Floyd v. City of San Diego et al

Filing 9

ORDER Granting 8 Joint Motion for Protective Order. Signed by Magistrate Judge Allison H. Goddard on 11/18/2020. (mme)

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Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.46 Page 1 of 10 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 DEREK FLOYD, Case No.: 3:20-cv-01737-BAS-AHG Plaintiff, 13 14 v. 15 ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER CITY OF SAN DIEGO, 16 [ECF No. 8] Defendant. 17 18 19 20 21 22 23 24 Before the Court is the parties’ Joint Motion for Protective Order. ECF No. 8. 25 Having reviewed the motion and the parties’ proposed protective order, good cause 26 appearing, the Court GRANTS the motion. The Court enters the following Stipulated 27 Protective Order exactly as submitted by the parties: 28 1 3:20-cv-01737-BAS-AHG Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.47 Page 2 of 10 1 The parties recognize that at least some of the documents, video/audio recordings 2 and information (“materials”) being sought through discovery in the above-captioned 3 action may, for public safety and privacy reasons, be kept confidential by the parties. The 4 parties have agreed to be bound by the terms of this Protective Order (“Order”) in this 5 action. 6 The materials to be exchanged throughout the course of the litigation between the 7 parties may contain confidential information affecting public safety, information may be 8 deemed unduly prejudicial if not protected, as well as private information, as is 9 contemplated by Federal Rule of Civil Procedure 26(c)(1)(B). The purpose of this Order is 10 to protect the confidentiality of such materials as much as practical during the litigation. 11 THEREFORE: 12 13 DEFINITIONS 1. The term “confidential information” will mean and include information 14 contained or disclosed in any materials, including documents, portions of documents, 15 videos, audio recordings, answers to interrogatories, responses to requests for admissions, 16 trial testimony, deposition testimony, and transcripts of trial testimony and depositions, 17 including data, summaries, and compilations derived therefrom that is deemed to be 18 “CONFIDENTIAL” information by any party to which it belongs. 19 20 21 22 23 24 25 26 2. The term “counsel” will mean counsel of record, and other attorneys, paralegals, secretaries, and other support staff employed in the law firms identified below: Counsel for Plaintiff Counsel for Defendant Thomas E. Robertson, Esq. Dave E. Abad, Esq. Law Offices of Thomas E. Robertson San Diego City Attorney’s Office 501 W. Broadway, Suite 1510 1200 Third Avenue, Suite 1100 San Diego, CA 92101 San Diego, CA 92101 (619) 544-9911 (619) 533-5800 27 28 2 3:20-cv-01737-BAS-AHG Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.48 Page 3 of 10 1 IT IS HEREBY ORDERED that: 2 1. Scope of Order. This Protective Order (“Order”) shall govern the use and 3 disclosure of all designated confidential information (“Protected Information”) produced 4 by or on behalf of any Party, or furnished by any person associated with any Party, on or 5 after the date of this Order in any pleading, discovery request, discovery response, 6 document production, subpoena, or any other disclosure or discovery proceeding in this 7 Action. Any alleged Confidential Information produced in discovery shall only be used 8 for the purposes of preparing for and conducting this Action and only as provided in this 9 Order. 10 2. Confidentiality Designations. Any Party, or other person or entity producing 11 information in this Action, may designate any document, information, thing, or discovery 12 response as protected by marking it at or before the time of production or exchange with 13 the legend “CONFIDENTIAL.” If it is impracticable to mark something with such a 14 legend (e.g., information contained on a computer hard drive), the designation may be 15 made in writing. All “CONFIDENTIAL” designations must be based on the good faith 16 belief that the information constitutes (a) Confidential Information or (b) information 17 subject to a legally protected right of privacy. 18 3. Undertaking. Any document or item marked “CONFIDENTIAL” shall be 19 held in confidence by each Party or person to whom it is disclosed according to the 20 procedures set forth in this Order; shall be used only for purposes of preparation, trial, and 21 appeal or confirmation of this Action; shall not be used for any business or commercial 22 purpose; and shall not be disclosed to any person who is not authorized to receive such 23 information as provided herein. All documents or materials so marked shall be carefully 24 maintained in secure facilities. 25 26 4. Manner of Designation. a. The designation of documents or other materials shall be made by 27 written notice in the documents or materials by affixing to it, in a manner that shall not 28 interfere with its legibility, the word “CONFIDENTIAL” on all or any part of the document 3 3:20-cv-01737-BAS-AHG Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.49 Page 4 of 10 1 or thing. Wherever practicable, the designation of “CONFIDENTIAL” shall be made by 2 the producing Party, person or entity prior to, or contemporaneously with, production or 3 disclosure. Documents or information designated as “CONFIDENTIAL” before entry of 4 this Order shall be treated as “CONFIDENTIAL” within the meaning of this Order. Any 5 non-designating Party may challenge any designation of confidentiality in accordance with 6 Paragraph 11 below. 7 b. All deposition transcripts in this Action shall be treated by all parties as 8 provisionally protected as “CONFIDENTIAL” for a period of fourteen (14) calendar days 9 following receipt of the transcripts. Within the fourteen (14) day period, any party may 10 designate particular portions of a transcript as “CONFIDENTIAL” Information by giving 11 written notice of such designation to every other party to the Action. To the extent possible, 12 the Party, person or entity making the designation shall be responsible for assuring those 13 portions of the deposition transcript and exhibits designated “CONFIDENTIAL” are 14 appropriately bound by the reporter. The Parties should avoid designating entire transcripts 15 as “CONFIDENTIAL” where only a portion thereof or the exhibits used therewith qualify 16 for protection under this Order; to the extent reasonably practicable, only such portions or 17 exhibits should be designated as Confidential Information. Failure of a Party, person or 18 entity to so designate any particular portion of the transcript or exhibits within the 14-day 19 time period will presumptively establish any such portion(s) are not subject to this Order. 20 However, a Party may seek relief from the Court if such a failure to so designate within the 21 14-day time period occurs. 22 c. In the event that a Party is permitted by agreement with other Parties or 23 by order of the Court to inspect or review documents prior to official production in response 24 to a Party’s discovery request(s), all documents and things produced at such inspection will 25 be considered to be “CONFIDENTIAL.” At the time any such responsive documents 26 and/or things are officially produced, however, an appropriate designation, if any, shall be 27 placed on each document or thing in accordance with this Protective Order. 28 // 4 3:20-cv-01737-BAS-AHG Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.50 Page 5 of 10 1 2 5. Use and Access of Confidential Information. a. CONFIDENTIAL: Except as set forth herein, or in any subsequent 3 order of the Court or by express written consent by counsel of record for the Parties, no 4 documents, things or information designated as 5 “CONFIDENTIAL” shall be, directly or indirectly, delivered, exhibited or disclosed to any 6 person, other than: 7 i. the Court, any Court personnel, and/or any court reporter or 8 videographer recording or transcribing testimony in a deposition, 9 hearing, or other proceeding in this Action; 10 ii. Counsel for the Parties and the attorneys, paralegals, law clerks, and 11 clerical staff who are providing active assistance to Counsel in this 12 Action; 13 iii. any person identified from the four corners of the information, 14 document or thing itself as having authored or previously received the 15 information, document or thing; and 16 iv. the Parties to this Action; provided, however, that disclosure may be 17 made only to the extent necessary for the prosecution or defense of this 18 litigation; 19 v. 20 21 executed a certification in accordance with Paragraph 6 below; vi. 22 23 any actual or potential witness, provided that said witness has any person testifying at a deposition, provided that said person has executed a certification in accordance with Paragraph 6 below; vii. any expert, technical advisor, or consultant retained, employed, or 24 consulted by any Party for the purposes of this Action, provided that 25 said experts or consultants have executed a certification in accordance 26 with Paragraph 6 below; and 27 28 viii. other persons who may be specifically designated by consent of all Counsel of record for the Parties, or pursuant to an order of the Court, 5 3:20-cv-01737-BAS-AHG Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.51 Page 6 of 10 1 provided that said person has executed a certification in accordance 2 with Paragraph 6 below. 3 6. Disclosure to Witnesses, Technical Advisers, Experts and/or Consultants; 4 and Certification of Confidentiality. Before giving any witness, expert, technical adviser 5 and/or consultant as described in Paragraph 5 above access to information, documents or 6 things designated as “CONFIDENTIAL,” the Party’s Counsel who seeks to disclose any 7 such information to any such person shall require that person to read and agree to be bound 8 by this Order by signing a certification that must be maintained by Counsel for the Party 9 seeking to disclose such information until complete resolution of the following. The term 10 “technical adviser” shall mean any person, including but not limited to a proposed expert 11 witness or non-testifying consultant, with whom counsel may deem it necessary to consult 12 concerning any technical, financial, or other aspect of this case for the preparation of 13 litigating and/or conducing trial in this Action. The certification to be signed must state the 14 following: 15 I certify my understanding that any documents, information, answers, 16 responses, and/or other materials that are provided to me in this case are 17 subject to the terms and restrictions of the Stipulated Protective Order in 18 Floyd v. City of San Diego 20cv1737 BAS (AHG). I have been given a copy 19 and have read that Order. I have had its meaning and effect explained to me 20 by counsel who provided me with the above described information. 21 understand that any such information and/or documents, and any copies, 22 notes or other memoranda regarding information in such documents, shall 23 not be disclosed to others except in accordance with that Order, and shall be 24 used only for purposes of this proceeding. I agree to comply with the Order. 25 7. Safeguarding Confidential Information. The recipient I of any 26 “CONFIDENTIAL” material provided pursuant to this Order shall maintain such 27 information in a secure and safe area and shall exercise due and proper care with respect 28 to its storage, custody and use, so long as it remains so designated. 6 3:20-cv-01737-BAS-AHG Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.52 Page 7 of 10 1 8. Filing Under Seal. No document shall be filed under seal unless counsel 2 secures a court order allowing the filing of a document, or portion thereof, under seal. An 3 application to file a document under seal shall be served on opposing counsel, and on the 4 person or entity that has custody and control of the document, if different from opposing 5 counsel. If opposing counsel, or the person or entity who has custody and control of the 6 document, wishes to oppose the application, they must contact the chambers of the judge 7 who will rule on the application to notify the Court that an opposition to the application 8 will be filed. 9 9. Final Disposition. Within ninety (90) days of the conclusion of this Action, 10 including any appeals, all “CONFIDENTIAL” information furnished pursuant to the terms 11 of this Order, any notes reflecting Confidential Information and all copies thereof, which 12 are not in the custody of the Court, shall, upon request, be returned to the Party furnishing 13 that Confidential Information or be destroyed (and certified by affidavit as having been 14 destroyed) by the Party in possession thereof, provided that counsel for the Parties may 15 retain their notes and any work product materials and litigation files. 16 10. No Presumption of Protected Status. This Stipulated Protective Order does 17 not address discovery objections, nor does it preclude any party from asserting objections 18 to any discovery request for any reason permitted by the applicable rules of civil procedure 19 or as otherwise permitted by law. This Order does not preclude any party from moving for 20 any relief cognizable under rules of civil procedure. 21 11. Challenging Confidential Designation. A party may oppose the designation 22 of Confidential Information by notifying the designating Party in writing. If a Party 23 opposes the designation of any particular document or information designated as 24 “CONFIDENTIAL,” the Parties shall make a good faith attempt to resolve the dispute by 25 agreement. If the Parties are unable to resolve the dispute, then the Party opposing the 26 designation may seek relief from the Court pursuant to the 45-day rule and procedures set 27 forth in the chambers’ rules. The burden remains on the designating Party to demonstrate 28 the propriety of the designation. Until a motion is filed and resolved by the Court, all 7 3:20-cv-01737-BAS-AHG Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.53 Page 8 of 10 1 documents and materials with which a confidential designation is being challenged shall 2 be treated in the confidential manner that they have been designated by the producing Party, 3 person, or entity as prescribed in this Order. Any motion filed pursuant to this paragraph 4 shall identify with specificity each and every document or piece of information for which 5 a confidentiality designation is being challenged and state the basis for such challenge. 6 7 12. Modifications By the Court. The Court may modify the protective order sua sponte in the interests of justice or for public policy reasons. 8 13. Modification By The Parties. Nothing in this Order shall preclude any party 9 from applying to the Court for an appropriate modification of this Order; provided, 10 however, that before such an application, the Parties, persons, or entities involved shall 11 make a good faith effort to resolve the matter by agreement. Furthermore, the Parties can 12 agree in writing, without approval from the Court, on the exclusion of particular 13 information, documents, answers, or responses from the scope of this Order. 14 14. Inadvertent Production. The inadvertent production pursuant to discovery 15 by any Party, person, or entity, of any document or communication that is protected by 16 privilege, work product doctrine or statutory confidentiality, will not operate as a waiver 17 of the producing person’s right to assert a defense to production of that document or 18 communication, or any other document or communication, and any such material shall be 19 returned promptly to the person producing it on timely written demand identifying the 20 specific document(s). 21 disclosed without a “CONFIDENTIAL” designation may be subsequently designated by 22 the producing Party, person, or entity as “CONFIDENTIAL” at any time pursuant to the 23 terms of this paragraph without waiving the confidential nature of the document or 24 information. In each such case, the designating person shall provide to all other parties 25 notice, either orally followed by written notice within five (5) business days or by written 26 notice within five (5) business days, of that subsequent designation and a copy of the 27 document 28 /// or Any information, document or thing mistakenly produced or thing marked in accordance with this paragraph. 8 3:20-cv-01737-BAS-AHG Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.54 Page 9 of 10 1 15. Continuing Jurisdiction. Unless superseded by later order, this Order shall 2 remain in full force and effect after the termination of this Action and the Parties agree that 3 the Court may enforce the terms of this Order and/or redress any violations thereof. 4 16. Non-Parties. The existence of this Order may be disclosed to any non-party 5 producing documents or information in this Action who may reasonably be expected to 6 desire confidential treatment of such information. Such non-parties may avail themselves 7 of the protections of this Order. By availing themselves of the protections of this Order, 8 such non-parties consent to the jurisdiction of the Court for purposes of enforcing the terms 9 of this Order only. 10 17. Exclusions. The restrictions set forth in any of the paragraphs hereof with 11 respect to information, documents, or things designated as “CONFIDENTIAL” shall not 12 apply to: 13 14 a. any information, document or thing which at the time of disclosure to a receiving party is in the public domain in its protected form; 15 b. any information, document or thing which after disclosure to a 16 receiving party becomes part of the public domain in its protected form as a result of 17 publication not involving a violation of this Order; 18 c. any information, document or thing which a receiving party can show 19 was received by it, whether before or after the disclosure, from a source who obtained the 20 information lawfully and under no obligation of confidentiality to the producing party; or 21 d. to any party who produced the information, document or thing 22 designated as “CONFIDENTIAL”. 23 // 24 // 25 // 26 // 27 // 28 // 9 3:20-cv-01737-BAS-AHG Case 3:20-cv-01737-BAS-AHG Document 9 Filed 11/18/20 PageID.55 Page 10 of 10 1 18. Existing Obligations. This protective order shall not be construed as, and 2 does not constitute, a novation of any existing obligations of confidentiality a Party may 3 owe another Party, person, or entity. To the extent they already exist, all such obligations 4 remain in full force and effect notwithstanding the provisions of this protective order. 5 6 7 8 IT IS SO ORDERED. Dated: November 18, 2020 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 3:20-cv-01737-BAS-AHG

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