London Wallace v. City of Fresno
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Opinion
8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 LONDON WALLACE, Case No. 1:19-cv-01199-AWI-SAB
12 Plaintiff, ORDER RE STIPULATED PROTECTIVE ORDER 13 v. (ECF No. 34) 14 CITY OF FRESNO, et al.,
15 Defendants.
17 STIPULATION FOR ENTRY OF PROTECTIVE ORDER
19 1. GOOD CAUSE STATEMENT. 20 1.1. Defendants’ Contentions. 21 Defendants contend that there is good cause and a particularized need for a 22 protective order to preserve the interests of confidentiality and privacy in peace
23 officer personnel file records and associated investigative or confidential records
24 for the following reasons.
25 First, Defendants contend that peace officers have a federal privilege of 26 privacy in their personnel file records: a reasonable expectation of privacy therein 27 that is underscored, specified, and arguably heightened by the Pitchess protective
28 procedure of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d
1 1 1027, 1033-1034 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist.
2 LEXIS 14665, *2-3, 12-13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law
3 applies to privilege based discovery disputes involving federal claims,” the “state
4 privilege law which is consistent with its federal equivalent significantly assists in
5 applying [federal] privilege law to discovery disputes”); Soto v. City of Concord,
6 162 F.R.D. 603, 613 n. 4, 616 (N.D. Cal. 1995) (peace officers have
7 constitutionally-based “privacy rights [that] are not inconsequential” in their police
8 personnel records); cf. Cal. Penal Code §§ 832.7, 832.8; Cal. Evid. Code §§ 1040-
9 1047. Defendants further contend that uncontrolled disclosure of such personnel
10 file information can threaten the safety of non-party witnesses, officers, and their
11 families/associates.
12 Second, Defendants contend that municipalities and law enforcement 13 agencies have federal deliberative-executive process privilege, federal official
14 information privilege, federal law enforcement privilege, and federal attorney-
15 client privilege (and/or attorney work product protection) interests in the personnel
16 files of their peace officers – particularly as to those portions of peace officer
17 personnel files that contain critical self-analysis, internal deliberation/decision-
18 making or evaluation/analysis, or communications for the purposes of obtaining or
19 rendering legal advice or analysis – potentially including but not limited to 20 evaluative/ analytical portions of Internal Affairs type records or reports,
21 evaluative/analytical portions of supervisory records or reports, and/or reports
22 prepared at the direction of counsel, or for the purpose of obtaining or rendering
23 legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa Audubon Soc’y v.
24 United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir. 1997); Soto, 162
25 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654, 668-671 (N.D.
26 Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998); Hamstreet v. 27 Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co. v. United
28 States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants further
2 1 contend that such personnel file records are restricted from disclosure by the public
2 entity’s custodian of records pursuant to applicable California law and that
3 uncontrolled release is likely to result in needless intrusion of officer privacy;
4 impairment in the collection of third-party witness information and statements and
5 related legitimate law enforcement investigations/ interests; and a chilling of open
6 and honest discussion regarding and/or investigation into alleged misconduct that
7 can erode a public entity’s ability to identify and/or implement any remedial 8 measures that may be required.
9 Third, Defendants contend that, since peace officers do not have the same 10 rights as other private citizens to avoid giving compelled statements, it is contrary
11 to the fundamental principles of fairness to permit uncontrolled release of officers’
12 compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d
13 822, 828-830 (1985); cf. U.S. Const., amend V.
14 Accordingly, Defendants contend that, without a protective order preventing 15 such, production of confidential records in the case can and will likely substantially
16 impair defendant public entity’s interests in candid self-critical analysis, frank
17 internal deliberations, obtaining candid information from witnesses, preserving the
18 safety of witnesses, preserving the safety of peace officers and peace officers’
19 families and associates, protecting the privacy officers of peace officers, and 20 preventing pending investigations from being detrimentally undermined by
21 publication of private, sensitive, or confidential information – as can and often
22 does result in litigation.
23 1.2. Plaintiffs do not agree with and do not stipulate to Defendants’ 24 contentions herein above, and nothing in this Stipulation or its associated Order
25 shall resolve the parties’ disagreement, or bind them, concerning the legal
26 statements and claimed privileges set forth above. However, plaintiffs agree that 27 there is Good Cause for a Protective Order consistent with the terms and provisions
28 of this Stipulation so as to preserve the respective interests of the parties without
3 1 the need to further burden the Court with such issues.
2 1.3. The parties jointly contend that there is typically a particularized need 3 for protection as to any medical or psychotherapeutic records and autopsy
4 photographs, because of the privacy interests at stake therein. Because of these
5 sensitive interests, a Court Order should address these documents rather than a
6 private agreement between the parties.
7 1.4. The parties therefore stipulate that there is Good Cause for, and 8 hereby jointly request that the honorable Court issue/enter, a Protective Order re
9 confidential documents consistent with the terms and provisions of this Stipulation.
10 However, the entry of a Protective Order by the Court pursuant to this Stipulation
11 shall not be construed as any ruling by the Court on the aforementioned legal
12 statements or privilege claims in this section (§ 1), nor shall this section be
13 construed as part of any such Court Order.
14 A. PURPOSES AND LIMITATIONS. 15 Disclosure and discovery activity in this action are likely to involve 16 production of confidential, proprietary, or private information for which special 17 protection from public disclosure and from use for any purpose other than 18 prosecuting or defending this litigation would be warranted. Accordingly, the 19 parties hereby stipulate to and petition the court to enter the following Stipulation 20 and an associated Order. 21 The parties acknowledge that this Stipulation and associated Order does not 22 confer blanket protections on all disclosures or responses to discovery and that the 23 protection it affords extends only to the specified information or items that are 24 entitled, under the applicable legal principles, to treatment as confidential. 25 The parties further acknowledge, as set forth below, that this Stipulation and 26 Order creates no entitlement to file confidential information under seal, except to 27 the extent specified herein; Eastern District Local Rules 141, 141.1, 143, and 251 28
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 LONDON WALLACE, Case No. 1:19-cv-01199-AWI-SAB
12 Plaintiff, ORDER RE STIPULATED PROTECTIVE ORDER 13 v. (ECF No. 34) 14 CITY OF FRESNO, et al.,
15 Defendants.
17 STIPULATION FOR ENTRY OF PROTECTIVE ORDER
19 1. GOOD CAUSE STATEMENT. 20 1.1. Defendants’ Contentions. 21 Defendants contend that there is good cause and a particularized need for a 22 protective order to preserve the interests of confidentiality and privacy in peace
23 officer personnel file records and associated investigative or confidential records
24 for the following reasons.
25 First, Defendants contend that peace officers have a federal privilege of 26 privacy in their personnel file records: a reasonable expectation of privacy therein 27 that is underscored, specified, and arguably heightened by the Pitchess protective
28 procedure of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d
1 1 1027, 1033-1034 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist.
2 LEXIS 14665, *2-3, 12-13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law
3 applies to privilege based discovery disputes involving federal claims,” the “state
4 privilege law which is consistent with its federal equivalent significantly assists in
5 applying [federal] privilege law to discovery disputes”); Soto v. City of Concord,
6 162 F.R.D. 603, 613 n. 4, 616 (N.D. Cal. 1995) (peace officers have
7 constitutionally-based “privacy rights [that] are not inconsequential” in their police
8 personnel records); cf. Cal. Penal Code §§ 832.7, 832.8; Cal. Evid. Code §§ 1040-
9 1047. Defendants further contend that uncontrolled disclosure of such personnel
10 file information can threaten the safety of non-party witnesses, officers, and their
11 families/associates.
12 Second, Defendants contend that municipalities and law enforcement 13 agencies have federal deliberative-executive process privilege, federal official
14 information privilege, federal law enforcement privilege, and federal attorney-
15 client privilege (and/or attorney work product protection) interests in the personnel
16 files of their peace officers – particularly as to those portions of peace officer
17 personnel files that contain critical self-analysis, internal deliberation/decision-
18 making or evaluation/analysis, or communications for the purposes of obtaining or
19 rendering legal advice or analysis – potentially including but not limited to 20 evaluative/ analytical portions of Internal Affairs type records or reports,
21 evaluative/analytical portions of supervisory records or reports, and/or reports
22 prepared at the direction of counsel, or for the purpose of obtaining or rendering
23 legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa Audubon Soc’y v.
24 United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir. 1997); Soto, 162
25 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654, 668-671 (N.D.
26 Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998); Hamstreet v. 27 Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co. v. United
28 States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants further
2 1 contend that such personnel file records are restricted from disclosure by the public
2 entity’s custodian of records pursuant to applicable California law and that
3 uncontrolled release is likely to result in needless intrusion of officer privacy;
4 impairment in the collection of third-party witness information and statements and
5 related legitimate law enforcement investigations/ interests; and a chilling of open
6 and honest discussion regarding and/or investigation into alleged misconduct that
7 can erode a public entity’s ability to identify and/or implement any remedial 8 measures that may be required.
9 Third, Defendants contend that, since peace officers do not have the same 10 rights as other private citizens to avoid giving compelled statements, it is contrary
11 to the fundamental principles of fairness to permit uncontrolled release of officers’
12 compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d
13 822, 828-830 (1985); cf. U.S. Const., amend V.
14 Accordingly, Defendants contend that, without a protective order preventing 15 such, production of confidential records in the case can and will likely substantially
16 impair defendant public entity’s interests in candid self-critical analysis, frank
17 internal deliberations, obtaining candid information from witnesses, preserving the
18 safety of witnesses, preserving the safety of peace officers and peace officers’
19 families and associates, protecting the privacy officers of peace officers, and 20 preventing pending investigations from being detrimentally undermined by
21 publication of private, sensitive, or confidential information – as can and often
22 does result in litigation.
23 1.2. Plaintiffs do not agree with and do not stipulate to Defendants’ 24 contentions herein above, and nothing in this Stipulation or its associated Order
25 shall resolve the parties’ disagreement, or bind them, concerning the legal
26 statements and claimed privileges set forth above. However, plaintiffs agree that 27 there is Good Cause for a Protective Order consistent with the terms and provisions
28 of this Stipulation so as to preserve the respective interests of the parties without
3 1 the need to further burden the Court with such issues.
2 1.3. The parties jointly contend that there is typically a particularized need 3 for protection as to any medical or psychotherapeutic records and autopsy
4 photographs, because of the privacy interests at stake therein. Because of these
5 sensitive interests, a Court Order should address these documents rather than a
6 private agreement between the parties.
7 1.4. The parties therefore stipulate that there is Good Cause for, and 8 hereby jointly request that the honorable Court issue/enter, a Protective Order re
9 confidential documents consistent with the terms and provisions of this Stipulation.
10 However, the entry of a Protective Order by the Court pursuant to this Stipulation
11 shall not be construed as any ruling by the Court on the aforementioned legal
12 statements or privilege claims in this section (§ 1), nor shall this section be
13 construed as part of any such Court Order.
14 A. PURPOSES AND LIMITATIONS. 15 Disclosure and discovery activity in this action are likely to involve 16 production of confidential, proprietary, or private information for which special 17 protection from public disclosure and from use for any purpose other than 18 prosecuting or defending this litigation would be warranted. Accordingly, the 19 parties hereby stipulate to and petition the court to enter the following Stipulation 20 and an associated Order. 21 The parties acknowledge that this Stipulation and associated Order does not 22 confer blanket protections on all disclosures or responses to discovery and that the 23 protection it affords extends only to the specified information or items that are 24 entitled, under the applicable legal principles, to treatment as confidential. 25 The parties further acknowledge, as set forth below, that this Stipulation and 26 Order creates no entitlement to file confidential information under seal, except to 27 the extent specified herein; Eastern District Local Rules 141, 141.1, 143, and 251 28
4 1 set(s) forth the procedures that must be followed and reflects the standards that will
2 be applied when a party seeks permission from the court to file material under seal.
3 Nothing in this Stipulation or associated Order shall be construed so as to 4 require or mandate that any Party disclose or produce privileged information or
5 records that could be designated as Confidential Documents/Protected Material
6 hereunder.
7 2. STIPULATION FOR PROTECTIVE ORDER RE CONFIDENTIAL 8 RECORDS 9 A. DEFINITIONS. 10
11 2.1. Party: any party to this action, including all of its officers, directors, 12 employees, agents, consultants, retained experts, house counsel and outside
13 counsel (and/or the support staff thereof).
14 2.2. Disclosure or Discovery Material: all items or information, regardless 15 of the medium or manner generated, stored or maintained (including, among other
16 things, testimony, transcripts, or tangible things) that are produced – or generated
17 in disclosures or responses to discovery – by any Party in this matter.
18 2.3. “Confidential” Information or Items: information (regardless of the 19 medium or how generated, stored, or maintained) or tangible things that qualify for 20 protection under standards developed under Federal Rule of Civil Procedure 26(c)
21 and/or applicable federal privileges. This material includes, but is not limited to,
22 medical records, psychotherapeutic records, and autopsy photographs; as well as
23 peace officer personnel records as defined by California Penal Code sections
24 832.8, 832.5, 832.7 and the associated case law; and other similar confidential
25 records designated as such.
26 2.4. Receiving Party: a Party that receives Disclosure or Discovery 27 Material from a Producing Party, including a Party that has noticed or subpoenaed
28 and is taking a deposition or comparable testimony.
5 1 2.5. Producing Party: a Party or non-party that produces Disclosure or 2 Discovery Material in this action, including a Party that is defending a deposition
3 noticed or subpoenaed by another Party; additionally, for the limited purpose of
4 designating testimony subject to this Stipulation and Order pursuant to section
5 6.2(b) (infra), a “Producing Party” shall also be construed to include a Party that is
6 attending and/or participating in a non-party deposition noticed/subpoenaed by
7 another Party.
8 2.6. Designating Party: a Party or non-party that designates information or 9 items that it produces in disclosures or in responses to discovery as
10 “CONFIDENTIAL.”
11 2.7. Protected Material: any Disclosure or Discovery Material that is 12 designated as “CONFIDENTIAL” under the provisions of this Stipulation and
13 Protective Order. (The term “Confidential Document” shall be synonymous with
14 the term “Protected Material” for the purposes of this Stipulation and any
15 associated Protective Order.)
16 2.8. Outside Counsel: attorneys who are not employees of a Party but who 17 are retained to represent or advise a Party in this action (as well as their support
18 staffs).
19 2.9. House Counsel: attorneys who are employees of a Party (as well as 20 their support staffs).
21 2.10. Counsel (without qualifier): Outside Counsel and House Counsel (as 22 well as their support staffs).
23 2.11. Expert: a person with specialized knowledge or experience in a 24 matter pertinent to the litigation who has been retained by a Party or its counsel to
25 serve as an expert witness or as a consultant in this action and who is not a past or
26 a current employee of a Party and who, at the time of retention, is not anticipated 27 to become an employee of a Party or a competitor of a Party’s; as well as any
28 person retained, designated, or disclosed by a Party as an expert pursuant to
6 1 Federal Rule of Civil Procedure 26(a)(2) or other applicable discovery Rules or
2 statutes.
3 2.12. Professional Vendors: persons or entities that provide litigation 4 support services (e.g., photocopying; videotaping; translating; preparing exhibits or
5 demonstrations; and/or organizing, storing, retrieving data in any form or medium;
6 etc.); and their employees and subcontractors.
7 3. SCOPE OF PROTECTION. 8 The protections conferred by this Stipulation and its associated Order cover 9 not only Protected Material/Confidential Documents (as defined above), but also
10 (1) any information copied or extracted from Protected Material; (2) all copies,
11 excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
12 conversations, or presentations by Parties or their Counsel that might reveal
13 Protected Material. However, the protections conferred by this Stipulation and its
14 associated Order do not cover the following information: (a) any information that
15 is in the public domain at the time of disclosure to a Receiving Party or becomes
16 part of the public domain after its disclosure to a Receiving Party as a result of
17 publication not involving a violation of this Order, including becoming part of the
18 public record through trial or otherwise; and (b) any information known to the
19 Receiving Party prior to the disclosure or obtained by the Receiving Party after the 20 disclosure from a source who obtained the information lawfully and under no
21 obligation of confidentiality to the Designating Party.
22 Except to the extent specified herein (if any), any use of Protected Material 23 at trial shall not be governed by this Order, but may be governed by a separate
24 agreement or order.
25 4. DURATION OF PROTECTION. 26 Even after final disposition of this litigation, the confidentiality obligations 27 imposed by this Order shall remain in effect until a Designating Party agrees
28 otherwise in writing or a court order otherwise directs.
7 1 Final disposition shall be deemed to be the later of (1) dismissal of all claims 2 and defenses in this action, with or without prejudice; and (2) final judgment
3 herein after the completion and exhaustion of all appeals, rehearings, remands,
4 trials, or reviews of this action, including the time limits for filing any motions or
5 applications for extension of time pursuant to applicable law.
6 5. DESIGNATION OF PROTECTED MATERIAL/CONFIDENTIAL DOCUMENTS. 7 5.1. Exercise of Restraint and Care in Designating Material for Protection. 8 Each Party or non-party that designates information or items for protection 9 under this Stipulation and its associated Order must take care to limit any such 10 designation to specific material that qualifies under the appropriate standards. A 11 Designating Party must take care to designate for protection only those parts of 12 material, documents, items, or oral or written communications that qualify – so that 13 other portions of the material, documents, items or communications for which 14 protection is not warranted are not swept unjustifiably within the ambit of this 15 Order. 16 Mass, indiscriminate, or routine designations are prohibited. Designations 17 that are shown to be clearly unjustified, or that have been made for an improper 18 purpose (e.g., to unnecessarily encumber or retard the case development process, 19 or to impose unnecessary expenses and burdens on other parties), expose the 20 Designating Party to sanctions. 21 If it comes to a Party’s or a non-party’s attention that information or items 22 that it designated for protection do not qualify for protection at all, or do not 23 qualify for the level of protection initially asserted, that Party or non-party must 24 promptly notify all other parties that it is withdrawing the mistaken designation. 25 5.2. Manner and Timing of Designations. Except as otherwise provided in 26 this Order, or as otherwise stipulated or ordered, material that qualifies for 27 protection under this Order must be clearly so designated before the material is 28
8 1 disclosed or produced.
2 Designation in conformity with this Order requires: 3 (a) for information in documentary form (apart from transcripts of 4 depositions or other pretrial or trial proceedings, and regardless of whether
5 produced in hardcopy or electronic form), that the Producing Party affix the legend
6 “CONFIDENTIAL” to each page that contains Protected Material. If only a 7 portion or portions of the material on a page qualifies for protection, the Producing
8 Party also must clearly identify the protected portion(s) (e.g., by making
9 appropriate markings in the margins) and must specify, for each portion that it is
10 “CONFIDENTIAL.” The placement of such “CONFIDENTIAL” stamp on such
11 page(s) shall not obstruct the substance of the page’s (or pages’) text or content.
12 A Party or Non-Party that makes original documents or materials available 13 for inspection need not designate them for protection until after the inspecting
14 Party has indicated which material it would like copied and produced. During the
15 inspection and before the designation, all of the material made available for
16 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
17 identified the documents it wants copied and produced, the Producing Party must
18 determine which documents, or portions thereof, qualify for protection under this
19 Order. Then, before producing the specified documents, the Producing Party must 20 affix the “CONFIDENTIAL” legend to each page that contains Protected Material.
21 If only a portion or portions of the material on a page qualifies for protection, the
22 Producing Party also must clearly identify the protected portion(s) (e.g., by making
23 appropriate markings in the margins).
24 (b) for testimony given in deposition or in other pretrial or trial 25 proceedings, that the Party or non-party offering or sponsoring the testimony
26 identify on the record, before the close of the deposition, hearing, or other 27 proceeding, all protected testimony, and further specify any portions of the
28 testimony that qualify as “CONFIDENTIAL.” When it is impractical to identify
9 1 separately each portion of testimony that is entitled to protection, and when it
2 appears that substantial portions of the testimony may qualify for protection, the
3 Producing Party may invoke on the record (before the deposition or proceeding is
4 concluded) a right to have up to twenty (20) days to identify the specific portions
5 of the testimony as “CONFIDENTIAL.” Only those portions of the testimony that
6 are appropriately designated as “CONFIDENTIAL” for protection within the 20
7 days shall be covered by the provisions of this Stipulation and its associated
8 Protective Order.
9 The court reporter must affix to each such transcript page containing 10 Protected Material the legend “CONFIDENTIAL,” as instructed by the Producing
11 Party.
12 (c) for information produced in some form other than documentary, and 13 for any other tangible items (including but not limited to information produced on
14 disc or electronic data storage device), that the Producing Party affix in a
15 prominent place on the exterior of the container or containers in which the
16 information or item is stored the legend “CONFIDENTIAL.” If only portions of
17 the information or item warrant protection, the Producing Party, to the extent
18 practicable, shall identify the protected portions, specifying the material as
19 “CONFIDENTIAL.” 20 5.3. Inadvertent Failures to Designate. If timely corrected (preferably, 21 though not necessarily, within 30 days of production or disclosure of such
22 material), an inadvertent failure to designate qualified information or items as
23 “CONFIDENTIAL” does not, standing alone, waive the Designating Party’s right
24 to secure protection under this Stipulation and its associated Order for such
25 material. If material is appropriately designated as “CONFIDENTIAL” after 26 the material was initially produced, the Receiving Party, on timely notification of 27 the designation, must make reasonable efforts to assure that the material is treated
28 in accordance with this Stipulation and its associated Order.
10 1 5.4. Alteration of Confidentiality Stamp Prohibited. A Receiving Party 2 shall not alter, edit, or modify any Protected Material so as to conceal, obscure, or
3 remove a “CONFIDENTIAL” stamp or legend thereon; nor shall a Receiving Party
4 take any other action so as to make it appear that Protected Material is not subject
5 to the terms and provisions of this Stipulation and its associated Order. However,
6 nothing in this section shall be construed so as to prevent a Receiving Party from
7 challenging a confidentiality designation subject to the provisions of section 6,
8 infra.
9 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS. 10 6.1. Timing of Challenges. Any Party or Non-Party may challenge a 11 designation of confidentiality at any time prior to the final pre-trial conference with 12 the Court in the matter. Unless a prompt challenge to a Designating Party’s 13 confidentiality designation is necessary to avoid foreseeable substantial unfairness, 14 unnecessary economic burdens, or a later significant disruption or delay of the 15 litigation, a Party does not waive its right to challenge a confidentiality designation 16 by electing not to mount a challenge promptly after the original designation is 17 disclosed. 18 6.2. Meet and Confer. Prior to challenging a confidentiality designation, a 19 Challenging Party shall initiate a dispute resolution process by providing written 20 notice of each specific designation it is challenging, and describing the basis (and 21 supporting authority or argument) for each challenge. To avoid ambiguity as to 22 whether a challenge has been made, the written notice must recite that the 23 challenge to confidentiality is being made in accordance with this specific 24 paragraph of the associated Protective Order. The parties shall attempt to resolve 25 each challenge in good faith and must begin the process by conferring directly (in 26 voice to voice dialogue, either in person, telephonically, or by other comparable 27 means, but not by correspondence) within 14 days of the date of service of notice. 28
11 1 In conferring, the Challenging Party must explain the specific basis for its 2 belief that the confidentiality designation was not proper and must give the
3 Designating Party an opportunity to review the designated material, to reconsider
4 the circumstances, and, if no change in designation is offered, to explain the basis
5 for the chosen designation. A Challenging Party may proceed to the next stage of
6 the challenge process only if it has engaged in this meet and confer process first or
7 establishes that the Designating Party is unwilling to participate in the meet and
8 confer process in a timely manner.
9 6.3. Judicial Intervention. If the Parties cannot resolve a confidentiality 10 challenge without court intervention, the Challenging Party shall file and serve a
11 motion to remove confidentiality (under the applicable rules for filing and service
12 of discovery motions) within 14 days of the parties agreeing that the meet and
13 confer process will not resolve their dispute, or by the first day of trial of this
14 matter, whichever date is earlier – unless the parties agree in writing to a longer
15 time.
16 The parties must strictly comply with Eastern District Local Rules 230 and 17 251 (including the joint statement re discovery dispute requirement) in any motion
18 associated with this Protective Order.
19 Each such motion must be accompanied by a competent declaration 20 affirming that the movant has complied with the meet and confer requirements
21 imposed in the preceding paragraph. In addition, the Challenging Party may file a
22 motion challenging a confidentiality designation at any time if there is good cause
23 for doing so, including a challenge to the designation of a deposition transcript or
24 any portions thereof. Any motion brought pursuant to this provision must be 25 accompanied by a competent declaration affirming that the movant has complied
26 with the meet and confer requirements imposed by the preceding paragraph. 27 The burden of persuasion in any such challenge proceeding shall be on the 28 Designating Party, regardless of whether the Designating Party is the moving party
12 1 or whether such Party sought or opposes judicial intervention. Frivolous
2 challenges, and those made for an improper purpose (e.g., to harass or impose
3 unnecessary expenses and burdens on other parties) may expose the Challenging
4 Party to sanctions. Unless the Designating Party has waived the confidentiality
5 designation by failing to oppose a motion to remove confidentiality as described
6 above, all parties shall continue to afford the material in question the level of
7 protection to which it is entitled under the Producing Party’s designation until the
8 court rules on the challenge.
9 6.4. Withdrawal of “CONFIDENTIAL” Designation. At its discretion, a 10 Designating Party may remove Protected Material/Confidential Documents from
11 some or all of the protections and provisions of this Stipulation and its associated
12 Order at any time by any of the following methods:
13 (a) Express Written Withdrawal. A Designating Party may withdraw a 14 “CONFIDENTIAL” designation made to any specified Protected Material/
15 Confidential Documents from some or all of the protections of this Stipulation and
16 its associated Order by an express withdrawal in a writing signed by such Party (or
17 such Party’s Counsel, but not including staff of such Counsel) that specifies and
18 itemizes the Disclosure or Discovery Material previously designated as Protected
19 Material/Confidential Documents that shall no longer be subject to all or some of 20 the provisions of this Stipulation and Order. Such express withdrawal shall be
21 effective when transmitted or served upon the Receiving Party. If a Designating
22 Party is withdrawing Protected Material from only some of the provisions/
23 protections of this Stipulation and Order, such Party must state which specific
24 provisions are no longer to be enforced as to the specified material for which
25 confidentiality protection hereunder is withdrawn: otherwise, such withdrawal
26 shall be construed as a withdrawal of such material from all of the 27 protections/provisions of this Stipulation and Order;
28 (b) Express Withdrawal on the Record. A Designating Party may
13 1 withdraw a “CONFIDENTIAL” designation made to any specified Protected
2 Material/Confidential Documents from all of the provisions/protections of this
3 Stipulation and its associated Order by verbally consenting in court proceedings on
4 the record to such withdrawal – provided that such withdrawal specifies the
5 Disclosure or Discovery Material previously designated as Protected Material/
6 Confidential Documents that shall no longer be subject to any of the provisions of
7 this Stipulation and Order. A Designating Party is not permitted to withdraw 8 Protected Material from only some of the protections/provisions of this Stipulation
9 and Order by this method;
10 (c) Implicit Withdrawal by Publication or Failure to Oppose Challenge. 11 A Designating Party shall be construed to have withdrawn a “CONFIDENTIAL”
12 designation made to any specified Protected Material/Confidential Documents
13 from all of the provisions/protections of this Stipulation and Order by either (1)
14 making such Protected Material/Confidential Records part of the public record –
15 including but not limited to attaching such as exhibits to any filing with the court
16 without moving, prior to such filing, for the court to seal such records; or (2)
17 failing to timely oppose a Challenging Party’s motion to remove a 18 “CONFIDENTIAL” designation to specified Protected Material/Confidential
19 Documents. Nothing in this Stipulation and Order shall be construed so as to 20 require any Party to file Protected Material/Confidential Documents under seal,
21 unless expressly specified herein.
22 7. ACCESS TO AND USE OF PROTECTED MATERIAL. 23 7.1. Basic Principles. A Receiving Party may use Protected Material that 24 is disclosed or produced by another Party or by a non-party in connection with this
25 case only for preparing, prosecuting, defending, or attempting to settle this
26 litigation – up to and including final disposition of the above-entitled action – and 27 not for any other purpose, including any other litigation or dispute outside the
28 scope of this action. Such Protected Material may be disclosed only to the
14 1 categories of persons and under the conditions described in this Stipulation and its
2 associated Order. When the above entitled litigation has been terminated, a 3 Receiving Party must comply with the provisions of section 13, below (FINAL
4 DISPOSITION).
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 Stipulation and its Order.
8 7.2. 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 such Counsel to whom it is reasonably necessary to disclose the
14 information for this litigation;
15 (b) the officers, directors, and employees (including House Counsel) of 16 the Receiving Party to whom disclosure is reasonably necessary for this litigation –
17 each of whom, by accepting receipt of such Protected Material, thereby agree to be
18 bound by this Stipulation and Order;
19 (c) Experts (as defined in this Stipulation and Order) of the Receiving 20 Party to whom disclosure is reasonably necessary for this litigation – each of
21 whom, by accepting receipt of such Protected Material, thereby agree to be bound
22 by this Stipulation and Order;
23 (d) court reporters, their staffs, and Professional Vendors to whom 24 disclosure is reasonably necessary for this litigation – each of whom, by accepting
25 receipt of such Protected Material, thereby agree to be bound by this Stipulation
26 and Order; 27 (e) during their depositions, witnesses in the action to whom disclosure is 28 reasonably necessary – each of whom, by accepting receipt of such Protected
15 1 Material, thereby agree to be bound by this Stipulation and Order. Pages of 2 transcribed deposition testimony or exhibits to depositions that reveal Protected
3 Material must be separately bound by the court reporter and may not be disclosed
4 to anyone except as permitted under this Stipulation and its Protective Order.
5 (f) the author or custodian of a document containing the information that 6 constitutes Protected Material, or other person who otherwise possessed or knew
7 the information.
8 7.3. Notice of Confidentiality. Prior to producing or disclosing Protected 9 Material/Confidential Documents to persons to whom this Stipulation and its Order
10 permits disclosure or production (see section 8.2, supra), a Receiving Party shall
11 provide a copy of this Stipulation and Order to such persons so as to put such
12 persons on notice as to the restrictions imposed upon them herein: except that, for
13 court reporters, Professional Vendors, and for witnesses being provided with
14 Protected Material during a deposition, it shall be sufficient notice for Counsel for
15 the Receiving Party to give the witness a verbal admonition (on the record, for
16 witnesses) regarding the provisions of this Stipulation and its Order and such
17 provisions’ applicability to specified Protected Material at issue.
18 7.4. Reservation of Rights. Nothing in this Stipulation and Order shall be 19 construed so as to require any Producing Party to designate any records or 20 materials as “CONFIDENTIAL.” Nothing in this Stipulation and Order shall be
21 construed so as to prevent the admission of Protected Material into evidence at the
22 trial of this action, or in any appellate proceedings for this action, solely on the
23 basis that such Disclosure or Discovery Material has been designated as Protected
24 Material/ Confidential Documents. Notwithstanding the foregoing, nothing in this
25 Stipulation and Order shall be construed as a waiver of any privileges or of any
26 rights to object to the use or admission into evidence of any Protected Material in 27 any proceeding; nor shall anything herein be construed as a concession that any
28 privileges asserted or objections made are valid or applicable. Nothing in this
16 1 Stipulation and Order shall be construed so as to prevent the Designating Party (or
2 its Counsel or custodian of records) from having access to and using Protected
3 Material designated by that Party in the manner in which such persons or entities
4 would typically use such materials in the normal course of their duties or
5 profession – except that the waiver of confidentiality provisions shall apply (see
6 section 7.4(c), supra).
7 7.5. Requirement to File Confidential Documents Under Seal. 8 Confidential Documents may be submitted in all law and motion proceedings
9 before the Court if done so under seal pursuant to Federal Rules of Civil Procedure
10 5.2 and 26 and/or United States District Court, Eastern District of California Local
11 Rules 141, 141.1, 143, and 251 (as applicable) and pursuant to the provisions of
12 this Stipulation and any associated Order. If any Receiving Party attaches any
13 Confidential Documents to any pleading, motion, or other paper to be filed,
14 lodged, or otherwise submitted to the Court, such Confidential Document(s) shall
15 be filed/lodged under seal pursuant to Federal Rules of Civil Procedure 5.2 and 26
16 and/or United States District Court, Eastern District of California Local Rules 141,
17 141.1, 143, and 251 to the extent applicable.
18 However, this paragraph (¶ 7.5) shall not be construed so as to prevent a 19 Designating Party or counsel from submitting, filing, lodging, or publishing any 20 document it has previously designated as a Confidential Document without
21 compliance with this paragraph’s requirement to do so under seal (i.e., a
22 producing-disclosing party or counsel may submit or publish its own Confidential
23 Documents without being in violation of the terms of this Stipulation and its
24 Protective Order).
25 Furthermore, a Receiving Party shall be exempted from the requirements of 26 this paragraph as to any specifically identified Confidential Document(s) where – 27 prior to the submission or publication of the Confidential Document(s) at issue –
28 the Designating Party of such specifically identified Confidential Document(s) has
17 1 waived/withdrawn the protections of this Stipulation and its Order (pursuant to
2 paragraph 6.4, supra).
3 A Receiving Party shall also be exempt from the sealing requirements of this 4 paragraph (¶ 7.5) where the Confidential Documents/Protected Material at issue
5 is/are not documents, records, or information regarding or incorporating:
6 (1) private, personal information contained in peace officer personnel 7 files (such as social security numbers, driver’s license numbers or comparable
8 personal government identification numbers, residential addresses, compensation
9 or pension or personal property information, credit card numbers or credit
10 information, dates of birth, tax records and information, information related to the
11 identity of an officer’s family members or co-residents, and comparable personal
12 information about the officer or his family);
13 (2) any internal affairs or comparable investigation by any law 14 enforcement agency into alleged officer misconduct; and/or
15 (3) the medical records or records of psychiatric or psychological 16 treatment of any peace officer or party to this action.
17 Nothing in this paragraph shall be construed to bind the Court or its 18 authorized staff so as to limit or prevent the publication of any Confidential
19 Documents to the jury or factfinder, at the time of trial of this matter, where the 20 Court has deemed such Confidential Documents to be admissible into evidence.
21 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. 22 If a Party is served with a subpoena or a court order issued in other litigation 23 that compels disclosure of any information or items designated in this action as 24 “CONFIDENTIAL,” that Party must: 25 (a) promptly notify in writing the Designating Party, preferably (though not 26 necessarily) by facsimile or electronic mail. Such notification shall include a copy 27 of the subpoena or court order at issue; 28
18 1 (b) promptly notify in writing the party who caused the subpoena or order to 2 issue in the other litigation that some or all of the material covered by the subpoena
3 or order is subject to this Stipulation and its Protective Order. Such notification
4 shall include a copy of this Stipulation and its Protective Order; and
5 (c) cooperate with respect to all reasonable procedures sought to be pursued 6 by all sides in any such situation, while adhering to the terms of this Stipulation
7 and its Order.
8 If the Designating Party timely seeks a protective order, the Party served 9 with the subpoena or court order shall not produce any information designated in
10 this action as “CONFIDENTIAL” before a determination by the court from which
11 the subpoena or order issued, unless the Party has obtained the Designating Party’s
12 permission. The Designating Party shall bear the burden and expense of seeking
13 protection in that court of its confidential material – and nothing in these
14 provisions should be construed as authorizing or encouraging a Receiving Party in
15 this action to disobey a lawful directive from another court.
16 The purpose of this section is to ensure that the affected Party has a 17 meaningful opportunity to preserve its confidentiality interests in the court from
18 which the subpoena or court order issued.
19 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL. 20 9.1. Unauthorized Disclosure of Protected Material. 21 If a Receiving Party learns that, by inadvertence or otherwise, it has 22 disclosed Protected Material to any person or in any circumstance not authorized
23 under this Stipulation and Order, the Receiving Party must immediately:
24 (a) notify in writing the Designating Party of the unauthorized disclosures; 25 (b) use its best efforts to retrieve all copies of the Protected Material; 26 (c) inform the person or persons to whom unauthorized disclosures were 27 made of all the terms of this Order; and
28 (d) request such person or persons consent to be bound by the Stipulation
19 1 and Order.
2 9.2. Inadvertent Production of Privileged or Otherwise Protected Material. 3 When a Producing Party gives notice to Receiving Parties that certain 4 inadvertently produced material is subject to a claim of privilege or other
5 protection, the obligations of the Receiving Parties are those set forth in Federal
6 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
7 whatever procedure may be established in an e-discovery order that provides for
8 production without prior privilege review. Pursuant to Federal Rule of Evidence
9 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
10 of a communication or information covered by the attorney-client privilege or
11 work product protection, the parties may incorporate their agreement in the
12 stipulated protective order submitted to the court.
13 10. PUBLICATION OF PROTECTED MATERIAL PROHIBITED. 14 10.1. Filing of Protected Material. 15 Without advance written permission from the Designating Party, or a court 16 order secured after appropriate notice to all interested persons, a Receiving Party
17 may not file in the public record in this action any Protected Material. A Party that
18 seeks to file under seal any Protected Material must comply with the applicable
19 Federal and Local Rules. 20 10.2. Public Dissemination of Protected Material. 21 A Receiving Party shall not publish, release, post, or disseminate Protected 22 Material to any persons except those specifically delineated and authorized by this
23 Stipulation and its Order (see section 7, supra); nor shall a Receiving Party
24 publish, release, leak, post, or disseminate Protected Material/Confidential
25 Documents to any news media, member of the press, website, or public forum
26 (except as permitted under section 12.1 regarding filings with the court in this 27 action and under seal).
20 1 11. FINAL DISPOSITION. 2 Unless otherwise ordered or agreed in writing by the Producing Party, within 3 thirty (30) days after the final termination of this action (defined as the dismissal or 4 entry of judgment by the above named court, or if an appeal is filed, the disposition 5 of the appeal), upon written request by the Producing Party, each Receiving Party 6 must return all Protected Material to the Producing Party – whether retained by the 7 Receiving Party or its Counsel, Experts, Professional Vendors, agents, or any non- 8 party to whom the Receiving Party produced or shared such records or 9 information. As used in this subdivision, “all Protected Material” includes all 10 copies, abstracts, compilations, summaries or any other form of reproducing or 11 capturing any of the Protected Material, regardless of the medium (hardcopy, 12 electronic, or otherwise) in which such Protected Material is stored or retained. 13 In the alternative, at the discretion of the Receiving Party, the Receiving 14 Party may destroy some or all of the Protected Material instead of returning it – 15 unless such Protected Material is an original, in which case, the Receiving Party 16 must obtain the Producing Party’s written consent before destroying such original 17 Protected Material. 18 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 20 person or entity, to the Designating Party) within thirty (30) days of the 21 aforementioned written request by the Designating Party that specifically identifies 22 (by category, where appropriate) all the Protected Material that was returned or 23 destroyed and that affirms that the Receiving Party has not retained any copies, 24 abstracts, compilations, summaries or other forms of reproducing or capturing any 25 of the Protected material (in any medium, including but not limited to any 26 hardcopy, electronic or digital copy, or otherwise). 27 Notwithstanding this provision, Counsel are entitled to retain an archival 28
21 1 copy of all pleadings, motion papers, transcripts, legal memoranda filed with the
2 court in this action, as well as any correspondence or attorney work product
3 prepared by Counsel for the Receiving Party, even if such materials contain
4 Protected Material; however, any such archival copies that contain or constitute
5 Protected Material remain subject to this Protective Order as set forth in Section 4
6 (DURATION), above. This court shall retain jurisdiction in the event that a 7 Designating Party elects to seek court sanctions for violation of this Stipulation and
8 its Order.
9 12. MISCELLANEOUS. 10 12.1. Right to Further Relief. Nothing in this Stipulation and its Order 11 abridges the right of any person to seek its modification by the Court in the future.
12 12.2. Right to Assert Other Objections. By stipulating to the entry of a 13 Protective Order pursuant to this Stipulation, no Party waives any right it otherwise
14 would have to object to disclosing or producing any information or item on any
15 ground not addressed in this Stipulation and its Order. Similarly, no Party waives
16 any right to object on any ground to use in evidence any of the material covered by
17 this Stipulation and its Protective Order.
18 12.3. This Stipulation may be signed in counterpart and a facsimile or 19 electronic signature shall be as valid as an original signature. 20 IT IS SO STIPULATED. 21 ///
22 ///
23 ///
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26 /// 27 ///
28 ///
22 1
2 DATED: March 13, 2020 3 MANNING & KASS 4 ELLROD, RAMIREZ, TRESTER LLP
6 By: /s/ Mildred O’Linn 7 Mildred K. O’Linn 8 Tony M. Sain Lynn L. Carpenter 9 Attorneys for Defendants, CITY OF 10 FRESNO (erroneously named as two separate parties – CITY OF FRESNO and 11 FRESNO POLICE DEPARTMENT), 12 OFFICER CHRISTOPHER MARTINEZ, and OFFICER RICARDO LOZA 13
15 DATED: March 13, 2020 BARADAT & PABOOJIAN
17 By: /s/ Nolan Kane 18 Warren R. Paboojian, Esq. 19 Nolan Kane, Esq. Attorneys for Plaintiff, LONDON 20 WALLACE 21
23 STIPULATED PROTECTIVE ORDER
24 1. SCOPE OF PROTECTION. 25 The protections conferred by the parties’ Stipulation and this Order cover 26 not only Protected Material/Confidential Documents (as defined above), but also 27 (1) any information copied or extracted from Protected Material; (2) all copies,
28 excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
23 1 conversations, or presentations by Parties or their Counsel that might reveal
2 Protected Material. However, the protections conferred by the parties’ Stipulation
3 and this Order do not cover the following information: (a) any information that is
4 in the public domain at the time of disclosure to a Receiving Party or becomes part
5 of the public domain after its disclosure to a Receiving Party as a result of
6 publication not involving a violation of this Order, including becoming part of the
7 public record through trial or otherwise; and (b) any information known to the
8 Receiving Party prior to the disclosure or obtained by the Receiving Party after the
9 disclosure from a source who obtained the information lawfully and under no
10 obligation of confidentiality to the Designating Party.
11 The Definitions section of the parties' associated Stipulation (§ 2) is 12 incorporated by reference herein.
13 Any use of Protected Material at trial shall be governed by the Orders 14 of the trial judge: this Stipulation and its associated Protective Order do not
15 govern the use of Protected Material at trial.
16 2. PURPOSES AND LIMITATIONS. 17 Disclosure and discovery activity in this action are likely to involve 18 production of confidential, proprietary, or private information for which special
19 protection from public disclosure and from use for any purpose other than 20 prosecuting or defending this litigation would be warranted. Accordingly, the 21 parties have stipulated to and petitioned the court to enter the following Order.
22 The parties have acknowledged that this Order does not confer blanket 23 protections on all disclosures or responses to discovery and that the protection it
24 affords extends only to the specified information or items that are entitled, under
25 the applicable legal principles, to treatment as confidential.
26 The parties further acknowledge, as set forth below, that this Order creates 27 no entitlement to file confidential information under seal, except to the extent
24 1 specified herein; Eastern District Local Rules 141, 141.1, 143, 230 and/or 251
2 forth the procedures that must be followed and reflects the standards that will be
3 applied when a party seeks permission from the court to file material under seal.
4 Nothing in this Order shall be construed so as to require or mandate that any 5 Party disclose or produce privileged information or records that could be
6 designated as Confidential Documents/Protected Material hereunder.
7 3. DURATION OF PROTECTION. 8 Even after final disposition of this litigation, the confidentiality obligations 9 imposed by this Order shall remain in effect until a Designating Party agrees
10 otherwise in writing or a court order otherwise directs.
11 Final disposition shall be deemed to be the later of (1) dismissal of all claims 12 and defenses in this action, with or without prejudice; and (2) final judgment
13 herein after the completion and exhaustion of all appeals, rehearings, remands,
14 trials, or reviews of this action, including the time limits for filing any motions or
15 applications for extension of time pursuant to applicable law.
16 4. DESIGNATION OF PROTECTED MATERIAL 17 4.1. Exercise of Restraint and Care in Designating Material for Protection. 18 Each Party or non-party that designates information or items for protection under 19 the parties’ Stipulation and this Order must take care to limit any such designation 20 to specific material that qualifies under the appropriate standards. A Designating 21 Party must take care to designate for protection only those parts of material, 22 documents, items, or oral or written communications that qualify – so that other 23 portions of the material, documents, items or communications for which protection 24 is not warranted are not swept unjustifiably within the ambit of this Order. 25 Mass, indiscriminate, or routine designations are prohibited. Designations 26 that are shown to be clearly unjustified, or that have been made for an improper 27 purpose (e.g., to unnecessarily encumber or inhibit the case development process, 28
25 1 or to impose unnecessary expenses and burdens on other parties), expose the
2 Designating Party to sanctions.
3 If it comes to a Party’s or a non-party’s attention that information or items 4 that it designated for protection do not qualify for protection at all, or do not
5 qualify for the level of protection initially asserted, that Party or non-party must
6 promptly notify all other parties that it is withdrawing the mistaken designation.
7 4.2. Manner and Timing of Designations. Except as otherwise provided in 8 this Order, or as otherwise stipulated or ordered, material that qualifies for
9 protection under this Order must be clearly so designated before the material is
10 disclosed or produced.
11 Designation in conformity with this Order requires:
12 (a) for information in documentary form (apart from transcripts of 13 depositions or other pretrial or trial proceedings, and regardless of whether
14 produced in hardcopy or electronic form), that the Producing Party affix the legend
15 “CONFIDENTIAL” to each page that contains Protected Material. If only a 16 portion or portions of the material on a page qualifies for protection, the Producing
17 Party also must clearly identify the protected portion(s) (e.g., by making
18 appropriate markings in the margins) and must specify, for each portion that it is
19 “CONFIDENTIAL.” The placement of such “CONFIDENTIAL” stamp on such 20 page(s) shall not obstruct the substance of the page’s (or pages’) text or content.
21 A Party or Non-Party that makes original documents or materials available 22 for inspection need not designate them for protection until after the inspecting
23 Party has indicated which material it would like copied and produced. During the
24 inspection and before the designation, all of the material made available for
25 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
26 identified the documents it wants copied and produced, the Producing Party must 27 determine which documents, or portions thereof, qualify for protection under this
28 Order. Then, before producing the specified documents, the Producing Party must
26 1 affix the “CONFIDENTIAL” legend to each page that contains Protected Material.
2 If only a portion or portions of the material on a page qualifies for protection, the
3 Producing Party also must clearly identify the protected portion(s) (e.g., by making
4 appropriate markings in the margins).
5 (b) for testimony given in deposition or in other pretrial or trial 6 proceedings, that the Party or non-party offering or sponsoring the testimony 7 identify on the record, before the close of the deposition, hearing, or other 8 proceeding, all protected testimony, and further specify any portions of the 9 testimony that qualify as “CONFIDENTIAL.” When it is impractical to identify 10 separately each portion of testimony that is entitled to protection, and when it 11 appears that substantial portions of the testimony may qualify for protection, the 12 Producing Party may invoke on the record (before the deposition or proceeding is 13 concluded) a right to have up to twenty (20) days to identify the specific portions 14 of the testimony as “CONFIDENTIAL.” Only those portions of the testimony 15 that are appropriately designated as “CONFIDENTIAL” for protection within the 16 20 days shall be covered by the provisions of the parties’ Stipulation and this 17 Protective Order. 18 Transcript pages containing Protected Material must be separately bound by 19 the court reporter, who must affix to each such page the legend 20 “CONFIDENTIAL,” as instructed by the Producing Party. 21 (c) for information produced in some form other than documentary, and 22 for any other tangible items (including but not limited to information produced on 23 disc or electronic data storage device), that the Producing Party affix in a 24 prominent place on the exterior of the container or containers in which the 25 information or item is stored the legend “CONFIDENTIAL.” If only portions of 26 the information or item warrant protection, the Producing Party, to the extent 27
27 1 practicable, shall identify the protected portions, specifying the material as
2 “CONFIDENTIAL.”
3 4.3. Inadvertent Failures to Designate. If timely corrected (preferably, 4 though not necessarily, within 30 days of production or disclosure of such
5 material), an inadvertent failure to designate qualified information or items as
6 “CONFIDENTIAL” does not, standing alone, waive the Designating Party’s right
7 to secure protection under the parties’ Stipulation and this Order for such material.
8 If material is appropriately designated as “CONFIDENTIAL” after the material
9 was initially produced, the Receiving Party, on timely notification of the
10 designation, must make reasonable efforts to assure that the material is treated in
11 accordance with the parties’ Stipulation and this Order.
12 4.4. Alteration of Confidentiality Stamp Prohibited. A Receiving Party 13 shall not alter, edit, or modify any Protected Material so as to conceal, obscure, or
14 remove a “CONFIDENTIAL” stamp or legend thereon; nor shall a Receiving Party
15 take any other action so as to make it appear that Protected Material is not subject
16 to the terms and provisions of the parties’ Stipulation and this Order. However,
17 nothing in this section shall be construed so as to prevent a Receiving Party from
18 challenging a confidentiality designation subject to the provisions of section 4,
19 infra. 20 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS. 21 5.1. Timing of Challenges. Any Party or Non-Party may challenge a 22 designation of confidentiality at any time that is consistent with the Court's
23 Scheduling Order. Unless a prompt challenge to a Designating Party’s 24 confidentiality designation is necessary to avoid foreseeable substantial unfairness,
25 unnecessary economic burdens, or a later significant disruption or delay of the
26 litigation, a Party does not waive its right to challenge a confidentiality designation 27 by electing not to mount a challenge promptly after the original designation is
28 disclosed.
28 1 5.2. Meet and Confer. Prior to challenging a confidentiality designation, a 2 Challenging Party shall initiate a dispute resolution process by providing written
3 notice of each specific designation it is challenging, and describing the basis (and
4 supporting authority or argument) for each challenge. To avoid ambiguity as to
5 whether a challenge has been made, the written notice must recite that the
6 challenge to confidentiality is being made in accordance with this specific
7 paragraph of this Protective Order. The parties shall attempt to resolve each 8 challenge in good faith and must begin the process by conferring directly (in voice
9 to voice dialogue, either in person, telephonically, or by other comparable means,
10 but not by correspondence) within 14 days of the date of service of notice.
11 In conferring, the Challenging Party must explain the specific basis for its 12 belief that the confidentiality designation was not proper and must give the
13 Designating Party an opportunity to review the designated material, to reconsider
14 the circumstances, and, if no change in designation is offered, to explain the basis
15 for the chosen designation. A Challenging Party may proceed to the next stage of
16 the challenge process only if it has engaged in this meet and confer process first or
17 establishes that the Designating Party is unwilling to participate in the meet and
18 confer process in a timely manner.
19 Frivolous challenges, and those challenges made for an improper purpose 20 (e.g., to harass or impose unnecessary expenses and burdens on other parties), may
21 expose the Challenging Party to sanctions.
22 5.3. Judicial Intervention. If the Parties cannot resolve a confidentiality 23 challenge without court intervention, the Challenging Party shall file and serve a
24 motion to remove confidentiality (under the applicable rules for filing and service
25 of discovery motions) within 14 days of the parties agreeing that the meet and
26 confer process will not resolve their dispute, or by the first day of trial of this 27 matter, whichever date is earlier – unless the parties agree in writing to a longer
28 time.
29 1 The parties must strictly comply with Eastern District Local Rules 141, 2 141.1, 143, 230 and/or 251 (including the joint statement re discovery dispute
3 requirement) in any motion associated with this Protective Order.
4 Each such motion must be accompanied by a competent declaration 5 affirming that the movant has complied with the meet and confer requirements
6 imposed in the preceding paragraph. In addition, the Challenging Party may file a
7 motion challenging a confidentiality designation at any time if there is good cause
8 for doing so, including a challenge to the designation of a deposition transcript or
9 any portions thereof. Any motion brought pursuant to this provision must be 10 accompanied by a competent declaration affirming that the movant has complied
11 with the meet and confer requirements imposed by the preceding paragraph.
12 The burden of persuasion in any such challenge proceeding shall be on the 13 Designating Party, regardless of whether the Designating Party is the moving party
14 or whether such Party sought or opposes judicial intervention. Frivolous
15 challenges, and those made for an improper purpose (e.g., to harass or impose
16 unnecessary expenses and burdens on other parties) may expose the Challenging
17 Party to sanctions. Unless the Designating Party has waived the confidentiality
18 designation by failing to oppose a motion to remove confidentiality as described
19 above, all parties shall continue to afford the material in question the level of 20 protection to which it is entitled under the Producing Party’s designation until the
21 court rules on the challenge.
22 5.4. Withdrawal of “CONFIDENTIAL” Designation. At its discretion, a 23 Designating Party may remove Protected Material/Confidential Documents from
24 some or all of the protections and provisions of the parties’ Stipulation and this
25 Order at any time by any of the following methods:
26 (a) Express Written Withdrawal. A Designating Party may withdraw a 27 “CONFIDENTIAL” designation made to any specified Protected 28 Material/Confidential Documents from some or all of the protections of the parties’
30 1 Stipulation and this Order by an express withdrawal in a writing signed by such
2 Party (or such Party’s Counsel, but not including staff of such Counsel) that
3 specifies and itemizes the Disclosure or Discovery Material previously designated
4 as Protected Material/Confidential Documents that shall no longer be subject to all
5 or some of the provisions of the parties’ Stipulation and Order. Such express 6 withdrawal shall be effective when transmitted or served upon the Receiving Party.
7 If a Designating Party is withdrawing Protected Material from only some of the
8 provisions/protections of the parties’ Stipulation and this Order, such Party must
9 state which specific provisions are no longer to be enforced as to the specified
10 material for which confidentiality protection hereunder is withdrawn: otherwise,
11 such withdrawal shall be construed as a withdrawal of such material from all of the
12 protections/provisions of the parties’ Stipulation and this Order;
13 (b) Express Withdrawal on the Record. A Designating Party may 14 withdraw a “CONFIDENTIAL” designation made to any specified Protected
15 Material/ Confidential Documents from all of the provisions/protections of the
16 parties’ Stipulation and this Order by verbally consenting in court proceedings on
17 the record to such withdrawal – provided that such withdrawal specifies the
18 Disclosure or Discovery Material previously designated as Protected 19 Material/Confidential Documents that shall no longer be subject to any of the 20 provisions of the parties’ Stipulation and this Order. A Designating Party is not
21 permitted to withdraw Protected Material from only some of the protections/
22 provisions of the parties’ Stipulation and this Order by this method;
23 (c) Implicit Withdrawal by Publication or Failure to Oppose Challenge. 24 A Designating Party shall be construed to have withdrawn a “CONFIDENTIAL”
25 designation made to any specified Protected Material/Confidential Documents
26 from all of the provisions/protections of the parties’ Stipulation and this Order by 27 either (1) making such Protected Material/Confidential Records part of the public
28 record – including but not limited to attaching such as exhibits to any filing with
31 1 the court without moving, prior to such filing, for the court to seal such records; or
2 (2) failing to timely oppose a Challenging Party’s motion to remove a
3 “CONFIDENTIAL” designation to specified Protected Material/Confidential
4 Documents.
5 Nothing in the parties’ Stipulation and this Order shall be construed so as to 6 require any Party to file Protected Material/Confidential Documents under seal,
7 unless expressly specified herein.
8 6. ACCESS TO AND USE OF PROTECTED MATERIAL. 9 6.1. Basic Principles. A Receiving Party may use Protected Material that 10 is disclosed or produced by another Party or by a non-party in connection with this
11 case only for preparing, prosecuting, defending, or attempting to settle this
12 litigation – up to and including final disposition of the above-entitled action – and
13 not for any other purpose, including any other litigation or dispute outside the
14 scope of this action. Such Protected Material may be disclosed only to the 15 categories of persons and under the conditions described in the parties’ Stipulation
16 and this Order. When the above entitled litigation has been terminated, a 17 Receiving Party must comply with the provisions of section 9, below (FINAL
18 DISPOSITION).
19 Protected Material must be stored and maintained by a Receiving Party at a 20 location and in a secure manner that ensures that access is limited to the persons
21 authorized under the parties’ Stipulation and its Order.
22 6.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless 23 otherwise ordered by the Court or permitted in writing by the Designating Party, a
24 Receiving Party may disclose any information or item designated 25 CONFIDENTIAL only to:
26 (a) the Receiving Party’s Outside Counsel of record in this action, as well 27 as employees of such Counsel to whom it is reasonably necessary to disclose the
28 information for this litigation;
32 1 (b) the officers, directors, and employees (including House Counsel) of 2 the Receiving Party to whom disclosure is reasonably necessary for this litigation –
3 each of whom, by accepting receipt of such Protected Material, thereby agree to be
4 bound by the parties’ Stipulation and this Order;
5 (c) Experts (as defined in the parties’ Stipulation and this Order) of the 6 Receiving Party to whom disclosure is reasonably necessary for this litigation –
7 each of whom, by accepting receipt of such Protected Material, thereby agree to be
8 bound by the parties’ Stipulation and this Order;
9 (d) court reporters, their staffs, and Professional Vendors to whom 10 disclosure is reasonably necessary for this litigation – each of whom, by accepting
11 receipt of such Protected Material, thereby agree to be bound by the parties’
12 Stipulation and this Order;
13 (e) during their depositions, witnesses in the action to whom disclosure is 14 reasonably necessary – each of whom, by accepting receipt of such Protected
15 Material, thereby agree to be bound by the parties’ Stipulation and this Order.
16 Pages of transcribed deposition testimony or exhibits to depositions that reveal
17 Protected Material may not be disclosed to anyone except as permitted under the
18 parties’ Stipulation and this Protective Order.
19 (f) the author or custodian of a document containing the information that 20 constitutes Protected Material, or other person who otherwise possessed or knew
21 the information.
22 6.3. Notice of Confidentiality. Prior to producing or disclosing Protected 23 Material/Confidential Documents to persons to whom the parties’ Stipulation and
24 this Order permits disclosure or production (see section 5.2, supra), a Receiving
25 Party shall provide a copy of the parties’ Stipulation and Order to such persons so
26 as to put such persons on notice as to the restrictions imposed upon them herein: 27 except that, for court reporters, Professional Vendors, and for witnesses being
28 provided with Protected Material during a deposition, it shall be sufficient notice
33 1 for Counsel for the Receiving Party to give the witness a verbal admonition (on the
2 record, for witnesses) regarding the provisions of the parties’ Stipulation and this
3 Order and such provisions’ applicability to specified Protected Material at issue.
4 6.4. Reservation of Rights. Nothing in the parties’ Stipulation and this 5 Order shall be construed so as to require any Producing Party to designate any
6 records or materials as “CONFIDENTIAL.” Nothing in the parties’ Stipulation or
7 this Order shall be construed so as to prevent the admission of Protected Material
8 into evidence at the trial of this action, or in any appellate proceedings for this
9 action, solely on the basis that such Disclosure or Discovery Material has been
10 designated as Protected Material/Confidential Documents. Notwithstanding the 11 foregoing, nothing in the parties’ Stipulation or this Order shall be construed as a
12 waiver of any privileges or of any rights to object to the use or admission into
13 evidence of any Protected Material in any proceeding; nor shall anything herein be
14 construed as a concession that any privileges asserted or objections made are valid
15 or applicable.
16 Nothing in the parties’ Stipulation or this Order shall be construed so as to 17 prevent the Designating Party (or its Counsel or custodian of records) from having
18 access to and using Protected Material designated by that Party in the manner in
19 which such persons or entities would typically use such materials in the normal 20 course of their duties or profession – except that the waiver of confidentiality
21 provisions shall apply (see section 4.4(c), supra).
22 6.5. Requirement to File Confidential Documents Under Seal. 23 Confidential Documents may be submitted in all law and motion proceedings
24 before the Court if done so under seal pursuant to Federal Rules of Civil Procedure
25 5.2 and 26 and/or United States District Court, Eastern District of California Local
26 Rules 141, 141.1, 143, 230 and/or 251 (as applicable) and pursuant to the 27 provisions of the parties’ Stipulation and this Order. If any Receiving Party 28 attaches any Confidential Documents to any pleading, motion, or other paper to be
34 1 filed, lodged, or otherwise submitted to the Court, such Confidential Document(s)
2 shall be filed/lodged under seal pursuant to Federal Rules of Civil Procedure 5.2
3 and 26 and/or United States District Court, Eastern District of California Local
4 Rules 141, 141.1, 143, 230 and/or 251 to the extent applicable.
5 However, this paragraph (¶ 6.5) shall not be construed so as to prevent a 6 Designating Party or counsel from submitting, filing, lodging, or publishing any
7 document it has previously designated as a Confidential Document without
8 compliance with this paragraph’s requirement to do so under seal (i.e., a
9 producing-disclosing party or counsel may submit or publish its own Confidential
10 Documents without being in violation of the terms of the parties’ Stipulation and
11 this Protective Order).
12 Furthermore, a Receiving Party shall be exempted from the requirements of 13 this paragraph as to any specifically identified Confidential Document(s) where –
14 prior to the submission or publication of the Confidential Document(s) at issue –
15 the Designating Party of such specifically identified Confidential Document(s) has
16 waived/withdrawn the protections of the parties’ Stipulation and this Order
17 (pursuant to paragraph 4.4, supra).
18 A Receiving Party shall also be exempt from the sealing requirements of this 19 paragraph (¶ 6.5) where the Confidential Documents/Protected Material at issue 20 is/are not documents, records, or information regarding:
21 (1) private, personal information contained in peace officer personnel 22 files (such as social security numbers, driver’s license numbers or comparable
23 personal government identification numbers, residential addresses, compensation
24 or pension or personal property information, credit card numbers or credit
25 information, dates of birth, tax records and information, information related to the
26 identity of an officer’s family members or co-residents, and comparable personal 27 information about the officer or his family);
35 1 (2) any internal affairs or comparable investigation by any law 2 enforcement agency into alleged officer misconduct; and/or
3 (3) the medical records or records of psychiatric or psychological 4 treatment of any peace officer or party to this action.
5 Nothing in this paragraph shall be construed to bind the Court or its 6 authorized staff so as to limit or prevent the publication of any Confidential
7 Documents to the jury or factfinder, at the time of trial of this matter, where the
8 Court has deemed such Confidential Documents to be admissible into evidence.
9 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED 10 PRODUCED IN OTHER LITIGATION. 11
12 If a Party is served with a subpoena or a court order issued in other litigation that 13 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, preferably (though not 16 necessarily) by facsimile or electronic mail. Such notification shall include a copy 17 of the subpoena or court order at issue; 18 (b) promptly notify in writing the party who caused the subpoena or order to 19 issue in the other litigation that some or all of the material covered by the subpoena 20 or order is subject to the parties’ Stipulation and this Protective Order. Such 21 notification shall include a copy of the parties’ Stipulation and this Protective 22 Order; and 23 (c) cooperate with respect to all reasonable procedures sought to be pursued 24 by all sides in any such situation, while adhering to the terms of the parties’ 25 Stipulation and this Order. 26 If the Designating Party timely seeks a protective order, the Party served 27 with the subpoena or court order shall not produce any information designated in 28
36 1 this action as “CONFIDENTIAL” before a determination by the court from which
2 the subpoena or order issued, unless the Party has obtained the Designating Party’s
3 permission. The Designating Party shall bear the burden and expense of seeking
4 protection in that court of its confidential material – and nothing in these
5 provisions should be construed as authorizing or encouraging a Receiving Party in
6 this action to disobey a lawful directive from another court.
7 The purpose of this section is to ensure that the affected Party has a 8 meaningful opportunity to preserve its confidentiality interests in the court from
9 which the subpoena or court order issued.
10 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL. 11 8.1. Unauthorized Disclosure of Protected Material. 12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
13 Protected Material to any person or in any circumstance not authorized under the
14 parties’ Stipulation and this Order, the Receiving Party must immediately:
15 (a) notify in writing the Designating Party of the unauthorized disclosures; 16 (b) use its best efforts to retrieve all copies of the Protected Material; 17 (c) inform the person or persons to whom unauthorized disclosures were 18 made of all the terms of this Order; and 19 (d) request such person or persons consent to be bound by the Stipulation 20 and this Order. 21 8.2. Inadvertent Production of Privileged or Otherwise Protected Material. 22 When a Producing Party gives notice to Receiving Parties that certain inadvertently 23 produced material is subject to a claim of privilege or other protection, the 24 obligations of the Receiving Parties are those set forth in Federal Rule of Civil 25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 26 procedure may be established in an e-discovery order that provides for production 27 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 28
37 1 (e), insofar as the parties reach an agreement on the effect of disclosure of a
2 communication or information covered by the attorney-client privilege or work
3 product protection, the parties may incorporate their agreement in the stipulated
4 protective order submitted to the court.
5 9. PUBLICATION OF PROTECTED MATERIAL PROHIBITED. 6 9.1. Filing of Protected Material. 7 Without advance written permission from the Designating Party, or a court 8 order secured after appropriate notice to all interested persons, a Receiving Party
9 may not file in the public record in this action any Protected Material. A Party that
10 seeks to file under seal any Protected Material must comply with the applicable
11 Federal and Local Rules.
12 9.2. Public Dissemination of Protected Material. 13 A Receiving Party shall not publish, release, post, or disseminate Protected 14 Material to any persons except those specifically delineated and authorized by the
15 parties’ Stipulation and this Order (see section 5, supra); nor shall a Receiving
16 Party publish, release, leak, post, or disseminate Protected Material/Confidential
17 Documents to any news media, member of the press, website, or public forum
18 (except as permitted under this Order regarding filings with the court in this action
19 and under seal). 20 10. FINAL DISPOSITION. 21 Unless otherwise ordered or agreed in writing by the Producing Party, within 22 thirty (30) days after the final termination of this action (defined as the dismissal or
23 entry of judgment by the above named court, or if an appeal is filed, the disposition
24 of the appeal), upon written request by the Producing Party, each Receiving Party
25 must return all Protected Material to the Producing Party – whether retained by the
26 Receiving Party or its Counsel, Experts, Professional Vendors, agents, or any non- 27 party to whom the Receiving Party produced or shared such records or
28 information. As used in this subdivision, “all Protected Material” includes all
38 1 copies, abstracts, compilations, summaries or any other form of reproducing or
2 capturing any of the Protected Material, regardless of the medium (hardcopy,
3 electronic, or otherwise) in which such Protected Material is stored or retained.
4 In the alternative, at the discretion of the Receiving Party, the Receiving 5 Party may destroy some or all of the Protected Material instead of returning it –
6 unless such Protected Material is an original, in which case, the Receiving Party
7 must obtain the Producing Party’s written consent before destroying such original
8 Protected Material.
9 Whether the Protected Material is returned or destroyed, the Receiving Party 10 must submit a written certification to the Producing Party (and, if not the same
11 person or entity, to the Designating Party) within thirty (30) days of the
12 aforementioned written request by the Designating Party that specifically identifies
13 (by category, where appropriate) all the Protected Material that was returned or
14 destroyed and that affirms that the Receiving Party has not retained any copies,
15 abstracts, compilations, summaries or other forms of reproducing or capturing any
16 of the Protected material (in any medium, including but not limited to any
17 hardcopy, electronic or digital copy, or otherwise).
18 Notwithstanding this provision, Counsel are entitled to retain an archival 19 copy of all pleadings, motion papers, transcripts, legal memoranda filed with the 20 court in this action, as well as any correspondence or attorney work product
21 prepared by Counsel for the Receiving Party, even if such materials contain
22 Protected Material; however, any such archival copies that contain or constitute
23 Protected Material remain subject to this Protective Order as set forth in Section 2,
24 above. This court shall retain jurisdiction in the event that a Designating Party
25 elects to seek court sanctions for violation of the parties’ Stipulation and this
26 Order. 27
39 1 11. MISCELLANEOUS. 2 11.1. Right to Further Relief. Nothing in the parties’ Stipulation or this 3 Order abridges the right of any person to seek its modification by the Court in the
4 future.
5 11.2. Right to Assert Other Objections. By stipulating to the entry of this 6 Protective Order pursuant to the parties’ Stipulation, no Party waives any right it
7 otherwise would have to object to disclosing or producing any information or item
8 on any ground not addressed in the parties’ Stipulation or this Order. Similarly, no
9 Party waives any right to object on any ground to use in evidence any of the
10 material covered by the parties’ Stipulation and this Protective Order.
11 //
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40 1 ORDER ENTERING STIPULATED PROTECTIVE ORDER
2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that:
3 1. The above stipulated protective order is entered;
4 2. The parties are advised that pursuant to the Local Rules of the United States
5 District Court, Eastern District of California, any documents which are to be filed
6 under seal will require a written request which complies with Local Rule 141;
7 3. The party making a request to file documents under seal shall be required to show
8 good cause for documents attached to a nondispositive motion or compelling
9 reasons for documents attached to a dispositive motion. Pintos v. Pacific
10 Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009); and
11 4. If a party’s request to file Protected Material under seal is denied by the Court,
12 then the previously filed material shall be immediately accepted by the court and
13 become information in the public record and the information will be deemed filed
14 as of the date that the request to file the Protected Information under seal was
15 made.
16 IT IS SO ORDERED. 17
18 Dated: March 13, 2020 UNITED STATES MAGISTRATE JUDGE 19 20
26 27
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Cite This Page — Counsel Stack
London Wallace v. City of Fresno, Counsel Stack Legal Research, https://law.counselstack.com/opinion/london-wallace-v-city-of-fresno-caed-2020.