Jessy Duenas Hernandez v. County of Los Angeles

• Court: District Court, C.D. California
• Decided: September 20, 2021
• Docket: 2:21-cv-03937
• Status: Unknown

Opinion

9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11

12 JESSY DUENAS HERNANDEZ No. 2:21-CV-03937-MWF (AFMx) 13 DISCOVERY MATTER 14 Plaintiff, v. [PROPOSED] STIPULATED 15 PROTECTIVE ORDER GOVERNING PRODUCTION OF 16 COUNTY OF LOS ANGELES, by and “CONFIDENTIAL” through the LOS ANGELES COUNTY INFORMATION 17 SHERIFF’S DEPARTMENT;

18 DEPUTY VILANOVA; DEPUTY [Assigned to Hon. Michael W. SANDOVAL; DEPUTY GERMAN Fitzgerald, Courtroom 5A] 19 ZAMBRANO; DEPUTY RAUL [Discovery Document: Referred to the 20 ALVAREZ; DOES 1-25, inclusive, Hon. Alexander F. MacKinnon, Magistrate Judge] 21 Defendants

23 I. PURPOSE AND LIMITATIONS 24 II. Discovery in this action is likely to involve production of confidential or 25 private information for which special protection from public disclosure 26 and from use for any purpose other than prosecuting this action may be 27 warranted. Accordingly, the parties hereby stipulate to and petition the 1 Court to enter the following [Proposed] Stipulated Protective Order 2 (hereafter “this Order”). The parties acknowledge that this Order does 3 not confer blanket protections on all disclosures or responses to 4 discovery; and that the protection it affords from public disclosure and 5 use extends only to the limited information or items that are entitled to 6 confidential treatment under the applicable legal principles. GOOD 7 CAUSE STATEMENT 8 This action is likely to involve confidential information pertaining to 9 personnel records and other materials subject to privacy protections for which 10 special protection from public disclosure and from use for any purpose other than 11 prosecution of this action is warranted. Additionally, this action may involve other 12 proprietary information concerning police practices and security protocols for which 13 special protection from public disclosure and from use for any purpose other than 14 prosecution of this action is warranted. Limiting disclosure of these documents to 15 the context of this litigation as provided herein will, accordingly, further important 16 law enforcement objectives and interests, including the safety of personnel and the 17 public, as well as the privacy rights of plaintiff, the individual defendants, and third 18 party witnesses. Such confidential materials and information consists of, among 19 other things, materials entitled to privileges and/or protections under the following: 20 the United States Constitution, First Amendment; the California Constitution, 21 Article I, Section 1; California Penal Code §§ 832.5, 832.7, and 832.8; California 22 Evidence Code §§ 1040 and 1043, et seq.; the Privacy Act of 1974, 5 U.S.C. § 552a; 23 Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 24 104-191, decisional law relating to such provisions; and information otherwise 25 generally unavailable to the public; or which may be privileged or otherwise 26 protected from disclosure under state or federal statutes, court rules, case decisions, 27 or common law. Defendants also contend that such confidential materials and 1 Confidential Information with respect to the Defendants may include but is 2 not limited to: personnel files; internal investigative files and documents; email and 3 written correspondence records; and policies and procedures that are kept from the 4 public in the ordinary course of business; as well as other items subject to the 5 Official Information Privilege and other privileges. Confidential Information with 6 respect to the Plaintiff may include but is not limited to: email and written 7 correspondence records; and psychological and medical notes, evaluations, reports, 8 and treatment plans. 9 The parties reserve the right to challenge a designation of confidentiality 10 pursuant to the terms set forth under Paragraph 8 of this Order. 11 Accordingly, to expedite the flow of information; to facilitate the prompt 12 resolution of disputes over confidentiality of discovery materials; to adequately 13 protect information the parties are entitled to keep confidential; to ensure that the 14 parties are permitted to reasonably use such material in preparation for and in 15 conduct of trial; to address their handling at the end of the litigation; and serve the 16 ends of justice, a protective order for such information is justified in this matter. It 17 is the intent of the parties that information will not be designated as confidential for 18 tactical reasons and that nothing be so designated without a good faith belief that it 19 has been maintained in a confidential, non-public manner; and there is good cause 20 why it should not be part of the public record of this case. 21 III. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 22 SEAL 23 The parties further acknowledge, as set forth in Section 14.3, below, that this 24 Order does not entitle them to file confidential information under seal; Local Civil 25 Rule 79-5 sets forth the procedures that must be followed and the standards that will 26 be applied when a party seeks permission from the court to file material under seal. 27 There is a strong presumption that the public has a right of access to judicial 1 good cause must be shown to support a filing under seal. Kamakana v. City and 2 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors 3 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics, 4 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 5 require good cause showing, and a specific showing of good cause or compelling 6 reasons with proper evidentiary support and legal justification, must be made with 7 respect to material that a party seeks to file under seal). The parties’ mere 8 designation of material as “CONFIDENTIAL” does not— without the submission 9 of competent evidence by declaration, establishing that the material sought to be 10 filed under seal qualifies as confidential, privileged, or otherwise protectable— 11 constitute good cause. Further, if a party requests sealing related to dispositive 12 motion or trial, then compelling reasons, not only good cause, for the sealing must 13 be shown, and the relief sought shall be narrowly tailored to serve the specific 14 interest to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 15 (9th Cir. 2010). 16 Any document that is not confidential, privileged, or otherwise protectable in 17 its entirety will not be filed under seal if the confidential portions can be redacted. 18 If documents can be redacted, then a redacted version for public viewing, omitting 19 only the confidential, privileged, or otherwise protectable portions of the document, 20 shall be filed. Any application that seeks to file documents under seal in their 21 entirety should include an explanation of why redaction is not feasible. 22 IV. DEFINITIONS 23 4.1 Action: Jessy Duenas Hernandez v. County of Los Angeles, et al., 24 Case No. 2:21-cv-03937-MWF (AFMx). 25 4.2 Challenging Party: a Party or Non-Party that challenges the designation 26 of information or items under this Order. 27 4.3 “CONFIDENTIAL” Information or Items: Information (regardless of 1 things that qualify for protection under Federal Rule of Civil Procedure 26(c), and 2 as specified above in the Good Cause Statement. 3 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as 4 their support staff). 5 4.5 Designating Party: a Party or Non-Party that designated information or 6 items that it produces in disclosures or in responses to discovery as 7 “CONFIDENTIAL.” 8 4.6 Disclosure or Discovery Material: all items or information, regardless 9 of the medium or manner in which it is generated, stored, or maintained (including, 10 among other things, testimony, transcripts, and tangible things), that are produced or 11 generated in disclosures or responses to discovery in this matter. 12 4.7 Expert: a person with specialized knowledge or experience in a matter 13 pertinent to the litigation who has been retained by a Party or its counsel to serve as 14 an expert witness or as a consultant in this Action. 15 4.8 House Counsel: attorneys who are employees of a party to this Action. 16 House Counsel does not include Outside Counsel of Record or any other outside 17 Counsel. 18 4.9 Non-Party: any natural person, partnership, corporation, association or 19 other legal entity not named as a Party to this action. 20 4.10 Outside Counsel of Record: attorneys who are not employees of a 21 Party to this Action but are retained to represent or advise a Party to this Action and 22 have appeared in this Action on behalf of that party or are affiliated with a law firm 23 that has appeared on behalf of that Party, as well as their support staff. 24 4.11 Party: any Party to this Action, including all of its officers, directors, 25 employees, consultants, retained experts, and Outside Counsel of Record (and their 26 support staffs). 27 4.12 Producing Party: a Party or Non-Party that makes a Disclosure or 1 4.13 Professional Vendors: persons or entities that provide litigation support 2 services (e.g., photocopying, videotaping, translating, preparing exhibits or 3 demonstrations, and organizing, storing, or retrieving data in any form or medium) 4 and their employees and subcontractors. 5 4.14 Protected Material: any Disclosure or Discovery Material that is 6 designated as “CONFIDENTIAL.” 7 4.15 Producing Party: a Party that makes a Disclosure or produces 8 Discovery Material to the Receiving Party. 9 4.15 Receiving Party: a Party that receives a Disclosure or Discovery 10 Material from a Producing Party. 11 V. SCOPE 12 The protections conferred by this Stipulation and Order cover not only 13 Protected Material (as defined above), but also (1) any information copied or 14 extracted from Protected Material; (2) all copies, excerpts, summaries, or 15 compilations of Protected Material; and (3) any testimony, conversations, or 16 presentations by Parties or their Counsel (as defined by Sections 4.8 and 4.10) that 17 might reveal Protected Material. 18 Any use of Protected Material at trial shall be governed by the orders of the 19 trial judge. This Order does not govern the use of Protected Material at trial. 20 Likewise, the mere existence of this stipulation and Order shall not serve as a basis 21 to preclude the admission of any protected materials as evidence at the time of trial. 22 VI. DURATION 23 6.1 Except for information specified in 6.2, the confidentiality obligations 24 imposed by this Order will remain in effect until Final Disposition of this case. 25 “Final Disposition” shall be deemed to be the later of (1) dismissal of all claims and 26 defenses in this Action, with or without prejudice; and (2) final judgment herein 27 after the completion and exhaustion of all appeals, rehearings, remands, trials, or 1 applications for extension of time pursuant to applicable law. 2 6.2 If the case proceeds to trial, information designated as Confidential under 3 this protective order that is authorized for use at trial by stipulation, order or is 4 otherwise admitted as an exhibit will become public and will be presumptively 5 available to all members of the public, including the press, unless compelling 6 reasons supported by specific factual findings to proceed otherwise are made to the 7 trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 8 (distinguishing “good cause” showing for sealing documents produced in discovery 9 from “compelling reasons” standard when merits-related documents are part of court 10 record). 11 VII. DESIGNATING PROTECTED MATERIAL 12 7.1 Exercise of Restraint and Care in Designating Material for Protection. 13 Each Party or Non-Party that designates information or items for protection under 14 this Order must take care to limit any such designation to specific material that 15 qualifies under the appropriate standards. The Designating Party must designate for 16 protection only those parts of material, documents, items or oral or written 17 communications that qualify so that other portions of the material, documents, items 18 or communications for which protection is not warranted are not swept unjustifiably 19 within the ambit of this Order. 20 Mass, indiscriminate, or routinized designations are prohibited. Designations 21 that are shown to be clearly unjustified or that have been made for an improper 22 purpose (e.g., to unnecessarily encumber the case development process or to impose 23 unnecessary expenses and burdens on other parties) may expose the Designating 24 Party to sanctions. 25 If it comes to a Designating Party’s attention that information or items that it 26 designated for protection do not qualify for protection, that Designating Party must 27 promptly notify all other Parties that it is withdrawing the inapplicable designation. 1 this Order (see, e.g., second paragraph of section 7.2(a) below), or as otherwise 2 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 3 under this Order must be clearly so designated before the material is disclosed or 4 produced. 5 Designation in conformity with this Order requires: 6 (a) for information in documentary form (e.g., paper or electronic 7 documents, but excluding transcripts of depositions or other pretrial or trial 8 proceedings), that the Producing Party affix at a minimum, the legend 9 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 10 contains protected material. If only a portion of the material on a page qualifies for 11 protection, the Producing Party also must clearly identify the protected portion(s) 12 (e.g., by making appropriate markings in the margins). 13 A Party or Non-Party that makes original documents available for inspection 14 need not designate them for protection until after the inspecting Party has indicated 15 which documents it would like copied and produced. During the inspection and 16 before the designation, all of the materials made available for inspection shall be 17 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 18 documents it wants copied and produced, the Producing Party must determine which 19 documents, or portions thereof, qualify for protection under this Order. Then, 20 before producing the specified documents, the Producing Party must affix the 21 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 22 portion of the material on a page qualifies for protection, the Producing Party also 23 must clearly identify the protected portion(s) (e.g., by making appropriate markings 24 in the margins). 25 (b) for testimony given in depositions that the Designating Party identifies 26 the Disclosure or Discovery Material on the record, and before the close of the 27 deposition all protected testimony. 1 any other tangible items, that the Producing Party affix in a prominent place on the 2 exterior of the container or containers in which the information is stored the legend 3 “CONFIDENTIAL.” If only a portion or portions of the information warrants 4 protection, the Producing Party, to the extent practicable, shall identify the protected 5 portion(s). 6 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 7 failure to designate qualified information or items does not, standing alone, waive 8 the Designating Party’s right to secure protection under this Order for such material. 9 Upon timely correction of a designation, the Receiving Party must make reasonable 10 efforts to assure that the material is treated in accordance with the provisions of this 11 Order. 12 VIII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 13 8.1 Timing of Challenges. Any Party or Non-Party may challenge a 14 designation of confidentiality at any time that is consistent with the Court’s 15 Scheduling Order. 16 8.2 Meet and Confer. The Challenging Party shall initiate the meet and 17 confer process outlined in Local Rule 37.1, et seq. 18 8.3 The burden of persuasion, in any such challenge proceeding, shall be 19 on the Designating Party. Frivolous challenges, and those made for an improper 20 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 21 parties) may expose the Challenging Party to sanctions. Unless the Designating 22 Party has waived or withdrawn the confidentiality designation, all parties shall 23 continue to afford the material in question the level of protection to which it is 24 entitled under the Producing Party’s designation until the Court rules on the 25 challenge. 26 IX. ACCESS TO AND USE OF PROTECTED MATERIAL 27 9.1 Basic Principles. A Receiving Party may use Protected Material that is 1 Action only for prosecuting, defending or attempting to settle this Action. Such 2 Protected Material may be disclosed only to the categories of persons and under the 3 conditions described in this Order. When the Action has been terminated, a 4 Receiving Party must comply with the provisions of Section VI, infra. 5 Protected Material must be stored and maintained by a Receiving Party at a 6 location and in a secure manner that ensures that access is limited to the persons 7 authorized under this Order. 8 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 9 otherwise ordered by the Court or permitted in writing by the Designating Party, a 10 Receiving Party may disclose any information or item designated 11 “CONFIDENTIAL” only to: 12 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 13 as employees of said Outside Counsel of Record to whom it is reasonably necessary 14 to disclose the information for this Action; 15 (b) the officers, directors, and employees (including House Counsel) of the 16 Receiving Party to whom disclosure is reasonably necessary for this Action; 17 (c) Experts (as defined in this Order) of the Receiving Party to whom 18 disclosure is reasonably necessary for this Action and who have signed the 19 “Acknowledgment and Agreement to Be Bound,” attached and hereafter referred to 20 as “Exhibit A.” 21 (d) the court and its personnel; 22 (e) court reporters and their staff; 23 (f) professional jury or trial consultants, mock jurors, and Professional 24 Vendors to whom disclosure is reasonably necessary for this Action and who have 25 signed Exhibit A. 26 (g) the author or recipient of a document containing the information or a 27 custodian or other person who otherwise possessed or knew the information; 1 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 2 requests that the witness sign Exhibit A; and (2) they will not be permitted to keep 3 any confidential information unless they sign Exhibit A, unless otherwise agreed by 4 the Designating Party or ordered by the Court. Pages of transcribed deposition 5 testimony or exhibits to depositions that reveal Protected Material may be separately 6 bound by the court reporter and may not be disclosed to anyone except as permitted 7 under this Order; and 8 (i) any mediator or settlement officer, and their supporting personnel, 9 mutually agreed upon by any of the parties engaged in settlement discussions. 10 X. PROTECTED MATERIAL SUBPOENAED OR ORDERED 11 PRODUCED IN OTHER LITIGATION 12 If a Party is served with a subpoena or a court order issued in other litigation 13 that compels disclosure of any information or items designated in this Action as 14 “CONFIDENTIAL,” that Party must: 15 (a) promptly notify in writing the Designating Party. Such notification 16 shall include a copy of the subpoena or court order; 17 (b) promptly notify in writing the party who caused the subpoena or order 18 to issue in the other litigation that some or all of the material covered by the 19 subpoena or order is subject to this Order. Such notification shall include a copy of 20 this Order; and 21 (c) cooperate with respect to all reasonable procedures sought to be pursued 22 by the Designating Party whose Protected Material may be affected. 23 If the Designating Party timely seeks a protective order, the Party served with 24 the subpoena or court order shall not produce any information designated in this 25 action as “CONFIDENTIAL” before a determination by the Court from which the 26 subpoena or order issued, unless the Party has obtained the Designating Party’s 27 permission. The Designating Party shall bear the burden and expense of seeking 1 should be construed as authorizing or encouraging a Receiving Party in this Action 2 to disobey a lawful directive from another court. 3 XI. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 4 PRODUCED IN THIS LITIGATION 5 (a) The terms of this Order are applicable to information produced by a 6 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 7 produced by Non-Parties in connection with this litigation is protected by the 8 remedies and relief provided by this Order. Nothing in these provisions should be 9 construed as prohibiting a Non-Party from seeking additional protections. 10 (b) In the event that a Party is required, by a valid discovery request, to 11 produce a Non-Party’s confidential information in its possession, and the Party is 12 subject to an agreement with the Non-Party not to produce the Non-Party’s 13 confidential information, then the Party shall: 14 (1) promptly notify in writing the Requesting Party and the Non-Party 15 that some or all of the information requested is subject to a confidentiality 16 agreement with a Non-Party; 17 (2) promptly provide the Non-Party with a copy of this Order in this 18 Action, the relevant discovery request(s), and a reasonably specific description of 19 the information requested; and 20 (3) make the information requested available for inspection by the Non- 21 Party, if requested. 22 (c) If the Non-Party fails to seek a protective order from this Court within 23 fourteen (14) days of receiving the notice and accompanying information, the 24 Receiving Party may produce the Non-Party’s confidential information responsive 25 to the discovery request. If the Non-Party timely seeks a protective order, the 26 Receiving Party shall not produce any information in its possession or control that is 27 subject to the confidentiality agreement with the Non-Party before a determination 1 burden and expense of seeking protection in this Court of its Protected Material. 2 XII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 3 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 4 Protected Material to any person or in any circumstance not authorized under this 5 Order, the Receiving Party must immediately (a) notify in writing the Designating 6 Party of the unauthorized disclosures; (b) use its best efforts to retrieve all 7 unauthorized copies of the Protected Material; (c) inform the person or persons to 8 whom unauthorized disclosures were made of all the terms of this Order; and (d) 9 request such person or persons to execute Exhibit A. 10 XIII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 11 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 protection, 14 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 16 procedure may be established in an e-discovery order that provides for production 17 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 18 (e), insofar as the Parties reach an agreement on the effect of disclosure of a 19 communication or information covered by the attorney-client privilege or work 20 product protection, the Parties may incorporate their agreement in a subsequent 21 stipulation to the Court. 22 XIV. 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 Order, no Party waives any right it otherwise would have to object to disclosing or 27 producing any information or item on any ground not addressed in this Order. 1 any of the material covered by this Order. 2 14.3 Filing Protected Material. A Party that seeks to file under seal any 3 Protected Material must comply with Local Civil Rule 79-5. Protected Material 4 may only be filed under seal pursuant to a court order authorizing the sealing of the 5 specific Protected Material at issue. If a Party’s request to file Protected Material 6 under seal is denied by the Court, then the Receiving Party may file the information 7 in the public record unless otherwise instructed by the Court. 8 XV. FINAL DISPOSITION 9 After the final disposition of this Action, as defined in Section VI, supra, 10 within 60 days of a written request by the Designating Party, each Receiving Party 11 must return all Protected Material to the Producing Party or destroy such material. 12 As used in this subdivision, “all Protected Material” includes all copies, abstracts, 13 compilations, summaries, and any other format reproducing or capturing any of the 14 Protected Material. Whether the Protected Material is returned or destroyed, the 15 Receiving Party must submit a written certification to the Producing Party (and, if 16 not the same person or entity, to the Designating Party) by the 60 day deadline that 17 (1) identifies (by category, where appropriate) all the Protected Material that was 18 returned or destroyed and (2) affirms that the Receiving Party has not retained any 19 copies, abstracts, compilations, summaries or any other format reproducing or 20 capturing any of the Protected Material. Notwithstanding this provision, Counsel 21 are entitled to retain an archival copy of all pleadings, motion papers, trial, 22 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 23 and trial exhibits, expert reports, attorney work product, and consultant and expert 24 work product, even if such materials contain Protected Material. Any such archival 25 copies that contain or constitute Protected Material remain subject to this Order as 26 set forth in Section VI, supra. 27 XVI. VIOLATION 1 || including, without limitation, contempt proceedings and/or monetary sanctions. 2 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 3 DATED: 9/20/2021 Clty Woxke— 6 7 HON. ALEXANDER F. MACKINNON) 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________________________ [print or type full address], declare under 5 penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Central 7 District of California in the case of Jessy Duenas Hernandez v. County of Los 8 Angeles, et al.. Case No. 2:21-cv-03937-MWF (AFMx). I agree to comply with and 9 to be bound by all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and punishment 11 in the nature of contempt. I solemnly promise that I will not disclose in any manner 12 any information or item that is subject to this Stipulated Protective Order to any 13 person or entity except in strict compliance with the provisions of this Order. I 14 further agree to submit to the jurisdiction of the United States District Court for the 15 Central District of California for enforcing the terms of this Stipulated Protective 16 Order, even if such enforcement proceedings occur after termination of this action. 17 18 Date: _________________________________ 19 20 City and State where sworn and signed: _________________________________ 21 22 Printed name: _________________________________ 23 24 Signature: _________________________________ 25 26