1 XAVIER BECERRA, State Bar No. 118517 Attorney General of California 2 JON S. ALLIN, State Bar No. 155069 Supervising Deputy Attorney General 3 DAVID E. KUCHINSKY, State Bar No. 292861 Deputy Attorney General 4 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 210-7666 6 Fax: (916) 324-5205 E-mail: David.Kuchinsky@doj.ca.gov 7 Attorneys for Defendants State of California, California Department of Corrections and 8 Rehabilitation, P. Covello, J. Lizarraga, D. Clays, M. Bentz, J. Link, and J. Rowe 9 JOHN L. BURRIS, ESQ., State Bar No. 69888 10 BEN NISENBAUM, ESQ., State Bar No. 69888 JAMES COOK, ESQ., State Bar No. 300212 11 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Center 12 7677 Oakport Street, Suite 1120 Oakland, CA 94621 13 Telephone: (510) 839-5200 Fax: (510) 839-3882 14 E-mail: John.Burris@johnburrislaw.com E-mail: Ben.Nisenbaum@johnburrislaw.com 15 E-mail: James.Cook@johnburrislaw.com Attorneys for Plaintiff Ramzi Mansoor 16 17 IN THE UNITED STATES DISTRICT COURT 18 FOR THE EASTERN DISTRICT OF CALIFORNIA 19 SACRAMENTO DIVISION 20 21 RAMZI MANSOOR, 2:20-cv-00609-WBS-KJN 22 Plaintiff, STIPULATED PROTECTIVE ORDER 23 v. Local Rule 141.1 24 Judge: Hon. Kendall J. Newman 25 STATE OF CA, et al., Action Filed: March 20, 2020 26 Defendants. 27 28 1 IT IS STIPULATED BY THE PARTIES, BY AND THROUGH THEIR 2 RESPECTIVE COUNSEL, AND ORDERED BY THE COURT AS FOLLOWS: 3 I. CONFIDENTIAL MATERIAL SUBJECT TO THIS PROTECTIVE ORDER 4 Plaintiff Mansoor, an inmate proceeding with counsel, claims that Defendants violated his 5 Eighth Amendment rights by failing to prevent other inmates from physically and sexually 6 assaulting him. Specifically, Plaintiff claims that Defendants ignored his request to be moved 7 from his cell in the two days before he was physically and sexually assaulted by his cell mate and 8 another inmate. 9 Plaintiff reported the alleged assault, and prison staff immediately launched a confidential 10 investigation into Plaintiff’s allegations, which included taking statements from witnesses and the 11 alleged participants in the assault, collecting and preserving physical evidence for further 12 analysis, and conducting medical evaluations of Plaintiff and the two inmates who were allegedly 13 involved. The results of the investigation were recorded in confidential reports and memoranda. 14 The reports and memoranda contain highly sensitive information including, among other things: 15 confidential and protected medical information for Plaintiff and the alleged participants in the 16 assault, the names and CDCR numbers of other CDCR inmates, identifying information of CDCR 17 staff members and/or contractors, confidential appeal records, forensic medical evidence reports, 18 and physical evidence examination reports. 19 II. NEED FOR PROTECTION OF CONFIDENTIAL MATERIAL 20 Defendants contend that the confidential reports and memoranda discussed above are 21 protected by the official information privilege under federal law and, but for this protective order, 22 should not be disclosed. Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir. 23 1975), aff’d, 426 U.S. 394 (1976); see also Kelly v. City of San Jose, 114 F.R.D. 653, 670 (N.D. 24 Cal. 1987) (privilege only applies if “disclosure subject to a carefully crafted protective order 25 would create a substantial risk of harm to significant governmental or privacy interests”).1
26 1 At this point in time, Defendants believe that disclosure of the confidential reports and memoranda subject to this protective order will not create a substantial risk of harm to 27 governmental or privacy interests. Nevertheless, Defendants reserve the right to reassert the official information privilege, and to withhold these materials or any other confidential document, 28 if changed circumstances suggest that a protective order will not adequately reduce these risks. 1 Defendants also contend that, absent this protective order, disclosure of the reports and 2 memoranda could jeopardize the safety and security of California prisons—in particular, it could 3 jeopardize the safety of Plaintiff and any other inmates mentioned in the reports and memoranda. 4 Cal. Code Regs. tit. 15, § 3321 (a)(1)(2)(5), 3450(d) (2019). Unprotected disclosure of the 5 reports and memoranda would also violate the privacy rights of third-party inmates, officers, and 6 non-inmates mentioned in the reports and memoranda Cal. Const. art. I, § 1; Cal. Civ. Code 7 § 1798.24. 8 III. NEED FOR A COURT ORDER 9 In this action, Plaintiff has propounded requests for the production of documents, which 10 would include the confidential reports and memoranda, documents containing confidential 11 medical information of other inmates, and identifying information of CDCR staff members and 12 contract employees, discussed above. A private agreement among the parties is not sufficient to 13 protect CDCR’s interests, and those of third parties, in maintaining the confidentiality of these 14 documents and materials. 15 IV. CONDITIONS FOR RELEASE OF CONFIDENTIAL DOCUMENTS 16 The Court orders the following to protect the confidentiality of the documents described 17 above: 18 1. The provisions of this Protective Order apply to the documents or materials 19 designated by Defendants as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES 20 ONLY.” The Court-issued Protective Order applies because the designated documents or 21 materials contain confidential information, which if shared, could jeopardize the safety and 22 security of CDCR institutions, its employees, inmates, informants and their families, or other 23 individuals. 24 a. The designation of “CONFIDENTIAL” is intended to encompass documents or 25 materials that Defendants, CDCR, or any nonparties in good faith believe contain information that 26 would not ordinarily be disclosed to other persons or entities because the information is 27 confidential under state or federal law or protected by privilege. 28 / / / 1 b. The designation of “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” is 2 intended to encompass documents or materials that Defendants, CDCR, or any nonparties in good 3 faith believe contain information that is particularly sensitive and therefore requires the utmost 4 level of protection. This designation will only be used when the material, if shared, could 5 jeopardize the safety and security of CDCR institutions, its employees, inmates, informants and 6 their families, the Defendants, or other individuals. 7 2. The designation of information or materials for purposes of this Protective Order shall 8 be made in the following manner by the party or nonparty seeking protection: 9 a. In the case of documents, exhibits, briefs filed with the Court, or other 10 materials, excluding depositions or other pretrial and trial testimony, the designating party shall 11 clearly designate the document as either “CONFIDENTIAL” or “CONFIDENTIAL — 12 ATTORNEYS EYES ONLY” on the first page and each page containing any confidential 13 information. If the document was produced in electronic format, the designating party shall 14 designate the confidential document by physically labeling the outside of any media storing the 15 electronic documents. 16 b.
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1 XAVIER BECERRA, State Bar No. 118517 Attorney General of California 2 JON S. ALLIN, State Bar No. 155069 Supervising Deputy Attorney General 3 DAVID E. KUCHINSKY, State Bar No. 292861 Deputy Attorney General 4 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 210-7666 6 Fax: (916) 324-5205 E-mail: David.Kuchinsky@doj.ca.gov 7 Attorneys for Defendants State of California, California Department of Corrections and 8 Rehabilitation, P. Covello, J. Lizarraga, D. Clays, M. Bentz, J. Link, and J. Rowe 9 JOHN L. BURRIS, ESQ., State Bar No. 69888 10 BEN NISENBAUM, ESQ., State Bar No. 69888 JAMES COOK, ESQ., State Bar No. 300212 11 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Center 12 7677 Oakport Street, Suite 1120 Oakland, CA 94621 13 Telephone: (510) 839-5200 Fax: (510) 839-3882 14 E-mail: John.Burris@johnburrislaw.com E-mail: Ben.Nisenbaum@johnburrislaw.com 15 E-mail: James.Cook@johnburrislaw.com Attorneys for Plaintiff Ramzi Mansoor 16 17 IN THE UNITED STATES DISTRICT COURT 18 FOR THE EASTERN DISTRICT OF CALIFORNIA 19 SACRAMENTO DIVISION 20 21 RAMZI MANSOOR, 2:20-cv-00609-WBS-KJN 22 Plaintiff, STIPULATED PROTECTIVE ORDER 23 v. Local Rule 141.1 24 Judge: Hon. Kendall J. Newman 25 STATE OF CA, et al., Action Filed: March 20, 2020 26 Defendants. 27 28 1 IT IS STIPULATED BY THE PARTIES, BY AND THROUGH THEIR 2 RESPECTIVE COUNSEL, AND ORDERED BY THE COURT AS FOLLOWS: 3 I. CONFIDENTIAL MATERIAL SUBJECT TO THIS PROTECTIVE ORDER 4 Plaintiff Mansoor, an inmate proceeding with counsel, claims that Defendants violated his 5 Eighth Amendment rights by failing to prevent other inmates from physically and sexually 6 assaulting him. Specifically, Plaintiff claims that Defendants ignored his request to be moved 7 from his cell in the two days before he was physically and sexually assaulted by his cell mate and 8 another inmate. 9 Plaintiff reported the alleged assault, and prison staff immediately launched a confidential 10 investigation into Plaintiff’s allegations, which included taking statements from witnesses and the 11 alleged participants in the assault, collecting and preserving physical evidence for further 12 analysis, and conducting medical evaluations of Plaintiff and the two inmates who were allegedly 13 involved. The results of the investigation were recorded in confidential reports and memoranda. 14 The reports and memoranda contain highly sensitive information including, among other things: 15 confidential and protected medical information for Plaintiff and the alleged participants in the 16 assault, the names and CDCR numbers of other CDCR inmates, identifying information of CDCR 17 staff members and/or contractors, confidential appeal records, forensic medical evidence reports, 18 and physical evidence examination reports. 19 II. NEED FOR PROTECTION OF CONFIDENTIAL MATERIAL 20 Defendants contend that the confidential reports and memoranda discussed above are 21 protected by the official information privilege under federal law and, but for this protective order, 22 should not be disclosed. Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir. 23 1975), aff’d, 426 U.S. 394 (1976); see also Kelly v. City of San Jose, 114 F.R.D. 653, 670 (N.D. 24 Cal. 1987) (privilege only applies if “disclosure subject to a carefully crafted protective order 25 would create a substantial risk of harm to significant governmental or privacy interests”).1
26 1 At this point in time, Defendants believe that disclosure of the confidential reports and memoranda subject to this protective order will not create a substantial risk of harm to 27 governmental or privacy interests. Nevertheless, Defendants reserve the right to reassert the official information privilege, and to withhold these materials or any other confidential document, 28 if changed circumstances suggest that a protective order will not adequately reduce these risks. 1 Defendants also contend that, absent this protective order, disclosure of the reports and 2 memoranda could jeopardize the safety and security of California prisons—in particular, it could 3 jeopardize the safety of Plaintiff and any other inmates mentioned in the reports and memoranda. 4 Cal. Code Regs. tit. 15, § 3321 (a)(1)(2)(5), 3450(d) (2019). Unprotected disclosure of the 5 reports and memoranda would also violate the privacy rights of third-party inmates, officers, and 6 non-inmates mentioned in the reports and memoranda Cal. Const. art. I, § 1; Cal. Civ. Code 7 § 1798.24. 8 III. NEED FOR A COURT ORDER 9 In this action, Plaintiff has propounded requests for the production of documents, which 10 would include the confidential reports and memoranda, documents containing confidential 11 medical information of other inmates, and identifying information of CDCR staff members and 12 contract employees, discussed above. A private agreement among the parties is not sufficient to 13 protect CDCR’s interests, and those of third parties, in maintaining the confidentiality of these 14 documents and materials. 15 IV. CONDITIONS FOR RELEASE OF CONFIDENTIAL DOCUMENTS 16 The Court orders the following to protect the confidentiality of the documents described 17 above: 18 1. The provisions of this Protective Order apply to the documents or materials 19 designated by Defendants as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES 20 ONLY.” The Court-issued Protective Order applies because the designated documents or 21 materials contain confidential information, which if shared, could jeopardize the safety and 22 security of CDCR institutions, its employees, inmates, informants and their families, or other 23 individuals. 24 a. The designation of “CONFIDENTIAL” is intended to encompass documents or 25 materials that Defendants, CDCR, or any nonparties in good faith believe contain information that 26 would not ordinarily be disclosed to other persons or entities because the information is 27 confidential under state or federal law or protected by privilege. 28 / / / 1 b. The designation of “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” is 2 intended to encompass documents or materials that Defendants, CDCR, or any nonparties in good 3 faith believe contain information that is particularly sensitive and therefore requires the utmost 4 level of protection. This designation will only be used when the material, if shared, could 5 jeopardize the safety and security of CDCR institutions, its employees, inmates, informants and 6 their families, the Defendants, or other individuals. 7 2. The designation of information or materials for purposes of this Protective Order shall 8 be made in the following manner by the party or nonparty seeking protection: 9 a. In the case of documents, exhibits, briefs filed with the Court, or other 10 materials, excluding depositions or other pretrial and trial testimony, the designating party shall 11 clearly designate the document as either “CONFIDENTIAL” or “CONFIDENTIAL — 12 ATTORNEYS EYES ONLY” on the first page and each page containing any confidential 13 information. If the document was produced in electronic format, the designating party shall 14 designate the confidential document by physically labeling the outside of any media storing the 15 electronic documents. 16 b. In the case of depositions or other pretrial testimony, the designating party 17 shall, through counsel, state on the record what portions of the transcript shall be designated 18 “CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS EYES ONLY.” The parties may 19 modify this procedure for any particular deposition or proceeding through agreement on the 20 record at such deposition or proceeding or otherwise by written stipulation. 21 c. The designation shall be made (i) at the time such materials are disclosed or as 22 soon as possible thereafter; or (ii) as soon thereafter as Defendants, CDCR, or any nonparties 23 become aware of an inadvertent production without a confidential designation. 24 3. Information or materials designated as “CONFIDENTIAL” or “CONFIDENTIAL — 25 ATTORNEYS EYES ONLY” under this Protective Order, or copies or extracts and compilations 26 therefrom, may be disclosed, described, characterized, or communicated only to the following 27 persons: 28 //// 1 a. Counsel of record for Plaintiffs in this action; 2 b. The attorney(s) of record for Defendants, CDCR, and any nonparties; 3 c. Paralegal, stenographic, clerical and secretarial personnel regularly employed 4 by counsel for Plaintiff, Defendants, CDCR, and any nonparties, who are necessary to aid counsel 5 for Plaintiff, Defendants, CDCR, and any nonparties in the litigation of this matter; 6 d. Court personnel and stenographic reporters engaged in such proceedings as are 7 incidental to the preparation for the trial in this action; and 8 e. Experts retained by counsel. 9 4. No documents or material designated as “CONFIDENTIAL — ATTORNEYS EYES 10 ONLY,” or any information contained in such documents or material, shall be shown to, 11 discussed with, or disclosed in any other manner to Plaintiff, any other inmate or former inmate, 12 any parolee or former parolee, or any other person who is not a current or former CDCR 13 employee, including any percipient witness, unless a written waiver expressly authorizing such 14 disclosure has been obtained from counsel for Defendants or CDCR. 15 5. No person who has access to any confidential material as set forth above shall copy 16 any portion of the confidential material, except as necessary to provide a copy of the confidential 17 material to any other authorized individual listed in paragraph 3, or to submit copies to the Court 18 under seal in connection with this matter. Any copies made for such purpose will be subject to 19 this order. A copy of this order must be provided to any individual authorized to access the 20 confidential material before providing that individual with access to the confidential material, 21 including experts or consultants retained by counsel. Counsel for the parties shall maintain a 22 record of all persons to whom access to the confidential material has been provided. The Court 23 and counsel for Defendants, CDCR, and any nonparties may request a copy of such record at any 24 time to determine compliance with the Court’s order. 25 6. Any argument, discussion, or examination of any witness privy to the confidential 26 material shall be done in camera and any record of such argument, discussion, or examination 27 shall be kept under seal, subject to the Court’s order to the contrary. Counsel for each party shall 28 1 only discuss in open court the summaries of confidential information as worded by Defendants, 2 CDCR, and any nonparties contained in any non-confidential record. 3 7. At the conclusion of the proceedings in this case, including any period for appeal or 4 collateral review, or upon other termination of this litigation, counsel for Plaintiff shall destroy all 5 confidential materials and all copies of such material in counsel’s possession or return such 6 materials to counsel for Defendants. When Plaintiff’s counsel returns or destroys the confidential 7 material, they shall provide Defendants’ counsel with a declaration stating that all confidential 8 material has been returned or destroyed 9 8. Nothing in this protective order is intended to prevent officials or employees of the 10 State of California, or other authorized government officials, from having access to confidential 11 material to which they would have access in the normal course of their official duties. 12 9. If a party believes that a producing party’s designation of information as 13 “CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” is not warranted, 14 the party shall first make a good faith effort to resolve such a dispute with opposing party. In the 15 event that the parties cannot resolve such a dispute, either party may challenge that designation by 16 making an application to the Court in accordance with the Magistrate Judge’s Standing Orders, 17 the Local Rules of the United States District Court for the Eastern District of California, and the 18 Federal Rules of Civil Procedure. 19 10. The provisions of this protective order are without prejudice to the right of any party: 20 (a) To apply to the Court for a further protective order relating to any confidential 21 material or relating to discovery in this litigation; 22 (b) To apply to the Court for an order removing the confidential material 23 designation from any documents; or 24 (c) To object to a discovery request. 25 11. All confidential material in this matter shall be used solely in connection with the 26 litigation of this matter, or any related appellate proceeding and collateral review, and not for any 27 other purpose, including any other litigation or proceeding. 28 2.420 VV IN bMVVULTICEIt LY PHUMUu Vira rPaye f vid
1 12. Any violation of this order may result in sanctions by this Court, including contempt, 2 | and may be punishable by state or federal law. 3 13. The provisions of this order shall remain in effect until further order of this Court. 4 | The Court will provide counsel for Defendants, CDCR, and any nonparties an opportunity to be 5 | heard should the Court find modification of this order necessary. 6 IT IS SO STIPULATED 7 8 | Dated: June 29, 2020 /s/ David E. Kuchinsk 9 DAVID E. KUCHINSKY Deputy Attorney General 10 Attorney for Defendants State of California, California Department of Corrections and 11 Rehabilitation, P. Covello, J. Lizarraga, D D. Clays, M. Bentz, J. Link, and J. Rowe
13 14 15 16 | Dated: June 29, 2020 /s/ James Cook JAMES COOK 17 Attorney for Plaintiff Ramzi Mansour 18 19 IT IS SO ORDERED 20 21 | Dated: July 6, 2020 22 609 Ad 23 KENDALL I. Win UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28