1 || Eugene P. Ramirez (State Bar No. 134865) epr@manningllp.com 2 || Kayleigh Andersen (State Bar No. 306442) Kaa@manningllp.com 3 || MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 4||801 S. Figueroa St, 15th Floor, Los Angeles, California 90017-3012 5 || Telephone: Gb) 624-6900 Facsimile: (213) 624-6999 6 Attorneys for Defendants, COUNTY OF 7||SAN BERNARDINO and JUSTIN LOPEZ 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12||A-H. and H.H., in each case a minor, by | Case No. 5:23-CV-01028 JGB-SHK and through their guardian ad litem 13 || Crystal Hanson, individually and as [onorable Sunshine Jesus G. Bernal, successor in interest to Shane Holland, agistrate Judge, Shashi H. 14|| deceased; C.H., a minor, by and through | Kewalramani] her guardian ad litem, Reymi Updike; 15 individually and as successor in interest to Shane Holland, deceased, and STIPULATED PROTECTIVE 2! PATRICIA HOLLAND, individually, ORDER RE CONFIDENTIAL DOCUMENTS 17 Plaintiffs, 18 V. Action Filed: 06/02/2023 19 || COUNTY OF SAN BERNARDINO; JUSTIN LOPEZ, and DOES 1-10, 20 || Inclusive, 21 Defendants. 22 23 || TO THE HONORABLE COURT: 24 By and through their counsel of record in this action, plaintiffs A.H. and H.H., 25 ||in each case a minor, by and through their guardian ad litem Crystal Hanson, 26 || individually and as successor in interest to Shane Holland, deceased; C.H., a minor, 27 || by and through her guardian ad litem, Reymi Updike; individually and as successor 28 ||in interest to Shane Holland, deceased, and PATRICIA HOLLAND, individually
1 || (“Plaintiffs”) and defendants COUNTY OF SAN BERNARDINO and JUSTIN 2 || LOPEZ (“Defendants”) — the parties — hereby stipulate for the purpose of jointly 3 || requesting that the honorable Court enter a protective order re confidential documents 4 ||in this matter [and pursuant to Fed. R. Civ. P. 5.2, 7, and 26, as well as U.S. Dist. Ct., 5||S.D. Cal., Local Rules 7-1 and 52-4.1; and any applicable Orders of the Court] — as 6 || follows: 7 GOOD CAUSE STATEMENT 8 |} 1. GOOD CAUSE STATEMENT. 9}/1.1. Contentions re Harm from Disclosure of Confidential Materials. 10 Defendants contend that there is good cause and a particularized need for a 11 || protective order to preserve the interests of confidentiality and privacy in peace officer
12 □□ personnel file records and associated investigative or confidential records for the 13 || following reasons. 14 First, Defendants contend that peace officers have a federal privilege of privacy | 15 ||in their personnel file records: a reasonable expectation of privacy therein that is 16 || underscored, specified, and arguably heightened by the Pitchess protective procedure
17 || of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 1027, 1033-1034 18 || (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 14665, *2-3, 12- 19 || 13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law applies to privilege based 20 ||discovery disputes involving federal claims,” the “state privilege law which is 21 consistent with its federal equivalent significantly assists in applying [federal] 22 || privilege law to discovery disputes”); Soto v. City of Concord, 162 F.R.D. 603, 613 23 ||n. 4, 616 (N.D. Cal. 1995) (peace officers have constitutionally-based “privacy rights 24 || [that] are not inconsequential” in their police personnel records); cf. Cal. Penal Code 1|§§ 832.7, 832.8; Cal. Evid. Code §§ 1040-1047. Defendants further contend that 26 || uncontrolled disclosure of such personnel file information can threaten the safety of 27 ||non-party witnesses, officers, and their families/associates. 28 Second, Defendants contend that municipalities and law enforcement agencies
1 || have federal deliberative-executive process privilege, federal official information 2 || privilege, federal law enforcement privilege, and federal attorney-client privilege 3 || (and/or attorney work product protection) interests in the personnel files of their peace 4 || officers — particularly as to those portions of peace officer personnel files that contain 5 || critical self-analysis, internal deliberation/decision-making or evaluation/analysis, or 6 || communications for the purposes of obtaining or rendering legal advice or analysis — 7 potentially including but not limited to evaluative/analytical portions of Internal 8 || Affairs type records or reports, evaluative/analytical portions of supervisory records 9 || or reports, and/or reports prepared at the direction of counsel, or for the purpose of 10 || obtaining or rendering legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa 11 || Audubon Soc’y v. United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir.
12 || 1997); Soto, 162 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654, 13 || 668-671 (N.D. Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998); 14 || Hamstreet v. Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co. | 15 ||v. United States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants 16 || further contend that such personnel file records are restricted from disclosure by the
public entity’s custodian of records pursuant to applicable California law and that 18 || uncontrolled release is likely to result in needless intrusion of officer privacy; 19 ||impairment in the collection of third-party witness information and statements 20 || and related legitimate law enforcement investigations/interests; and a chilling of 21|}open and honest discussion regarding and/or investigation into alleged 22 || misconduct that can erode a public entity’s ability to identify and/or implement 23 || any remedial measures that may be required. 24 Third, Defendants contend that, since peace officers do not have the same rights 25 ||as other private citizens to avoid giving compelled statements, it is contrary to the 26 fundamental principles of fairness to permit uncontrolled release of officers’ 27 || compelled statements. See generally Lybarger y. City of Los Angeles, 40 Cal.3d 822, 28 || 828-830 (1985); cf. U.S. Const., amend V.
l Accordingly, Defendants contend that, without a protective order preventing 2 ||such, production of confidential records in the case can and will likely substantially 3 ||impair and harm defendant public entity’s interests in candid self-critical analysis, 4 || frank internal deliberations, obtaining candid information from witnesses, preserving 5 ||the safety of witnesses, preserving the safety of peace officers and peace officers’ 6 ||families and associates, protecting the privacy officers of peace officers, and 7\||preventing pending investigations from being detrimentally undermined by 8 || publication of private, sensitive, or confidential information — as can and often does 9 || result in litigation. 10 Plaintiffs agree that there is Good Cause for a Protective Order so as to preserve 11 || the respective interests of the parties without the need to further burden the Court with
12 such issues. Specifically, the parties jointly contend that, absent this Stipulation and 13 |}its associated Protective Order, the parties' respective privilege interests may be 14 || impaired or harmed, and that this Stipulation and its associated Protective Order may | ]|lavoid such harm by permitting the parties to facilitate discovery with reduced risk that 2 16 || privileged and/or sensitive/confidential information will become matters of public 17 || record. 18 1.2. The parties jointly contend that there is typically a particularized need 19||for protection as to any medical or psychotherapeutic records and autopsy 20 || photographs, because of the privacy interests at stake therein. Because of these 21 || sensitive interests, a Court Order should address these documents rather than a private 22 || agreement between the parties. 23 1.3. The parties therefore stipulate that there is Good Cause for, and hereby 24 || jointly request that the honorable Court issue/enter, a Protective Order re confidential 25 || documents consistent with the terms and provisions of this Stipulation. However, the 26 |jentry of a Protective Order by the Court pursuant to this Stipulation shall not be 27 ||construed as any ruling by the Court on the aforementioned legal statements or 28 || privilege claims in this section (§ 1), nor shall this section be construed as part of any
1 |] such Court Order. 2 A. PURPOSES AND LIMITATIONS. 3 Disclosure and discovery activity in this action are likely to involve production 4 || of confidential, proprietary, or private information for which special protection from 5 || public disclosure and from use for any purpose other than prosecuting or defending 6 || this litigation would be warranted. Accordingly, the parties hereby stipulate to and 7 || petition the court to enter the following Stipulation and an associated Order. 8 The parties acknowledge that this Stipulation and associated Order does not 9 ||confer blanket protections on all disclosures or responses to discovery and that the 10 || protection it affords extends only to the specified information or items that are entitled 11 || to treatment as confidential. 12 The parties further acknowledge, as set forth below, that this Stipulation and 13 || Order creates no entitlement to file confidential information under seal, except to the 14 || extent specified herein; Central District Local Rules 79-5.1 and 79-5.2 set(s) forth the 15 procedures that must be followed and reflects the standards that will be applied when 2 16 ||a party seeks permission from the court to file material under seal.
17 Nothing in this Stipulation or associated Order shall be construed so as to 18 || require or mandate that any Party disclose or produce privileged information or 19 ||records that could be designated as Confidential Documents/Protected Material 20 || hereunder. 21/2. DEFINITIONS. 22 2.1. Party: any party to this action, including all of its officers, directors, 23 employees, agents, consultants, retained experts, house counsel and outside counsel 24 || (and/or the support staff thereof). 25 2.2. Disclosure or Discovery Material: all items or information, regardless 26 || of the medium or manner generated, stored or maintained (including, among other 27 || things, testimony, transcripts, or tangible things) that are produced — or generated in 28 || disclosures or responses to discovery — by any Party in this matter.
l 2.3. “Confidential” Information or Items: information (regardless of the 2 ||medium or how generated, stored, or maintained) or tangible things that qualify for 3 || protection under standards developed under Federal Rule of Civil Procedure 26(c) 4|| and/or applicable federal privileges. This material includes, but is not limited to, 5 ||medical records, psychotherapeutic records, and autopsy photographs; as well as 6 || peace officer personnel records as defined by California Penal Code sections 832.8, 7|| 832.5, 832.7 and the associated case law; and other similar confidential records 8 || designated as such. 9 2.4. Receiving Party: a Party that receives Disclosure or Discovery Material 10 || from a Producing Party, including a Party that has noticed or subpoenaed and is taking 11 || a deposition or comparable testimony. 12 2.5. Producing Party: a Party or non-party that produces Disclosure or 13 || Discovery Material in this action, including a Party that is defending a deposition 14 || noticed or subpoenaed by another Party; additionally, for the limited purpose of 15 designating testimony subject to this Stipulation and Order pursuant to section 6.2(b) 2 16 || (infra), a “Producing Party” shall also be construed to include a Party that is attending
—17]\and/or participating in a non-party deposition noticed/subpoenaed by another Party. 18 2.6. Designating Party: a Party or non-party public entity employer of a Party 19 || that designates information or items that it produces in disclosures or in responses to 20 || discovery as “CONFIDENTIAL.” 21 2.7. Protected Material: any Disclosure or Discovery Material that is 22 ||designated as “CONFIDENTIAL” under the provisions of this Stipulation and 23 || Protective Order. (The term “Confidential Document” shall be synonymous with the 24 ||term “Protected Material” for the purposes of this Stipulation and any associated 25 || Protective Order.) 26 2.8. Outside Counsel: attorneys who are not employees of a Party but who 27 || are retained to represent or advise a Party in this action (as well as their support staffs). 28 2.9. House Counsel: attorneys who are employees of a Party (as well as their
1 || support staffs). 2 2.10. Counsel (without qualifier): Outside Counsel and House Counsel (as 3 || well as their support staffs). 4 2.11. Expert: a person with specialized knowledge or experience in a matter 5 || pertinent to the litigation who has been retained by a Party or its counsel to serve as 6 ||an expert witness or as a consultant in this action and who is not a past or a current 7 || employee of a Party and who, at the time of retention, is not anticipated to become an 8 ||employee of a Party or a competitor of a Party’s; as well as any person retained, 9 || designated, or disclosed by a Party as an expert pursuant to Federal Rule of Civil 10 || Procedure 26(a)(2) or other applicable discovery Rules or statutes. 11 2.12. Professional Vendors: persons or entities that provide litigation support 12||services (e.g., photocopying; videotaping; translating; preparing exhibits or 13 || demonstrations; and/or organizing, storing, retrieving data in any form or medium; 14 || etc.); and their employees and subcontractors. 15|3. SCOPE OF PROTECTION. 16 The protections conferred by this Stipulation and its associated Order cover not
= 17 || only Protected Material/Confidential Documents (as defined above), but also (1) any 18 || information copied or extracted from Protected Material; (2) all copies, excerpts, 19||summaries, or compilations of Protected Material; and (3) any testimony, 20 || conversations, or presentations by Parties or their Counsel that might reveal Protected 21 || Material. However, the protections conferred by this Stipulation and its associated 22 || Order do not cover the following information: (a) any information that is in the public 23 || domain at the time of disclosure to a Receiving Party or becomes part of the public 24 || domain after its disclosure to a Receiving Party as a result of publication not involving 25 violation of this Order, including becoming part of the public record through trial or 26 || otherwise; and (b) any information known to the Receiving Party prior to the 27 || disclosure or obtained by the Receiving Party after the disclosure from a source who 28 || obtained the information lawfully and under no obligation of confidentiality to the
1 || Designating Party. 2 Except to the extent specified herein (if any), any use of Protected Material at 3 || trial shall not be governed by this Order, but may be governed by a separate agreement 4 || or order. 5 Any use of Protected Material at trial shall be governed by the Orders of the 6 || trial judge: this Stipulation and its associated Protective Order do(es) not govern the 7 || use of Protected Material at trial. 8 || 4. DURATION OF PROTECTION. 9 Even after final disposition of this litigation, the confidentiality obligations 10|}imposed by this Order shall remain in effect until a Designating Party agrees 11 || otherwise in writing or a court order otherwise directs. 12 Final disposition shall be deemed to be the later of (1) dismissal of all claims 13 || and defenses in this action, with or without prejudice; and (2) final judgment herein 14 || after the completion and exhaustion of all appeals, rehearings, remands, trials, or | ||reviews of this action, including the time limits for filing any motions or applications 2 16 || for extension of time pursuant to applicable law.
17)/5. DESIGNATION OF PROTECTED MATERIAL/CONFIDENTIAL DOCUMENTS. 18 19 5.1. Exercise of Restraint and Care in Designating Material for Protection. 20 Each Party or non-party that designates information or items for protection 21 ||under this Stipulation and its associated Order must take care to limit any such 22 ||designation to specific material that qualifies under the appropriate standards. A 23 || Designating Party must take care to designate for protection only those parts of 24 || material, documents, items, or oral or written communications that qualify — so that 25 ||other portions of the material, documents, items or communications for which 26 || protection is not warranted are not swept unjustifiably within the ambit of this Order. 27 Mass, indiscriminate, or routine designations are prohibited. Designations that 28 || are shown to be clearly unjustified, or that have been made for an improper purpose
1 || (e.g., to unnecessarily encumber or retard the case development process, or to impose 2 || unnecessary expenses and burdens on other parties), expose the Designating Party to 3 || sanctions. 4 If it comes to a Party’s or a non-party’s attention that information or items that 5 ||1t designated for protection do not qualify for protection at all, or do not qualify for 6 || the level of protection initially asserted, that Party or non-party must promptly notify 7 || all other parties that it is withdrawing the mistaken designation. 8 5.2. Manner and Timing of Designations. Except as otherwise provided in 9 || this Order, or as otherwise stipulated or ordered, material that qualifies for protection 10 ||} under this Order must be clearly so designated before the material is disclosed or 11 || produced. 12 Designation in conformity with this Order requires: 13 (a) for information in documentary form (apart from transcripts of 14 || depositions or other pretrial or trial proceedings, and regardless of whether produced hardcopy or electronic form), that the Producing Party affix the legend 2 16 || “CONFIDENTIAL” to each page that contains Protected Material. If only a portion
—17]lor portions of the material on a page qualifies for protection, the Producing Party also 18 || must clearly identify the protected portion(s) (e.g., by making appropriate markings 19 || in the margins) and must specify, for each portion that it is “CONFIDENTIAL.” The 20 || placement of such “CONFIDENTIAL” stamp on such page(s) shall not obstruct the 21 ||substance of the page’s (or pages’) text or content and shall be in the margin of the 22 || document whenever possible. 23 A Party or Non-Party that makes original documents or materials available for 24 || inspection need not designate them for protection until after the inspecting Party has 25 ||indicated which material it would like copied and produced. During the inspection 26 || and before the designation, all of the material made available for inspection shall be 27 || deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 28 || it wants copied and produced, the Producing Party must determine which documents,
1 || or portions thereof, qualify for protection under this Order. Then, before producing 2 ||the specified documents, the Producing Party must affix the “CONFIDENTIAL” 3 || legend to each page that contains Protected Material. If only a portion or portions of 4 || the material on a page qualifies for protection, the Producing Party also must clearly 5 |lidentify the protected portion(s) (e.g., by making appropriate markings in the 6 || margins). 7 (b) for testimony given in deposition or in other pretrial or trial proceedings, 8 || that the Party or non-party offering or sponsoring the testimony identify on the record, 9||before the close of the deposition, hearing, or other proceeding, all protected 10||testimony, and further specify any portions of the testimony that qualify as 11 ||““CONFIDENTIAL.” When it is impractical to identify separately each portion of 12 || testimony that is entitled to protection, and when it appears that substantial portions 13 || of the testimony may qualify for protection, the Producing Party may invoke on the 14 || record (before the deposition or proceeding is concluded) a right to have up to twenty 15 (20) days to identify the specific portions of the testimony as “CONFIDENTIAL.” 2 16||Only those portions of the testimony that are appropriately designated as
—17||“CONFIDENTIAL” for protection within the 20 days shall be covered by the 18 || provisions of this Stipulation and its associated Protective Order. 19 The court reporter must affix to each such transcript page containing Protected 20 || Material the legend “CONFIDENTIAL,” as instructed by the Producing Party. 21 (c) for information produced in some form other than documentary, and for 22 || any other tangible items (including but not limited to information produced on disc or 23 || electronic data storage device), that the Producing Party affix in a prominent place on 24 || the exterior of the container or containers in which the information or item is stored 25 || the legend “CONFIDENTIAL.” If only portions of the information or item warrant 26 || protection, the Producing Party, to the extent practicable, shall identify the protected 27 || portions, specifying the material as “CONFIDENTIAL.” 28 5.3. Inadvertent Failures to Designate. If timely corrected (preferably,
1 || though not necessarily, within 30 days of production or disclosure of such material), 2\|an inadvertent failure to designate qualified information or items as 3 || “CONFIDENTIAL” does not, standing alone, waive the Designating Party’s right to 4 |/secure protection under this Stipulation and its associated Order for such material. 5 If material is appropriately designated as “CONFIDENTIAL” after the material 6 || was initially produced, the Receiving Party, on timely notification of the designation, 7 || must make reasonable efforts to assure that the material is treated in accordance with 8 || this Stipulation and its associated Order. 9 5.4. Alteration of Confidentiality Stamp Prohibited. A Receiving Party shall 10 || not alter, edit, or modify any Protected Material so as to conceal, obscure, or remove 11 |}a “CONFIDENTIAL” stamp or legend thereon; nor shall a Receiving Party take any 12 || other action so as to make it appear that Protected Material is not subject to the terms 13 || and provisions of this Stipulation and its associated Order. However, nothing in this ||section shall be construed so as to prevent a Receiving Party from challenging a 15 confidentiality designation subject to the provisions of section 6, infra. 2 16 || 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS.
RI 17 6.1. Timing of Challenges. Any Party or Non-Party may challenge a 18 ||designation of confidentiality at any time that is consistent with the Court's 19 || Scheduling Order. Unless a prompt challenge to a Designating Party’s confidentiality 20 || designation is necessary to avoid foreseeable substantial unfairness, unnecessary 21 |}economic burdens, or a later significant disruption or delay of the litigation, a Party 22 || does not waive its right to challenge a confidentiality designation by electing not to 23 ||mount a challenge promptly after the original designation is disclosed. 24 6.2. Meet and Confer. Prior to challenging a confidentiality designation, a 25 ||Challenging Party shall initiate a dispute resolution process by providing written 26 ||notice of each specific designation it is challenging, and describing the basis (and 27 ||supporting authority or argument) for each challenge. To avoid ambiguity as to 28 || whether a challenge has been made, the written notice must recite that the challenge
1 confidentiality is being made in accordance with this specific paragraph of the 2 || associated Protective Order. The parties shall attempt to resolve each challenge in 3 || good faith and must begin the process by conferring directly (in voice to voice 4 || dialogue, either in person, telephonically, or by other comparable means, but not by 5 || correspondence) within 14 days of the date of service of notice. 6 In conferring, the Challenging Party must explain the specific basis for its belief 7 ||that the confidentiality designation was not proper and must give the Designating 8||Party an opportunity to review the designated material, to reconsider the 9 || circumstances, and, if no change in designation is offered, to explain the basis for the 10||chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or 12 || establishes that the Designating Party is unwilling to participate in the meet and confer 13 || process in a timely manner. 14 Frivolous challenges, and those challenges made for an improper purpose (e.g., | ]|to harass or impose unnecessary expenses and burdens on other parties), may expose 2 16 || the Challenging Party to sanctions.
17 6.3. Judicial Intervention. If the Parties cannot resolve a confidentiality 18 || challenge without court intervention, the Challenging Party shall file and serve a 19 || motion to remove confidentiality (under the applicable rules for filing and service of 20 || discovery motions) within 14 days of the parties agreeing that the meet and confer 21 ||process will not resolve their dispute, or by the first day of trial of this matter, 22 || whichever date is earlier — unless the parties agree in writing to a longer time. 23 The parties must strictly comply with Central District Local Rules 37-1 and 37- 24 ||2 (including the joint stipulation re discovery dispute requirement) in any motion 25 || associated with this Protective Order. 26 Each such motion must be accompanied by a competent declaration affirming 27 || that the movant has complied with the meet and confer requirements imposed in the 28 ||preceding paragraph. In addition, the Challenging Party may file a motion
1 || challenging a confidentiality designation at any time if there is good cause for doing 2 || so, including a challenge to the designation of a deposition transcript or any portions 3 thereof. Any motion brought pursuant to this provision must be accompanied by a 4||competent declaration affirming that the movant has complied with the meet and 5 || confer requirements imposed by the preceding paragraph. 6 The burden of persuasion in any such challenge proceeding shall be on the 7 || Designating Party, regardless of whether the Designating Party is the moving party or 8 || whether such Party sought or opposes judicial intervention. Frivolous challenges, and 9 || those made for an improper purpose (e.g., to harass or impose unnecessary expenses 10 || and burdens on other parties) may expose the Challenging Party to sanctions. Unless 11 || the Designating Party has waived the confidentiality designation by failing to oppose 12 |}a motion to remove confidentiality as described above, all parties shall continue to 13 || afford the material in question the level of protection to which it is entitled under the 14 || Producing Party’s designation until the court rules on the challenge. | 15 6.4. Withdrawal of “CONFIDENTIAL” Designation, At its discretion, a || Designating Party may remove Protected Material/Confidential Documents from
—17]|some or all of the protections and provisions of this Stipulation and its associated 18 || Order at any time by any of the following methods: 19 (a) Express Written Withdrawal. A Designating Party may withdraw a 20 ||““CONFIDENTIAL” designation made to any specified Protected Material 21 ||/Confidential Documents from some or all of the protections of this Stipulation and 22 ||its associated Order by an express withdrawal in a writing signed by such Party (or 23 ||such Party’s Counsel, but not including staff of such Counsel) that specifies and 24 ||itemizes the Disclosure or Discovery Material previously designated as Protected 25 || Material/Confidential Documents that shall no longer be subject to all or some of the 26 || provisions of this Stipulation and Order. Such express withdrawal shall be effective 27 || when transmitted or served upon the Receiving Party. If a Designating Party is 28 || withdrawing Protected Material from only some of the provisions/ protections of this
1 || Stipulation and Order, such Party must state which specific provisions are no longer 2||to be enforced as to the specified material for which confidentiality protection 3||hereunder is withdrawn: otherwise, such withdrawal shall be construed as a 4 || withdrawal of such material from all of the protections/provisions of this Stipulation 5 || and Order; 6 (b) Express Withdrawal on the Record. A Designating Party may withdraw 7\}a “CONFIDENTIAL” designation made to specified Protected 8 || Material/Confidential Documents from all of the provisions/protections of this 9 || Stipulation and its associated Order by verbally consenting in court proceedings on 10||the record to such withdrawal — provided that such withdrawal specifies the 11 || Disclosure or Discovery Material previously designated as Protected Material/ 12 || Confidential Documents that shall no longer be subject to any of the provisions of this 13 || Stipulation and Order. A Designating Party is not permitted to withdraw Protected 14 || Material from only some of the protections/provisions of this Stipulation and Order 15 by this method; 2 16 (c) Implicit Withdrawal by Publication or Failure to Oppose Challenge. A
| —17]|Designating Party shall be construed to have withdrawn a “CONFIDENTIAL” 18 || designation made to any specified Protected Material/Confidential Documents from 19 || all of the provisions/protections of this Stipulation and Order by either (1) making 20 || such Protected Material/Confidential Records part of the public record — including |/but not limited to attaching such as exhibits to any filing with the court without 22 || moving, prior to such filing, for the court to seal such records; or (2) failing to timely 23 || oppose a Challenging Party’s motion to remove a “CONFIDENTIAL” designation to 24 || specified Protected Material/Confidential Documents. Nothing in this Stipulation and 25||Order shall be construed so as to require any Party to file Protected 26 || Material/Confidential Documents under seal, unless expressly specified herein. 27 || 7. ACCESS TO AND USE OF PROTECTED MATERIAL. 28 7.1. Basic Principles. A Receiving Party may use Protected Material that is
1 || disclosed or produced by another Party or by a non-party in connection with this case 2 only for preparing, prosecuting, defending, or attempting to settle this litigation — up 3 || to and including final disposition of the above-entitled action — and not for any other 4 || purpose, including any other litigation or dispute outside the scope of this action. 5 || Such Protected Material may be disclosed only to the categories of persons and under 6 || the conditions described in this Stipulation and its associated Order. When the above 7 entitled litigation has been terminated, a Receiving Party must comply with the 8 || provisions of section 11, below (FINAL DISPOSITION). 9 Protected Material must be stored and maintained by a Receiving Party at a 10 || location and in a secure manner that ensures that access is limited to the persons 11 || authorized under this Stipulation and its Order. 12 7.2. Disclosure _of “CONFIDENTIAL” Information or Items. Unless 13 || otherwise ordered by the Court or permitted in writing by the Designating Party, a 14 || Receiving Party may disclose any information or item designated CONFIDENTIAL 15 only to: 16 (a) the Receiving Party’s Outside Counsel of record in this action, as well
—17]!as employees of such Counsel to whom it is reasonably necessary to disclose the 18 || information for this litigation; 19 (b) the officers, directors, and employees (including House Counsel) of the 20 || Receiving Party to whom disclosure is reasonably necessary for this litigation — each 21 ||of whom, by accepting receipt of such Protected Material, thereby agree to be bound 22 || by this Stipulation and Order; 23 (c) Experts (as defined in this Stipulation and Order) of the Receiving Party 24 ||to whom disclosure is reasonably necessary for this litigation — each of whom, by 25 ||accepting receipt of such Protected Material, thereby agree to be bound by this 26 || Stipulation and Order; 27 (d) court reporters, their staffs, and Professional Vendors to whom 28 || disclosure is reasonably necessary for this litigation — each of whom, by accepting
1 || receipt of such Protected Material, thereby agree to be bound by this Stipulation and 2 || Order; 3 (e) during their depositions, witnesses in the action to whom disclosure is 4||reasonably necessary — each of whom, by accepting receipt of such Protected 5 ||Material, thereby agree to be bound by this Stipulation and Order. Pages of 6 || transcribed deposition testimony or exhibits to depositions that reveal Protected 7 || Material must have a confidential designation affixed by the court reporter to such 8 || pages containing Protected Material and such may not be disclosed to anyone except 9 ||as permitted under this Stipulation and its Protective Order. 10 (f) the author or custodian of a document containing the information that «| ]/constitutes Protected Material, or other person who otherwise possessed or knew the
12 || information. 13 7.3. Notice of Confidentiality. Prior to producing or disclosing Protected 14 || Material/Confidential Documents to persons to whom this Stipulation and its Order 15 permits disclosure or production (see section 8.2, supra), a Receiving Party shall 2 16 || provide a copy of this Stipulation and Order to such persons so as to put such persons
—17]|on notice as to the restrictions imposed upon them herein: except that, for court 18 || reporters, Professional Vendors, and for witnesses being provided with Protected 19 || Material during a deposition, it shall be sufficient notice for Counsel for the Receiving 20 || Party to give the witness a verbal admonition (on the record, for witnesses) regarding 21 provisions of this Stipulation and its Order and such provisions’ applicability to 22 || specified Protected Material at issue. 23 7.4. Reservation of Rights. Nothing in this Stipulation and Order shall be 24 || construed so as to require any Producing Party to designate any records or materials 25 |}as “CONFIDENTIAL.” Nothing in this Stipulation and Order shall be construed so 26 ||as to prevent the admission of Protected Material into evidence at the trial of this 27 || action, or in any appellate proceedings for this action, solely on the basis that such 28 ||Disclosure or Discovery Material has been designated as _ Protected
1 || Material/Confidential Documents. Notwithstanding the foregoing, nothing in this 2 || Stipulation and Order shall be construed as a waiver of any privileges or of any rights 3 ||to object to the use or admission into evidence of any Protected Material in any 4 || proceeding; nor shall anything herein be construed as a concession that any privileges 5 || asserted or objections made are valid or applicable. Nothing in this Stipulation and 6 || Order shall be construed so as to prevent the Designating Party (or its Counsel or 7 || custodian of records) from having access to and using Protected Material designated 8 || by that Party in the manner in which such persons or entities would typically use such 9 || materials in the normal course of their duties or profession — except that the waiver of 10 || confidentiality provisions shall apply (see section 6.4(c), supra). 11 7.5. Requirement to File Confidential Documents Under Seal. Confidential 12 || Documents may be submitted in all law and motion proceedings before the Court if 13 || done so under seal pursuant to Federal Rules of Civil Procedure 5.2 and 26 and/or 14 || United States District Court, Central District of California Local Rules 79-5.1 and 79- 1515.2 (as applicable) and pursuant to the provisions of this Stipulation and any 2 16 || associated Order. If any Receiving Party attaches any Confidential Documents to any
—17]||pleading, motion, or other paper to be filed, lodged, or otherwise submitted to the 18 || Court, such Confidential Document(s) shall be filed/lodged under seal pursuant to 19 || Federal Rules of Civil Procedure 5.2 and 26 and/or United States District Court, 20 || Central District of California Local Rules 79-5.1 and 79-5.2 to the extent applicable. 21 However, this paragraph (§] 7.5) shall not be construed so as to prevent a 22 || Designating Party or counsel from submitting, filing, lodging, or publishing any 23 ||document it has previously designated as a Confidential Document without 24 || compliance with this paragraph’s requirement to do so under seal (1.e., a producing- 25 || disclosing party or counsel may submit or publish its own Confidential Documents 26 || without being in violation of the terms of this Stipulation and its Protective Order). 27 Furthermore, a Receiving Party shall be exempted from the requirements of 28 this paragraph as to any specifically identified Confidential Document(s) where —
1 || prior to the submission or publication of the Confidential Document(s) at issue — the 2 ||Designating Party of such specifically identified Confidential Document(s) has 3 || waived/withdrawn the protections of this Stipulation and its Order (pursuant to 4 || paragraph 6.4, supra). 5 A Receiving Party shall also be exempt from the sealing requirements of this 6 || paragraph (4 7.5) where the Confidential Documents/Protected Material at issue is/are 7 || not documents, records, or information regarding or incorporating: 8 (1) private, personal information contained in peace officer personnel files 9 ||(such as social security numbers, driver’s license numbers or comparable personal 10 || government identification numbers, residential addresses, compensation or pension 11 || or personal property information, credit card numbers or credit information, dates of 12 || birth, tax records and information, information related to the identity of an officer’s 13 family members or co-residents, and comparable personal information about the 14 || officer or his family); 15 (2) any internal affairs or comparable investigation by any law enforcement 2 16 || agency into alleged officer misconduct; and/or
17 (3) the medical records or records of psychiatric or psychological treatment 18 || of any peace officer or party to this action. 19 Nothing in this paragraph shall be construed to bind the Court or its authorized 20 || staff so as to limit or prevent the publication of any Confidential Documents to the 21 || jury or factfinder, at the time of trial of this matter, where the Court has deemed such 22 || Confidential Documents to be admissible into evidence. 23 PROTECTED MATERIAL SUBPOENAED OR ORDERED 34 PRODUCED IN OTHER LITIGATION.
25 If a Party is served with a subpoena or a court order issued in other litigation 26 || that compels disclosure of any information or items designated in this action as 27 || “CONFIDENTIAL,” that Party must: 28 (a) promptly notify in writing the Designating Party, preferably (though not
1 || necessarily) by facsimile or electronic mail. Such notification shall include a copy of 2 || the subpoena or court order at issue; 3 (b) promptly notify in writing the party who caused the subpoena or order to 4 || issue in the other litigation that some or all of the material covered by the subpoena 5 || or order is subject to this Stipulation and its Protective Order. Such notification shall 6 || include a copy of this Stipulation and its Protective Order; and 7 (c) cooperate with respect to all reasonable procedures sought to be pursued 8 || by all sides in any such situation, while adhering to the terms of this Stipulation and 9 || its Order. 10 If the Designating Party timely seeks a protective order, the Party served with 11 || the subpoena or court order shall not produce any information designated in this action
12 “CONFIDENTIAL” before a determination by the court from which the subpoena 13 || or order issued, unless the Party has obtained the Designating Party’s permission. The 14 || Designating Party shall bear the burden and expense of seeking protection in that court | |lof its confidential material — and nothing in these provisions should be construed as 2 authorizing or encouraging a Receiving Party in this action to disobey a lawful
—17||directive from another court. 18 The purpose of this section is to ensure that the affected Party has a meaningful 19 || opportunity to preserve its confidentiality interests in the court from which the 20 |) subpoena or court order issued. 21|/9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL. 22 9.1. Unauthorized Disclosure of Protected Material. 23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 24 || Protected Material to any person or in any circumstance not authorized under this 25 || Stipulation and Order, the Receiving Party must immediately: 26 (a) notify in writing the Designating Party of the unauthorized disclosures; 27 (b) use its best efforts to retrieve all copies of the Protected Material; 28 (c) inform the person or persons to whom unauthorized disclosures were made
1 || of all the terms of this Order; and 2 (d) request such person or persons consent to be bound by the Stipulation and 3 || Order. 4 9.2. Inadvertent Production of Privileged or Otherwise Protected Material. 5 When a Producing Party gives notice to Receiving Parties that certain 6 || inadvertently produced material is subject to a claim of privilege or other protection, 7 ||the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 8 || Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 9 || may be established in an e-discovery order that provides for production without prior 10 || privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the || parties reach an agreement on the effect of disclosure of a communication or
12 || information covered by the attorney-client privilege or work product protection, the fe 13 || parties may incorporate their agreement in the stipulated protective order submitted 14 || to the court. | 15110. PUBLICATION OF PROTECTED MATERIAL PROHIBITED. 16 10.1. Filing of Protected Material.
17 Without advance written permission from the Designating Party, or a court 18 || order secured after appropriate notice to all interested persons, a Receiving Party may 19 || not file in the public record in this action any Protected Material. A Party that seeks 20 || to file under seal any Protected Material must comply with the applicable Federal and 21 || Local Rules. 22 10.2. Public Dissemination of Protected Material. 23 A Receiving Party shall not publish, release, post, or disseminate Protected 24 || Material to any persons except those specifically delineated and authorized by this 25 || Stipulation and its Order (see section 7, supra); nor shall a Receiving Party publish, 26 || release, leak, post, or disseminate Protected Material/Confidential Documents to any 27 ||news media, member of the press, website, or public forum (except as permitted under 28 || section 7.5 regarding filings with the court in this action and under seal).
1||11. FINAL DISPOSITION. 2 Unless otherwise ordered or agreed in writing by the Producing Party, within 3 || thirty (30) days after the final termination of this action (defined as the dismissal or 4 || entry of judgment by the above named court, or if an appeal is filed, the disposition 5 || of the appeal), upon written request by the Producing Party, each Receiving Party 6 || must return all Protected Material to the Producing Party — whether retained by the 7 || Receiving Party or its Counsel, Experts, Professional Vendors, agents, or any non- 8 || party to whom the Receiving Party produced or shared such records or information. 9 As used in this subdivision, “all Protected Material” includes all copies, 10 || abstracts, compilations, summaries or any other form of reproducing or capturing any 11 ||of the Protected Material, regardless of the medium (hardcopy, electronic, or 12 || otherwise) in which such Protected Material is stored or retained. 13 In the alternative, at the discretion of the Receiving Party, the Receiving Party 14 || may destroy some or all of the Protected Material instead of returning it — unless such | 15||Protected Material is an original, in which case, the Receiving Party must obtain the 2 16 || Producing Party’s written consent before destroying such original Protected Material.
RI 17 Whether the Protected Material is returned or destroyed, the Receiving Party 18 || must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) within thirty (30) days of the aforementioned 20 || written request by the Designating Party that specifically identifies (by category, 21 || where appropriate) all the Protected Material that was returned or destroyed and that 22 || affirms that the Receiving Party has not retained any copies, abstracts, compilations, 23 ||summaries or other forms of reproducing or capturing any of the Protected material 24 || (in any medium, including but not limited to any hardcopy, electronic or digital copy, 25 || or otherwise). 26 Notwithstanding this provision, Counsel are entitled to retain an archival copy 27 || of all pleadings, motion papers, transcripts, legal memoranda filed with the court in 28 || this action, as well as any correspondence or attorney work product prepared by
1 || Counsel for the Receiving Party, even if such materials contain Protected Material; 2 || however, any such archival copies that contain or constitute Protected Material remain 3 || subject to this Protective Order as set forth in Section 4 (DURATION), above. This 4 || court shall retain jurisdiction in the event that a Designating Party elects to seek court 5 || sanctions for violation of this Stipulation and its Order. 6}}12. MISCELLANEOUS. 7 12.1. Right to Further Relief. Nothing in this Stipulation and its Order 8 || abridges the right of any person to seek its modification by the Court in the future. 9 12.2. Right to Assert Other Objections. By stipulating to the entry of a 10 || Protective Order pursuant to this Stipulation, no Party waives any right it otherwise «| would have to object to disclosing or producing any information or item on any 12 || ground not addressed in this Stipulation and its Order. Similarly, no Party waives any 13 || right to object on any ground to use in evidence any of the material covered by this 14 || Stipulation and its Protective Order. 15 12.3. This Stipulation may be signed in counterpart and a facsimile or 2 16 || electronic signature shall be as valid as an original signature.
17 IT IS SO STIPULATED. 18 ||} DATED: October 26, 2023 MANNING & KASS 19 ELLROD, RAMIREZ, TRESTER LLP 20 By: /s/ Kayleigh A. Andersen 1 Eugene P. Ramirez, Esq. Kayleigh A. Andersen, Esq. 22 Attorneys for Defendants DATED: October 26, 2023 LAW OFFICES OF DALE K. GALIPO
25 By: ___/s/Renee Valentine 26 Renee Valentine, Attorneys for Plaintiffs
1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, [print or type full 4 name], of [print or type full address], declare 5 || under penalty of perjury that I have read in its entirety and understand the Stipulated 6 || Protective Order that was issued by the United States District Court for the Central 7 || District of California on [date] inthe case A.H., et al. v. County of § || San Bernardino, et al., Case No. 5:23-CV-01028 JGB-SHK. I agree to comply 9 || with and to be bound by all the terms of this Stipulated Protective Order and I 10 || understand and acknowledge that failure to so comply could expose me to sanctions 11 || and punishment in the nature of contempt. I solemnly promise that I will not disclose
12 ||in any manner any information or item that is subject to this Stipulated Protective 13 || Order to any person or entity except in strict compliance with the provisions of this 14 || Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 || for the Central District of California for the purpose of enforcing the terms of this
! —17]|Stipulated Protective Order, even if such enforcement proceedings occur after 18 || termination of this action. I hereby appoint [print 19 || or type full name] of [print or type 20 || full address and telephone number] as my California agent for service of process 21 |/in connection with this action or any proceedings related to enforcement of this 22 || Stipulated Protective Order. 23 || Date: 24 || City and State where sworn and signed: 25 || Printed name: 26 || Signature: 27 28
1 |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 2 || DATED: November 1, 2023 4 5
7 HON. SHASHI H. KEWALRAMANI United States Magistrate Judge 8 9 10 11
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15 FR 17 18 19 20 21 22 23 24 25 26 27 28