1 Eugene P. Ramirez (State Bar No. 134865) cugene-ramirez(@manningkass-com Andrea K. Kornblau (State Bar No. 291613) andrea.kornblau@manningkass.com Marisa Zarate (State Bar No. 140286) marisa.zarateQmanningkass.com NOTE: CHANGES MADE BY THE COURT MANNING & Kass ELLROD, RAMIREZ, TRESTER LLP 801 S. Figueroa St, 15" Floor Los Angeles, California 90017-3012 Telephone: Gb) 624-6900 Facsimile: (213) 624-6999 Attorneys for Defendant, CITY OF HEMET 11 CENTRAL DISTRICT OF CALIFORNIA ¥~¥ 1 S 13 || RYAN JAMES GUE, Case No. 5:23-cv-00320-JAK-JPR > [Hon. John A. Kronstadt, District = 14 Plaintiff, Judge; Hon. Jean P. Rosenbluth] < = 15 V. [DISCOVERY MATTER] CITY OF HEMET; JOHN DOE #1, individually and as Police Officer for STIPULATION FOR ENTRY OF the Hemet Police Department; and PROTECTIVE ORDER RE DOES 2-10, inclusive, CONFIDENTIAL DOCUMENTS Defendants. [Proposed Order filed concurrently erewith] oo Complaint Filed: 02/27/2023 TO THE HONORABLE COURT: By and through their counsel of record in this action, plaintiff RYAN JAMES GUE (hereinafter referred to as “Plaintiff’), and defendant CITY OF HEMET (hereinafter referred to as ““Defendant’’) — the parties — hereby stipulate for the purpose of jointly requesting that the honorable Court enter a protective order re confidential documents in this matter [and pursuant to Fed. R. Civ. P. 5.2, 7, and 26, as well as U.S. Dist. Ct., C.D. Cal., Local Rules 7-1 and 52-4.1; and any applicable Orders of
1 the Court] — as follows: 2 1. INTRODUCTION. 4 1.1. PURPOSES AND LIMITATIONS. 5 Discovery in this action may involve production of confidential, proprietary, or 6 private information for which special protection from public disclosure and from use 7 for any purpose other than prosecuting this litigation may be warranted. Accordingly, 8 the Parties hereby stipulate to and petition the Court to enter the following Stipulated 9 Protective Order. The Parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it 11 || affords from public disclosure and use extends only to the limited information or items x 12 that are entitled to confidential treatment under the applicable legal principles. The Parties further acknowledge that this Order does not entitle them to file Confidential S$ 14 || Information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a Party seeks permission from the Court to file material under seal. 1.2 GOOD CAUSE STATEMENT Defendant contends that there is good cause and a particularized need for a protective order to preserve the interests of confidentiality and privacy in peace officer personnel file records and associated investigative or confidential records for the following reasons. First, Defendant contends that peace officers have a federal privilege of privacy in their personnel file records: a reasonable expectation of privacy therein that is underscored, specified, and arguably heightened by the Pitchess protective procedure of California law. See Sanchez vy. Santa Ana Police Dept., 936 F.2d 1027, 1033-1034 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 14665, *2-3, 12- 13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law applies to privilege based discovery disputes involving federal claims,” the “state privilege law which 1s
1 /consistent with its federal equivalent significantly assists in applying [federal] privilege law to discovery disputes”); Soto v. City of Concord, 162 F.R.D. 603, 613 /n. 4, 616 (N.D. Cal. 1995) (peace officers have constitutionally-based “privacy rights [that] are not inconsequential” in their police personnel records); cf. Cal. Penal Code 11§§ 832.7, 832.8; Cal. Evid. Code §§ 1040-1047. Defendant further contends that uncontrolled disclosure of such personnel file information can threaten the safety of non-party witnesses, officers, and their families/associates. 8 Second, Defendant contends that municipalities and law enforcement agencies have federal deliberative-executive process privilege, federal official information privilege, federal law enforcement privilege, and federal attorney-client privilege 11 || (and/or attorney work product protection) interests in the personnel files of their peace x 12 || officers — particularly as to those portions of peace officer personnel files that contain critical self-analysis, internal deliberation/decision-making or evaluation/analysis, or S$ 14 || communications for the purposes of obtaining or rendering legal advice or analysis — potentially including but not limited to evaluative/analytical portions of Internal Affairs type records or reports, evaluative/analytical portions of supervisory records or reports, and/or reports prepared at the direction of counsel, or for the purpose of obtaining or rendering legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa Audubon Soc’y v. United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir. 1997); Soto, 162 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654, 668-671 (N.D. Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998); Hamstreet v. Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co. v. United States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendant further contends that such personnel file records are restricted from disclosure by the public entity’s custodian of records pursuant to applicable California law and that uncontrolled release is likely to result in needless intrusion of officer privacy; impairment in the collection of third-party witness information and statements and related legitimate law enforcement investigations/interests; and a chilling of
1 }open and honest discussion regarding and/or investigation into alleged 2 misconduct that can erode a public entity’s ability to identify and/or implement 3 any remedial measures that may be required. 4 Third, Defendant contends that, since peace officers do not have the same rights 5 as other private citizens to avoid giving compelled statements, it is contrary to the 6 fundamental principles of fairness to permit uncontrolled release of officers’ 7 compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 822, 8 828-830 (1985); cf. U.S. Const., amend V. 9 Accordingly, Defendant contends that, without a protective order preventing 10 such, production of confidential records in the case can and will likely substantially 11 ||impair and harm defendant public entity’s interests in candid self-critical analysis, x 12 || frank internal deliberations, obtaining candid information from witnesses, preserving the safety of witnesses, preserving the safety of peace officers and peace officers’ S$ 14||families and associates, protecting the privacy officers of peace officers, and preventing pending investigations from being detrimentally undermined by publication of private, sensitive, or confidential information — as can and often does result in litigation. Plaintiffs do not agree with and do not stipulate to Defendant's contentions herein above, and nothing in this Stipulation or its associated Order shall resolve the parties’ disagreement, or bind them, concerning the legal statements and claimed privileges set forth above. However, plaintiffs agree that there is Good Cause for a Protective Order so as to preserve the respective interests of the parties without the need to further burden the Court with such issues. Specifically, the parties jointly contend that, absent this Stipulation and its associated Protective Order, the parties' respective privilege interests may be impaired or harmed, and that this Stipulation and its associated Protective Order may avoid such harm by permitting the parties to facilitate discovery with reduced risk that privileged and/or sensitive/confidential information will
1 become matters of public record. 2 The parties jointly contend that there is typically a particularized need for 3 protection as to any medical or psychotherapeutic records and autopsy photographs, 4 because of the privacy interests at stake therein. Because of these sensitive interests, 5 {a Court Order should address these documents rather than a private agreement 6 between the parties. 7 The parties therefore stipulate that there is Good Cause for, and hereby jointly 8 request that the honorable Court issue/enter, a Protective Order re confidential 9 documents consistent with the terms and provisions of this Stipulation. However, the entry of a Protective Order by the Court pursuant to this Stipulation shall not be 11 ||construed as any ruling by the Court on the aforementioned legal statements or x 12 || privilege claims in this section (§ 1), nor shall this section be construed as part of any such Court Order. = 14]2. DEFINITIONS. 2.1. Action: this pending federal lawsuit. 2.2 Challenging Party: a Party or Nonparty that challenges the designation of information or items under this Order. 2.3. “Confidential” Information or Items: information (regardless of how generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c) and as specified above in the Good Cause Statement. 2.4 Counsel: Outside Counsel and House Counsel (as well as their support staffs). 2.5 Designating Party: a Party or Nonparty that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.6 Disclosure or Discovery Material: all items or information, regardless of medium or manner in which it is generated, stored, or maintained (including,
1 among other things, testimony, transcripts, and tangible things), that are produced or 2 generated in disclosures or responses to discovery in this matter. 3 2.7 Expert: a person with specialized knowledge or experience in a matter 4 pertinent to the litigation who has been retained by a Party or its counsel to serve as 5 an expert witness or as a consultant in this action. 6 2.8 House Counsel: attorneys who are employees of a Party to this Action. 7 House Counsel does not include Outside Counsel of Record or any other outside 8 counsel. 9 2.9 Nonparty: any natural person, partnership, corporation, association, or 10 other legal entity not named as a Party to this action. 11 2.10 Outside Counsel of Record: attorneys who are not employees of a Party x 12 || to this Action but who are retained to represent or advise a Party and have appeared in this Action on behalf of that Party or are affiliated with a law firm that has appeared S$ 14 || on behalf of that Party, including support staff. 2.11 Party: any Party to this Action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.12 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this Action. 2.13 Professional Vendors: persons or entities that provide litigation support services (for example, photocopying; videotaping; translating; preparing exhibits or demonstrations; and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.
□□□ SCOPE 2 The protections conferred by this Stipulation Order cover not only Protected 3 Material (as defined above) but also any information copied or extracted from Protected Material; all copies, excerpts, summaries, or compilations of Protected 5 Material; and any testimony, conversations, or presentations by Parties or their 6 Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of the 8 trial judge. This Order does not govern the use of Protected Material at trial. 94. DURATION 10 Even after final disposition of this litigation, the confidentiality obligations 11 |}imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition is the later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; or (2) final judgment after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. 5. DESIGNATION OF PROTECTED MATERIAL 5.1. Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent practicable, a Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify so that other portions of the material, documents, items or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. Indiscriminate or routine designations are prohibited. Designations that are shown to be clearly unjustified, or that have been made for an improper purpose (for example, to unnecessarily encumber the case-development process or to impose unnecessary expenses and burdens on other parties) may expose the Designating Party
1 to sanctions. 2 If it comes to a Designating Party’s attention that information or items that it 3 designated for protection do not qualify for that level of protection, the Designating 4 Party must promptly notify all other parties that it is withdrawing the inapplicable 5 designation. 6 5.2. Except as otherwise provided in this Order, Disclosure or Discovery of 7 material that qualifies for protection under this Order must be clearly so designated 8 before the material is disclosed or produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (for example, paper or electronic 11 ||documents but excluding transcripts of depositions or other pretrial or trial x 12 || proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each page that contains Protected Material. If only a portion or portions of the material on S$ 14 ||a page qualifies for protection, the Producing Party should to the extent practicable clearly identify the protected portion(s) (for example, by making appropriate markings in the margins). A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 1t wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e for example, by making appropriate markings in the margins).
1 (b) for testimony given in depositions, the Designating Party must identify 2 the Disclosure or Discovery Material that is protected on the record, before the close 3 of the deposition. 4 (c) for information produced in some form other than documentary and for 5 any other tangible items, the Producing Party must affix in a prominent place on the 6 exterior of the container or containers in which the information or item is stored the 7 \|legend “CONFIDENTIAL.” If only portions of the information or item warrant 8 protection, the Producing Party, to the extent practicable, shall identify the protected 9 portions. 10 5.3. If timely corrected, an inadvertent failure to designate qualified 11 || information or items does not, standing alone, waive the Designating Party’s right to x 12||secure protection under this Order for that material. On timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the Ss 14 || material is treated in accordance with this Order. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS. 6.1. Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court's Scheduling Order. 6.2. The Challenging Party must initiate a dispute resolution process (and if necessary, file a discovery motion) under Local Rule 37. 6.3. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper purpose (for example, to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality designation, all parties must continue to afford the material in question the level of protection to which it is entitled under the Producing Party’s designation until the Court rules on the challenge. 7. ACCESS TO AND USE OF PROTECTED MATERIAL. 7.1. A Receiving Party may use Protected Material that is disclosed or
1 produced by another Party or by a Nonparty in connection with this Action only for 2 prosecuting, defending, or attempting to settle this Action. Such Protected Material 3 may be disclosed only to the categories of people and under the conditions described 4 /in this Order. When the Action has been terminated, a Receiving Party must comply 5 with the provisions of section 13, below (FINAL DISPOSITION). 6 Protected Material must be stored and maintained by a Receiving Party at a 7 location and in a secure manner that ensures that access is limited to the people 8 authorized under this Order. 9 7.2. Unless otherwise ordered by the Court or permitted in writing by the 10 Designating Party, a Receiving Party may disclose any information or item designated /CONFIDENTIAL only to: x 12 (a) the Receiving Party’s Outside Counsel of record in this action, as well }as employees of that Outside Counsel of Record to whom it is reasonably necessary Ss 14 || to disclose the information for this Action; (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (d) the Court and its personnel; (ec) court reporters and their staff; (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses and attorneys for witnesses to whom disclosure is reasonably necessary, provided that the deposing party requests that the
1 witness sign the form attached as Exhibit A hereto and the witnesses will not be 2 permitted to keep any confidential information unless they sign the form, unless 3 otherwise agreed by the Designating Party or ordered by the Court. Pages of 4 transcribed deposition testimony or exhibits to depositions that reveal Protected 5 Material must have a confidential designation affixed by the court reporter and may 6 not be disclosed to anyone except as permitted under this Order; and 7 (3) any mediator or settlement officer, and their supporting personnel, 8 mutually agreed on by any of the Parties engaged in settlement discussions or 9 appointed by the Court. 10 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN il OTHER LITIGATION. x 12 If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order unless prohibited by law; (b) promptly notify in writing the party who caused the subpoena or order to } issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification must include a copy of this Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL” before a determination on the protective-order request by the relevant court unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burden and expense of seeking protection in that court of its Confidential Material, and nothing in these provisions should be construed as
1 authorizing or encouraging a Receiving Party in this action to disobey a lawful 2 directive from another court. 31/9. A NONPARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 5 (a) The terms of this Order are applicable to information produced by a 6 Nonparty in this Action and designated as “CONFIDENTIAL.” Such information is 7 protected by the remedies and relief provided by this Order. Nothing in these 8 provisions should be construed as prohibiting a Nonparty from seeking additional 9 protections. 10 (b) In the event that a Party is required by a valid discovery request to produce a Nonparty’s Confidential Information in its possession and the Party is x 12 || subject to an agreement with the Nonparty not to produce the Nonparty’s Confidential Information, then the Party must l. Promptly notify in writing the Requesting Party and the Nonparty that some or all of the information requested is subject to a confidentiality agreement with a Nonparty; 2. Promptly provide the Nonparty with a copy of this Order, the relevant discovery request(s), and a reasonably specific description of the information requested; and 3. Make the information requested available for inspection by the Nonparty, if requested. (c) If the Nonparty fails to seek a protective order within 21 days of receiving the notice and accompanying information, the Receiving Party may produce the Nonparty’s Confidential Information responsive to the discovery request. If the Nonparty timely seeks a protective order, the Receiving Party must not produce any information in its possession or control that is subject to the confidentiality agreement with the Nonparty before a ruling on the protective-order request. Absent a court order to the contrary, the Nonparty must bear the burden and expense of seeking protection
1 of its Protected Material. 2 )}10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL. 3 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 4 Protected Material to any person or in any circumstance not authorized under this 5 Order, the Receiving Party must immediately notify the Designating Party in writing 6 of the unauthorized disclosures, use its best efforts to retrieve all copies of the 7 Protected Material, inform the person or persons to whom unauthorized disclosures 8 were made of all the terms of this Order; and ask that person or people to execute the 9 “Acknowledgement and Agreement to Be Bound” that is attached hereto as Exhibit 1O||A. 11)}11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE —_12||PROTECTED MATERIAL. When a Producing Party gives notice to Receiving Parties that certain S$ 14 || inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). }12. MISCELLANEOUS. 12.1. Nothing in this Order abridges the right of any person to seek its modification by the Court. 12.2. By stipulating to the entry of this Order, no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Order. Similarly, no Party waives any right to object on any ground to use in evidence any of the material covered by this Order. }13. FINAL DISPOSITION. After the final disposition of this Action, as defined in paragraph 4, within 60 days of a written request by the Designating Party, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
1 ]summaries, and any other format reproducing or capturing any of the Protected 2 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 3 must submit a written certification to the Producing Party (and, if not the same person 4 or entity, to the Designating Party) by the 60-day deadline that identifies (by category, 5 when appropriate) all the Protected Material that was returned or destroyed and 6 affirms that the Receiving Party has not retained any copies, abstracts, compilations, 7 summaries, or any other format reproducing or capturing any of the Protected 8 Material. Notwithstanding this provision, Counsel are entitled to retain an archival 9 copy of all pleadings; motion papers; trial, deposition, and hearing transcripts; legal 10 memoranda; correspondence; deposition and trial exhibits; expert reports; attorney 11 || work product; and consultant and expert work product even if such materials contain x 12 || Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Order as set forth in Section 4 (DURATION).
= 15|}14. SANCTIONS Any willful violation of this Order may be punished by civil or criminal contempt, financial or evidentiary sanctions, reference to disciplinary authorities, or other appropriate action at the discretion of the Court. } // // // // // // // // // //
2 DATED: May 1, 2024 MANNING & KASS 4 ELLROD, RAMIREZ, TRESTER LLP 5 By: __ Andrea K. Kornblau 6 Eugene P. Ramirez Marisa Zarate 7 Andrea K. Kornblau 8 Attorneys for Defendant, CITY OF HEMET 9 10
Qi < < 1D DATED: May 1, 2024 JASS LAW © 13 Ss 14 By: Jeremy D. Jass < Jeremy D. Jass = 15 Attorney for Plaintiff, RYAN JAMES GUE 16 17 18 DATED: 5/3/2024 UNITED STATES DISTRICT COURT, 19 CENTRAL DISTRICT OF CALIFORNIA 20 21 fe- hrohater
HON. JEAN P. ROSENBLUTH 23 UNITED STATES MAGISTRATE JUDC 24 25 26 27 28
2 Pursuant to Local Rule 5-4.3.4, I hereby certify that the content of this 3 document is acceptable to Counsel for all Parties and that I have obtained Parties’ 4 counsel’s authorization to affix their electronic signatures to this document. 5 6 Dated: May 1, 2024 /s/ Jeremy D. Jass 7 Jeremy D. Jass 9 10 < 11 — 12 13
Ss 16
18 19 20 21 22 23 24 25 26 27 28
3 4 I, [full name], of 5 [full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the U.S. District Court 7 for the Central District of California on [date] in the case of [insert 8 || case name and number]. | agree to comply with and to be bound by all terms of 9 this Stipulated Protective Order, and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment, including contempt. I 11 || solemnly promise that I will not disclose in any manner any information or item that x 12 || is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the U.S. District Court for the Central District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint [full name] of [full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. Date: City and State where signed: Printed name: Signature: