefully
crafted protective order would create a substantial risk of harm
to significant governmental or privacy interests, . . . .” Haddix
v. Burris, 2014 WL 6983287, at *3 (N.D. Cal.) (citing Kelly, 114
F.R.D. at 670).

28
4

1

Plaintiffs have no interest in correctional officers’ names;

2

rather, they need some consistent way of identifying them for

3

Armstrong accountability purposes.

4

protective order would limit production to the Court (and its

5

expert and staff) and the attorneys (and their experts and staffs)

6

for use in this litigation, the protective order protects against

7

improper use of the information or its improper dissemination in

8

the prison system.

9

Still, because the modified

Defendants argue that replacing correctional officer names

United States District Court
For the Northern District of California

10

with unique identifiers in addition to other protective order

11

provisions would be unnecessary and bring significant costs.

12

Defendants explain that they would need the assistance of a third

13

party vendor to complete this process.

14

producing material that includes handwriting and audio files,

15

increasing the time needed for redaction.

16

Cotulla ¶¶ 5–6.4

17

would require an additional 200 hours and between $10,137 and

18

$12,340.5

They add that they are

Declaration of Sean

Defendants initially estimated that this process

19
20
21
22
23
24
25
26
27

4

For audio files, Defendants would need to redact names in
audio recordings and replace them with unique identifiers or
transcribe audio and complete the redaction and replacement in the
transcripts. See Declaration of Sean Cotulla ¶¶ 5–7.
5

The CCPOA asserts that these costs are minimal in
comparison with CDCR’s overall budget, but that assertion does not
address the cost of redaction when considered against the minimal
benefit to correctional officers, as discussed above. Also, to
the extent the CCPOA compares delays in completing this task with
the duration of this litigation, it does not address the goal of
providing information to Plaintiffs in a timely and efficient
manner.

28
5

1

In sum, the CCPOA has not shown good cause to require

2

Defendants to replace correctional officer names with unique

3

identifiers in addition to the provisions of the protective order

4

to which Plaintiffs and Defendants agree.

5

This conclusion is not affected by the Court’s prior orders
regarding different protective orders.

7

ordered Defendants to replace employee names with unique

8

identifiers when producing to Plaintiffs a spreadsheet tracking

9

certain types of allegations against staff, written reports of

10
United States District Court
For the Northern District of California

6

investigations of employee non-compliance or determinations of

11

whether to initiate disciplinary proceedings against employees.

12

See Docket No. 2180, August 2012 Order at 21–22.

13

ordered the parties to negotiate a protective order to protect

14

Defendants’ employees’ rights.

15

Court permitted the California Office of the Inspector General to

16

redact employee names and replace them with unique identifiers.

17

See Docket No. 2624, June 22, 2016 Order.

18

agencies did not explain that they were producing audio and

19

handwritten materials and the costs of replacing names with unique

20

identifiers.

21

the use of unique identifiers in place of employee names.

22

Defendants’ new arguments about the costs of such a process for

23

the material it seeks to produce under the June 6, 2016 protective

24

order persuade the Court.

25
26
27
28

Previously, the Court

See id. at 24.

The Court also

Recently, the

In those instances, the

The Office of the Inspector General did not oppose

c. Providing Notice to Non-parties of Production and
Copies of Documents Produced
The CCPOA seeks to include a paragraph from this Court’s
model protective order for litigation involving highly sensitive
6

1

confidential information that would require notice to a non-party

2

and an opportunity to object or seek a protective order in the

3

event that non-party’s confidential information is to be produced

4

in this litigation.

5

reviewing every record to identify which officers are involved

6

would be highly time consuming for CDCR and would cause undue

7

delays in the document production.”

8

Plaintiffs also explain that there already is a protective order

9

in place and, through this motion, the CCPOA has objected to the

Plaintiffs argue that “as a practical matter,

Plaintiffs’ Opposition at 9.

United States District Court
For the Northern District of California

10

terms of production to Plaintiffs; no further objections by

11

individual correctional officers will be necessary.

12

however, do not object to incorporating a notice procedure if a

13

non-party’s confidential information is to be produced.

14

Defendants,

The Court will not order that the parties incorporate this

15

notice provision with the other modifications addressed above.

16

appears that Defendants already have provided some form of notice

17

to correctional officers when producing their information.

18

Declaration of Brent S. Colasurdo, Ex. A, “NOTICE OF PRODUCTION OF

19

EMPLOYEE INFORMATION” (“CDCR is providing notice that you were

20

identified as a subject in case number [redacted].

21

above-referenced documents will be produced pursuant to Judge

22

Wilken’s order.”).

23

individualized notice and opportunity to object would delay

24

discovery and duplicate the CCPOA’s motion.

25

Court declines to order that the parties incorporate this notice

26

provision in their protective order.

27
28

It

See

Therefore, the

Further, the Court agrees with Plaintiffs that

Accordingly, the

Second, the CCPOA seeks a provision that would allow
correctional officers to receive copies of any confidential
7

1

records CDCR produces in this action.6

2

however, object.

3

in this action and argue that the CCPOA seeks to use this case to

4

gain access to documents that might not otherwise be available to

5

correctional officers in ongoing investigations.

6

Defendants disagree as to whether correctional officers may access

7

certain materials upon request to Defendants.

8

at 9–10 (citing California Peace Officers’ Bill of Rights and CDCR

9

Operations Manual) with Defendants’ Response at 7–8 (citing CDCR

Defendants and Plaintiffs,

Defendants seek to keep the records confidential

The CCPOA and

Compare CCPOA Reply

United States District Court
For the Northern District of California

10

Operations Manual).

11

purposes of this motion, however.

12

producing the documents to it could prevent unauthorized

13

disclosure or protect officers’ rights in a way the protective

14

order’s other provisions do not.

15

to require that Defendants produce documents subject to this

16

protective order to the CCPOA when producing them to Plaintiffs.

17

The Court need not resolve that issue for
The CCPOA does not explain how

Accordingly, the Court declines

d. Scope of Defendants’ Production

18

The CCPOA argues that Plaintiffs and Defendants’ protective

19

order would result in Defendants producing material not relevant

20

to Armstrong and requests that the Court narrow the scope of

21

Defendants’ production.

22

The CCPOA also argues that Defendants’ production of irrelevant

See Fed. R. Civ. P. 26(b)(2)(C)(iii).

23
24
25
26
27

6

In its reply, the CCPOA alternatively indicates that it “is
amenable to a provision requiring [that] the documents be produced
to [it], under the agreed upon requirement that documents be
stamped ‘HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY’ and be made
available only to CCPOA attorneys who are signatories to the
protective order.” CCPOA Reply at 10.

28
8

1

information will put private employee information at risk of

2

accidental release.

3

The Court sees no basis to prevent Defendants from providing

4

information they agreed to provide to ensure that they are in

5

compliance with Armstrong and this Court’s prior orders.

6

III. Conclusion

7

For the reasons above, the CCPOA’s motion is GRANTED to the

8

extent the CCPOA seeks leave to intervene to modify the June 6,

9

2016 protective order, and it is GRANTED IN PART and DENIED IN

United States District Court
For the Northern District of California

10

PART to the extent it seeks a Court order modifying that

11

protective order.

12

The protective order will be modified as follows:

13

Paragraph number 13 on page 5 will be renumbered <18.> and the

14

following provisions will be added after Line 21 on page 4:

15

13.

Confidential Information must be stored and maintained

16

at a location and in a secure manner that ensures that access is

17

limited to the persons authorized under this Order.

18

electronic confidential information must be stored in password-

19

protected form.

20

14.1

Any

Except as otherwise provided in this Order, or as

21

otherwise stipulated or ordered, disclosure or discovery material

22

that qualifies for protection under this order must be clearly so

23

designated before the material is disclosed or produced.

24

Designation in conformity with this order requires:

25

(a) for information in documentary form (e.g., paper or

26

electronic documents), that the producing party affix the legend

27

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and “Armstrong v.

28

Brown (94-cv-02307-CW)” to each page that contains Confidential
9

1
2

Information.
A party or non-party that makes original documents or

3

materials available for inspection need not designate them for

4

protection until after the inspecting party has indicated which

5

material it would like copied and produced.

6

and before the designation, all of the material made available for

7

inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

8

ONLY.”

9

wants copied and produced, the producing party must determine

During the inspection

After the inspecting party has identified the documents it

United States District Court
For the Northern District of California

10

which documents, or portions thereof, qualify for protection under

11

this Order.

12

Producing Party must affix the appropriate legend to each page

13

that contains Confidential Information.

14

Then, before producing the specified documents, the

(b) for information produced in some form other than

15

documentary and for any other tangible items, that the producing

16

party affix in a prominent place on the exterior of the container

17

or containers in which the information or item is stored the

18

legend “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and “Armstrong

19

v. Brown (94-cv-02307-CW).”

20

14.2

If timely corrected, an inadvertent failure to

21

designate qualified information or items does not, standing alone,

22

waive the designating party’s right to secure protection under

23

this order for such material.

24

designation, the receiving party must make reasonable efforts to

25

assure that the material is treated in accordance with the

26

provisions of this order.

27
28

15.

Upon timely correction of a

If a party is served with a subpoena or a court order

issued in other litigation that compels disclosure of any
10

1

Confidential Information that party must:

2

(a) promptly notify in writing the designating party.

3

Such notification shall include a copy of the subpoena or court

4

order;

5

(b) promptly notify in writing the party who caused the

6

subpoena or order to issue in the other litigation that some or

7

all of the material covered by the subpoena or order is subject to

8

this protective order.

9

this stipulated protective order; and

United States District Court
For the Northern District of California

10

Such notification shall include a copy of

(c) cooperate with respect to all reasonable procedures

11

sought to be pursued by the designating party whose confidential

12

information may be affected.

13

If the designating party timely seeks a protective order, the

14

party served with the subpoena or court order shall not produce

15

any Confidential Information before a determination by the court

16

from which the subpoena or order issued, unless the party has

17

obtained the designating party’s permission.

18

party shall bear the burden and expense of seeking protection in

19

that court of its confidential material – and nothing in these

20

provisions should be construed as authorizing or encouraging a

21

receiving party in this action to disobey a lawful directive from

22

another court.

23

16.

The designating

Within 60 days after the final disposition of this

24

action, as defined in the subsequent paragraph, each receiving

25

party must return all Confidential Information to the producing

26

party or destroy such material.

27

Confidential Information” includes all copies, abstracts,

28

compilations, summaries, and any other format reproducing or

As used in this subdivision, “all

11

1

capturing any of the Confidential Information.

2

Confidential Information is returned or destroyed, the receiving

3

party must submit a written certification to the producing party

4

(and, if not the same person or entity, to the designating party)

5

by the 60-day deadline that (1) identifies (by category, where

6

appropriate) all the Confidential Information that was returned or

7

destroyed and (2) affirms that the receiving party has not

8

retained any copies, abstracts, compilations, summaries or any

9

other format reproducing or capturing any of the Confidential

Whether the

United States District Court
For the Northern District of California

10

Information.

11

to retain an archival copy of all pleadings, motion papers, trial,

12

deposition, and hearing transcripts, legal memoranda,

13

correspondence, deposition and trial exhibits, expert reports,

14

attorney work product, and consultant and expert work product,

15

even if such materials contain protected material.

16

archival copies that contain or constitute protected material

17

remain subject to this protective order as set forth below.

18

Notwithstanding this provision, counsel are entitled

Any such

Even after final disposition of this litigation, the

19

confidentiality obligations imposed by this Order shall remain in

20

effect until a designating party agrees otherwise in writing or a

21

court order otherwise directs.

22

determined by order of the Court.

Final disposition shall be

23
24
25
26
27
28
12

1

17.

Unless otherwise ordered by the Court, a party that

2

seeks to disclose to an expert any Confidential Information under

3

this protective order first must provide written notice to the

4

designating party that identifies the expert to whom that

5

disclosure would be made.

6

IT IS SO ORDERED.

7

Dated: August 16, 2016

8

CLAUDIA WILKEN
United States District Judge

9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13