Lawrence E. Jones v. E. Gollette

Opinion

7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9

10 LAWRENCE E. JONES CASE NO. 19-CV-6806-ODW(PVCx)

11 STIPULATED PROTECTIVE Plaintiff, ORDER 12 v.

15 E. GOLLETTE, et al.,

16 Defendant 17 18 1. A. Purpose and Limitations 19 Discovery in this action is likely to involve production of confidential, 20 proprietary, or private information for which special protection from public 21 disclosure and from use for any purpose other than prosecuting this litigation may 22 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 23 enter the following Stipulated Protective Order. The parties acknowledge that this 24 Order does not confer blanket protections on all disclosures or responses to 25 discovery and that the protection it affords from public disclosure and use extends 26 only to the limited information or items that are entitled to confidential treatment 27 under the applicable legal principles. The parties further acknowledge, as set forth 1 file confidential information under seal; Civil Local Rule 79-5 sets forth the 2 procedures that must be followed and the standards that will be applied when a party 3 seeks permission from the court to file material under seal. 4 1. B. Good cause statement 5 This action is likely to involve peace officer personnel records, documents 6 which reflect an entity’s deliberative processes, internal and draft memoranda, and 7 prison records for which special protection from public disclosure and from use for 8 any purpose other than prosecution of this action is warranted. Such confidential and 9 proprietary materials and information consist of, among other things, peace officer 10 personnel records, juvenile records, documents which reflect an entity’s deliberative 11 processes, internal and draft memoranda, inmate prison records, medical records, 12 and information otherwise generally unavailable to the public, or which may be 13 privileged or otherwise protected from disclosure under state or federal statutes, 14 court rules, case decisions, or common law. Accordingly, to expedite the flow of 15 information, to facilitate the prompt resolution of disputes over confidentiality of 16 discovery materials, to adequately protect information the parties are entitled to keep 17 confidential, to ensure that the parties are permitted reasonable necessary uses of 18 such material in preparation for and in the conduct of trial, to address their handling 19 at the end of the litigation, and serve the ends of justice, a protective order for such 20 information is justified in this matter. It is the intent of the parties that information 21 will not be designated as confidential for tactical reasons and that nothing be so 22 designated without a good faith belief that it has been maintained in a confidential, 23 non-public manner, and there is good cause why it should not be part of the public 24 record of this case. 25 2. DEFINITIONS 26 2.1 Action: Jones v. Gollette, et al. (19-CV-6806-ODW-PVCx) 27 2.2 Challenging Party: a Party or Non-Party that challenges the designation 1 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 2 how it is generated, stored or maintained) or tangible things that qualify for 3 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 4 the Good Cause Statement. 5 2.4 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” Information or 6 Items: information (regardless of how it is generated, stored, or maintained) or 7 tangible things that qualify for production under Federal Rule of Civil Procedure 8 26(c), as specified above in the Good Cause Statement, and constitutes or discloses 9 information which threatens prison safety or security. 10 2.5 Counsel: The Parties’ Counsel of Record (as well as their support staff). 11 2.6 Designating Party: a Party or Non-Party that designates information or 12 items that it produces in disclosures or in responses to discovery as 13 “CONFIDENTIAL” or “CONFIDENTIAL–ATTORNEYS’ EYES ONLY.” 14 2.7 Disclosure or Discovery Material: all items or information, regardless 15 of the medium or manner in which it is generated, stored, or maintained (including, 16 among other things, testimony, transcripts, and tangible things), that are produced or 17 generated in disclosures or responses to discovery in this matter. 18 2.8 Expert: a person with specialized knowledge or experience in a matter 19 pertinent to the litigation who has been retained by a Party or its counsel to serve as 20 an expert witness or as a consultant in this Action. 21 2.9 House Counsel: attorneys who are employees of a party to this Action. 22 House Counsel does not include Outside Counsel of Record or any other outside 23 counsel. 24 2.10 Non-Party: any natural person, partnership, corporation, association, 25 or other legal entity not named as a Party to this action. 26 2.11 Outside Counsel of Record: attorneys who are not employees of a 27 party to this Action but are retained to represent or advise a party to this Action and 1 which has appeared on behalf of that party, and includes support staff. 2 2.12 Party: any party to this Action, including all of its officers, directors, 3 employees, consultants, retained experts, and Outside Counsel of Record (and their 4 support staffs). 5 2.13 Producing Party: a Party or Non-Party that produces Disclosure or 6 Discovery Material in this Action. 7 2.14 Professional Vendors: persons or entities that provide litigation 8 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 9 demonstrations, and organizing, storing, or retrieving data in any form or medium) 10 and their employees and subcontractors. 11 2.15 Protected Material: any Disclosure or Discovery Material that is 12 designated as “CONFIDENTIAL” or “CONFIDENTIAL–ATTORNEYS’ EYES 13 ONLY.” 14 2.16 Receiving Party: a Party that receives Disclosure or Discovery 15 Material from a Producing Party. 16 17 3. SCOPE 18 The protections conferred by this Stipulation and Order cover not only 19 Protected Material (as defined above), but also (1) any information copied or 20 extracted from Protected Material; (2) all copies, excerpts, summaries, or 21 compilations of Protected Material; and (3) any testimony, conversations, or 22 presentations by Parties or their Counsel that might reveal Protected Material. Any 23 use of Protected Material at trial shall be governed by the orders of the trial judge. 24 This Order does not govern the use of Protected Material at trial. 25 26 4. DURATION 27 Once a case proceeds to trial, information that was designated as CONFIDENTIAL 1 trial becomes public and will be presumptively available to all of the public, 2 including the press, unless compelling reasons supported by specific factual findings 3 to proceed otherwise are made to the trial judge in advance of the trial. See 4 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing 5 documents produced in discovery from “compelling reasons” standard when merits- 6 related documents are part of court record). Accordingly, for such materials, the 7 terms of this protective order do not extend beyond the commencement of the trial. 8 9 5. DESIGNATING PROTECTED MATERIAL 10 5.1 Exercise of Restraint and Care in Designating Material for Protection. 11 Each Party or Non-Party that designates information or items for protection under 12 this Order must take care to limit any such designation to specific material that 13 qualifies under the appropriate standards. The Designating Party must designate for 14 protection only those parts of material, documents, items, or oral or written 15 communications that qualify so that other portions of the material, documents, 16 items, or communications for which protection is not warranted are not swept 17 unjustifiably within the ambit of this Order. 18 Mass, indiscriminate, or routinized designations are prohibited. 19 Designations that are shown to be clearly unjustified or that have been made for an 20 improper purpose (e.g., to unnecessarily encumber the case development process or 21 to impose unnecessary expenses and burdens on other parties) may expose the 22 Designating Party to sanctions. 23 If it comes to a Designating Party’s attention that information or items that 24 it designated for protection do not qualify for protection that Designating Party must 25 promptly notify all other Parties that it is withdrawing the inapplicable designation. 26 5.2 Manner and Timing of Designations. Except as otherwise provided in 27 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 1 under this Order must be clearly so designated before the material is disclosed or 2 produced. 3 Designation in conformity with this Order requires: 4 (a) for information in documentary form (e.g., paper or electronic 5 documents, but excluding transcripts of depositions or other pretrial or trial 6 proceedings), that the Producing Party affix at a minimum, the legend 7 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) or 8 CONFIDENTIAL–ATTORNEYS’ EYES ONLY” (hereinafter “ATTORNEYS’ 9 EYES ONLY legend”), to each page that contains protected material. If only a 10 portion or portions of the material on a page qualifies for protection, the Producing 11 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 12 markings in the margins). 13 A Party or Non-Party that makes original documents available for 14 inspection need not designate them for protection until after the inspecting Party has 15 indicated which documents it would like copied and produced. During the 16 inspection and before the designation, all of the material made available for 17 inspection shall be deemed “CONFIDENTIAL–ATTORNEYS’ EYES ONLY.” 18 After the inspecting Party has identified the documents it wants copied and 19 produced, the Producing Party must determine which documents, or portions 20 thereof, qualify for protection under this Order. Then, before producing the specified 21 documents, the Producing Party must affix the “CONFIDENTIAL legend” or 22 “ATTORNEYS’ EYES ONLY legend” to each page that contains Protected 23 Material. If only a portion or portions of the material on a page qualifies for 24 protection, the Producing Party also must clearly identify the protected portion(s) 25 (e.g., by making appropriate markings in the margins). 26 (b) for testimony given in depositions that the Designating Party identify 27 the Disclosure or Discovery Material on the record, before the close of the 1 (c) for information produced in some form other than documentary and for 2 any other tangible items, that the Producing Party affix in a prominent place on the 3 exterior of the container or containers in which the information is stored the legend 4 “CONFIDENTIAL” or “CONFIDENTIAL–ATTORNEYS’ EYES ONLY.” If only 5 a portion or portions of the information warrants protection, the Producing Party, to 6 the extent practicable, shall identify the protected portion(s). 7 8 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 9 failure to designate qualified information or items does not, standing alone, waive 10 the Designating Party’s right to secure protection under this Order for such material. 11 Upon timely correction of a designation, the Receiving Party must make reasonable 12 efforts to assure that the material is treated in accordance with the provisions of this 13 Order. 14 15 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 16 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 17 designation of confidentiality at any time that is consistent with the Court’s 18 Scheduling Order. 19 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 20 process under Local Rule 37.1, et. seq. 21 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 22 joint stipulation pursuant to Local Rule 37-2. 23 6.4 The burden of persuasion in any such challenge proceeding shall be on 24 the Designating Party. Frivolous challenges, and those made for an improper 25 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 26 parties) may expose the Challenging Party to sanctions. Unless the Designating 27 Party has waived or withdrawn the confidentiality designation, all parties shall 1 entitled under the Producing Party’s designation until the Court rules on the 2 challenge. 3 4 7. ACCESS TO AND USE OF PROTECTED MATERIAL 5 7.1 Basic Principles. A Receiving Party may use Protected Material that is 6 disclosed or produced by another Party or by a Non-Party in connection with this 7 Action only for prosecuting, defending, or attempting to settle this Action. Such 8 Protected Material may be disclosed only to the categories of persons and under the 9 conditions described in this Order. When the Action has been terminated, a 10 Receiving Party must comply with the provisions of section 13 below (FINAL 11 DISPOSITION). 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 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 16 otherwise ordered by the court or permitted in writing by the Designating Party, a 17 Receiving Party may disclose any information or item designated 18 “CONFIDENTIAL” only to: 19 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 20 as employees of said Outside Counsel of Record to whom it is reasonably necessary 21 to disclose the information for this Action; 22 (b) the officers, directors, and employees (including House Counsel) of the 23 Receiving Party to whom disclosure is reasonably necessary for this Action; 24 (c) Experts (as defined in this Order) of the Receiving Party to whom 25 disclosure is reasonably necessary for this Action and who have signed the 26 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 (d) the court and its personnel; 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 the “Acknowledgment and Agreement to Be Bound” (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, non-inmate witnesses, and attorneys for 7 witnesses, in the Action to whom disclosure is reasonably necessary provided: (1) 8 the deposing party requests that the witness sign the form attached as Exhibit A 9 hereto; and (2) they will not be permitted to keep any confidential information 10 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 11 unless otherwise agreed by the Designating Party or ordered by the court. Pages of 12 transcribed deposition testimony or exhibits to depositions that reveal Protected 13 Material may be separately bound by the court reporter and may not be disclosed to 14 anyone except as permitted under this Stipulated Protective Order; 15 (i) any mediator or settlement officer, and their supporting personnel, 16 mutually agreed upon by any of the parties engaged in settlement discussions; and 17 (j) ; and the inmate to whom the document pertains, as discussed in section 18 7.3, below. 19 7.3 Inmate Access to Inmate Files. This Order is not intended to abrogate the 20 existing rights of inmates to inspect their own records – specifically, the non- 21 confidential portion of their central files and unit health records – pursuant to 22 Department of Operations Manual § 13030.16. Unless otherwise ordered by the Court, 23 permitted in writing by the Designating Party, or with appropriate valid authorization, 24 any information or item designated Confidential under this Order shall not be 25 disclosed or discussed with any other inmate, including Plaintiff, other than the inmate 26 to whom the information or item pertains. 27 7.4 Disclosure of “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” 1 by the Designating Party, Counsel for the Receiving Party may not disclose any 2 information or item designated “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” 3 to Plaintiff, members of Plaintiff’s family, friends or associates of Plaintiff, or to any 4 other inmate, parolee, or any person previously in the custody of CDCR or any of 5 their relatives, friends, associates, or the public. Unless otherwise ordered by the 6 Court or permitted in writing by the Designating Party, only Counsel for the 7 Receiving Party may have access to and review any information or item designated 8 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” Staff employed by Counsel will 9 not disclose any item or information designated “CONFIDENTIAL-ATTORNEYS’ 10 EYES ONLY,” or make copies of any item or information so designated, except as 11 necessary for this litigation. Counsel is responsible for ensuring that their staff 12 complies with this Order. 13 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 14 PRODUCED IN OTHER LITIGATION 15 If a Party is served with a subpoena or a court order issued in other 16 litigation that compels disclosure of any information or items designated in this 17 Action as “CONFIDENTIAL,” or “CONFIDENTIAL–ATTORNEYS’ EYES 18 ONLY,” that Party must: 19 (a) promptly notify in writing the Designating Party. Such notification shall 20 include a copy of the subpoena or court order; 21 (b) promptly notify in writing the party who caused the subpoena or order 22 to issue in the other litigation that some or all of the material covered by the 23 subpoena or order is subject to this Protective Order. Such notification shall include 24 a copy of this Stipulated Protective Order; and 25 (c) cooperate with respect to all reasonable procedures sought to be 26 pursued by the Designating Party whose Protected Material may be affected. If the 27 Designating Party timely seeks a protective order, the Party served with the 1 as “CONFIDENTIAL” or “CONFIDENTIAL–ATTORNEYS’ EYES ONLY”) 2 before a determination by the court from which the subpoena or order issued, unless 3 the Party has obtained the Designating Party’s permission. The Designating Party 4 shall bear the burden and expense of seeking protection in that court of its 5 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 7 directive from another court. 8 9 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 10 PRODUCED IN THIS LITIGATION 11 (a) The terms of this Order are applicable to information produced by a 12 NonParty in this Action and designated as “CONFIDENTIAL” or 13 “CONFIDENTIAL–ATTORNEYS’ EYES ONLY.” Such information produced by 14 Non-Parties in connection with this litigation is protected by the remedies and relief 15 provided by this Order. Nothing in these provisions should be construed as 16 prohibiting a Non-Party from seeking additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to 18 produce a Non-Party’s confidential information in its possession, and the Party is 19 subject to an agreement with the Non-Party not to produce the Non-Party’s 20 confidential information, then the Party shall: 21 (1) promptly notify in writing the Requesting Party and the Non-Party that 22 some or all of the information requested is subject to a confidentiality agreement 23 with a Non-Party; 24 (2) promptly provide the Non-Party with a copy of the Stipulated 25 Protective Order in this Action, the relevant discovery request(s), and a reasonably 26 specific description of the information requested; and 27 (3) make the information requested available for inspection by the Non- 1 (c) If the Non-Party fails to seek a protective order from this court within 2 14 days of receiving the notice and accompanying information, the Receiving Party 3 may produce the Non-Party’s confidential information responsive to the discovery 4 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 5 not produce any information in its possession or control that is subject to the 6 confidentiality agreement with the Non-Party before a determination by the court. 7 Absent a court order to the contrary, the Non-Party shall bear the burden and 8 expense of seeking protection in this court of its Protected Material. 9 10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 11 If a Receiving Party learns that, by inadvertence or otherwise, it has 12 disclosed Protected Material to any person or in any circumstance not authorized 13 under this Stipulated Protective Order, the Receiving Party must immediately (a) 14 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 15 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 16 the person or persons to whom unauthorized disclosures were made of all the terms 17 of this Order, and (d) request such person or persons to execute the 18 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 19 A. 20 21 11. INADVERTENT PRODUCTION OF PRIVILEGED OR 22 OTHERWISE PROTECTED MATERIAL 23 When a Producing Party gives notice to Receiving Parties that certain 24 inadvertently produced material is subject to a claim of privilege or other protection, 25 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 26 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 27 may be established in an e-discovery order that provides for production without 1 as the parties reach an agreement on the effect of disclosure of a communication or 2 information covered by the attorney-client privilege or work product protection, the 3 parties may incorporate their agreement in the stipulated protective order submitted 4 to the court. 5 6 12. MISCELLANEOUS 7 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 8 person to seek its modification by the Court in the future. 9 12.2 Right to Assert Other Objections. By stipulating to the entry of this 10 Protective Order no Party waives any right it otherwise would have to object to 11 disclosing or producing any information or item on any ground not addressed in this 12 Stipulated Protective Order. Similarly, no Party waives any right to object on any 13 ground to use in evidence of any of the material covered by this Protective Order. 14 12.3 Filing Protected Material. A Party that seeks to file under seal any 15 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 16 only be filed under seal pursuant to a court order authorizing the sealing of the 17 specific Protected Material at issue. If a Party's request to file Protected Material 18 under seal is denied by the court, then the Receiving Party may file the information 19 in the public record unless otherwise instructed by the court. 20 12.4. Access to Protected Material By Authorized Government Officials. 21 Nothing in this Order is intended to prevent officials or employees of the State of 22 California or other authorized government officials from having access to Protected 23 Material to which they have access in the normal course of their official duties. 24 25 13. FINAL DISPOSITION 26 After the final disposition of this Action, as defined in paragraph 4, within 27 60 days of a written request by the Designating Party, each Receiving Party must 1 || used in this subdivision, “all Protected Material” includes all copies, abstracts, 2 || compilations, summaries, and any other format reproducing or capturing any of the 3 || Protected Material. Whether the Protected Material is returned or destroyed, the 4 || Receiving Party must submit a written certification to the Producing Party (and, if 5 || not the same person or entity, to the Designating Party) by the 60 day deadline that 6 || (1) identifies (by category, where appropriate) all the Protected Material that was 7 || returned or destroyed and (2) affirms that the Receiving Party has not retained any 8 || copies, abstracts, compilations, summaries or any other format reproducing or 9 || capturing any of the Protected Material. Notwithstanding this provision, Counsel are 10 || entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, 11 || and hearing transcripts, legal memoranda, correspondence, deposition and trial 12 || exhibits, expert reports, attorney work product, and consultant and expert work 13 || product, even if such materials contain Protected Material. Any such archival copies 14 || that contain or constitute Protected Material remain subject to this Protective Order 15 || as set forth in Section 4 (DURATION). 16 17 14. Any violation of this Order may be punished by any and all appropriate 18 || measures including, without limitation, contempt proceedings and/or monetary 19 || sanctions. 20 |} FOR GOOD CAUSE SHOWN BY THE PARTIES’ STIPULATION, IT IS SO 22 |} ORDERED. fa. le 94 || DATED: October 17, 2023 Fe Honorable Pedro V. Castillo 25 United States Magistrate Judge 26 27 28

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on [date] in the case of Jones v. Gollette, et al. (19-CV-6806-ODW(PVCx)). I agree 9 to comply with and to be bound by all the terms of this Stipulated Protective Order 10 and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. I further agree to submit to the jurisdiction of the United 15 States District Court for the Central District of California for the purpose of 16 enforcing the terms of this Stipulated Protective Order, even if such enforcement 17 proceedings occur after termination of this action. I hereby appoint 18 __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Stipulated Protective 22 Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: ________________________________ 25 Printed name: _______________________________ 26 Signature: __________________________________ 27