Andres Felix v. County of Ventura

Opinion

10 11 ANDRES FELIX; and FEDERICO Case No. 2:19-CV-06002-DDP-GJS DIAZ, [Hon. District Judge, Dean D. 12 Pregerson; Magistrate Judge, Gail Plaintiff, Standish] 13 v. 14 COUNTY OF VENTURA; SHERIFF [PROPOSED] ORDER RE: 15 BILL AYUB, individually and in his STIPULATED PROTECTIVE official capacity as a PEACE OFFICER ORDER 16 of the VENTURA COUNTY SHERIFF’S OFFICE; DETECTIVE DISCOVERY MATTER individually and in his official capacity 18 as a PEACE OFFICER of the VENTURA COUNTY SHERIFF’S 19 OFFICE; DISTRICT ATTORNEY GREGORY D. TOTTEN, individually 20 and in his official capacity as a DISTRICT ATTORNEY FOR 21 COUNTY OF VENTURA; DEPUTY DISTRICT ATTORNEY DAVID S. 22 RUSSELL, individually and in his official capacity as a DISTRICT VENTURA; HARRIS COMMUNICATIONS, INC., and 25 DOES 1 through 50, inclusive,

26 Defendant.

27 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. 12 This action is likely to involve law enforcement investigative files, other law 13 enforcement agency records, peace officer personnel records, and psychological 14 records and/or proprietary information for which special protection from public 15 disclosure and from use for any purpose other than prosecution of this action is 16 warranted. Such confidential and proprietary materials and information consist of, 17 among other things, materials relating to a law enforcement investigation, 18 documents relating to sources and methods of law enforcement investigative 19 practices, peace officer personnel files, materials containing sensitive and/or private 20 information regarding third parties, records pertaining to criminal prosecutions and 21 orders, Ventura County Sheriff’s Office policies, practices, or procedures, and 22 Ventura County Sheriff’s Office training materials, information otherwise generally 23 unavailable to the public, or which may be privileged or otherwise protected from 24 disclosure under state or federal statutes, court rules, case decisions, or common 25 law. Accordingly, to expedite the flow of information, to facilitate the prompt 26 resolution of disputes over confidentiality of discovery materials, to adequately 27 protect information the parties are entitled to keep confidential, to ensure that the 1 and in the conduct of trial, to address their handling at the end of the litigation, and 2 serve the ends of justice, a protective order for such information is justified in this 3 matter. It is the intent of the parties that information will not be designated as 4 confidential for tactical reasons and that nothing be so designated without a good 5 faith belief that it has been maintained in a confidential, non-public manner, and 6 there is good cause why it should not be part of the public record of this case. 8 The parties further acknowledge, as set forth in Section 12.3, below, that this 9 Stipulated Protective Order does not entitle them to file confidential information 10 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 11 and the standards that will be applied when a party seeks permission from the court 12 to file material under seal. 13 There is a strong presumption that the public has a right of access to judicial 14 proceedings and records in civil cases. In connection with non-dispositive motions, 15 good cause must be shown to support a filing under seal. See Kamakana v. City and 16 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 17 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 18 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 19 require good cause showing), and a specific showing of good cause or compelling 20 reasons with proper evidentiary support and legal justification, must be made with 21 respect to Protected Material that a party seeks to file under seal. The parties’ mere 22 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 23 without the submission of competent evidence by declaration, establishing that the 24 material sought to be filed under seal qualifies as confidential, privileged, or 25 otherwise protectable—constitute good cause. 26 Further, if a party requests sealing related to a dispositive motion or trial, then 27 compelling reasons, not only good cause, for the sealing must be shown, and the 1 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 2 each item or type of information, document, or thing sought to be filed or introduced 3 under seal in connection with a dispositive motion or trial, the party seeking 4 protection must articulate compelling reasons, supported by specific facts and legal 5 justification, for the requested sealing order. Again, competent evidence supporting 6 the application to file documents under seal must be provided by declaration. 7 Any document that is not confidential, privileged, or otherwise protectable in 8 its entirety will not be filed under seal if the confidential portions can be redacted. 9 If documents can be redacted, then a redacted version for public viewing, omitting 10 only the confidential, privileged, or otherwise protectable portions of the document, 11 shall be filed. Any application that seeks to file documents under seal in their 12 entirety should include an explanation of why redaction is not feasible. 13 2. DEFINITIONS 14 2.1 Action: Andres Felix, and Federico Diaz v. County of Ventura, et al. 15 2.2 Challenging Party: a Party or Non-Party that challenges the 16 designation of information or items under this Order. 17 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 18 how it is generated, stored or maintained) or tangible things that qualify for 19 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 20 the Good Cause Statement. 21 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 22 their support staff). 23 2.5 Designating Party: a Party or Non-Party that designates information or 24 items that it produces in disclosures or in responses to discovery as 25 “CONFIDENTIAL.” 26 2.6 Disclosure or Discovery Material: all items or information, regardless 27 of the medium or manner in which it is generated, stored, or maintained (including, 1 generated in disclosures or responses to discovery in this matter. 2 2.7 Expert: a person with specialized knowledge or experience in a matter 3 pertinent to the litigation who has been retained by a Party or its counsel to serve as 4 an expert witness or as a consultant in this Action. 5 2.8 House Counsel: attorneys who are employees of a party to this Action. 6 House Counsel does not include Outside Counsel of Record or any other outside 7 counsel. 8 2.9 Non-Party: any natural person, partnership, corporation, association or 9 other legal entity not named as a Party to this action. 10 2.10 Outside Counsel of Record: attorneys who are not employees of a 11 party to this Action but are retained to represent or advise a party to this Action and 12 have appeared in this Action on behalf of that party or are affiliated with a law firm 13 that has appeared on behalf of that party, and includes support staff. 14 2.11 Party: any party to this Action, including all of its officers, directors, 15 employees, consultants, retained experts, and Outside Counsel of Record (and their 16 support staffs). 17 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 18 Discovery Material in this Action. 19 2.13 Professional Vendors: persons or entities that provide litigation 20 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 21 demonstrations, and organizing, storing, or retrieving data in any form or medium) 22 and their employees and subcontractors. 23 2.14 Protected Material: any Disclosure or Discovery Material that is 24 designated as “CONFIDENTIAL.” 25 2.15 Receiving Party: a Party that receives Disclosure or Discovery 26 Material from a Producing Party. 27 // // 1 3. SCOPE The protections conferred by this Stipulation and Order cover not only 2 Protected Material (as defined above), but also (1) any information copied or 3 extracted from Protected Material; (2) all copies, excerpts, summaries, or 4 compilations of Protected Material; and (3) any testimony, conversations, or 5 presentations by Parties or their Counsel that might reveal Protected Material. 6 Any use of Protected Material at trial shall be governed by the orders of the 7 trial judge. This Order does not govern the use of Protected Material at trial. 8 4. DURATION 9 FINAL DISPOSITION of the action is defined as the conclusion of any 10 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal 11 has run. Except as set forth below, the terms of this protective order apply through 12 FINAL DISPOSITION of the action. The parties may stipulate that the they will be 13 contractually bound by the terms of this agreement beyond FINAL DISPOSITION, 14 but will have to file a separate action for enforcement of the agreement once all 15 proceedings in this case are complete. 16 Once a case proceeds to trial, information that was designated as 17 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 18 as an exhibit at trial becomes public and will be presumptively available to all 19 members of the public, including the press, unless compelling reasons supported by 20 specific factual findings to proceed otherwise are made to the trial judge in advance 21 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 22 showing for sealing documents produced in discovery from “compelling reasons” 23 standard when merits-related documents are part of court record). Accordingly, for 24 such materials, the terms of this protective order do not extend beyond the 25 commencement of the trial. 26 5. DESIGNATING PROTECTED MATERIAL 27 5.1 Exercise of Restraint and Care in Designating Material for Protection. 1 Each Party or Non-Party that designates information or items for protection under 2 this Order must take care to limit any such designation to specific material that 3 qualifies under the appropriate standards. The Designating Party must designate for 4 protection only those parts of material, documents, items or oral or written 5 communications that qualify so that other portions of the material, documents, items 6 or communications for which protection is not warranted are not swept unjustifiably 7 within the ambit of this Order. 8 Mass, indiscriminate or routinized designations are prohibited. Designations 9 that are shown to be clearly unjustified or that have been made for an improper 10 purpose (e.g., to unnecessarily encumber the case development process or to impose 11 unnecessary expenses and burdens on other parties) may expose the Designating 12 Party to sanctions. 13 If it comes to a Designating Party’s attention that information or items that it 14 designated for protection do not qualify for protection, that Designating Party must 15 promptly notify all other Parties that it is withdrawing the inapplicable designation. 16 5.2 Manner and Timing of Designations. Except as otherwise provided in 17 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 18 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 19 under this Order must be clearly so designated before the material is disclosed or 20 produced. 21 Designation in conformity with this Order requires: 22 (a) for information in documentary form (e.g., paper or electronic 23 documents, but excluding transcripts of depositions or other pretrial or trial 24 proceedings), that the Producing Party affix at a minimum, the legend 25 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 26 contains protected material. If only a portion of the material on a page qualifies for 27 protection, the Producing Party also must clearly identify the protected portion(s) 1 A Party or Non-Party that makes original documents available for inspection 2 need not designate them for protection until after the inspecting Party has indicated 3 which documents it would like copied and produced. During the inspection and 4 before the designation, all of the material made available for inspection shall be 5 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 6 documents it wants copied and produced, the Producing Party must determine which 7 documents, or portions thereof, qualify for protection under this Order. Then, 8 before producing the specified documents, the Producing Party must affix the 9 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 10 portion of the material on a page qualifies for protection, the Producing Party also 11 must clearly identify the protected portion(s) (e.g., by making appropriate markings 12 in the margins). 13 (b) for testimony given in depositions that the Designating Party identifies 14 the Disclosure or Discovery Material on the record, before the close of the 15 deposition all protected testimony. Any questions intended to elicit testimony 16 regarding the contents of the Confidential Information shall be conducted only in the 17 presence of persons authorized to review the Confidential Information as provided 18 in this Order. Any deposition transcript containing such questions and testimony 19 shall be subject to the same protections and precautions applicable to the 20 Confidential Information. 21 (c) for information produced in some form other than documentary and 22 for any other tangible items, that the Producing Party affix in a prominent place on 23 the exterior of the container or containers in which the information is stored the 24 legend “CONFIDENTIAL.” If only a portion or portions of the information 25 warrants protection, the Producing Party, to the extent practicable, shall identify the 26 protected portion(s). 27 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 1 the Designating Party’s right to secure protection under this Order for such material. 2 Upon timely correction of a designation, the Receiving Party must make reasonable 3 efforts to assure that the material is treated in accordance with the provisions of this 4 Order. 5 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 7 designation of confidentiality at any time that is consistent with the Court’s 8 Scheduling Order. 9 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 10 resolution process under Local Rule 37.1 et seq. 11 6.3 The burden of persuasion in any such challenge proceeding shall be on 12 the Designating Party. Frivolous challenges, and those made for an improper 13 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 14 parties) may expose the Challenging Party to sanctions. Unless the Designating 15 Party has waived or withdrawn the confidentiality designation, all parties shall 16 continue to afford the material in question the level of protection to which it is 17 entitled under the Producing Party’s designation until the Court rules on the 18 challenge. 19 7. ACCESS TO AND USE OF PROTECTED MATERIAL 20 7.1 Basic Principles. A Receiving Party may use Protected Material that is 21 disclosed or produced by another Party or by a Non-Party in connection with this 22 Action only for prosecuting, defending or attempting to settle this Action. Such 23 Protected Material may be disclosed only to the categories of persons and under the 24 conditions described in this Order. When the Action has been terminated, a 25 Receiving Party must comply with the provisions of section 13 below (FINAL 27 Protected Material must be stored and maintained by a Receiving Party at a 1 authorized under this Order. 2 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 3 otherwise ordered by the court or permitted in writing by the Designating Party, a 4 Receiving Party may disclose any information or item designated 5 “CONFIDENTIAL” only to: 6 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 7 well as employees of said Outside Counsel of Record to whom it is reasonably 8 necessary to disclose the information for this Action; 9 (b) the officers, directors, and employees (including House Counsel) of 10 the Receiving Party to whom disclosure is reasonably necessary for this Action; 11 (c) Experts (as defined in this Order) of the Receiving Party to whom 12 disclosure is reasonably necessary for this Action and who have signed the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (d) the court and its personnel; 15 (e) court reporters and their staff; 16 (f) professional jury or trial consultants, mock jurors, and Professional 17 Vendors to whom disclosure is reasonably necessary for this Action and who have 18 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (g) the author or recipient of a document containing the information or a 20 custodian or other person who otherwise possessed or knew the information; 21 (h) during their depositions, witnesses, and attorneys for witnesses, in the 22 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 23 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 24 not be permitted to keep any confidential information unless they sign the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 26 agreed by the Designating Party or ordered by the court. Pages of transcribed 27 deposition testimony or exhibits to depositions that reveal Protected Material may 1 as permitted under this Stipulated Protective Order; and 2 (i) any mediator or settlement officer, and their supporting personnel, 3 mutually agreed upon by any of the parties engaged in settlement discussions. 4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 6 If a Party is served with a subpoena or a court order issued in other litigation 7 that compels disclosure of any information or items designated in this Action as 8 “CONFIDENTIAL,” that Party must: 9 (a) promptly notify in writing the Designating Party. Such notification 10 shall include a copy of the subpoena or court order; 11 (b) promptly notify in writing the party who caused the subpoena or order 12 to issue in the other litigation that some or all of the material covered by the 13 subpoena or order is subject to this Protective Order. Such notification shall include 14 a copy of this Stipulated Protective Order; and 15 (c) cooperate with respect to all reasonable procedures sought to be 16 pursued by the Designating Party whose Protected Material may be affected. 17 If the Designating Party timely seeks a protective order, the Party served with 18 the subpoena or court order shall not produce any information designated in this 19 action as “CONFIDENTIAL” before a determination by the court from which the 20 subpoena or order issued, unless the Party has obtained the Designating Party’s 21 permission. The Designating Party shall bear the burden and expense of seeking 22 protection in that court of its confidential material and nothing in these provisions 23 should be construed as authorizing or encouraging a Receiving Party in this Action 24 to disobey a lawful directive from another court. 25 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 27 (a) The terms of this Order are applicable to information produced by a 1 produced by Non-Parties in connection with this litigation is protected by the 2 remedies and relief provided by this Order. Nothing in these provisions should be 3 construed as prohibiting a Non-Party from seeking additional protections. 4 (b) In the event that a Party is required, by a valid discovery request, to 5 produce a Non-Party’s confidential information in its possession, and the Party is 6 subject to an agreement with the Non-Party not to produce the Non-Party’s 7 confidential information, then the Party shall: 8 (1) promptly notify in writing the Requesting Party and the Non-Party 9 that some or all of the information requested is subject to a confidentiality 10 agreement with a Non-Party; 11 (2) promptly provide the Non-Party with a copy of the Stipulated 12 Protective Order in this Action, the relevant discovery request(s), and a reasonably 13 specific description of the information requested; and 14 (3) make the information requested available for inspection by the 15 Non-Party, if requested. 16 (c) If the Non-Party fails to seek a protective order from this court within 17 14 days of receiving the notice and accompanying information, the Receiving Party 18 may produce the Non-Party’s confidential information responsive to the discovery 19 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 20 not produce any information in its possession or control that is subject to the 21 confidentiality agreement with the Non-Party before a determination by the court. 22 Absent a court order to the contrary, the Non-Party shall bear the burden and 23 expense of seeking protection in this court of its Protected Material. 24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 26 Protected Material to any person or in any circumstance not authorized under this 27 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 1 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 2 persons to whom unauthorized disclosures were made of all the terms of this Order, 3 and (d) request such person or persons to execute the “Acknowledgment and 4 Agreement to Be Bound” that is attached hereto as Exhibit A. 5 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 7 When a Producing Party gives notice to Receiving Parties that certain 8 inadvertently produced material is subject to a claim of privilege or other protection, 9 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 10 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 11 procedure may be established in an e-discovery order that provides for production 12 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 13 (e), insofar as the parties reach an agreement on the effect of disclosure of a 14 communication or information covered by the attorney-client privilege or work 15 product protection, the parties may incorporate their agreement in the stipulated 16 protective order submitted to the court. 17 12. MISCELLANEOUS 18 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 19 person to seek its modification by the Court in the future. 20 12.2 Right to Assert Other Objections. By stipulating to the entry of this 21 Protective Order, no Party waives any right it otherwise would have to object to 22 disclosing or producing any information or item on any ground not addressed in this 23 Stipulated Protective Order. Similarly, no Party waives any right to object on any 24 ground to use in evidence of any of the material covered by this Protective Order. 25 12.3 Filing Protected Material. A Party that seeks to file under seal any 26 Protected Material must comply with Local Civil Rule 79-5. Protected Material 27 may only be filed under seal pursuant to a court order authorizing the sealing of the 1 under seal is denied by the court, then the Receiving Party may file the information 2 in the public record unless otherwise instructed by the court. 3 13. FINAL DISPOSITION 4 After the final disposition of this Action, as defined in paragraph 4, within 60 5 days of a written request by the Designating Party, each Receiving Party must return 6 all Protected Material to the Producing Party or destroy such material. As used in 7 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 8 summaries, and any other format reproducing or capturing any of the Protected 9 Material. Whether the Protected Material is returned or destroyed, the Receiving 10 Party must submit a written certification to the Producing Party (and, if not the same 11 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 12 (by category, where appropriate) all the Protected Material that was returned or 13 destroyed and (2) affirms that the Receiving Party has not retained any copies, 14 abstracts, compilations, summaries or any other format reproducing or capturing any 15 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 16 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 17 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 18 reports, attorney work product, and consultant and expert work product, even if such 19 materials contain Protected Material. Any such archival copies that contain or 20 constitute Protected Material remain subject to this Protective Order as set forth in 21 Section 4 (DURATION). 22 23 24 25 26 27 1 14. VIOLATION 2 Any violation of this Order may be punished by appropriate measures including, 3 without limitation, contempt proceedings and/or monetary sanctions. 5 DATED: November 27, 2019 MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 6

7 By: /s/ Michael R. Watts Eugene P. Ramirez 8 Angela M. Powell 9 Michael R. Watts Attorneys for Defendant, COUNTY OF 10 VENTURA, DISTRICT ATTORNEY 11 GREGORY D. TOTTEN, and DEPUTY DISTRICT ATTORNEY DAVID S. 12 RUSSELL 13 14 DATED: November 27, 2019 LAWRENCE BEACH ALLEN & CHOI, PC 15 16 By: /s/ Rocco Zambito, Jr. Rocco Zambito, Jr. 17 Attorneys for Defendants 18 SHERIFF BILL AYUB and DETECTIVE SERGEANT JEREMY BRAMLETTE 19

20 DATED: November 27, 2019 HARRIS & ASSOCIATES 21

22 By: /s/ Herbert Hayden 23 Herbert Hayden, Esq. 24 Attorneys for Plaintiffs Andres Felix and Federico Diaz 25

27 1 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 2 3 || DATED: December 16, 2019 4 5 6 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of Andres Felix and Federico Diaz v. County of Ventura, et al., 8 2:19-cv-06002-DDP-GJS. I agree to comply with and to be bound by all the terms 9 of this Stipulated Protective Order and I understand and acknowledge that failure to 10 so comply could expose me to sanctions and punishment in the nature of contempt. 11 I solemnly promise that I will not disclose in any manner any information or item 12 that is subject to this Stipulated Protective Order to any person or entity except in 13 strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Central District of California for enforcing the terms of this Stipulated Protective 16 Order, even if such enforcement proceedings occur after termination of this action. 17 I hereby appoint __________________________ [print or type full name] of 18 _______________________________________ [print or type full address and 19 telephone number] as my California agent for service of process in connection with 20 this action or any proceedings related to enforcement of this Stipulated Protective 21 Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 25 Printed name: _______________________________ 26 27 Signature: __________________________________