J.F. v. City of Woodlake

• Court: District Court, E.D. California
• Decided: April 8, 2024
• Docket: 1:23-cv-01569
• Status: Unknown

Opinion

LONGYEAR & LAVRA, LLP 1 Van Longyear, CSB No.: 84189 Nicole M. Cahill, CSB No.: 287165 2 555 University Avenue, Suite 280 Sacramento, CA 95825 3 Phone: 916-974-8500 Facsimile: 916-974-8510 4 Emails: longyear@longyearlaw.com cahill@longyearlaw.com 5

6 Attorneys for Defendant, City of Woodlake 7

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

11 J.F., a minor, by and through her Guardian Ad ) Case No.: 1:23-cv-01569-JLT-BAM Litem, LIZ FRANCO; V.F., a minor, by and ) 12 through her Guardian Ad Litem, LIZ ) JOINT STIPULATION AND FRANCO; and M.M., a minor, by and through ) [PROPOSED] PROTECTIVE ORDER 13 her Guardian Ad Litem, JENNIFER ) MENENDEZ, ) 14 ) Plaintiffs, ) 15 ) v. ) 16 ) CITY OF WOODLAKE; and DOES 1-10, ) 17 inclusive, ) ) 18 Defendants. ) 19 1. PURPOSES AND LIMITATIONS 20 Disclosure and discovery activity in this action involve production of confidential, 21 proprietary, or private information for which special protection from public disclosure and from 22 use for any purpose other than prosecuting this litigation is warranted. The Parties have 23 determined that certain documents that may be subject to disclosure in this action contain 24 information that is (a) confidential, sensitive, or potentially invasive of an individual’s privacy 25 interests; (b) not generally known; and (c) not normally revealed to the public or third parties, or 26 if disclosed to third parties, would require such third parties to maintain the information in 27 confidence. This confidential or private information warrants special protection from public 28 disclosure and from use for any purpose other than prosecuting this litigation. 1 Accordingly, the parties hereby stipulate to and petition the Court to enter the following 2 Stipulated Protective Order on the basis that the documents described herein and anticipated to 3 be subject to disclosure in this matter contain confidential and protected information that may 4 only be disclosed and/or produced subject to the following terms, unless timely challenged 5 subject to the provisions in Section 6, below. The parties acknowledge that this Order does not 6 confer blanket protections on all disclosures or responses to discovery and that the protection it 7 affords from public disclosure and use extends only to the limited information or items that are 8 entitled to confidential treatment under the applicable legal principles. The parties further 9 acknowledge, as set forth in Section 11.3, below, that this Stipulated Protective Order does not 10 entitle them to file confidential information under seal; Local Rule 141 sets forth the procedures 11 that must be followed and the standards that will be applied when a party seeks permission from 12 the court to file material under seal. 13 2. DEFINITIONS 14 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 15 information or items under this Order. 16 2.2 “CONFIDENTIAL” Information or Items: Protected Material, as defined in Section 17 2.13 below and marked as “Confidential” pursuant to the terms of this order. 18 2.3 Counsel: Counsel of Record (as well as their support staff). 19 2.4 Designating Party: a Party or Non-Party that designates information or items that it 20 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 21 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 22 or manner in which it is generated, stored, or maintained (including, among other things, 23 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 24 responses to discovery in this matter. 25 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 26 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 27 consultant in this action. 28 / / / 1 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 2 entity not named as a Party to this action. 3 2.9 Counsel of Record: attorneys who are not employees of a party to this action but are 4 retained to represent or advise a party to this action and have appeared in this action on behalf of 5 that party or are affiliated with a law firm which has appeared on behalf of that party. 6 2.10 Party: any party to this action, including all of its officers, directors, employees, 7 consultants, retained experts, and Counsel (and their support staffs). 8 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 9 Material in this action. 10 2.12 Professional Vendors: persons or entities that provide litigation support services 11 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 12 organizing, storing, or retrieving data in any form or medium) and their employees and 13 subcontractors. 14 2.13 Protected Material: any Disclosure or Discovery Material that is within the scope of 15 this order as described in Section 3 below and thereafter designated as “CONFIDENTIAL.” 16 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 17 Producing Party. 18 3. SCOPE 19 The documents eligible for protection under this Order are: 20 ▪ Law enforcement personnel file documents and materials that concern, relate, or refer 21 to fitness for duty reports and evaluations, performance evaluations, discipline, 22 awards, commendations and recognition, reassignments or position changes, 23 employee personal data, and related records; and 24 ▪ Police Department internal investigation documents and materials including internal 25 affairs investigation files, citizen complaints, personnel file documents and data, 26 incident reports, log books, and other related records. 27 ▪ Records and investigative materials pertaining to ongoing criminal investigations 28 and/or prosecutions. 1 The protections conferred by this Stipulation and Order cover not only Protected Material 2 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 3 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 4 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 5 However, the protections conferred by this Stipulation and Order do not cover the following 6 information: (a) any information that is in the public domain at the time of disclosure to a 7 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 8 a result of publication not involving a violation of this Order, including becoming part of the 9 public record through trial or otherwise; and (b) any information known to the Receiving Party 10 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 11 obtained the information lawfully and under no obligation of confidentiality to the Designating 12 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 13 4. DURATION 14 Even after final disposition of this litigation, the confidentiality obligations imposed by this 15 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 16 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 17 and defenses in this action, with or without prejudice; and (2) final judgment herein after the 18 completion and exhaustion of all appeals, re-hearings, remands, trials, or reviews of this action, 19 including the time limits for filing any motions or applications for extension of time pursuant to 20 applicable law. 21 5. DESIGNATING PROTECTED MATERIAL 22 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 23 Non-Party that designates information or items for protection under this Order must take care to 24 limit any such designation to specific material that qualifies under the appropriate standards. The 25 Designating Party must designate for protection only those parts of material, documents, items, or 26 oral or written communications that qualify – so that other portions of the material, documents, 27 items, or communications for which protection is not warranted are not swept unjustifiably within 28 the ambit of this Order. 1 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 2 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 3 unnecessarily encumber or retard the case development process or to impose unnecessary expenses 4 and burdens on other parties) expose the Designating Party to sanctions. 5 If it comes to a Designating Party’s attention that information or items that it designated 6 for protection do not qualify for protection, that Designating Party must promptly notify all other 7 Parties that it is withdrawing the mistaken designation. 8 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 9 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure 10 or Discovery Material that qualifies for protection under this Order must be clearly so designated 11 before the material is disclosed or produced. 12 Designation in conformity with this Order requires: 13 (a) for information in documentary form (e.g., paper or electronic documents, but 14 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 15 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 16 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 17 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 18 A Party or Non-Party that makes original documents or materials available for inspection 19 need not designate them for protection until after the inspecting Party has indicated which material 20 it would like copied and produced. During the inspection and before the designation, all of the 21 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 22 Party has identified the documents it wants copied and produced, the Producing Party must 23 determine which documents, or portions thereof, qualify for protection under this Order. Then, 24 before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL” 25 legend to each page that contains Protected Material. If only a portion or portions of the material 26 on a page qualifies for protection, the Producing Party also must clearly identify the protected 27 portion(s) (e.g., by making appropriate markings in the margins). 28 (b) for testimony given in deposition or in other pretrial proceedings, that the 1 Designating Party identify on the record, before the close of the deposition, hearing, or other 2 proceeding, all protected testimony. 3 (c) for information produced in some form other than documentary and for any 4 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 5 container or containers in which the information or item is stored the legend “CONFIDENTIAL.” 6 If only a portion or portions of the information or item warrant protection, the Producing Party, to 7 the extent practicable, shall identify the protected portion(s). 8 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 9 designate qualified information or items does not, standing alone, waive the Designating Party’s 10 right to secure protection under this Order for such material. Upon timely correction of a 11 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 12 in accordance with the provisions of this Order. 13 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 14 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 15 confidentiality. Such challenges must be made within 60 days of service of the materials 16 designated as confidential and/or subject to this Order. Failure to mount a challenge to a 17 confidentiality designation within this time frame constitutes a waiver of the challenge unless the 18 court, for good cause, excuses the failure. 19 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by 20 providing written notice of each designation it is challenging and describing the basis for each 21 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 22 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 23 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 24 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 25 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 26 Party must explain the basis for its belief that the confidentiality designation was not proper and 27 must give the Designating Party an opportunity to review the designated material, to reconsider 28 the circumstances, and, if no change in designation is offered, to explain the basis for the chosen 1 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 2 has engaged in this meet and confer process first or establishes that the Designating Party is 3 unwilling to participate in the meet and confer process in a timely manner. 4 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 5 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 6 Eastern District Local Rule 251 within 21 days of the initial notice of challenge or within 14 days 7 of the parties agreeing that the meet and confer process will not resolve their dispute, whichever 8 is earlier. Each such motion must be accompanied by a competent declaration affirming that the 9 movant has complied with the meet and confer requirements imposed in the preceding paragraph. 10 Failure by the Designating Party to make such a motion including the required declaration within 11 21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for 12 each challenged designation, unless the court, for good cause, excuses the failure. In addition, the 13 Challenging Party may file a motion challenging a confidentiality designation at any time if there 14 is good cause for doing so, including a challenge to the designation of a deposition transcript or 15 any portions thereof. Any motion brought pursuant to this provision must be accompanied by a 16 competent declaration affirming that the movant has complied with the meet and confer 17 requirements imposed by the preceding paragraph. 18 The burden of persuasion in any such challenge proceeding shall be on the Designating 19 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 20 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 21 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 22 file a motion to retain confidentiality as described above, all parties shall continue to afford the 23 material in question the level of protection to which it is entitled under the Producing Party’s 24 designation until the court rules on the challenge. 25 7. ACCESS TO AND USE OF PROTECTED MATERIAL 26 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 27 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 28 defending, or attempting to settle this litigation. Prior to trial, such Protected Material may be 1 disclosed only to the categories of persons described in Section 7.2 below and under the conditions 2 described in this Order. The parties anticipate disagreement at the time of trial regarding the use 3 of Protected Material. However, the parties agree that Protected Materials should not be deemed 4 inadmissible solely due to their status as a Protected Material. Should any party seek to introduce 5 Protected Material during trial, the parties agree that this issue and the handling of the Protected 6 Material at the time of trial, including any limitations on use, distribution, publicity, and viewing, 7 should be addressed at the Final Pretrial Conference. 8 When the litigation has been terminated, a Receiving Party must comply with the 9 provisions of section 12 below (FINAL DISPOSITION). 10 Protected Material must be stored and maintained by a Receiving Party at a location and in 11 a secure manner that ensures that access is limited to the persons authorized under this Order. 12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 13 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 14 information or item designated “CONFIDENTIAL” only to: 15 (a) the Receiving Party’s Counsel in this action, as well as employees of said 16 Counsel to whom it is reasonably necessary to disclose the information for this litigation and who 17 have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 18 A; 19 (b) the officers, directors, and employees of the Receiving Party to whom disclosure 20 is reasonably necessary for this litigation and who have signed the “Acknowledgment and 21 Agreement to Be Bound” (Exhibit A); 22 (c) the Receiving Party may show any information or item designated 23 “CONFIDENTIAL” to a third party to whom disclosure is reasonably necessary for this litigation 24 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 (d) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 26 reasonably necessary for this litigation and who have signed the “Acknowledgment and 27 Agreement to Be Bound” (Exhibit A); 28 / / / 1 (e) the court and its personnel; 2 (f) court reporters and their staff, professional jury or trial consultants, mock jurors, 3 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 4 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (g) during their depositions, witnesses in the action to whom disclosure is 6 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 7 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 8 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 9 separately bound by the court reporter and may not be disclosed to anyone except as permitted 10 under this Stipulated Protective Order. 11 (h) the author or recipient of a document containing the information or a custodian 12 or other person who otherwise possessed or knew the information. 13 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 14 OTHER LITIGATION 15 If a Party is served with a subpoena or a court order issued in other litigation that compels 16 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 17 must: 18 (a) promptly notify in writing the Designating Party. Such notification shall include 19 a copy of the subpoena or court order; 20 (b) promptly notify in writing the party who caused the subpoena or order to issue 21 in the other litigation that some or all of the material covered by the subpoena or order is subject 22 to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 23 and 24 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 25 Designating Party whose Protected Material may be affected. 26 If the Designating Party timely seeks a protective order, the Party served with the subpoena 27 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 28 before a determination by the court from which the subpoena or order issued, unless the Party has 1 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 2 expense of seeking protection in that court of its confidential material – and nothing in these 3 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 4 disobey a lawful directive from another court. 5 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 6 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 7 Material to any person or in any circumstance not authorized under this Stipulated Protective 8 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 9 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 10 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 11 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 12 Agreement to Be Bound” that is attached hereto as Exhibit A. 13 10. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECT 14 MATERIAL 15 When a Producing Party gives notice to Receiving Parties that certain inadvertently 16 produced material is subject to a claim of privilege or other protection, the obligations of the 17 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 18 is not intended to modify whatever procedure may be established in an e-discovery order that 19 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 20 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 21 communication or information covered by the attorney-client privilege or work product protection, 22 the parties may incorporate their agreement in the stipulated protective order submitted to the 23 court. 24 11. MISCELLANEOUS 25 11.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 26 its modification by the court in the future or by mutual agreement of the Parties is writing. 27 11.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 28 no Party waives any right it otherwise would have to object to disclosing or producing any 1 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 2 Party waives any right to object on any ground to use in evidence of any of the material covered 3 by this Protective Order. 4 11.3 Filing Protected Material. Without written permission from the Designating Party or 5 a court order secured after appropriate notice to all interested persons, a Party may not file in the 6 public record in this action any Protected Material. A Party that seeks to file under seal any 7 Protected Material must comply with Eastern District Local Rule 141. Protected Material may only 8 be filed under seal pursuant to a court order authorizing the sealing of the specific Protected 9 Material at issue. If a Receiving Party's request to file Protected Material under seal is denied by 10 the court, then the Receiving Party may file the information in the public record unless otherwise 11 instructed by the court. 12 12. FINAL DISPOSITION 13 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 14 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 15 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 16 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 17 the Protected Material is returned or destroyed, the Receiving Party must submit a written 18 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 19 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 20 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 21 abstracts, compilations, summaries or any other format reproducing or capturing any of the 22 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy 23 of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 24 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 25 and expert work product, even if such materials contain Protected Material. Any such archival 26 copies that contain or constitute Protected Material remain subject to this Protective Order as set 27 forth in Section 4 (DURATION). 28 / / / 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2

3 Dated: April 4, 2024 LONGYEAR & LAVRA, LLP 4

5 By: /s/ Nicole M. Cahill VAN LONGYEAR 6 NICOLE M. CAHILL 7 Attorneys for Defendant, City of Woodlake 8

9 Dated: April 4, 2024 LAW OFFICES OF DALE K. GALIPO 10

11 By: /s/ Eric Valenzuela [as authorized 4-4-24] DALE K. GALIPO 12 ERIC VALENZUELA Attorneys for Plaintiffs 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 4 I, _____________________________ [print or type full name], of _________________ [print or 5 type full address], declare under penalty of perjury that I have read in its entirety and understand 6 the Stipulated Protective Order that was issued by the United States District Court for the Eastern 7 District of California on _______ in the case of Franco v. City of Woodlake, Case No. 1:23-cv- 8 01569-JLT-BAM. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could expose me to 10 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose 11 in any manner any information or item that is subject to this Stipulated Protective Order to any 12 person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the Eastern 14 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, 15 even if such enforcement proceedings occur after termination of this action. 16 17 I hereby appoint __________________________ [print or type full name] of 18 _______________________________________ [print or type full address and telephone 19 number] as my California agent for service of process in connection with this action or any 20 proceedings related to enforcement of this Stipulated Protective Order. 21 Date: ______________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: _______________________________ 24 Signature: __________________________________ 25

28 1 ORDER 2 Having considered the parties’ stipulated protective order, and finding good cause, the 3 Court adopts the stipulated protective order (Doc. 12). 4 The parties are advised that pursuant to the Local Rules of the United States District 5 Court, Eastern District of California, any documents subject to the protective order to be filed 6 under seal must be accompanied by a written request which complies with Local Rule 141 prior 7 to sealing. The party making a request to file documents under seal shall be required to show 8 good cause for documents attached to a non-dispositive motion or compelling reasons for 9 documents attached to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 10 677-78 (9th Cir. 2009). Within five (5) days of any approved document filed under seal, the 11 party shall file a redacted copy of the sealed document. The redactions shall be narrowly tailored 12 to protect only the information that is confidential or was deemed confidential. 13 Additionally, the parties shall consider resolving any dispute arising under the stipulated 14 protective order according to the Court’s informal discovery dispute procedure. 15

16 IT IS SO ORDERED. 17 18 Dated: April 8, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19

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