Gilkey v. L.A.P.D.

• Court: District Court, C.D. California
• Decided: October 6, 2023
• Docket: 2:22-cv-02817
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 ATWAQUE GILKEY, CASE NO. CV22-2817-MCS(RAO) Honorable Mark C. Scarsi 12 Plaintiff, Honorable Rozella A. Oliver

13 v. 14 STIPULATED PROTECTIVE ORDER1 LA.P.D. (CITY OF LOS ANGELES

15 POLICE DEPARTMENT), PAUL EVIETH, a government 16 employee; LAPD OFFICER NAME 17 UNKNOWN-I, a government employee;

18 LAPD OFFICER NAME UNKNOWN-2, a government 19 employee; LAPD OFFICER NAME 20 UNKNOWN-3, a government 21 employee;

22 Defendants.

25 / / /

26 / / /

28 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 disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the Court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does 7 not confer blanket protections on all disclosures or responses to discovery and that the 8 protection it affords from public disclosure and use extends only to the limited 9 information or items that are entitled to confidential treatment under the applicable 10 legal principles. The parties further acknowledge, as set forth in Section XIII(C), 11 below, that this Stipulated Protective Order does not entitle them to file confidential 12 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 13 followed and the standards that will be applied when a party seeks permission from 14 the Court to file material under seal. 15 16 B. GOOD CAUSE STATEMENT 17 This action involves Officer Evieth and City of Los Angeles (“Defendants”). 18 Plaintiff is seeking materials and information that Defendants maintain as 19 confidential, such as Internal Affairs materials and information, video recordings, 20 audio recordings, and information, personnel records and other administrative 21 materials and information currently in the possession of Defendants which may be 22 entitled to special protection from public disclosure and from use for any purpose 23 other than prosecuting this litigation. Additionally, discovery may include sensitive 24 confidential financial and business information, which may require heightened 25 protection from public disclosure and from use for any purpose other than prosecuting 26 this litigation. Accordingly, to expedite the flow of information, to facilitate the 27 prompt resolution of disputes over confidentiality of discovery materials, to 1 that the parties are permitted reasonable necessary uses of such material in 2 preparation for and in the conduct of trial, to address their handling at the end of the 3 litigation, and serve the ends of justice, a protective order for such information is 4 justified in this matter. It is the intent of the parties that information will not be 5 designated as confidential for tactical reasons and that nothing be so designated 6 without a good faith belief that it has been maintained in a confidential, non-public 7 manner, and there is good cause why it should not be part of the public record of this 8 case. This also includes (1) any information copied or extracted from the Confidential 9 information; (2) copies, excerpts, summaries or compilations of Confidential 10 information; and (3) any testimony, conversations, or presentations that are 11 reasonably likely to reveal Confidential information. 12 13 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 14 The parties further acknowledge, as set forth in Section 12.3, below, that this 15 Stipulated Protective Order does not entitle them to file confidential information 16 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and 17 the standards that will be applied when a party seeks permission from the court to file 18 material under seal. 19 There is a strong presumption that the public has a right of access to judicial 20 proceedings and records in civil cases. In connection with non-dispositive motions, 21 good cause must be shown to support a filing under seal. See Kamakana v. City and 22 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors 23 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics, Inc., 24 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good 25 cause showing), and a specific showing of good cause or compelling reasons with 26 proper evidentiary support and legal justification, must be made with respect to 27 Protected Material that a party seeks to file under seal. The parties’ mere designation 1 submission of competent evidence by declaration, establishing that the material 2 sought to be filed under seal qualifies as confidential, privileged, or otherwise 3 protectable—constitute good cause. 4 Further, if a party requests sealing related to a dispositive motion or trial, then 5 compelling reasons, not only good cause, for the sealing must be shown, and the relief 6 sought shall be narrowly tailored to serve the specific interest to be protected. See 7 Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each 8 item or type of information, document, or thing sought to be filed or introduced under 9 seal in connection with a dispositive motion or trial, the party seeking protection must 10 articulate compelling reasons, supported by specific facts and legal justification, for 11 the requested sealing order. Again, competent evidence supporting the application to 12 file documents under seal must be provided by declaration. 13 Any document that is not confidential, privileged, or otherwise protectable in 14 its entirety will not be filed under seal if the confidential portions can be redacted. If 15 documents can be redacted, then a redacted version for public viewing, omitting only 16 the confidential, privileged, or otherwise protectable portions of the document shall be 17 filed. Any application that seeks to file documents under seal in their entirety should 18 include an explanation of why redaction is not feasible. 19 20 2. DEFINITIONS 21 2.1 Action: this pending federal lawsuit. 22 2.2 Challenging Party: A Party or Non-Party that challenges the designation 23 of information or items under this Order. 24 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 25 how it is generated, stored or maintained) or tangible things that qualify for protection 26 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 27 Cause Statement. This also includes (1) any information copied or extracted from the 1 Confidential information; and (3) any testimony, conversations, or presentations that 2 are reasonably likely to reveal Confidential information. References to 3 “CONFIDENTIAL” information or items in this Protective Order shall also include 4 information or items designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 5 EYES ONLY,” unless stated otherwise. 6 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 7 their support staff). 8 2.5 Designating Party: A Party or Non-Party that designates information or 9 items that it produces in disclosures or in responses to discovery as 10 “CONFIDENTIAL.” 11 2.6 Disclosure or Discovery Material: All items or information, regardless 12 of the medium or manner in which it is generated, stored, or maintained (including, 13 among other things, testimony, transcripts, and tangible things), that are produced or 14 generated in disclosures or responses to discovery in this matter. 15 2.7 Expert: a person with specialized knowledge or experience in a matter 16 pertinent to the litigation who has been retained by a Party or its counsel to serve as 17 an expert witness or as a consultant in this Action. 18 2.8 House Counsel: attorneys who are employees of a party to this Action. 19 House Counsel does not include Outside Counsel of Record or any other outside 20 counsel. 21 2.9 Non-Party: any natural person, partnership, corporation, association or 22 other legal entity not named as a Party to this action. 23 2.10 Outside Counsel of Record: attorneys who are not employees of a party 24 to this Action but are retained to represent or advise a party to this Action and have 25 appeared in this Action on behalf of that party or are affiliated with a law firm that has 26 appeared on behalf of that party, and includes support staff. 27 2.11 Party: any party to this Action, including all of its officers, directors, 1 support staffs). 2 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 3 Discovery Material in this Action. 4 2.13 Professional Vendors: persons or entities that provide litigation support 5 services (e.g., photocopying, videotaping, translating, preparing exhibits or 6 demonstrations, and organizing, storing, or retrieving data in any form or medium) 7 and their employees and subcontractors. 8 2.14 Protected Material: Any Disclosure or Discovery Material that is 9 designated as “CONFIDENTIAL.” 10 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 11 from a Producing Party. 12 13 3. SCOPE 14 The protections conferred by this Stipulation and Order cover not only 15 Protected Material (as defined above), but also (1) any information copied or 16 extracted from Protected Material; (2) all copies, excerpts, summaries, or 17 compilations of Protected Material; and (3) any testimony, conversations, or 18 presentations by Parties or their Counsel that might reveal Protected Material. 19 Any use of Protected Material at trial shall be governed by the orders of the 20 trial judge. This Order does not govern the use of Protected Material at trial. 21 22 4. DURATION FINAL DISPOSITION of the action is defined as the conclusion of any 23 24 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal 25 has run. Except as set forth below, the terms of this protective order apply through 26 FINAL DISPOSITION of the action. The parties may stipulate that the they will be 27 but will have to file a separate action for enforcement of the agreement once all 1 2 proceedings in this case are complete. 3 Once a case proceeds to trial, information that was designated as confidential or 4 maintained pursuant to this protective order used or introduced as an exhibit at trial 5 6 becomes public and will be presumptively available to all members of the public, 7 including the press, unless compelling reasons supported by specific factual findings 8 to proceed otherwise are made to the trial judge in advance of the trial. See 9 10 Kamakana, 447 f.3d at 1180-81 (distinguishing “good cause” showing for sealing 11 documents produced in discovery from “compelling reasons” standard when merits- 12 related documents are part of court record). Accordingly, for such materials, the 13 14 terms of this protective order do not extend beyond the commencement of the trial. 15

16 5. DESIGNATING PROTECTED MATERIAL 17 5.1 Exercise of Restraint and Care in Designating Material for Protection. 18 Each Party or Non-Party that designates information or items for protection under this 19 Order must take care to limit any such designation to specific material that qualifies 20 under the appropriate standards. The Designating Party must designate for protection 21 only those parts of material, documents, items or oral or written communications that 22 qualify so that other portions of the material, documents, items or communications for 23 which protection is not warranted are not swept unjustifiably within the ambit of this 24 Order. 25 Mass, indiscriminate or routinized designations are prohibited. Designations 26 that are shown to be clearly unjustified or that have been made for an improper 27 1 unnecessary expenses and burdens on other parties) may expose the Designating Party 2 to sanctions. 3 If it comes to a Designating Party’s attention that information or items that it 4 designated for protection do not qualify for protection, that Designating Party must 5 promptly notify all other Parties that it is withdrawing the inapplicable designation. 6 5.2 Manner and Timing of Designations. Except as otherwise provided in 7 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 8 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 9 under this Order must be clearly so designated before the material is disclosed or 10 produced. 11 Designation in conformity with this Order requires: 12 (a) for information in documentary form (e.g., paper or electronic 13 documents, but excluding transcripts of depositions or other pretrial or trial 14 proceedings), that the Producing Party affix at a minimum, the legend 15 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 16 contains protected material. If only a portion of the material on a page qualifies for 17 protection, the Producing Party also must clearly identify the protected portion(s) 18 (e.g., by making appropriate markings in the margins). 19 A Party or Non-Party that makes original documents available for inspection 20 need not designate them for protection until after the inspecting Party has indicated 21 which documents it would like copied and produced. During the inspection and 22 before the designation, all of the material made available for inspection shall be 23 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 24 it wants copied and produced, the Producing Party must determine which documents, 25 or portions thereof, qualify for protection under this Order. Then, before producing 26 the specified documents, the Producing Party must affix the “CONFIDENTIAL 27 legend” to each page that contains Protected Material. If only a portion of the 1 identify the protected portion(s) (e.g., by making appropriate markings in the 2 margins). 3 (b) for testimony given in depositions that the Designating Party identifies 4 the Disclosure or Discovery Material on the record, before the close of the deposition 5 all protected testimony. 6 (c) for information produced in some form other than documentary and for 7 any other tangible items, that the Producing Party affix in a prominent place on the 8 exterior of the container or containers in which the information is stored the legend 9 “CONFIDENTIAL.” If only a portion or portions of the information warrants 10 protection, the Producing Party, to the extent practicable, shall identify the protected 11 portion(s). 12 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 13 failure to designate qualified information or items does not, standing alone, waive the 14 Designating Party’s right to secure protection under this Order for such material. 15 Upon timely correction of a designation, the Receiving Party must make reasonable 16 efforts to assure that the material is treated in accordance with the provisions of this 17 Order. 18 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 21 designation of confidentiality at any time that is consistent with the Court’s 22 Scheduling Order. 23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 24 resolution process under Local Rule 37.1 et seq. 25 6.3 The burden of persuasion in any such challenge proceeding shall be on 26 the Designating Party. Frivolous challenges, and those made for an improper purpose 27 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 1 or withdrawn the confidentiality designation, all parties shall continue to afford the 2 material in question the level of protection to which it is entitled under the Producing 3 Party’s designation until the Court rules on the challenge. 4 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is 7 disclosed or produced by another Party or by a Non-Party in connection with this 8 Action only for prosecuting, defending or attempting to settle this Action. Such 9 Protected Material may be disclosed only to the categories of persons and under the 10 conditions described in this Order. When the Action has been terminated, a 11 Receiving Party must comply with the provisions of section 13 below (FINAL 12 DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a 14 location and in a secure manner that ensures that access is limited to the persons 15 authorized under this Order. 16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 17 otherwise ordered by the court or permitted in writing by the Designating Party, a 18 Receiving Party may disclose any information or item designated 19 “CONFIDENTIAL” only to: 20 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 21 as employees of said Outside Counsel of Record to whom it is reasonably necessary 22 to disclose the information for this Action; 23 (b) the officers, directors, and employees (including House Counsel) of the 24 Receiving Party to whom disclosure is reasonably necessary for this Action; 25 (c) Experts (as defined in this Order) of the Receiving Party to whom 26 disclosure is reasonably necessary for this Action and who have signed the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 (e) court reporters and their staff; 2 (f) professional jury or trial consultants, mock jurors, and Professional 3 Vendors to whom disclosure is reasonably necessary for this Action and who have 4 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (g) the author or recipient of a document containing the information or a 6 custodian or other person who otherwise possessed or knew the information; 7 (h) during their depositions, witnesses, and attorneys for witnesses, in the 8 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 9 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will 10 not be permitted to keep any confidential information unless they sign the 11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 12 by the Designating Party or ordered by the court. Pages of transcribed deposition 13 testimony or exhibits to depositions that reveal Protected Material may be separately 14 bound by the court reporter and may not be disclosed to anyone except as permitted 15 under this Stipulated Protective Order; and 16 (i) any mediator or settlement officer, and their supporting personnel, 17 mutually agreed upon by any of the parties engaged in settlement discussions. 18 19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 20 OTHER LITIGATION 21 If a Party is served with a subpoena or a court order issued in other litigation 22 that compels disclosure of any information or items designated in this Action as 23 “CONFIDENTIAL,” that Party must: 24 (a) promptly notify in writing the Designating Party. Such notification 25 shall include a copy of the subpoena or court order; 26 (b) promptly notify in writing the party who caused the subpoena or order 27 to issue in the other litigation that some or all of the material covered by the subpoena 1 this Stipulated Protective Order; and 2 (c) cooperate with respect to all reasonable procedures sought to be pursued 3 by the Designating Party whose Protected Material may be affected. 4 If the Designating Party timely seeks a protective order, the Party served with 5 the subpoena or court order shall not produce any information designated in this 6 action as “CONFIDENTIAL” before a determination by the court from which the 7 subpoena or order issued, unless the Party has obtained the Designating Party’s 8 permission. The Designating Party shall bear the burden and expense of seeking 9 protection in that court of its confidential material and nothing in these provisions 10 should be construed as authorizing or encouraging a Receiving Party in this Action to 11 disobey a lawful directive from another court. 12 13 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 14 PRODUCED IN THIS LITIGATION 15 (a) The terms of this Order are applicable to information produced by a 16 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 17 produced by Non-Parties in connection with this litigation is protected by the 18 remedies and relief provided by this Order. Nothing in these provisions should be 19 construed as prohibiting a Non-Party from seeking additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, to 21 produce a Non-Party’s confidential information in its possession, and the Party is 22 subject to an agreement with the Non-Party not to produce the Non-Party’s 23 confidential information, then the Party shall: 24 (1) promptly notify in writing the Requesting Party and the Non-Party 25 that some or all of the information requested is subject to a confidentiality agreement 26 with a Non-Party; 27 (2) promptly provide the Non-Party with a copy of the Stipulated 1 specific description of the information requested; and 2 (3) make the information requested available for inspection by the Non- 3 Party, if requested. 4 (c) If the Non-Party fails to seek a protective order from this court within 5 14 days of receiving the notice and accompanying information, the Receiving Party 6 may produce the Non-Party’s confidential information responsive to the discovery 7 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 8 not produce any information in its possession or control that is subject to the 9 confidentiality agreement with the Non-Party before a determination by the court. 10 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 11 of seeking protection in this court of its Protected Material. 12 13 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 14 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 15 Protected Material to any person or in any circumstance not authorized under this 16 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 17 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 18 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 19 persons to whom unauthorized disclosures were made of all the terms of this Order, 20 and (d) request such person or persons to execute the “Acknowledgment and 21 Agreement to Be Bound” that is attached hereto as Exhibit A. 22 23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other protection, 27 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 1 may be established in an e-discovery order that provides for production without prior 2 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 3 parties reach an agreement on the effect of disclosure of a communication or 4 information covered by the attorney-client privilege or work product protection, the 5 parties may incorporate their agreement in the stipulated protective order submitted to 6 the court. 7 8 12. MISCELLANEOUS 9 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 10 person to seek its modification by the Court in the future. 11 12.2 Right to Assert Other Objections. By stipulating to the entry of this 12 Protective Order, no Party waives any right it otherwise would have to object to 13 disclosing or producing any information or item on any ground not addressed in this 14 Stipulated Protective Order. Similarly, no Party waives any right to object on any 15 ground to use in evidence of any of the material covered by this Protective Order. 16 12.3 Filing Protected Material. A Party that seeks to file under seal any 17 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 18 only be filed under seal pursuant to a court order authorizing the sealing of the 19 specific Protected Material at issue. If a Party’s request to file Protected Material 20 under seal is denied by the court, then the Receiving Party may file the information in 21 the public record unless otherwise instructed by the court. 22 23 13. FINAL DISPOSITION 24 After the final disposition of this Action, as defined in paragraph 4, within 60 25 days of a written request by the Designating Party, each Receiving Party must return 26 all Protected Material to the Producing Party or destroy such material. As used in this 27 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 1 Material. Whether the Protected Material is returned or destroyed, the Receiving 2 Party must submit a written certification to the Producing Party (and, if not the same 3 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 4 (by category, where appropriate) all the Protected Material that was returned or 5 destroyed and (2) affirms that the Receiving Party has not retained any copies, 6 abstracts, compilations, summaries or any other format reproducing or capturing any 7 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 8 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 9 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 10 reports, attorney work product, and consultant and expert work product, even if such 11 materials contain Protected Material. Any such archival copies that contain or 12 constitute Protected Material remain subject to this Protective Order as set forth in 13 Section 4 (DURATION). 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 || 14. 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 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 || DATED: October 5, 2023 8 /S/ JAMES M. SIMMONS, Attorney 9 for Plaintiff, ATWAQUE GILKEY 10 1] DATED: October 5, 2023 12 /S/ 13 DORDANEH GHAEMI, Deputy City Attorne 14 Attorneys for Defendants, CITY OF LOS ANGELES and PAUL EVIETH 15 16 | FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 19 20 DATED: October 6, 2023 21 Reybln OF — 23 || HONORABLE ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28

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