Kendrick C Azubuike v. City of Santa Monica

• Court: District Court, C.D. California
• Decided: June 8, 2020
• Docket: 2:19-cv-08536
• Status: Unknown

Opinion

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9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA

12 Kendrick C. Azubuike, Case No.: 2:19-CV-08536-DMG-(JDEx)

13 Plaintiff, DISCOVERY MATTER

14 v. PROTECTIVE ORDER

15 City of Santa Monica, Officer Kevin Bacarella, Officer Timothy Fink and DOES 16 1 through 10 inclusive, (Honorable Dolly M. Gee)

17 Defendants. Filing Date: October 03, 2019 Trial Date: November 20, 2020 18

20 After full consideration of the stipulation by the parties for a Protective Order, 21 and FOR GOOD CAUSE SHOWN, the Court hereby finds and orders as follows. 22 I. PURPOSE AND LIMITATIONS 23 Discovery in this action is likely to involve production of confidential or private 24 information for which special protection from public disclosure and from use for any 25 purpose other than prosecuting this litigation may be warranted. Accordingly, the 26 parties hereby stipulate to and petition the Court to enter the following Stipulated 27 Protective Order (hereafter “this Order”). The parties acknowledge that this Order does 28 1 not confer blanket protections on all disclosures or responses to discovery and that the 2 protection it affords from public disclosure and use extends only to the limited 3 information or items that are entitled to confidential treatment under the applicable legal 4 principles. 5 II. GOOD CAUSE STATEMENT 6 This action is likely to involve confidential information derived from personnel 7 records, investigatory documents, and other materials subject to privacy protections for 8 which special protection from public disclosure and from use for any purpose other than 9 prosecution of this action is warranted. Limiting disclosure of these documents to the 10 context of this litigation as provided herein will, accordingly, further important law 11 enforcement objectives and interests, including the safety of personnel and the public, 12 as well as individual privacy rights of plaintiff, the individual defendants, and third 13 parties. Such confidential materials and information consist of, among other things, 14 materials entitled to privileges and/or protections under the following: the United States 15 Constitution, First Amendment; the California Constitution, Article I, Section 1; 16 California Penal Code §§ 832.5, 832.7, and 832.8; California Evidence Code §§ 1040 17 and 1043 et seq.; the Privacy Act of 1974, 5 U.S.C. § 552a; Health Insurance Portability 18 and Accountability Act of 1996 (HIPAA), Public Law 104-191, decisional law relating 19 to such provisions; and information otherwise generally unavailable to the public, or 20 which may be privileged or otherwise protected from disclosure under state or federal 21 statutes, court rules, case decisions, or common law. Defendants also contend that such 22 confidential materials and information consist of materials entitled to the Official 23 Information Privilege. 24 Confidential information with respect to the Defendants may include but is not 25 be limited to: personnel files; internal investigative files and documents; email and 26 written correspondence records; and policies and procedures that are kept from the 27 public in the ordinary course of business, as well as other items subject to the Official 28 Information Privilege and other privileges. Confidential information with respect to 1 Plaintiff may include: employment and financial records along with psychological and 2 medical notes, evaluations, reports, and treatment plans. 3 The parties reserve the right to challenge a designation of confidentiality pursuant 4 to the terms set forth under Paragraph 8 of this Order. 5 Accordingly, to expedite the flow of information, to facilitate the prompt 6 resolution of disputes over confidentiality of discovery materials, to adequately protect 7 information the parties are entitled to keep confidential, to ensure that the parties are 8 permitted to reasonably use such material in preparation for and in conduct of trial, to 9 address their handling at the end of the litigation, and serve the ends of justice, a 10 protective order for such information is justified in this matter. It is the intent of the 11 parties that information will not be designated as confidential for tactical reasons and 12 that nothing be so designated without a good faith belief that it has been maintained in 13 a confidential, non-public manner, and there is good cause why it should not be part of 14 the public record of this case. 15 III. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 16 The parties further acknowledge, as set forth in Section 14.3, below, that this 17 Order does not entitle them to file confidential information under seal; Local Civil Rule 18 79-5 sets forth the procedures that must be followed and the standards that will be 19 applied when a party seeks permission from the court to file material under seal. 20 There is a strong presumption that the public has a right of access to judicial 21 proceedings and records in civil cases. In connection with non-dispositive motions, 22 good cause must be shown to support a filing under seal. See Kamakana v. City and 23 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 24 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 25 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good 26 cause showing), and a specific showing of good cause or compelling reasons with 27 proper evidentiary support and legal justification, must be made with respect to material 28 that a party seeks to file under seal. The parties’ mere designation of material as 1 “CONFIDENTIAL” does not— without the submission of competent evidence by 2 declaration, establishing that the material sought to be filed under seal qualifies as 3 confidential, privileged, or otherwise protectable—constitute good cause. Further, if a 4 party requests sealing related to dispositive motion or trial, then compelling reasons, 5 not only good cause, for the sealing must be shown, and the relief sought shall be 6 narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific 7 Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). 8 Any document that is not confidential, privileged, or otherwise protectable in its 9 entirety will not be filed under seal if the confidential portions can be redacted. If 10 documents can be redacted, then a redacted version for public viewing, omitting only 11 the confidential, privileged, or otherwise protectable portions of the document, shall be 12 filed. Any application that seeks to file documents under seal in their entirety should 13 include an explanation of why redaction is not feasible. 14 IV. DEFINITIONS 15 4.1 Action: Kendrick C. Azuibuike v. City of Santa Monica, et al., Case No. 16 2:19-CV-08536-DMG-(JDEx). 17 4.2 Challenging Party: a Party or Non-Party that challenges the designation of 18 information or items under this Order. 19 4.3 “CONFIDENTIAL” Information or Items: Information (regardless of the 20 medium or manner in which it is generated, stored, or maintained) or tangible things 21 that qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified 22 above in the Good Cause Statement. 23 4.4 Counsel: General Counsel of Record and House Counsel (as well as their 24 support staff). 25 4.5 Designating Party: a Party or Non-Party that designated information or 26 items that it produces in disclosures or in responses to discovery as 27 “CONFIDENTIAL.” 28 /// 1 4.6 Disclosure or Discovery Material: all items or information, regardless of 2 the medium or manner in which it is generated, stored, or maintained (including, among 3 other things, testimony, transcripts, and tangible things), that are produced or generated 4 in disclosures or responses to discovery in this matter. 5 4.7 Expert: a person with specialized knowledge or experience in a matter 6 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 7 expert witness or as a consultant in this Action. 8 4.8 House Counsel: attorneys who are employees of a party to this Action. 9 House Counsel does not include General Counsel of Record or any other outside 10 counsel. 11 4.9 Non-Party: any natural person, partnership, corporation, association or 12 other legal entity not named as a Party to this action. 13 4.10 General Counsel of Record: attorneys who are not employees of a party 14 to this Action but are retained to represent or advice a party to this Action and have 15 appeared in this Action on behalf of that party or are affiliated with a law firm that has 16 appeared on behalf of that party, as well as their support staff. 17 4.11 Party: any party to this Action, including all of its officers, directors, 18 employees, consultants, retained experts, and General Counsel of Record (and their 19 support staffs). 20 4.12 Producing Party: a Party or Non-Party that makes a Disclosure or produces 21 Discovery Material in this Action. 22 4.13 Professional Vendors: persons or entities that provide litigation support 23 services (e.g., photocopying, videotaping, translating, preparing exhibits or 24 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 25 their employees and subcontractors. 26 4.14 Protected Material: any Disclosure or Discovery Material that is 27 designated as “CONFIDENTIAL.” 28 /// 1 4.15 Producing Party: a Party that makes a Disclosure or produces Discovery 2 Material to the Receiving Party. 3 4.15 Receiving Party: a Party that receives a Disclosure or Discovery Material 4 from a Producing Party. 5 V. SCOPE 6 The protections conferred by this Stipulation and Order cover not only Protected 7 Material (as defined above), but also (1) any information copied or extracted from 8 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 9 Material; and (3) any testimony, conversations, or presentations by Parties or their 10 Counsel (as defined by Sections 4.8 and 4.10) that might reveal Protected Material. 11 Any use of Protected Material at trial shall be governed by the orders of the trial 12 judge. This Order does not govern the use of Protected Material at trial. 13 VI. DURATION 14 The confidentiality obligations imposed by this Order shall remain in effect until 15 Final Disposition of this case. “Final Disposition” shall be deemed to be the later of (1) 16 dismissal of all claims and defenses in this Action, with or without prejudice; and (2) 17 final judgment herein after the completion and exhaustion of all appeals, rehearings, 18 remands, trials, or reviews of this Action, including the time limits for filing any 19 motions or applications for extension of time pursuant to applicable law. 20 VII. DESIGNATING PROTECTED MATERIAL 21 7.1 Exercise of Restraint and Care in Designating Material for Protection. 22 Each Party or Non-Party that designates information or items for protection under 23 this Order must take care to limit any such designation to specific material that qualifies 24 under the appropriate standards. The Designating Party must designate for protection 25 only those parts of material, documents, items or oral or written communications that 26 qualify so that other portions of the material, documents, items or communications for 27 which protection is not warranted are not swept unjustifiably within the ambit of this 28 Order. 1 Mass, indiscriminate, or routinized designations are prohibited. Designations 2 that are shown to be clearly unjustified or that have been made for an improper purpose 3 (e.g., to unnecessarily encumber the case development process or to impose 4 unnecessary expenses and burdens on other parties) may expose the Designating Party 5 to sanctions. 6 If it comes to a Designating Party’s attention that information or items that it 7 designated for protection do not qualify for protection, that Designating Party must 8 promptly notify all other Parties that it is withdrawing the inapplicable designation. 9 7.2 Manner and Timing of Designations. Except as otherwise provided in this 10 Order (see, e.g., second paragraph of section 7.2(a) below), or as otherwise stipulated 11 or ordered, Disclosure or Discovery Material that qualifies for protection under this 12 Order must be clearly so designated before the material is disclosed or produced. 13 Designation in conformity with this Order requires: 14 (a) for information in documentary form (e.g., paper or electronic documents, 15 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 16 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 17 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 18 portion of the material on a page qualifies for protection, the Producing Party also must 19 clearly identify the protected portion(s) (e.g., by making appropriate markings in the 20 margins). 21 A Party or Non-Party that makes original documents available for inspection 22 need not designate them for protection until after the inspecting Party has indicated 23 which documents it would like copied and produced. During the inspection and before 24 the designation, all of the material made available for inspection shall be deemed 25 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 26 copied and produced, the Producing Party must determine which documents, or portions 27 thereof, qualify for protection under this Order. Then, before producing the specified 28 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page 1 that contains Protected Material. If only a portion of the material on a page qualifies 2 for protection, the Producing Party also must clearly identify the protected portion(s) 3 (e.g., by making appropriate markings in the margins). 4 (b) for testimony given in depositions that the Designating Party identifies the 5 Disclosure or Discovery Material on the record, before the close of the deposition all 6 protected testimony. 7 (c) for information produced in some form other than documentary and for any 8 other tangible items, that the Producing Party affix in a prominent place on the exterior 9 of the container or containers in which the information is stored the legend 10 “CONFIDENTIAL.” If only a portion or portions of the information warrants 11 protection, the Producing Party, to the extent practicable, shall identify the protected 12 portion(s). 13 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 14 failure to designate qualified information or items does not, standing alone, waive the 15 Designating Party’s right to secure protection under this Order for such material. Upon 16 timely correction of a designation, the Receiving Party must make reasonable efforts to 17 assure that the material is treated in accordance with the provisions of this 18 Order. 19 VIII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 8.1 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 Scheduling 22 Order. 23 8.2 Meet and Confer. The Challenging Party shall initiate the meet and confer 24 process outlined in Local Rule 37.1, et seq. 25 /// 26 8.3 The burden of persuasion in any such challenge proceeding shall be on 27 the Designating Party. Frivolous challenges, and those made for an improper purpose 28 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 1 expose the Challenging Party to sanctions. Unless the Designating Party has waived or 2 withdrawn the confidentiality designation, all parties shall continue to afford the 3 material in question the level of protection to which it is entitled under the Producing 4 Party’s designation until the Court rules on the challenge. 5 IX. ACCESS TO AND USE OF PROTECTED MATERIAL 6 9.1 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 Action 8 only for prosecuting, defending or attempting to settle this Action. Such Protected 9 Material may be disclosed only to the categories of persons and under the conditions 10 described in this Order. When the Action has been terminated, a Receiving Party must 11 comply with the provisions of Section XV, infra. 12 Protected Material must be stored and maintained by a Receiving Party at a 13 location and in a secure manner that ensures that access is limited to the persons 14 authorized under this Order. 15 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 16 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 17 may disclose any information or item designated “CONFIDENTIAL” only to: 18 (a) the Receiving Party’s General Counsel of Record in this Action, as well as 19 employees of said General Counsel of Record to whom it is reasonably necessary to 20 disclose the information for this Action; 21 (b) the officers, directors, and employees (including House Counsel) of the 22 Receiving Party to whom disclosure is reasonably necessary for this Action; 23 (c) Experts (as defined in this Order) of the Receiving Party to whom 24 disclosure is reasonably necessary for this Action and who have signed the 25 “Acknowledgment and Agreement to Be Bound,” attached and hereafter referred to as 26 “Exhibit A.” 27 (d) the court and its personnel; 28 (e) court reporters and their staff; 1 (f) professional jury or trial consultants, mock jurors, and Professional 2 Vendors to whom disclosure is reasonably necessary for this Action and who have 3 signed Exhibit A. 4 (g) the author or recipient of a document containing the information or a 5 custodian or other person who otherwise possessed or knew the information; 6 (h) during their depositions, witnesses, and attorneys for witnesses, in the 7 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 8 requests that the witness sign Exhibit A; and (2) they will not be permitted to keep any 9 confidential information unless they sign Exhibit A, unless otherwise agreed by the 10 Designating Party or ordered by the court. Pages of transcribed deposition testimony or 11 exhibits to depositions that reveal Protected Material may be separately bound by the 12 court reporter and may not be disclosed to anyone except as permitted under this Order; 13 and 14 (i) any mediator or settlement officer, and their supporting personnel, mutually 15 agreed upon by any of the parties engaged in settlement discussions. 16 X. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 17 IN OTHER LITIGATION 18 If a Party is served with a subpoena or a court order issued in other litigation that 19 compels disclosure of any information or items designated in this Action as 20 “CONFIDENTIAL,” that Party must: 21 (a) promptly notify in writing the Designating Party. Such notification shall 22 include a copy of the subpoena or court order; 23 (b) promptly notify in writing the party who caused the subpoena or order to 24 issue in the other litigation that some or all of the material covered by the subpoena or 25 order is subject to this Order. Such notification shall include a copy of this Order; and 26 (c) cooperate with respect to all reasonable procedures sought to be pursued 27 by the Designating Party whose Protected Material may be affected. 28 If the Designating Party timely seeks a protective order, the Party served with 1 the subpoena or court order shall not produce any information designated in this action 2 as “CONFIDENTIAL” before a determination by the court from which the subpoena 3 or order issued, unless the Party has obtained the Designating Party’s permission. The 4 Designating Party shall bear the burden and expense of seeking protection in that court 5 of its confidential material and nothing in these provisions should be construed as 6 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive 7 from another court. 8 XI. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 9 PRODUCED IN THIS LITIGATION 10 (a) The terms of this Order are applicable to information produced by a Non- 11 Party in this Action and designated as “CONFIDENTIAL.” Such information produced 12 by Non-Parties in connection with this litigation is protected by the remedies and relief 13 provided by this Order. Nothing in these provisions should be construed as prohibiting 14 a Non-Party from seeking additional protections. 15 (b) In the event that a Party is required, by a valid discovery request, to produce 16 a Non-Party’s confidential information in its possession, and the Party is subject to an 17 agreement with the Non-Party not to produce the Non-Party’s confidential information, 18 then the Party shall: 19 (1) promptly notify in writing the Requesting Party and the Non-Party that 20 some or all of the information requested is subject to a confidentiality agreement with 21 a Non-Party; 22 (2) promptly provide the Non-Party with a copy of this Order in this 23 Action, the relevant discovery request(s), and a reasonably specific description of the 24 information requested; and 25 (3) make the information requested available for inspection by the Non- 26 Party, if requested. 27 (c) If the Non-Party fails to seek a protective order from this court within 28 fourteen (14) days of receiving the notice and accompanying information, the Receiving 1 Party may produce the Non-Party’s confidential information responsive to the discovery 2 request. If the Non-Party timely seeks a protective order, the Receiving Party shall not 3 produce any information in its possession or control that is subject to the confidentiality 4 agreement with the Non-Party before a determination by the court. Absent a court order 5 to the contrary, the Non-Party shall bear the burden and expense of seeking protection 6 in this court of its Protected Material. 7 XII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 8 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 9 Protected Material to any person or in any circumstance not authorized under this Order, 10 the Receiving Party must immediately (a) notify in writing the Designating Party of the 11 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of 12 the Protected Material, (c) inform the person or persons to whom unauthorized 13 disclosures were made of all the terms of this Order, and (d) request such person or 14 persons to execute Exhibit A. 15 XIII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 16 PROTECTED MATERIAL 17 When a Producing Party gives notice to Receiving Parties that certain 18 inadvertently produced material is subject to a claim of privilege or other protection, 19 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 20 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 21 may be established in an e-discovery order that provides for production without prior 22 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 23 parties reach an agreement on the effect of disclosure of a communication or 24 information covered by the attorney-client privilege or work product protection, the 25 parties may incorporate their agreement in a subsequent stipulation to the court. 26 XIV. MISCELLANEOUS 27 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 28 person to seek its modification by the Court in the future. 1 14.2 Right to Assert Other Objections. By stipulating to the entry of this Order, 2 no Party waives any right it otherwise would have to object to disclosing or producing 3 any information or item on any ground not addressed in this Order. Similarly, no Party 4 waives any right to object on any ground to use in evidence of any of the material 5 covered by this Order. 6 14.3 Filing Protected Material. A Party that seeks to file under seal any 7 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 8 only be filed under seal pursuant to a court order authorizing the sealing of the specific 9 Protected Material at issue. If a Party’s request to file Protected Material under seal is 10 denied by the court, then the Receiving Party may file the information in the public 11 record unless otherwise instructed by the court. 12 XV. FINAL DISPOSITION 13 After the final disposition of this Action, as defined in Section VI, supra, within 14 60 days of a written request by the Designating Party, each Receiving Party must return 15 all Protected Material to the Producing Party or destroy such material. As used in this 16 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 17 summaries, and any other format reproducing or capturing any of the Protected 18 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 19 must submit a written certification to the Producing Party (and, if not the same person 20 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 21 category, where appropriate) all the Protected Material that was returned or destroyed 22 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 23 compilations, summaries or any other format reproducing or capturing any of the 24 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 25 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 26 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 27 work product, and consultant and expert work product, even if such materials contain 28 Protected Material. Any such archival copies that contain or constitute Protected 1 | Material remain subject to this Order as set forth in Section VI, supra. 2 |XVI. VIOLATION 3 Any violation of this Order may be punished by appropriate measures including, 4 | without limitation, contempt proceedings and/or monetary sanctions. 5 6 |FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 7 , |DATED: June 08, 2020 / i i : Yo 9 ND. EARLY 0 nited State Magistrate Judge

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1A

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 Protective 6 Order that was issued by the United States District Court for the Central District of 7 California on June 8, 2020 in the case of Kendrick C. Azuibuike v. City of Santa Monica, 8 et al., Case No. 2:19-CV-08536-DMG-(JDEx). I agree to comply with and to be bound 9 by all the terms of this Stipulated Protective Order and I understand and acknowledge 10 that failure to so comply could expose me to sanctions and punishment in the nature of 11 contempt. I solemnly promise that I will not disclose in any manner any information or 12 item that is subject to this Stipulated Protective Order to any person or entity except in 13 strict compliance with the provisions of this Order. I further agree to submit to the 14 jurisdiction of the United States District Court for the Central District of California for 15 enforcing the terms of this Stipulated Protective Order, even if such enforcement 16 proceedings occur after termination of this action. I hereby appoint 17 __________________________ [print or type full name] of 18 __________________________________________ [print or type full address and 19 telephone number] as my California agent for service of process in connection with this 20 action or any proceedings related to enforcement of this Stipulated Protective Order. 21 Date: ______________________________________ 22 City and State where sworn and signed: _________________________________ 23 24 Printed name: _______________________________ 25 26 Signature: __________________________________ 27 28