1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARMANDO JAUREGUI, ) Case No: 2:11-cv-09182-AB-FFM 12 ) ) AMENDED PROTECTIVE ORDER 13 Plaintiff, ) ) PURSUANT TO STIPULATION 14 ) vs. ) 15 ) ) 16 HUNTINGTON BEACH POLICE ) DEPARTMENT, READ PARKER ) 17 ) and TRENT TUNSTALL, ) 18 ) 19 Defendants. ) 20 1. PURPOSES AND LIMITATIONS 21 Discovery in this action is likely to involve production of confidential, 22 proprietary or private information for which special protection from public 23 disclosure and from use for any purpose other than pursuing this litigation may be 24 warranted. Accordingly, the parties hereby stipulate to and petition the Court to 25 enter the following Stipulated Protective Order. The parties acknowledge that this 26 Order does not confer blanket protections on all disclosures or responses to 27 discovery and that the protection it affords from public disclosure and use extends 28 / / / 1 1 only to the limited information or items that are entitled to confidential treatment 2 under the applicable legal principles. 3 2. GOOD CAUSE STATEMENT 4 Defendants City of Huntington Beach, Read Parker and Trent Tunstall 5 (“Defendants”) contend that there is good cause and a particularized need for a 6 protective order to preserve the interests of confidentiality and privacy in peace 7 officer personnel file records and associated investigative or confidential records 8 for the following reasons. 9 First, Defendants contend that peace officers have a federal privilege of 10 privacy in their personnel file records: a reasonable expectation of privacy therein 11 that is underscored, specified, and arguably heightened by the Pitchess protective 12 procedure of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 13 1027, 1033-1034 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. 14 LEXIS 14665, 2-3, 12-13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law 15 applies to privilege based discovery disputes involving federal claims,” the “state 16 privilege law which is consistent with its federal equivalent significantly assists in 17 applying [federal] privilege law to discovery disputes”); Soto v. City of Concord, 18 162 F.R.D. 603, 613 n. 4, 616 (N.D. Cal. 1995) (peace officers have 19 constitutionally-based “privacy rights [that] are not inconsequential” in their police 20 personnel records); cf. Cal. Penal Code §§ 832.7, 832.8; Cal. Evid. Code §§ 1040- 21 1047. Defendants further contend that uncontrolled disclosure of such personnel 22 file information can threaten the safety of non-party witnesses, officers, and their 23 families/associates. 24 Second, Defendants contend that municipalities and law enforcement 25 agencies have federal deliberative-executive process privilege, federal official 26 information privilege, federal law enforcement privilege, and federal attorney- 27 client privilege (and/or attorney work product protection) interests in the personnel 28 files of their peace officers – particularly as to those portions of peace officer 2 1 personnel files that contain critical self-analysis, internal deliberation/decision- 2 making or evaluation/analysis, or communications for the purposes of obtaining or 3 rendering legal advice or analysis – potentially including but not limited to 4 evaluative/analytical portions of Internal Affairs type records or reports, 5 evaluative/analytical portions of supervisory records or reports, and/or reports 6 prepared at the direction of counsel, or for the purpose of obtaining or rendering 7 legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa Audubon Soc’y v. 8 United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir. 1997); Soto, 162 9 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654, 668-671 (N.D. 10 Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998); Hamstreet v. 11 Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co. v. United 12 States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants further 13 contend that such personnel file records are restricted from disclosure by the public 14 entity’s custodian of records pursuant to applicable California law and that 15 uncontrolled release is likely to result in needless intrusion of officer privacy; 16 impairment in the collection of third-party witness information and statements and 17 related legitimate law enforcement investigations/interests; and a chilling of open 18 and honest discussion regarding and/or investigation into alleged misconduct that 19 can erode a public entity’s ability to identify and/or implement any remedial 20 measures that may be required. 21 Third, Defendants contend that, since peace officers do not have the same 22 rights as other private citizens to avoid giving compelled statements, it is contrary 23 to the fundamental principles of fairness to permit uncontrolled release of officers’ 24 compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 25 822, 828-830 (1985); cf. U.S. Const., amend V. 26 Finally, Defendants contend that recent amendments to state law enacted by 27 Senate Bill 1421, do not diminish the fundamental privacy interests in the 28 categories of material described above. They further contend that the information 3 1 required to be released pursuant to Senate Bill 1421 is subject to strict redaction 2 requirements, whereby the information available under Senate Bill 1421 is not 3 coextensive with the information available through a Pitchess motion for 4 discovery. See Cal. Pen. Code § 832.7(b)(5). Moreover, the statute expressly 5 provides that it “does not affect the discovery of disclosure of information” 6 pursuant to the statutory Pitchess procedure for discovery. 7 Accordingly, Defendants contend that, without a protective order preventing 8 such, dissemination of confidential records in the case can and will likely 9 substantially impair and harm defendant public entity’s interests in candid self- 10 critical analysis, frank internal deliberations, obtaining candid information from 11 witnesses, preserving the safety of witnesses, preserving the safety of peace 12 officers and peace officers’ families and associates, protecting the privacy officers 13 of peace officers, and preventing pending investigations from being detrimentally 14 undermined by publication of private, sensitive, or confidential information – as 15 can and often does result in litigation. 16 Plaintiff Armando Jauregui (“Plaintiff”) does not agree with and does not 17 stipulate to Defendants’ contentions herein above. 18 The parties acknowledge and agree that nothing in this Stipulation or its 19 associated Order shall resolve the parties’ disagreement, or bind them, concerning 20 the legal statements and claimed privileges and privacy interests set forth above. 21 However, Plaintiff agrees that there is Good Cause for a Protective Order so 22 as to preserve the respective interests of the parties without the need to further 23 burden the Court with such issues. Specifically, the parties jointly contend that, 24 absent this Stipulation and its associated Protective Order, the parties' respective 25 privilege and/or privacy interests, and/or privacy interests of third parties, may be 26 impaired or harmed, and that this Stipulation and its associated Protective Order 27 may avoid such harm by permitting the parties to facilitate discovery with reduced 28 / / / 4 1 risk that privileged and/or sensitive/confidential information will become matters 2 of public record. 3 The parties jointly contend that there is typically a particularized need for 4 protection as to any medical and psychotherapeutic records, because of the privacy 5 interests at stake therein.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARMANDO JAUREGUI, ) Case No: 2:11-cv-09182-AB-FFM 12 ) ) AMENDED PROTECTIVE ORDER 13 Plaintiff, ) ) PURSUANT TO STIPULATION 14 ) vs. ) 15 ) ) 16 HUNTINGTON BEACH POLICE ) DEPARTMENT, READ PARKER ) 17 ) and TRENT TUNSTALL, ) 18 ) 19 Defendants. ) 20 1. PURPOSES AND LIMITATIONS 21 Discovery in this action is likely to involve production of confidential, 22 proprietary or private information for which special protection from public 23 disclosure and from use for any purpose other than pursuing this litigation may be 24 warranted. Accordingly, the parties hereby stipulate to and petition the Court to 25 enter the following Stipulated Protective Order. The parties acknowledge that this 26 Order does not confer blanket protections on all disclosures or responses to 27 discovery and that the protection it affords from public disclosure and use extends 28 / / / 1 1 only to the limited information or items that are entitled to confidential treatment 2 under the applicable legal principles. 3 2. GOOD CAUSE STATEMENT 4 Defendants City of Huntington Beach, Read Parker and Trent Tunstall 5 (“Defendants”) contend that there is good cause and a particularized need for a 6 protective order to preserve the interests of confidentiality and privacy in peace 7 officer personnel file records and associated investigative or confidential records 8 for the following reasons. 9 First, Defendants contend that peace officers have a federal privilege of 10 privacy in their personnel file records: a reasonable expectation of privacy therein 11 that is underscored, specified, and arguably heightened by the Pitchess protective 12 procedure of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 13 1027, 1033-1034 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. 14 LEXIS 14665, 2-3, 12-13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law 15 applies to privilege based discovery disputes involving federal claims,” the “state 16 privilege law which is consistent with its federal equivalent significantly assists in 17 applying [federal] privilege law to discovery disputes”); Soto v. City of Concord, 18 162 F.R.D. 603, 613 n. 4, 616 (N.D. Cal. 1995) (peace officers have 19 constitutionally-based “privacy rights [that] are not inconsequential” in their police 20 personnel records); cf. Cal. Penal Code §§ 832.7, 832.8; Cal. Evid. Code §§ 1040- 21 1047. Defendants further contend that uncontrolled disclosure of such personnel 22 file information can threaten the safety of non-party witnesses, officers, and their 23 families/associates. 24 Second, Defendants contend that municipalities and law enforcement 25 agencies have federal deliberative-executive process privilege, federal official 26 information privilege, federal law enforcement privilege, and federal attorney- 27 client privilege (and/or attorney work product protection) interests in the personnel 28 files of their peace officers – particularly as to those portions of peace officer 2 1 personnel files that contain critical self-analysis, internal deliberation/decision- 2 making or evaluation/analysis, or communications for the purposes of obtaining or 3 rendering legal advice or analysis – potentially including but not limited to 4 evaluative/analytical portions of Internal Affairs type records or reports, 5 evaluative/analytical portions of supervisory records or reports, and/or reports 6 prepared at the direction of counsel, or for the purpose of obtaining or rendering 7 legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa Audubon Soc’y v. 8 United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir. 1997); Soto, 162 9 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654, 668-671 (N.D. 10 Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998); Hamstreet v. 11 Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co. v. United 12 States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants further 13 contend that such personnel file records are restricted from disclosure by the public 14 entity’s custodian of records pursuant to applicable California law and that 15 uncontrolled release is likely to result in needless intrusion of officer privacy; 16 impairment in the collection of third-party witness information and statements and 17 related legitimate law enforcement investigations/interests; and a chilling of open 18 and honest discussion regarding and/or investigation into alleged misconduct that 19 can erode a public entity’s ability to identify and/or implement any remedial 20 measures that may be required. 21 Third, Defendants contend that, since peace officers do not have the same 22 rights as other private citizens to avoid giving compelled statements, it is contrary 23 to the fundamental principles of fairness to permit uncontrolled release of officers’ 24 compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 25 822, 828-830 (1985); cf. U.S. Const., amend V. 26 Finally, Defendants contend that recent amendments to state law enacted by 27 Senate Bill 1421, do not diminish the fundamental privacy interests in the 28 categories of material described above. They further contend that the information 3 1 required to be released pursuant to Senate Bill 1421 is subject to strict redaction 2 requirements, whereby the information available under Senate Bill 1421 is not 3 coextensive with the information available through a Pitchess motion for 4 discovery. See Cal. Pen. Code § 832.7(b)(5). Moreover, the statute expressly 5 provides that it “does not affect the discovery of disclosure of information” 6 pursuant to the statutory Pitchess procedure for discovery. 7 Accordingly, Defendants contend that, without a protective order preventing 8 such, dissemination of confidential records in the case can and will likely 9 substantially impair and harm defendant public entity’s interests in candid self- 10 critical analysis, frank internal deliberations, obtaining candid information from 11 witnesses, preserving the safety of witnesses, preserving the safety of peace 12 officers and peace officers’ families and associates, protecting the privacy officers 13 of peace officers, and preventing pending investigations from being detrimentally 14 undermined by publication of private, sensitive, or confidential information – as 15 can and often does result in litigation. 16 Plaintiff Armando Jauregui (“Plaintiff”) does not agree with and does not 17 stipulate to Defendants’ contentions herein above. 18 The parties acknowledge and agree that nothing in this Stipulation or its 19 associated Order shall resolve the parties’ disagreement, or bind them, concerning 20 the legal statements and claimed privileges and privacy interests set forth above. 21 However, Plaintiff agrees that there is Good Cause for a Protective Order so 22 as to preserve the respective interests of the parties without the need to further 23 burden the Court with such issues. Specifically, the parties jointly contend that, 24 absent this Stipulation and its associated Protective Order, the parties' respective 25 privilege and/or privacy interests, and/or privacy interests of third parties, may be 26 impaired or harmed, and that this Stipulation and its associated Protective Order 27 may avoid such harm by permitting the parties to facilitate discovery with reduced 28 / / / 4 1 risk that privileged and/or sensitive/confidential information will become matters 2 of public record. 3 The parties jointly contend that there is typically a particularized need for 4 protection as to any medical and psychotherapeutic records, because of the privacy 5 interests at stake therein. Because of these sensitive interests, a Court Order should 6 address these documents rather than a private agreement between the parties. 7 The parties therefore stipulate that there is Good Cause for, and hereby 8 jointly request that the honorable Court issue/enter, a Protective Order re: 9 confidential documents consistent with the terms and provisions of this Stipulation. 10 However, the entry of a Protective Order by the Court pursuant to this Stipulation 11 shall not be construed as any ruling by the Court on the aforementioned legal 12 statements or privilege claims in this section (§ 2), nor shall this section be 13 construed as part of any such Court Order. 14 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 15 The parties further acknowledge, as set forth in Section 14.3, below, that this 16 Stipulated Protective Order does not entitle them to file confidential information 17 under seal; Local Civil Rule 79-5 sets forth the procedures that must be 18 followed and the standards that will be applied when a party seeks permission 19 from the court to file material under seal. There is a strong presumption that the 20 public has a right of access to judicial proceedings and records in civil cases. In 21 connection with non-dispositive motions, good cause must be shown to support a 22 filing under seal. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 23 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th 24 Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 25 1999) (even stipulated protective orders require good cause showing), and a 26 specific showing of good cause or compelling reasons with proper evidentiary 27 support and legal justification, must be made with respect to Protected Material 28 that a party seeks to file under seal. The parties’ mere designation of Disclosure or 5 1 Discovery Material as CONFIDENTIAL does not— without the submission of 2 competent evidence by declaration, establishing that the material sought to be filed 3 under seal qualifies as confidential, privileged, or otherwise protectable— 4 constitute good cause. 5 Further, if a party requests sealing related to a dispositive motion or trial, 6 then compelling reasons, not only good cause, for the sealing must be shown, and 7 the relief sought shall be narrowly tailored to serve the specific interest to be 8 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 9 2010). For each item or type of information, document, or thing sought to be filed 10 or introduced under seal, the party seeking protection must articulate compelling 11 reasons, supported by specific facts and legal justification, for the requested sealing 12 order. Again, competent evidence supporting the application to file documents 13 under seal must be provided by declaration. 14 Any document that is not confidential, privileged, or otherwise protectable 15 in its entirety will not be filed under seal if the confidential portions can be 16 redacted. If documents can be redacted, then a redacted version for public viewing, 17 omitting only the confidential, privileged, or otherwise protectable portions of the 18 document, shall be filed. Any application that seeks to file documents under seal in 19 their entirety should include an explanation of why redaction is not feasible. 20 4. DEFINITIONS 21 4.1 Action: Armando Jauregui v. City of Huntington Beach, et al., United 22 States Central District Court Case No. 11-09182-AB (FFMx). 23 4.2 Challenging Party: a Party or Non-Party that challenges the 24 designation of information or items under this Order. 25 4.3 “CONFIDENTIAL” Information or Items: information (regardless of 26 how it is generated, stored or maintained) or tangible things that qualify for 27 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 28 the Good Cause Statement. 6 1 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as 2 their support staff). 3 4.5 Designating Party: a Party or Non-Party that designates information or 4 items that it produces in disclosures or in responses to discovery as 5 “CONFIDENTIAL.” 6 4.6 Disclosure or Discovery Material: all items or information, regardless 7 of the medium or manner in which it is generated, stored, or maintained (including, 8 among other things, testimony, transcripts, and tangible things), that are produced 9 or generated in disclosures or responses to discovery. 10 4.7 Expert: a person with specialized knowledge or experience in a matter 11 pertinent to the litigation who has been retained by a Party or its counsel to serve 12 as an expert witness or as a consultant in this Action, and his support staff. 13 4.8 House Counsel: attorneys who are employees of a party to this 14 Action. House Counsel does not include Outside Counsel of Record or any other 15 outside counsel. 16 4.9 Non-Party: any natural person, partnership, corporation, association or 17 other legal entity not named as a Party to this action. 18 4.10 Outside Counsel of Record: attorneys who are not employees of a 19 party to this Action but are retained to represent a party to this Action and have 20 appeared in this Action on behalf of that party or are affiliated with a law firm that 21 has appeared on behalf of that party, and includes support staff. 22 4.11 Party: any party to this Action, including all of its officers, directors, 23 employees, consultants, retained experts, and Outside Counsel of Record (and their 24 support staffs). 25 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 26 Discovery Material in this Action. 27 4.13 Professional Vendors: persons or entities that provide litigation 28 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 7 1 demonstrations, and organizing, storing, or retrieving data in any form or medium) 2 and their employees and subcontractors. 3 4.14 Protected Material: any Disclosure or Discovery Material that is 4 designated as “CONFIDENTIAL.” 5 4.15 Receiving Party: a Party that receives Disclosure or Discovery 6 Material from a Producing Party. 7 5. SCOPE 8 The protections conferred by this Stipulation and Order cover not only 9 Protected Material (as defined above), but also (1) any information copied or 10 extracted from Protected Material; (2) all copies, excerpts, summaries, or 11 compilations of Protected Material; and (3) any testimony, conversations, or 12 presentations by Parties or their Counsel that might reveal Protected Material. 13 Any use of Protected Material at trial shall be governed by the orders of the 14 trial judge and other applicable authorities. This Order does not govern the use of 15 Protected Material at trial. 16 6. DURATION 17 Once a case proceeds to trial, information that was designated as 18 CONFIDENTIAL or maintained pursuant to this protective order which is used or 19 introduced as an exhibit at trial becomes public and will be presumptively 20 available to all members of the public, including the press, unless compelling 21 reasons supported by specific factual findings to proceed otherwise are made to the 22 trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 23 (distinguishing “good cause” showing for sealing documents produced in 24 discovery from “compelling reasons” standard when merits-related documents are 25 part of court record). Accordingly, the terms of this protective order do not extend 26 beyond the commencement of the trial to such documents. 27 / / / 28 / / / 8 1 7. DESIGNATING PROTECTED MATERIAL 2 7.1 Exercise of Restraint and Care in Designating Material for 3 Protection. Each Party or Non-Party that designates information or 4 items for protection under this Order must take care to limit any such designation 5 to specific material that qualifies under the appropriate standards. The Designating 6 Party must designate for protection only those parts of material, documents, items 7 or oral or written communications that qualify so that other portions of the 8 material, documents, items or communications for which protection is not 9 warranted are not swept unjustifiably within the ambit of this Order. 10 Mass, indiscriminate or routinized designations are prohibited. Designations 11 that are shown to be clearly unjustified or that have been made for an improper 12 purpose (e.g., to unnecessarily encumber the case development process or to 13 impose unnecessary expenses and burdens on other parties) may expose the 14 Designating Party to sanctions. 15 If it comes to a Designating Party’s attention that information or items that it 16 designated for protection do not qualify for protection that Designating Party must 17 promptly notify all other Parties that it is withdrawing the inapplicable designation. 18 7.2 Manner and Timing of Designations. Except as otherwise provided in 19 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material 20 that qualifies for protection under this Order must be clearly so designated before 21 the material is disclosed or produced. 22 Designation in conformity with this Order requires: 23 (a) for information in documentary form (e.g., paper or electronic 24 documents, but excluding transcripts of depositions or other pretrial or trial 25 proceedings), that the Producing Party affix at a minimum, the legend 26 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 27 contains protected material. If only a portion of the material on a page qualifies for 28 / / / 9 1 protection, the Producing Party also must clearly identify the protected portion(s) 2 (e.g., by making appropriate markings in the margins). 3 A Party or Non-Party that makes original documents available for inspection 4 need not designate them for protection until after the inspecting Party has indicated 5 which documents it would like copied and produced. During the inspection and 6 before the designation, all of the material made available for inspection shall be 7 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 8 documents it wants copied and produced, the Producing Party must determine 9 which documents, or portions thereof, qualify for protection under this Order. 10 Then, before producing the specified documents, the Producing Party must affix 11 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 12 only a portion of the material on a page qualifies for protection, the Producing 13 Party also must clearly identify the protected portion(s) (e.g., by making 14 appropriate markings in the margins). 15 (b) for testimony given in depositions that the Designating Party 16 identifies the Disclosure or Discovery Material on the record, before the close of 17 the deposition all protected testimony. 18 (c) for information produced in some form other than documentary and 19 for any other tangible items, that the Producing Party affix in a prominent place on 20 the exterior of the container or containers in which the information is stored the 21 legend “CONFIDENTIAL.” If only a portion or portions of the information 22 warrants protection, the Producing Party, to the extent practicable, shall identify 23 the protected portion(s). 24 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 25 failure to designate qualified information or items does not, standing alone, waive 26 the Designating Party’s right to secure protection under this Order for such 27 material. Upon timely correction of a designation, the Receiving Party must make 28 / / / 10 1 reasonable efforts to assure that the material is treated in accordance with the 2 provisions of this Order. 3 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 4 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 5 designation of confidentiality at any time that is consistent with the Court’s 6 Scheduling Order. 7 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 8 resolution process under Local Rule 37-1 et seq. 9 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 10 joint stipulation pursuant to Local Rule 37-2. 11 8.4 The burden of persuasion in any such challenge proceeding shall be 12 on 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 9. ACCESS TO AND USE OF PROTECTED MATERIAL 20 9.1 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 24 the conditions described in this Order. When the Action has been terminated, a 25 Receiving Party must comply with the provisions of section 15 below (FINAL 26 DISPOSITION). 27 / / / 28 / / / 11 1 Protected Material must be stored and maintained by a Receiving Party at a 2 location and in a secure manner that ensures that access is limited to the persons 3 authorized under this Order. 4 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 5 otherwise ordered by the court or permitted in writing by the Designating Party, a 6 Receiving Party may disclose any information or item designated 7 “CONFIDENTIAL” only to: 8 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 9 well as employees of said Outside Counsel of Record to whom it is reasonably 10 necessary to disclose the information for this Action; 11 (b) the officers, directors, and employees (including House Counsel) of 12 the Receiving Party to whom disclosure is reasonably necessary for this Action; 13 (c) Experts (as defined in this Order) of the Receiving Party to whom 14 disclosure is reasonably necessary for this Action and who have signed the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A). 16 (d) the court and its personnel; 17 (e) court reporters and their staff; 18 (f) professional jury or trial consultants, mock jurors, and Professional 19 Vendors to whom disclosure is reasonably necessary for this Action and who have 20 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 21 (g) the author or recipient of a document containing the information or a 22 custodian or other person who otherwise possessed or knew the information; 23 (h) during their depositions, witnesses, and attorneys for witnesses, in the 24 Action to whom disclosure is reasonably necessary provided: (1) the deposing 25 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 26 they will not be permitted to keep any confidential information unless they sign the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 28 agreed by the Designating Party or ordered by the court. Pages of transcribed 12 1 deposition testimony or exhibits to depositions that reveal Protected Material may 2 be separately bound by the court reporter and may not be disclosed to anyone 3 except as permitted under this Stipulated Protective Order; and 4 (i) any mediators or settlement officers and their supporting personnel, 5 mutually agreed upon by any of the parties engaged in settlement discussions. 6 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 7 PRODUCED IN OTHER LITIGATION 8 If a Party is served with a subpoena or a court order issued in other litigation 9 that compels disclosure of any information or items designated in this Action as 10 “CONFIDENTIAL,” that Party must: 11 (a) promptly notify in writing the Designating Party. Such notification 12 shall include a copy of the subpoena or court order; 13 (b) promptly notify in writing the party who caused the subpoena or order 14 to issue in the other litigation that some or all of the material covered by the 15 subpoena or order is subject to this Protective Order. Such notification shall 16 include a copy of this Stipulated Protective Order; and 17 (c) cooperate with respect to all reasonable procedures sought to be 18 pursued by the Designating Party whose Protected Material may be affected. If the 19 Designating Party timely seeks a protective order, the Party served with the 20 subpoena or court order shall not produce any information designated in this action 21 as “CONFIDENTIAL” before a determination by the court from which the 22 subpoena or order issued, unless the Party has obtained the Designating Party’s 23 permission. The Designating Party shall bear the burden and expense of seeking 24 protection in that court of its confidential material and nothing in these provisions 25 should be construed as authorizing or encouraging a Receiving Party in this Action 26 to disobey a lawful directive from another court. 27 / / / 28 / / / 13 1 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 2 BE PRODUCED IN THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by a 4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in connection with this litigation is protected by the 6 remedies and relief provided by this Order. Nothing in these provisions should be 7 construed as prohibiting a Non-Party from seeking additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to 9 produce a Non-Party’s confidential information in its possession, and the Party is 10 subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non- 13 Party that some or all of the information requested is subject to a confidentiality 14 agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a reasonably 17 specific description of the information requested; and 18 (3) make the information requested available for inspection by the 19 Non-Party, if requested. 20 (c) If the Non-Party fails to seek a protective order from this court within 21 14 days of receiving the notice and accompanying information, the Receiving 22 Party may produce the Non-Party’s confidential information responsive to the 23 discovery request. If the Non-Party timely seeks a protective order, the Receiving 24 Party shall not produce any information in its possession or control that is subject 25 to the confidentiality agreement with the Non-Party before a determination by the 26 court. Absent a court order to the contrary, the Non-Party shall bear the burden and 27 expense of seeking protection in this court of its Protected Material. 28 / / / 14 1 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has 3 disclosed Protected Material to any person or in any circumstance not authorized 4 under this Stipulated Protective Order, the Receiving Party must immediately (a) 5 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 6 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 7 the person or persons to whom unauthorized disclosures were made of all the terms 8 of this Order, and (d) request such person or persons to execute the 9 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A. 10 13. INADVERTENT PRODUCTION OF PRIVILEGED OR 11 OTHERWISE PROTECTED MATERIAL 12 When a Producing Party gives notice to Receiving Parties that certain 13 inadvertently produced material is subject to a claim of privilege or other 14 protection, the obligations of the Receiving Parties are those set forth in Federal 15 Rule of Civil\ Procedure 26(b)(5)(B). This provision is not intended to modify 16 whatever procedure may be established in an e-discovery order that provides for 17 production without prior privilege review. Pursuant to Federal Rule of Evidence 18 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 19 of a communication or information covered by the attorney-client privilege or 20 work product protection, the parties may incorporate their agreement in the 21 stipulated protective order submitted to the court. 22 14. MISCELLANEOUS 23 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 24 person to seek its modification by the Court in the future. 25 14.2 Right to Assert Other Objections. By stipulating to the entry of this 26 Protective Order, no Party waives any right it otherwise would have to object to 27 disclosing or producing any information or item on any ground not addressed in 28 this Stipulated Protective Order. Similarly, no Party waives any right to object on 15 1 any ground to use in evidence of any of the material covered by this Protective 2 Order. 3 14.3 Filing Protected Material. A Party that seeks to file under seal any 4 Protected Material must comply with Local Civil Rule 79-5. Protected Material 5 may only be filed under seal pursuant to a court order authorizing the sealing of the 6 specific Protected Material. If a Party’s request to file Protected Material under 7 seal is denied by the court, then the Receiving Party may file the information in the 8 public record unless otherwise instructed by the court. 9 15. FINAL DISPOSITION 10 After the final disposition of this Action, as defined in paragraph 6, within 11 60 days of a written request by the Designating Party, each Receiving Party must 12 return all Protected Material to the Producing Party or destroy such material. As 13 used in this subdivision, “all Protected Material” includes all copies, abstracts, 14 compilations, summaries, and any other format reproducing or capturing any of the 15 Protected Material. Whether the Protected Material is returned or destroyed, the 16 Receiving Party must submit a written certification to the Producing Party (and, if 17 not the same person or entity, to the Designating Party) by the 60-day deadline that 18 (1) identifies (by category, where appropriate) all the Protected Material that was 19 returned or destroyed and (2) affirms that the Receiving Party has not retained any 20 copies, abstracts, compilations, summaries or any other format reproducing or 21 capturing any of the Protected Material. Notwithstanding this provision, Counsel 22 are entitled to retain an archival copy of all pleadings, motion papers, trial, 23 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 24 and trial exhibits, expert reports, attorney work product, and consultant and expert 25 work product, even if such materials contain Protected Material. Any such archival 26 copies that contain or constitute Protected Material remain subject to this 27 Protective Order as set forth in Section 6 (DURATION). 28 / / / 16 1 16. VIOLATION 2 Any violation of this Order may be punished by appropriate measures 3 including, without limitation, contempt proceedings and/or monetary sanctions. 4 5 6 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 7 8 DATED: August 9, 2019 /S/ FREDERICK F. MUMM FREDERICK F. MUMM 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, ______________________ declare under penalty of perjury that I have read 5 in its entirety and understand the Stipulated Protective Order that was entered by the 6 United States District Court for the Central District of California in the case titled 7 Jauregui v. Huntington Beach California Police Department, et al., Case No. 11-cv- 8 09182. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly 11 promise that I will not disclose in any manner any information or item that is subject 12 to this Stipulated Protective Order to any person or entity except in strict compliance 13 with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of the case, or after the member cases in which I am involved have 18 terminated or been remanded. 19 Dated: __________________________________ 20 City and State: ___________________________ 21 Signature: _______________________________ 22 Title: ___________________________________ 23 Address: ________________________________ 24 ________________________________________ 25 ________________________________________ 26 27 28