11 James R. Touchstone, SBN 184584 jrt@jones-mayer.com 22 Denise L. Rocawich, SBN 232792 dlr@jones-mayer.com 33 JONES MAYER 3777 North Harbor Boulevard 44 Fullerton, CA 92835 Telephone: (714) 446-1400 55 Facsimile: (714) 446-1448 Attorneys for Defendants 66
77 THE SEHAT LAW FIRM, P.L.C. Cameron Sehat, Esq. (SBN: 256535) 88 cameron@sehatlaw.com 5100 Campus Dr., Ste 200 99 Newport Beach, CA 92660 Telephone: (949) 825-5200 1100 Facsimile: (949) 313-5001
1111 Attorney for Plaintiff, Gustavo Mares
1133 UNITED STATES DISTRICT COURT
1144 CENTRAL DISTRICT OF CALIFORNIA
1155 GUSTAVO MARES, Individually; Case No.: 5:22-CV-01099-FMO-KK
1166 Plaintiff, Judge: Hon. Fernando M. Olguin vs. Magistrate Judge: Hon. Kenly Kiya Kato 1177
1188 COUNTY OF SAN BERNARDINO; [PROPOSED] STIPULATED A Governmental Entity; DEVON PROTECTIVE ORDER 1199 STEUERWALD, Individually; JOSEPH MORA, Individually, and 2200 DOES 1 through 10,
2211 Defendants.
2277 11 [PROPOSED] STIPULATED PROTECTIVE ORDER
22 Pursuant to Federal Rule of Civil Procedure 26(c), Defendants, COUNTY
33 OF SAN BERNARDINO, DEVON STUERWALD, and JOSEPH MORA, and
44 Plaintiff GUSTAVO MARES (collectively "the Parties"), by their undersigned
55 counsel, agree to be bound to the terms of the following Protective Order. The
66 Parties represent that pre-trial discovery in this case is likely to include the
77 production of information and/or documents that are confidential and/or privileged
88 including the production of peace officer personnel file information and/or
99 documents which the Parties agree includes: (1) Personal data, including marital
1100 status, family members, educational and employment history, home addresses, or
1111 similar information; (2) Medical history; (3) Election of employee benefits; (4)
1122 Employee advancement, appraisal, or discipline; and (5) Complaints, or
1133 investigations of complaints, concerning an event or transaction in which a peace
1144 officer participated, or which a peace officer perceived, and pertaining to the
1155 manner in which the peace officer performed his or her duties including compelled
1166 statements by peace officers unless specifically denoted as “not confidential”
1177 pursuant to Penal Code section 832.7. Defendants contend that such information is
1188 privileged as official information. Sanchez v. City of Santa Ana, 936 F.2d 1027,
1199 1033 (9th Cir. Cal. 1990); see also Kerr v. United States Dist. Ct. for N.D. Cal.,
2200 511 F.2d 192, 198 (9th Cir.1975), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d
2211 725 (1976). Further, discovery may require the production of certain San
2222 Bernardino County Sheriffs’ Office Policies and Procedures not available to the
2233 public and the public disclosure of which could comprise officer safety, raise
2244 security issues, and/or impede investigations. Peace officer personnel file
2255 information and/or documents and security-sensitive policies and procedures are
2266 hereinafter referred to as "Confidential Information".
2277 Defendants contend that that public disclosure of such material poses a
substantial risk of embarrassment, oppression and/or physical harm to peace 11 officers whose Confidential Information is disclosed. The Parties further agree that
22 the risk of harm to peace officers is greater than with other government employees
33 due to the nature of their profession. Finally, the Defendants contend that the
44 benefit of public disclosure of Confidential Information is minimal while the
55 potential disadvantages are great.
66 Accordingly, good cause exists for entry of this Protective Order to facilitate
77 pre-trial disclosure while assuring the safety of these sensitive disclosures. See
88 Fed. R. Civ. Proc. 26(c).
99 SO STIPULATED
1100 Dated: May 4, 2023 Respectfully submitted, 1111 JONES MAYER 1122
1133 By: s/Denise L. Rocawich 1144 JAMES R. TOUCHSTONE DENISE L. ROCAWICH 1155 Attorneys for Defendants
1177 Dated: May 4, 2023 Respectfully submitted, 1188 THE SEHAT LAW FIRM, PLC 1199
2200 By: s/Cameron Sehat 2211 CAMERON SEHAT 2222 Attorneys for Plaintiff
2277 11 [PROPOSED] PROTECTIVE ORDER
22 PER THE STIPULATION OF THE PARTIES AND GOOD CAUSE
33 APPEARING, IT IS HEREBY ORDERED that the terms and conditions of this
44 Protective Order shall govern the handling of Discovery Materials containing
55 Confidential Information in matter of Mares v. County of San Bernardino et al.
66 USCD Case No. 22-CV-01099-FMO-KK ("the Litigation"):
77 1. Applicability of Order: This Order does not and will not govern any
88 trial proceedings in this Litigation, but will otherwise be applicable to and govern
99 the handling of documents, except for documents that are disclosed during
1100 discovery which would otherwise be publicly available, depositions, deposition
1111 exhibits, interrogatory responses, responses to requests for admissions, responses
1122 to requests for production of documents, and all other discovery obtained pursuant
1133 to the Federal Rules of Civil Procedure by Plaintiff in connection with the
1144 Litigation (this information hereinafter referred to as “Discovery Material”).
1155 2. Designation of Material: The Parties may designate Discovery
1166 Material that is in their possession, custody or control to be produced to Plaintiff as
1177 “Confidential Information” under the terms of this Order if the Parties believe in
1188 good faith reasonably believe that such Discovery Material contains non-public,
1199 confidential material as defined in section 4 below.
2200 3. Exercise of Restraint and Care in Designating Material for
2211 Protection: When designating Discovery Material for protection as Confidential
2222 Information under this Order, the Parties must take care to limit any such
2233 designation to specific material that qualifies under the appropriate standards.
2244 Mass, indiscriminate, or routinized designations are prohibited.
2255 4. Confidential Information: For purposes of this Order, Confidential
2266 Information is any information and/or documents that Defendants believe in good
2277 faith to be Peace Officer Personnel File Information and/or Documents including:
(1) Personal data, including marital status, family members, educational and 11 employment history, home addresses, or similar information; (2) Medical history;
22 (3) Election of employee benefits; (4) Employee advancement, appraisal, or
33 discipline; and (5) Complaints, or investigations of complaints, concerning an
44 event or transaction in which a peace officer participated, or which a peace officer
55 perceived, and pertaining to the manner in which the peace officer performed his
66 or her duties including compelled statements unless specifically denoted as “not
77 confidential” pursuant to Penal Code section 832.7. Confidential Information is
88 also any San Bernardino County Sheriffs’ Office Policies and Procedures not
99 available to the public and the public disclosure of which could comprise officer
1100 safety, raise security issues, and/or impede investigations.
1111 5. Designating Confidential Information: The designation of
1122 Discovery Material as Confidential Information for purposes of this Order shall be
1133 made in the following manner:
1144 a. Documents: In the case of documents or other materials (apart from
1155 depositions or other pre-trial testimony), designation shall be made by
1166 stamping “Confidential” to each page containing any Confidential
1177 Information. Any such stamp shall not overwrite or otherwise
1188 obscure the text or images of any page.
1199 b. Deposition and Other Proceedings: In the case of depositions or other
2200 pre-trial testimony, designation of the portion of the transcript
2211 (including exhibits) which contains Confidential Information shall be
2222 made (i) by a statement to such effect on the record during the
2233 proceeding in which the testimony is received, or (ii) by written notice
2244 served on counsel of record in this Litigation within thirty (30)
2255 business days after the receipt of the draft transcript of such
2266 deposition or other pre-trial proceeding. However, before such thirty
2277 (30) day period expires, all testimony, exhibits and transcripts of
depositions or other testimony shall be treated as Confidential 11 Information. Thereafter, only those portions properly designated shall
22 be deemed Confidential Information.
33 c. Non-Written Materials: Any non-written Confidential Information
44 (e.g., videotape, audio tape, computer disk, etc.) may be designated
55 as such by labeling the outside of such non-written material
66 designated as “Confidential”. In the event Plaintiff generates any
77 “hard copy” transcription or printout from any such designated non-
88 written materials, the person who generates such “hard copy”
99 transcription shall take reasonable steps to maintain the
1100 confidentiality of such materials.
1111 6. Inadvertent Disclosure: The inadvertent failure to designate
1122 Discovery Information as "Confidential" does not constitute a waiver of such claim
1133 and may be remedied by prompt supplemental written notice upon discovery of the
1144 inadvertent disclosure, with the effect that such Discovery Material will be subject
1155 to the protections of this Order. Plaintiff shall exercise good faith efforts to ensure
1166 that copies they make of Confidential Information produced to him, and copies
1177 made by others who obtained such Confidential Information directly or indirectly
1188 from the Plaintiff include the appropriate confidentiality legend, to the same extent
1199 that the Confidential Information has been marked with the appropriate
2200 confidentiality legend by the Defendants.
2211 7. No Waiver of Privilege: Inadvertent disclosure of Confidential
2222 Information or otherwise privileged information shall not constitute a waiver of, or
2233 estoppel as to any claim of privilege. This Order is intended to provide the full
2244 protection afforded by Federal Rule of Evidence 502(d).
2255 8. Claw-Back: Pursuant to Federal Rule of Civil Procedure 26(b)(5),
2266 upon learning it may have produced Confidential or otherwise privileged
2277 Information, Defendants shall, within ten (10) days of such discovery, request the
return of such Information in writing by identifying the Confidential or otherwise 11 privileged Information and stating the basis on which the Information should be
22 withheld from production. After being notified, Plaintiff must promptly return,
33 sequester, or destroy the Confidential or otherwise privileged Information and any
44 copies, must not use or disclose the Information until the claim is resolved and
55 must take reasonable steps to retrieve the Confidential or otherwise privileged
66 Information if he disclosed the Information before being notified. If Plaintiff
77 dispute Defendants' claim of confidentiality or privilege; they shall notify the
88 Defendant claiming confidentiality of the dispute and the basis therefore in writing
99 within thirty (30) days of receipt of the request for the return of the Confidential or
1100 otherwise privileged Information. The Plaintiff and the Defendant claiming
1111 confidentiality shall meet and confer in good faith regarding the disputed claim
1122 within thirty (30) days. In the event that the Plaintiff and the Defendant claiming
1133 confidentiality do not resolve their dispute, either party may bring a motion for a
1144 determination of whether a privilege applies. If such a motion is made, the
1155 Defendant claiming confidentiality shall request the Court review confidential
1166 documents in camera. Parties shall not submit documents to the Court without
1177 prior authorization. The submission to the Court shall not constitute a waiver of
1188 any privilege or protection. Defendants must preserve the Information claimed to
1199 be privileged or otherwise protected until the claim is resolved. Any motion
2200 challenging or seeking to retain a party’s designation of material as confidential or
2211 privileged, concerning confidential Information filed under seal, or regarding this
2222 Protective Order must be brought in strict compliance with Local Civil Rules 37-1
2233 and 37-2, including the Joint Stipulation requirement. If a party’s request to file
2244 Confidential Material under seal is denied by the Court, then the Receiving Party
2255 may file the information in the public record unless otherwise instructed by the
2266 Court.
2277 9. Notes of Confidential Information: Any notes, lists, memoranda,
indices, compilations prepared or based on an examination of Confidential 11 Information that quote from or paraphrase, Confidential Information with such
22 specificity that the Confidential Information can be identified, or by reasonable
33 logical extension can be identified, shall be accorded the same status of
44 confidentiality as the underlying Confidential Information from which they are
55 made and shall be subject to all of the terms of this Order.
66 10. Persons Authorized To Receive Confidential Information:
77 Discovery Material designated “Confidential” may be disclosed, summarized,
88 described, characterized or otherwise communicated or made available in whole or
99 in part only to the following persons:
1100 a. The Court, persons employed by the Court who are necessary for the
1111 handling of the Litigation, and court reporters transcribing the
1122 testimony or argument at a hearing, trial or deposition in this
1133 Litigation or any appeal there from;
1144 b. Counsel of record in this Litigation, as well as paralegals, technical,
1155 administrative and clerical employees working under the direct
1166 supervision of such counsel;
1177 c. Experts or consultants assisting any counsel of record in this
1188 Litigation, provided such experts and consultants agree to be bound
1199 by the terms and conditions set forth in the “Agreement Concerning
2200 Information Covered by Protective Order” attached hereto as
2211 Exhibit "A" prior to the time such information is disclosed; and
2222 d. Any other person, only upon order of the Court or upon stipulation
2233 of the Parties, and who agrees to be bound by the terms and conditions
2244 set forth in the “Agreement Concerning Information Covered by
2255 Protective Order” attached hereto as Exhibit "A" prior to the time such
2266 Information is disclosed. However, under no circumstances shall
2277 home addresses or telephone numbers of individual Defendants be
provided to Plaintiff. 11 The terms of this Protective Order do not apply to the Court and court
22 personnel, who are subject only to the Court’s internal procedures regarding the
33 handling of material filed or lodged, including material filed or lodged under seal.
44 11. Use of Confidential Discovery Material: Discovery Material
55 containing Confidential Information shall be used solely for purposes of the
66 Litigation, including any appeal and re-trial. Any person or entity in possession of
77 Discovery Material designated Confidential shall maintain those materials in
88 accordance with Paragraph (storage) below.
99 12. Storage Of Confidential Information: The recipient of any
1100 Confidential Information that is provided under this Protective Order shall
1111 maintain such information in a reasonably secure and safe manner that ensures that
1122 access is limited to the persons authorized under this Order.
1133 13. Filing of Confidential Information: Without written permission
1144 from Defendants or a Court order, Plaintiff may not file in the public record in this
1155 action any Confidential Information. Filing this information in the public record
1166 must occur under seal in compliance with Local Rule 79-5 when seeking to file
1177 Confidential Information under seal. Confidential Information may only be filed
1188 under seal pursuant to a separate court order authorizing the sealing of the specific
1199 Confidential Material at issue. If a party’s request to file Confidential Material
2200 under seal is denied by the Court, then the Receiving Party may file the
2211 information in the public record unless otherwise instructed by the Court.
2222 The party desiring to place any Confidential Information before the Court
2233 shall lodge the information in a sealed envelope along with an application to file
2244 the papers or the portion thereof containing Confidential Information under seal
2255 and a copy of a Proposed Order Sealing Documents. Said envelope shall be
2266 endorsed with the title of the Litigation, an indication of the nature of the contents
2277 of such sealed envelope, the identity of the party filing the materials, the phrase
“Confidential Information” and a statement substantially in the following form: 11 THIS ENVELOPE CONTAINS MATERIALS SUBJECT TO A
22 PROTECTIVE ORDER ENTERED IN THIS LITIGATION. IT
33 IS NOT TO BE OPENED NOR ARE ITS CONTENTS TO BE
44 DISPLAYED, REVEALED, OR MADE PULBIC, EXCEPT BY
55 ORDER OF THE COURT. UNLESS THE COURT ORDERS THAT IT
66 NOT BE FILED, IT SHALL BE FILED UNDER SEAL.
77 Additionally, within seven (7) days from the date that the papers (or portions
88 thereof) were filed under seal consistent with the above procedures, the party who
99 filed the papers under seal also shall file in the public record a version of the
1100 papers that has been redacted to omit the Confidential Information or any
1111 references thereto).
1122 As for any other information disclosed during discovery and marked
1133 “Confidential” that either party wishes to file in the public record in this action in
1144 support of or in opposition to any motion, the parties shall specifically identify any
1155 such documents and seek a stipulation concerning any sealing requirement
1166 therefore during the parties Local Rule 7-3 conference of counsel. If no agreement
1177 can be reached, the party advancing the “confidential” designation bears the
1188 burden of moving to have those documents sealed by the court.
1199 Additionally, any motion challenging or seeking to retain a party’s
2200 designation of material as confidential or privileged, concerning Confidential
2211 Information filed under seal, or regarding this Protective Order must be brought in
2222 strict compliance with Local Civil Rules 37-1 and 37-2, including the Joint
2233 Stipulation requirement.
2244 14. No Prejudice: Agreeing to be bound by this Protective Order,
2255 agreeing to and/or producing or receiving Confidential Information or otherwise
2266 complying with the terms of this Order shall not:
2277 a. Prejudice in any way the rights of Defendants to object to the
production of documents it considers not subject to discovery, or 11 operate as an admission by Defendants that the restrictions and
22 procedures set forth herein constitute adequate protection for any
33 particular information deemed by Defendants to be Confidential
44 Information;
55 b. Prejudice in any way the rights of Defendants to object to the
66 authenticity or admissibility into evidence of any document,
77 testimony or other evidence subject to this Order;
88 c. Prejudice in any way the rights of Defendants to seek a determination
99 by the Court whether any Confidential Information should be subject
1100 to the terms of this Order;
1111 15. Challenging Designation of Information: Plaintiff may challenge
1122 the propriety of a Confidential Information designation by providing to the
1133 Defendant claiming confidentiality a writing which briefly: (i) identifies with
1144 reasonable particularity the documents and/or information which are the subject of
1155 the challenge; and (ii) describes the basic legal or factual grounds for the
1166 challenge. Once a challenge is made, the Defendant claiming confidentiality will
1177 bear the burden of initiating and conducting a sufficient meet and confer (per Local
1188 Rule 37-1); and, if necessary, Defendant claiming confidentiality will bear the
1199 burdens of proof and persuasion in moving for a Protective Order (per Local Rule
2200 37-2) to uphold the challenged Confidential Information designation(s). Until the
2211 Court rules on the timely filed Motion for Protective Order, all parties shall
2222 continue to afford the material in question the level of protection to which it is
2233 entitled under the claiming Defendants’ designation.
2244 Any challenge to a designation of confidentiality must be made at a time that
2255 is consistent with the Court’s Scheduling Order in this matter.
2266 16. Additional Parties or Attorneys: In the event additional parties join
2277 or intervene in this action, the newly joined party(ies) shall not have access to
Confidential Information until its counsel has executed an agreement to be fully 11 bound by this Order. If any additional attorneys make appearances in this
22 Litigation, those attorneys shall not have access to Confidential Information until
33 they execute the “Agreement Concerning Information Covered by Protective
44 Order” attached hereto as Exhibit "A".
55 17. Protective Order Remains In Force: This Protective Order shall
66 remain in force and effect until modified, superseded, or terminated by consent of
77 the Parties or by order of the Court made upon reasonable written notice. Unless
88 otherwise ordered, or agreed upon by the parties, this Protective Order shall
99 survive the termination of this action. The Court retains jurisdiction even after
1100 termination of this action to enforce this Protective Order and to make such
1111 amendments, modifications, deletions and additions to this Protective Order as the
1122 Court may from time to time deem appropriate.
1133 18. Conclusion of Litigation: Within ninety (90) days after receiving
1144 notice of the entry of an order, judgment or decree finally disposing of this
1155 Litigation, all persons having received Confidential Information shall either return
1166 such material and all copies thereof to the counsel of the Defendant who
1177 designated the information as Confidential or destroy all such Confidential
1188 Information including the Confidential Information Plaintiff provided to other
1199 persons. In either case, counsel for Plaintiff must certify that fact to the counsel of
2200 the Defendant who designated the information as Confidential. However, Counsel
2211 for Plaintiff will be allowed to keep an entire copy of the client’s file including any
2222 properly designated confidential documents and will not violate any state bar rules
2233 requiring to keep a copy of the client’s file for the minimum period of time allotted
2244 by the agency.
2255 19. Redaction Allowed: Defendants may redact Confidential Information
2266 from documents and things produced to the extent that such information consists of
2277 personal identifying information of third parties per Federal Rule of Civil
Procedure 5.2 and Central District Local Rule 5.2-1 and/or personal identifying 11 information of peace officers or their family members, such as ID numbers, phone
22 numbers, addresses, or medical history which is unrelated to any claim or defense
33 raised in the instant action. Defendants shall mark each thing where matter has
44 been redacted with a legend stating “REDACTED,” as appropriate, or a
55 comparable notice.
66 20. Violations of Protective Order: In the event that any person or party
77 should violate the terms of this Protective Order, the aggrieved party should apply
88 to the Court obtain relief against any such person or party violating or threatening
99 to violate any of the terms of this Protective Order.
1100 Any motion seeking injunctive relief for violation of this Protective Order
1111 must be brought before the assigned Magistrate Judge in strict compliance with
1122 Local Civil Rules 37-1 and 37-2, including the Joint Stipulation requirement.
1133 21. Protected Material Subpoenaed or Ordered Produced in Other
1144 Litigation:
1155 A. If a Party is served with a subpoena or a court order issued in other
1166 litigation that compels disclosure of any information or items designated in this
1177 Action as “CONFIDENTIAL,” that Party must:
1188 1. Promptly notify in writing the Designating Party. Such
1199 notification shall include a copy of the subpoena or court order;
2200 2. Promptly notify in writing the party who caused the subpoena
2211 or order to issue in the other litigation that some or all of the
2222 material covered by the subpoena or order is subject to this
2233 Protective Order. Such notification shall include a copy of this
2244 Protective Order; and
2255 3. Cooperate with respect to all reasonable procedures sought to
2266 be pursued by the Designating Party whose Protected Material
2277 may be affected.
B. If the Designating Party timely seeks a protective order, the Party 1 | served with the subpoena or court order shall not produce any informatio 2 || designated in this action as “CONFIDENTIAL” before a determination by th 3 || Court from which the subpoena or order issued, unless the Party has obtained th 4 || Designating Party’s permission. The Designating Party shall bear the burden an 5 || expense of seeking protection in that court of its confidential material and nothin 6 || in these provisions should be construed as authorizing or encouraging a Receivin 7 || Party in this Action to disobey a lawful directive from another court. 9 IT IS SO ORDERED. 10 11 || Dated: May 5, 2023 12 13 14 en 15 □□□ □□□ oman JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 □
11 EXHIBIT "A"TO STIPULATED PROTECTIVE ORDER
22 UNITED STATES DISTRICT COURT 33 CENTRAL DISTRICT OF CALIFORNIA 44 GUSTAVO MARES, Individually; Case No: 22-CV-01099-FMO-KK 55 Plaintiff, AGREEMENT CONCERNING 66 vs. INFORMATION COVERED BY STIPULATED PROTECTIVE 77 ORDER COUNTY OF SAN BERNARDINO; 88 A Governmental Entity; DEVON STEUERWALD, Individually;
JOSEPH MORA, Individually, and 99 DOES 1 through 10,
1100 Defendants.
1122 1. I, __________________________________, hereby acknowledge 1133 that I have received a copy of the Stipulated Protective Order entered in this 1144 Litigation [Case No: 22-CV-01099-FMO-KK] by the United States District Court 1155 for the Central District of California (hereinafter, “the Protective Order”). 1166 2. I have either read the Protective Order or have had the terms of the 1177 Protective Order explained to me by my attorney. 1188 3. I understand the terms of the Protective Order and agree to comply 1199 with and to be bound by such terms. 2200 4. If I receive documents or information designated as Confidential 2211 Information (as that term is defined in the Protective Order), I understand that such 2222 Information is provided to me pursuant to the terms and restrictions of the 2233 Protective Order. 2244 5. I agree to hold in confidence and not further disclose or use for any 2255 purpose (other than is permitted by the Protective Order) any Confidential 2266 Information disclosed to me pursuant to the terms of the Protective Order. 2277 6. I hereby submit myself to the jurisdiction of the United States District 11 Court for the Central District of California for resolution of any matters pertaining
22 to the Protective Order.
44 My address is:____________________________________
66 My present employer is: ________________________________
88 Dated: ______________
1111 Signed: _________________________