1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF ANTONIO THOMAS, et al., No. 2:20-cv-0903 KJM DB 12 Plaintiffs, 13 v. ORDER 14 COUNTY OF SACRAMENTO et al., 15 Defendants. 16 17 This matter came before the undersigned on March 5, 2021, for hearing of plaintiffs’ 18 motion to compel and defendants’ motion for a protective order pursuant to Local Rule 302(c)(1). 19 (ECF No. 36.) In an order filed on March 10, 2021, the undersigned found that the defendants 20 had made “the necessary good cause showing” to justify a protective order. (ECF No. 37 at 3.) 21 The parties were ordered to meet and confer regarding an agreed upon protective order. (Id.) If 22 the parties could not agree upon a protective order, defendants were to file a proposed protective 23 order. (Id.) 24 On March 15, 2021, plaintiffs filed a motion for reconsideration of the undersigned’s 25 March 10, 2021 order. (ECF No. 41.) On March 30, 2021, defendants filed a proposed protective 26 order. (ECF No. 43.) On April 6, 2021, plaintiffs filed an opposition to defendants’ proposed 27 protective order. (ECF No. 45.) On July 1, 2021, the assigned District Judge denied plaintiffs’ 28 motion for reconsideration of the undersigned’s March 10, 2021 order. (ECF No. 52.) 1 Upon consideration of defendants’ proposed protective order and plaintiffs’ opposition, 2 the undersigned enters the following protective order: 3 A. PURPOSE AND LIMITATION 4 The disclosure and discovery activity concerning the materials described in section C is 5 likely to involve production of confidential or private information for which protection from 6 public disclosure and from use for any purpose other than prosecuting this litigation would be 7 warranted. This protective order does not confer blanket protections on all disclosures or 8 discovery activity, and the protection it affords extends only to the limited information or items 9 that are entitled to such protection under Fed. R. Civ. P. 26(c). 10 B. DEFINITIONS 11 The following definitions shall apply to this Protective Order: 12 1. The “Action” shall mean and refer to the above-captioned matter and to all actions 13 now or later consolidated with the Action, and any appeal from the Action and from any other 14 action consolidated at any time under the above-captioned matter, through final judgment. 15 2. “Documents” or “Confidential Documents” shall mean the Documents that 16 Defendants designate as “Confidential” in the manner set forth in this Protective Order. 17 3. “Confidential” shall mean information designated “Confidential” pursuant to this 18 Protective Order. Information designated “Confidential” shall be information that is determined 19 in good faith by the attorneys representing the Designating Party to be subject to protection 20 pursuant to Fed. R. Civ. P. 26(c). Confidential Documents, material, and/or information shall be 21 used solely for purposes of litigation. Confidential Information shall not be used by the non- 22 Designating Party for any business or other purpose, unless agreed to in writing by all Parties to 23 this action or as authorized by further order of the Court. 24 4. “Defendants” shall mean COUNTY OF SACRAMENTO, SACRAMENTO 25 COUNTY SHERIFF’S DEPARTMENT, and SCOTT R. JONES. 26 5. “Plaintiffs” shall mean ESTATE OF ANTONIO THOMAS, TAIJAH THOMAS, 27 TAIONNAA THOMAS, ANITA THOMAS, and ANTHONY WALLACE 28 6. “Parties” shall mean Plaintiffs and Defendants, identified above. 1 C. INFORMATION COVERED 2 Covered Information: 3 Pursuant to E.D. Cal. L.R. 141.1(c)(1), a description of the information eligible for 4 protection under this Protective Order is limited to the following: 5 1. Portions of Antonio Thomas’ custody file for the incarceration beginning 6 December 6, 2019, Bates labeled DEFS00021; 00026; 00028-00031; 7 2. Antonio Thomas’ classification file for the incarceration beginning December 6, 8 2019, Bates labeled DEFS00032-00098; 9 3. Antonio Thomas’ custody files for all prior incarcerations with the Sacramento 10 County Sheriff’s Department, Bates labeled DEFS00146-00266; 11 4. Antonio Thomas’ classification files for all prior incarcerations with the 12 Sacramento County Sheriff’s Department, Bates labeled DEFS00267-00297. 13 There is the possibility that these records may contain sensitive and private information 14 that is not relevant to this action or subject to disclosure, such as but not limited to home 15 addresses, contact information, social security numbers, dates of birth, etc. Defendants are 16 permitted pre-production redaction of such limited information, so long as any redacted 17 documents are accompanied by a redaction log/designation obviously identifying each instance of 18 redaction and the information redacted. 19 Particularized Need for Protection: 20 Pursuant to E.D. Cal. L.R. 141.1(c)(2), a specific, particularized need for protection as to 21 the information covered by this Protective Order exists. The materials designated to be covered 22 by this Protective Order are limited solely to those which would qualify for protection under Fed. 23 R. Civ. P. 26(c), and does not include information which has been subject to protection on a 24 blanket or indiscriminate basis. See, e.g., In Re Roman Catholic Archbishop of Portland, 661 25 F.3d 417, 424 (9th Cir. 2011) (identifying a two-part test for obtaining a protective order under 26 Fed. R. Civ. P. 26(c)). 27 //// 28 //// 1 Showing of Need for a Protective Order: 2 Pursuant to E.D. Cal. L.R. 141.1(c)(3), the need for protection pursuant to this Protective 3 Order is for the convenience of the parties and the court. This order seeks to avoid litigation and 4 expenditure of resources concerning a potential Fed. R. Civ. P. 26(c) motion for protective order. 5 The entry of this Protective Order prevents the parties and the court from conducting the usual 6 document-by-document analysis necessary to obtain protection under Fed. R. Civ. P. 26(c), in 7 favor of a procedure whereby presumptive protection is afforded based on the Parties good faith 8 representations. See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986) 9 (“[T]he burden of justifying the confidentiality of each and every document sought to be covered 10 by a protective order remains on the party seeking the protective order; any other conclusion 11 would turn [Fed. R. Civ. P.] 26(c) on its head.”). Accordingly, production may be made with this 12 Protective Order in place and, if necessary, will permit discrete and narrowed challenges to the 13 documents covered by this Protective Order. 14 D. TERMS OF THE PROTECTIVE ORDER 15 Confidential Documents subject to protection may be designated as “Confidential” by the 16 Defendants and produced subject to the following Protective Order: 17 1. The Confidential Documents shall be used solely in connection with the above- 18 captioned civil case, and in the preparation and trial of the case. The Parties have not waived any 19 objections to the admissibility of the documents or portions thereof in future proceedings in this 20 case, including trial. 21 2. The Parties will designate the Confidential Documents as confidential by affixing 22 a mark labelling them “Confidential.” 23 3.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF ANTONIO THOMAS, et al., No. 2:20-cv-0903 KJM DB 12 Plaintiffs, 13 v. ORDER 14 COUNTY OF SACRAMENTO et al., 15 Defendants. 16 17 This matter came before the undersigned on March 5, 2021, for hearing of plaintiffs’ 18 motion to compel and defendants’ motion for a protective order pursuant to Local Rule 302(c)(1). 19 (ECF No. 36.) In an order filed on March 10, 2021, the undersigned found that the defendants 20 had made “the necessary good cause showing” to justify a protective order. (ECF No. 37 at 3.) 21 The parties were ordered to meet and confer regarding an agreed upon protective order. (Id.) If 22 the parties could not agree upon a protective order, defendants were to file a proposed protective 23 order. (Id.) 24 On March 15, 2021, plaintiffs filed a motion for reconsideration of the undersigned’s 25 March 10, 2021 order. (ECF No. 41.) On March 30, 2021, defendants filed a proposed protective 26 order. (ECF No. 43.) On April 6, 2021, plaintiffs filed an opposition to defendants’ proposed 27 protective order. (ECF No. 45.) On July 1, 2021, the assigned District Judge denied plaintiffs’ 28 motion for reconsideration of the undersigned’s March 10, 2021 order. (ECF No. 52.) 1 Upon consideration of defendants’ proposed protective order and plaintiffs’ opposition, 2 the undersigned enters the following protective order: 3 A. PURPOSE AND LIMITATION 4 The disclosure and discovery activity concerning the materials described in section C is 5 likely to involve production of confidential or private information for which protection from 6 public disclosure and from use for any purpose other than prosecuting this litigation would be 7 warranted. This protective order does not confer blanket protections on all disclosures or 8 discovery activity, and the protection it affords extends only to the limited information or items 9 that are entitled to such protection under Fed. R. Civ. P. 26(c). 10 B. DEFINITIONS 11 The following definitions shall apply to this Protective Order: 12 1. The “Action” shall mean and refer to the above-captioned matter and to all actions 13 now or later consolidated with the Action, and any appeal from the Action and from any other 14 action consolidated at any time under the above-captioned matter, through final judgment. 15 2. “Documents” or “Confidential Documents” shall mean the Documents that 16 Defendants designate as “Confidential” in the manner set forth in this Protective Order. 17 3. “Confidential” shall mean information designated “Confidential” pursuant to this 18 Protective Order. Information designated “Confidential” shall be information that is determined 19 in good faith by the attorneys representing the Designating Party to be subject to protection 20 pursuant to Fed. R. Civ. P. 26(c). Confidential Documents, material, and/or information shall be 21 used solely for purposes of litigation. Confidential Information shall not be used by the non- 22 Designating Party for any business or other purpose, unless agreed to in writing by all Parties to 23 this action or as authorized by further order of the Court. 24 4. “Defendants” shall mean COUNTY OF SACRAMENTO, SACRAMENTO 25 COUNTY SHERIFF’S DEPARTMENT, and SCOTT R. JONES. 26 5. “Plaintiffs” shall mean ESTATE OF ANTONIO THOMAS, TAIJAH THOMAS, 27 TAIONNAA THOMAS, ANITA THOMAS, and ANTHONY WALLACE 28 6. “Parties” shall mean Plaintiffs and Defendants, identified above. 1 C. INFORMATION COVERED 2 Covered Information: 3 Pursuant to E.D. Cal. L.R. 141.1(c)(1), a description of the information eligible for 4 protection under this Protective Order is limited to the following: 5 1. Portions of Antonio Thomas’ custody file for the incarceration beginning 6 December 6, 2019, Bates labeled DEFS00021; 00026; 00028-00031; 7 2. Antonio Thomas’ classification file for the incarceration beginning December 6, 8 2019, Bates labeled DEFS00032-00098; 9 3. Antonio Thomas’ custody files for all prior incarcerations with the Sacramento 10 County Sheriff’s Department, Bates labeled DEFS00146-00266; 11 4. Antonio Thomas’ classification files for all prior incarcerations with the 12 Sacramento County Sheriff’s Department, Bates labeled DEFS00267-00297. 13 There is the possibility that these records may contain sensitive and private information 14 that is not relevant to this action or subject to disclosure, such as but not limited to home 15 addresses, contact information, social security numbers, dates of birth, etc. Defendants are 16 permitted pre-production redaction of such limited information, so long as any redacted 17 documents are accompanied by a redaction log/designation obviously identifying each instance of 18 redaction and the information redacted. 19 Particularized Need for Protection: 20 Pursuant to E.D. Cal. L.R. 141.1(c)(2), a specific, particularized need for protection as to 21 the information covered by this Protective Order exists. The materials designated to be covered 22 by this Protective Order are limited solely to those which would qualify for protection under Fed. 23 R. Civ. P. 26(c), and does not include information which has been subject to protection on a 24 blanket or indiscriminate basis. See, e.g., In Re Roman Catholic Archbishop of Portland, 661 25 F.3d 417, 424 (9th Cir. 2011) (identifying a two-part test for obtaining a protective order under 26 Fed. R. Civ. P. 26(c)). 27 //// 28 //// 1 Showing of Need for a Protective Order: 2 Pursuant to E.D. Cal. L.R. 141.1(c)(3), the need for protection pursuant to this Protective 3 Order is for the convenience of the parties and the court. This order seeks to avoid litigation and 4 expenditure of resources concerning a potential Fed. R. Civ. P. 26(c) motion for protective order. 5 The entry of this Protective Order prevents the parties and the court from conducting the usual 6 document-by-document analysis necessary to obtain protection under Fed. R. Civ. P. 26(c), in 7 favor of a procedure whereby presumptive protection is afforded based on the Parties good faith 8 representations. See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986) 9 (“[T]he burden of justifying the confidentiality of each and every document sought to be covered 10 by a protective order remains on the party seeking the protective order; any other conclusion 11 would turn [Fed. R. Civ. P.] 26(c) on its head.”). Accordingly, production may be made with this 12 Protective Order in place and, if necessary, will permit discrete and narrowed challenges to the 13 documents covered by this Protective Order. 14 D. TERMS OF THE PROTECTIVE ORDER 15 Confidential Documents subject to protection may be designated as “Confidential” by the 16 Defendants and produced subject to the following Protective Order: 17 1. The Confidential Documents shall be used solely in connection with the above- 18 captioned civil case, and in the preparation and trial of the case. The Parties have not waived any 19 objections to the admissibility of the documents or portions thereof in future proceedings in this 20 case, including trial. 21 2. The Parties will designate the Confidential Documents as confidential by affixing 22 a mark labelling them “Confidential.” 23 3. The Confidential Documents may only be disclosed to the following persons: 24 (a) Mark E. Merin and Paul H. Masuhara of THE LAW OFFICE OF MARK E. 25 MERIN, partners and associate attorneys in that office, if any, as counsel for Plaintiffs in the case 26 enumerated above; 27 (b) Carl L. Fessenden and Suli A. Mastorakos of PORTER SCOTT, partners and 28 associate attorneys in that office, as counsel for Defendants in the case enumerated above; 1 (c) Paralegal, clerical, and secretarial personnel regularly employed by counsel 2 referred to in subparts (a) and (b) immediately above, including stenographic deposition reporters 3 or videographers retained in connection with this action; 4 (d) Court personnel, including stenographic reporters or videographers engaged in 5 proceedings as are necessarily incidental to the preparation for the trial in the civil action; 6 (e) Any expert, consultant, or investigator retained in connection with this action; 7 however, such persons must be advised of and abide by this protective order; 8 (f) The finder of facts at the time of trial, subject to the court’s rulings on in limine 9 motions and objections of counsel; and, 10 (g) Witnesses during their depositions in this action. If confidential documents are 11 used in the deposition, the documents must be identified as “Confidential” and the portion of the 12 deposition in which the documents are described should also be considered confidential. 13 4. The designation of documents (including transcripts of testimony) as confidential 14 pursuant to this order does not automatically entitle the parties to file such a document with the 15 court under seal. Parties are advised that any request to seal documents in this district is governed 16 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 17 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 18 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 19 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 20 the requested duration, the identity, by name or category, of persons to be permitted access to the 21 document, and all relevant information.” L.R. 141(b). 22 Requests to seal documents shall be made by motion before the same judge who will 23 decide the matter related to that request to seal. A request to seal material must normally meet the 24 high threshold of showing that “compelling reasons” support secrecy; however, where the 25 material is, at most, “tangentially related” to the merits of a case, the request to seal may be 26 granted on a showing of “good cause.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 27 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and County of Honolulu, 447 F.3d 1172, 28 //// 1 1178-80 (9th Cir. 2006). If permission is granted, the Confidential Documents will be filed and 2 served in accordance with E.D. Cal. L.R. 141. 3 5. The designation of the Confidential Documents as “Confidential” and the 4 subsequent production thereof is without prejudice to the right of any party to oppose the 5 admissibility of the Confidential Documents or information contained therein. 6 6. Any party or non-party may challenge a designation of confidentiality at any time. 7 A party or non-party does not waive its right to challenge a confidentiality designation by electing 8 not to mount a challenge promptly after the original designation is disclosed. The Challenging 9 Party shall initiate the dispute resolution process by providing written notice of each designation 10 it is challenging and describing the basis for each challenge. The parties shall attempt to resolve 11 each challenge in good faith and must begin the process by conferring directly (in voice-to-voice 12 dialogue; other forms of communication are not sufficient) within seven (7) days of the date of 13 service of notice. 14 In conferring, the Challenging Party must explain the basis for its belief that the 15 confidentiality designation was not proper and must give the Designating Party an opportunity to 16 review the designated material, to reconsider the circumstances, and, if no change in designation 17 is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to 18 the next stage of the challenge process only if it has engaged in this meet and confer process first 19 or establishes that the Designating Party is unwilling to participate in the meet and confer process 20 in a timely manner. 21 If the Parties cannot resolve a challenge without Court intervention, the Designating Party 22 shall file and serve a motion for protective order pursuant to Fed. R. Civ. P. 26(c) and E.D. Cal. 23 L.R. 251 within twenty-one (21) days of the initial notice of challenge or within seven (7) days of 24 the parties agreeing that the meet and confer process will not resolve their dispute, whichever is 25 earlier. Failure by the Designating Party to make such a motion within twenty-one (21) days (or 26 seven (7) days, if applicable) shall automatically waive the “Confidential” designation for each 27 challenged designation. In addition, the Challenging Party may file a motion challenging a 28 //// 1 confidentiality designation at any time if there is good cause for doing so. The burden of 2 persuasion in any such challenge proceeding shall be on the Designating Party. 3 Unless the Designating Party has waived the confidentiality designation by failing to file a 4 motion to retain confidentiality as described above, all parties shall continue to afford the material 5 in question the level of protection to which it is entitled under the Designating Party’s designation 6 until the Court rules on the challenge. Absent a showing of good cause, the court will not hear 7 discovery disputes on an ex parte basis or on shortened time. 8 7. Should the Confidential Documents or any information contained therein be 9 disclosed, through inadvertence or otherwise, to any person not authorized to receive it under this 10 Protective Order, the disclosing person(s) shall promptly (a) inform counsel for the Defendants of 11 the recipient(s) and the circumstances of the unauthorized disclosure to the relevant producing 12 person(s) and (b) use best efforts to bind the recipient(s) to the terms of this Protective Order. 13 8. The Confidential Documents shall not lose its confidential status because it was 14 inadvertently or unintentionally disclosed to a person not authorized to receive it under this 15 Protective Order. 16 9. The protections conferred by this Protective Order cover the information defined 17 above, as well as any information copied from the materials. However, the protections conferred 18 by this Protective Order do not cover: (A) any information that is in the public domain at the time 19 of disclosure or which subsequently becomes part of the public domain after its disclosure, 20 including becoming part of the public record through trial or otherwise; and (B) any information 21 known prior to the disclosure or obtained after the disclosure from a source who obtained the 22 information lawfully and under no obligation of confidentiality. 23 10. After the conclusion of this litigation, the Confidential Documents will remain 24 confidential. “Conclusion” of this litigation means a termination of the case following a trial, 25 settlement, or dismissal of the Action with prejudice for any other reason. 26 11. This Stipulated Protective Order shall remain in full force and effect and shall 27 continue to be binding on all parties and affected persons until this litigation terminates, subject to 28 any subsequent modifications of this Stipulated Protective Order for good cause shown by this 1 | court or any court having jurisdiction over an appeal of this action. Pursuant to Local Rule 2 | 141.1), the court will not retain jurisdiction over enforcement of the terms of this Protective 3 | Order after the action is terminated. 4 12. The parties may request additional records to be subject to this Stipulated 5 | Protective Order. If a party believes a document to be produced should be subject to this 6 | Stipulated Protective Order, the parties must meet and confer. If there is agreement, the parties 7 | shall submit an amendment to this Stipulated Protective Order to identify the additional 8 | documents. If the parties cannot agree, a Motion for Protective Order shall be filed accordingly. 9 13. The parties may not modify the terms of this Protective Order without the court’s 10 | approval. If the parties agree to a potential modification, they shall submit a stipulation and 11 | proposed order for the court’s consideration. 12 | Dated: July 21, 2021 13 14 15 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 DB /orders/orders.civil/thomas0903.provord 25 26 27 28