the City of Austin v. Donald Baker
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Opinion
ACCEPTED 03-16-00607-CV 12662619 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/13/2016 9:46:35 AM JEFFREY D. KYLE CLERK No. 03-16-00607-CV
FILED IN 3rd COURT OF APPEALS In the Third Court of Appeals AUSTIN, TEXAS Austin, Texas 9/13/2016 9:46:35 AM JEFFREY D. KYLE Clerk
AARON BISHOP, ALBERT CORTEZ, JR., AURELIO MARTINEZ, TOMAS MONTEZ, RICARDO PELAYO, RODERICK WESLEY, RONALD BOOKER, ERIC DELOSSANTOS, JOVITA LOPEZ, NORRIS MCKENZIE, OSCAR RAMIREZ, MONROE YARBROUGH, RICHARD BURNS, HENRY MORENO, JESSE PRADO, ET AL. Plaintiffs – Appellants
v.
THE CITY OF AUSTIN Defendant - Appellee
Appeal from Cause No. D-1-GN-14-002459 345th Judicial District Court of Travis County, Texas
JOINT MOTION TO LIFT STAY FOR ENTRY OF CONFIDENTIALITY ORDERS AND TO PERMIT SUPPEMENTATION OF THE CLERK’S RECORD AS TO CERTAIN PLEADINGS
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellant/Cross-Appellee 1, City of Austin; Appellee, Donald Baker; and 0F
Cross-Appellants, Bishop, Booker, Burns, Cortez, De los Santos, Lopez, Martinez,
1 The City of Austin is the appellee in a related appeal from the same underlying lawsuit, Third Court of Appeals No. 03-16-00580-CV, which appeal was filed by all plaintiffs with the exception of Donald Baker. McKenzie, Montez, Moreno, Pelayo, Prado, Ramirez, Stanesic, Vanzura, Wesley
and Yarbrough (jointly referred to as “the Parties”), file this Motion to Lift Stay for
Entry of Confidentiality Orders and to Permit Supplementation of the Clerk’s
Record as follows:
I. PROCEDURAL BACKGROUND
A. Automatic Stay of Trial Court Proceedings
Pursuant to sections 51.014 and 101.001(3)(B), Texas Civil Practices &
Remedies Code, Plaintiffs’ Notice of Appeal in Third Court of Appeals No. 03-16-
00580-CV (filed August 30, 2016), which arises from the trial court’s orders
granting the City’s pleas to the jurisdiction in regard to seventeen of the eighteen
plaintiffs in the underlying lawsuit, initiated an automatic stay to all proceedings in
the trial court. See TEX.CIV.PRAC.&REM. CODE §§51.014(a)(8) and (b). This
appeal is an accelerated, interlocutory appeal. Id; TEX.R.APP.P. 28.1(a).
B. September 8th Notice of Appeal by the City related to Baker Order
On September 8, 2016, the City of Austin filed its Notice of Appeal in
regard to the August 22, 2016 “Order Denying City of Austin’s Plea to the
Jurisdiction & Motion for Summary Judgment as to Plaintiff, Donald Baker”,
which is the basis for this appeal.
II. PENDING CONFIDENTIALITY ORDERS IN THE TRIAL COURT
At the time Plaintiffs’/Appellants filed their Notice of Appeal in Third Court
2 of Appeals No. 03-16-00607-CV, counsel for the Parties were in the process of
finalizing proposed orders for the state district court judge who presided over a
hearing on the Parties’ “Joint Motion for Temporary Sealing of Exhibits Pursuant
to Texas Rule of Civil procedure 76a”, 345th Judicial District Court Judge, Stephen
Yelenosky. The pending orders relate to confidential records and information
designated by one or more of the Parties or a witness as confidential, submitted to
the District Clerk under seal by the City of Austin, or filed by Plaintiffs with a
heading in red ink, “Contains Sensitive Data”, “Contains Sensitive Information”,
or similar heading to indicate confidentiality of Austin Police Department Internal
Affairs Division records, and which are confidential by state statute or other law.
Nine confidentiality orders were signed by Judge Yelenosky, between August 9,
2016 and August 22, 2016, and thus, prior to the Notice of Appeal. The parties
anticipate providing an estimated 12 additional proposed confidentiality orders to
Judge Yelenosky for signature in regard to Judge Yelenosky’s rulings. Attached as
Exhibit “1” to this Motion is a true and correct copy of the Parties’ Joint Motion
for Temporary Sealing of Exhibits and Exhibits “A”, “B”, and “C” to that motion.
Attached as Exhibit “2” to this Motion is a letter to Judge Yelenosky that contains
a list of confidential records at issue.
Following is a list of the exhibits to specified pleadings and portions of
pleadings that have been identified by the Parties as containing confidential
3 information pursuant to law, and in regard to which the Parties are seeking
additional trial court orders sealing the confidential records/information:
1. Exhibit “5” of Exhibit “A-Aff of City of Austin’s Plea to the
Jurisdiction & Motion for Traditional and No Evidence Summary Judgment Re:
Jesse Prado (9/30/15);
2. Paragraphs 19-20 (contained on pages 7-8) of Plaintiff Donald
Baker’s Response to Defendant City of Austin’s Plea to the Jurisdiction and
Motion for Traditional and No-Evidence Summary Judgment.
3. Affidavit of Donald Baker, which bears the denotation, “CONTAINS
SENSITIVE DATA” 2 1F
4. Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio
Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Response to
Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and
No-Evidence Summary Judgment (3/29/16)
5. Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio
2 Baker’s affidavit includes confidential information related to Internal Affairs investigations about which he complains. His affidavit is attached to numerous responses and amended responses to pleas to the jurisdiction (PTJ) and motions for summary judgment (MSJ). which was submitted by Plaintiffs as an exhibit to numerous responses and amended responses to pleas to the jurisdiction (PTJ)/motions for summary judgment(MSJ).: (a) Exhibit “C” to Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment; (b) Exhibit “D” to Vanzura’s Response to the City’s PTJ/MSJ (c) Exhibit “E” to Burns’ Amended Response (and response) to the City’s PTJ/MSJ (d) Exhibit “E” to Prado’s Amended Response (and response) to the City’s PTJ/MSJ (e) Exhibit “E” to Amended Response (and response) to the City’s PTJ/MSJ re Lt/Sgt/Lopez 4 Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Response to
Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and
6. Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio
Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended
Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for
Traditional and No-Evidence Summary Judgment (4/11/16)
7. Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio
Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended
Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for
8. Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez,
Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s
Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for
Traditional and No-Evidence Summary Judgment (3/29/16)
9. Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez,
Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s
Amended Response to Defendant City of Austin’s Plea to the Jurisdiction and
Motion for Traditional and No-Evidence Summary Judgment (4/11/16)
10. Exhibit “D” to Plaintiffs’ Response to Defendant City of Austin’s
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ACCEPTED 03-16-00607-CV 12662619 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/13/2016 9:46:35 AM JEFFREY D. KYLE CLERK No. 03-16-00607-CV
FILED IN 3rd COURT OF APPEALS In the Third Court of Appeals AUSTIN, TEXAS Austin, Texas 9/13/2016 9:46:35 AM JEFFREY D. KYLE Clerk
AARON BISHOP, ALBERT CORTEZ, JR., AURELIO MARTINEZ, TOMAS MONTEZ, RICARDO PELAYO, RODERICK WESLEY, RONALD BOOKER, ERIC DELOSSANTOS, JOVITA LOPEZ, NORRIS MCKENZIE, OSCAR RAMIREZ, MONROE YARBROUGH, RICHARD BURNS, HENRY MORENO, JESSE PRADO, ET AL. Plaintiffs – Appellants
v.
THE CITY OF AUSTIN Defendant - Appellee
Appeal from Cause No. D-1-GN-14-002459 345th Judicial District Court of Travis County, Texas
JOINT MOTION TO LIFT STAY FOR ENTRY OF CONFIDENTIALITY ORDERS AND TO PERMIT SUPPEMENTATION OF THE CLERK’S RECORD AS TO CERTAIN PLEADINGS
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellant/Cross-Appellee 1, City of Austin; Appellee, Donald Baker; and 0F
Cross-Appellants, Bishop, Booker, Burns, Cortez, De los Santos, Lopez, Martinez,
1 The City of Austin is the appellee in a related appeal from the same underlying lawsuit, Third Court of Appeals No. 03-16-00580-CV, which appeal was filed by all plaintiffs with the exception of Donald Baker. McKenzie, Montez, Moreno, Pelayo, Prado, Ramirez, Stanesic, Vanzura, Wesley
and Yarbrough (jointly referred to as “the Parties”), file this Motion to Lift Stay for
Entry of Confidentiality Orders and to Permit Supplementation of the Clerk’s
Record as follows:
I. PROCEDURAL BACKGROUND
A. Automatic Stay of Trial Court Proceedings
Pursuant to sections 51.014 and 101.001(3)(B), Texas Civil Practices &
Remedies Code, Plaintiffs’ Notice of Appeal in Third Court of Appeals No. 03-16-
00580-CV (filed August 30, 2016), which arises from the trial court’s orders
granting the City’s pleas to the jurisdiction in regard to seventeen of the eighteen
plaintiffs in the underlying lawsuit, initiated an automatic stay to all proceedings in
the trial court. See TEX.CIV.PRAC.&REM. CODE §§51.014(a)(8) and (b). This
appeal is an accelerated, interlocutory appeal. Id; TEX.R.APP.P. 28.1(a).
B. September 8th Notice of Appeal by the City related to Baker Order
On September 8, 2016, the City of Austin filed its Notice of Appeal in
regard to the August 22, 2016 “Order Denying City of Austin’s Plea to the
Jurisdiction & Motion for Summary Judgment as to Plaintiff, Donald Baker”,
which is the basis for this appeal.
II. PENDING CONFIDENTIALITY ORDERS IN THE TRIAL COURT
At the time Plaintiffs’/Appellants filed their Notice of Appeal in Third Court
2 of Appeals No. 03-16-00607-CV, counsel for the Parties were in the process of
finalizing proposed orders for the state district court judge who presided over a
hearing on the Parties’ “Joint Motion for Temporary Sealing of Exhibits Pursuant
to Texas Rule of Civil procedure 76a”, 345th Judicial District Court Judge, Stephen
Yelenosky. The pending orders relate to confidential records and information
designated by one or more of the Parties or a witness as confidential, submitted to
the District Clerk under seal by the City of Austin, or filed by Plaintiffs with a
heading in red ink, “Contains Sensitive Data”, “Contains Sensitive Information”,
or similar heading to indicate confidentiality of Austin Police Department Internal
Affairs Division records, and which are confidential by state statute or other law.
Nine confidentiality orders were signed by Judge Yelenosky, between August 9,
2016 and August 22, 2016, and thus, prior to the Notice of Appeal. The parties
anticipate providing an estimated 12 additional proposed confidentiality orders to
Judge Yelenosky for signature in regard to Judge Yelenosky’s rulings. Attached as
Exhibit “1” to this Motion is a true and correct copy of the Parties’ Joint Motion
for Temporary Sealing of Exhibits and Exhibits “A”, “B”, and “C” to that motion.
Attached as Exhibit “2” to this Motion is a letter to Judge Yelenosky that contains
a list of confidential records at issue.
Following is a list of the exhibits to specified pleadings and portions of
pleadings that have been identified by the Parties as containing confidential
3 information pursuant to law, and in regard to which the Parties are seeking
additional trial court orders sealing the confidential records/information:
1. Exhibit “5” of Exhibit “A-Aff of City of Austin’s Plea to the
Jurisdiction & Motion for Traditional and No Evidence Summary Judgment Re:
Jesse Prado (9/30/15);
2. Paragraphs 19-20 (contained on pages 7-8) of Plaintiff Donald
Baker’s Response to Defendant City of Austin’s Plea to the Jurisdiction and
Motion for Traditional and No-Evidence Summary Judgment.
3. Affidavit of Donald Baker, which bears the denotation, “CONTAINS
SENSITIVE DATA” 2 1F
4. Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio
Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Response to
Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and
No-Evidence Summary Judgment (3/29/16)
5. Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio
2 Baker’s affidavit includes confidential information related to Internal Affairs investigations about which he complains. His affidavit is attached to numerous responses and amended responses to pleas to the jurisdiction (PTJ) and motions for summary judgment (MSJ). which was submitted by Plaintiffs as an exhibit to numerous responses and amended responses to pleas to the jurisdiction (PTJ)/motions for summary judgment(MSJ).: (a) Exhibit “C” to Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment; (b) Exhibit “D” to Vanzura’s Response to the City’s PTJ/MSJ (c) Exhibit “E” to Burns’ Amended Response (and response) to the City’s PTJ/MSJ (d) Exhibit “E” to Prado’s Amended Response (and response) to the City’s PTJ/MSJ (e) Exhibit “E” to Amended Response (and response) to the City’s PTJ/MSJ re Lt/Sgt/Lopez 4 Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Response to
Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and
6. Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio
Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended
Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for
Traditional and No-Evidence Summary Judgment (4/11/16)
7. Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio
Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended
Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for
8. Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez,
Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s
Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for
Traditional and No-Evidence Summary Judgment (3/29/16)
9. Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez,
Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s
Amended Response to Defendant City of Austin’s Plea to the Jurisdiction and
Motion for Traditional and No-Evidence Summary Judgment (4/11/16)
10. Exhibit “D” to Plaintiffs’ Response to Defendant City of Austin’s
5 Late-Filed Exhibits AAA-EEE” (6/1/16), and designated as “*** Confidential
Portion ***” and “CONTAINS SENSITIVE DATA” (the second transcript, pp. 6 -
62), which was inadvertently submitted by Plaintiffs.
III. RELIEF REQUESTED
First, the Parties request that this Court enter an order lifting the automatic stay of
proceedings in the trial court for the limited purpose of finalizing trial court orders
related to the records listed as items 1 through 10 in the preceding subsection I(C)
of this Motion. See TEX.CIV.PRAC.&REM. CODE §§51.014(a)(8) and (b).
Secondly, the Parties request that the Court enter an order directing the
District Clerk to NOT include in the initial Clerk’s Record the following pleadings,
which contain, in part, information or records that are confidential by law.
1. City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No
Evidence Summary Judgment Re: Jesse Prado (9/30/15);
2. Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea to
the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment
(3/10/16);
3. Plaintiff Lester Vanzura’s Response to Defendant City of Austin’s Plea
to the Jurisdiction and Motion for Traditional No-Evidence Summary Judgment
(4/6/16);
4. Plaintiff Richard Burns’ Response to Defendant City of Austin’s Plea to
6 the Jurisdiction and Motion for Traditional No-Evidence Summary Judgment
Response to the City’s PTJ/MSJ (4/1/16);
5. Plaintiff Richard Burns’ Amended Response to Defendant City of
Austin’s Plea to the Jurisdiction and Motion for Traditional No-Evidence
Summary Judgment Response to the City’s PTJ/MSJ (4/11/16);
6. Plaintiff Jesse Prado’s Response to Defendant City of Austin’s Plea to
the Jurisdiction and Motion for Traditional No-Evidence Summary Judgment
(3/30/16);
7. Plaintiff Jesse Prado’s Amended Response to Defendant City of Austin’s
Plea to the Jurisdiction and Motion for Traditional No-Evidence Summary
Judgment the City’s PTJ/MSJ (4/11/16);
8. Plaintiffs Ronald Booker, Eric De los Santos, Jovita Lopez, Norris
McKenzie, Oscar Ramirez and Monroe Yarbrough, Jr.’s Response to Defendant
City of Austin’s Plea to the Jurisdiction and Motion for Traditional No-Evidence
Summary Judgment (3/23/16)
9. Plaintiffs Ronald Booker, Eric De los Santos, Jovita Lopez, Norris
McKenzie, Oscar Ramirez and Monroe Yarbrough, Jr.’s Amended Response to
Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional No-
Evidence Summary Judgment (4/11/16)
10. Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas
7 Montez, Ricardo Pelayo and Roderick Wesley’s Response to Defendant City of
Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence
Summary Judgment (3/29/16)
11. Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas
Montez, Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant
City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-
12. Plaintiffs’ Response to Defendant City of Austin’s Late-Filed Exhibits
AAA-EEE (6/1/16).
Finally, the Parties request that the Court enter an Order directing the trial
court clerk to supplement the Clerk’s Record in this appeal within ten days of entry
of orders by the trial court that address the preceding issues of confidentiality
raised by the Parties in regard to the preceding listed pleadings (items 1-12 of pp.
6-8 of this Motion).
IV. ARGUMENT & AUTHORITIES
This Court has directed that “Documents originating at the trial court level
that have been sealed by order of the trial court should be sealed by the clerk of the
trial court before the documents are tendered to [the Third Court of Appeals]”.
Practice Before the Third Court of Appeals, item 32
http://www.txcourts.gov/3rdcoa/practice-before-the-court/#sealed-docs-orig-trial-
8 court. Additionally, this Court has directed that the trial court clerk segregate
sealed records from unsealed records and tender the records separately. Id.
The confidential information and records sought to be protected by the
Parties includes confidential Austin Police Department Internal Affairs Division
investigation records and decision making relevant to those records, which are
confidential under state law. TEX. LOCAL GOV'T CODE §§ 143.051-.055; OR 2011-
16265; OR2001-2888; Ex. “1”, Joint Motion for Temporary Sealing of Exhibits
pursuant to Texas Rule of Civil Procedure 76a at 7-9. Further, information
contained in the confidential transcript of the deposition of Robert Travis also
contains information protected by federal law, the Family Medical Leave Act. 29
U.S.C. 2601, et seq. 29 C.F.R. §825.500(g); Ex. “1” at 9-10. Additionally, Texas
Rules of Appellate Procedure 9.2(c )(3) and 9.9 (a), (b) and (d) provide procedures
for maintaining the confidential nature of sealed records and information that is
confidential by law.
In Chapter 143 of Texas Local Government Code, the Texas Legislature
authorized police and fire departments to maintain confidential records of police
officers and fire fighters (section 143.089(g)) and specified that the department’s
confidential file may not include records related to the following types of
disciplinary actions: removal, suspension, demotion, and uncompensated duty. See
TEX. LOCAL GOV'T CODE §§ 143.051-.055; OR 2011-16265; see OR2001-2888 at 2
9 and Atty Gen’l Op. JC-0257 at 1 (2000)(written reprimand is not disciplinary
action for purposes of chapter 143 of the Local Government Code; a written
reprimand must be placed in the confidential departmental file—not in the public
civil service file). Information reasonably relating to an officer's employment
relationship with a police or fire department and maintained in the department's
internal file pursuant to section 143.098(g) is confidential. City of San Antonio v.
San Antonio Express-News, No.04-99-00848-CV, 2000 WL 1918877 (Tex. App. --
San Antonio, Dec. 20, 2000, no pet. h.); OR 2001-2888 at 2.
Pursuant to the procedures of this Court, the above argument and authorities,
and and the argument and authorities set forth in the Joint Motion for Temporary
Sealing of Records, the Parties request that the automatic stay be lifted for the
limited purpose of allowing the trial court to finalize all orders related to the
sealing of confidential records in the custody of the Travis County District Clerk
prior to the Clerk’s Record being prepared in regard to the twelve pleadings listed
on pages 6-8 of this Motion.
V. PRAYER FOR RELIEF
For the reasons set forth above, the Parties: Appellants, City of Austin and
Appellee Baker in this appeal and Cross-Appellants in Third Court of Appeals No.
03-16-00580, respectfully request that this Court grant their Joint Motion for Entry
of Clerk to Lift Stay for Entry of Confidentiality Orders and to Permit
10 Supplementation of the Clerk’s Record as to Certain Pleadings. The Parties request
that the automatic stay be lifted so that the trial court may finalize all orders related
to the sealing of confidential records in the custody of the Travis County District
Clerk prior to the Clerk’s Record being prepared in regard to the twelve pleadings
listed on pages 6-8 of this Motion.
11 RESPECTFULLY SUBMITTED, ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF LITIGATION
BY: /S/ Lynn E. Carter Michael Siegel State Bar No. 24093148 Michael.siegel@austintexas.gov Lynn E.Carter Assistant City Attorney State Bar No. 03925990 Lynn.carter@austintexas.gov City of Austin-Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-1342 Facsimile: (512) 974-1311 COUNSEL FOR APPELLEE/CROSS- APPELLANTS
By: /s/ Mark Crampton (by permission) Mark W. Crampton State Bar No. 00789786 CRAMPTON LAW OFFICE 3355 BEE CAVES ROAD, SUITE 301-B Austin, Texas 78746 (512) 892-9300 (512) 891-0262 (fax) mark@cloatx.com COUNSEL FOR APPELLANTS/ PLAINTIFFS AND CROSS- APPELLEE/PLAINTIFF BAKER
12 CERTIFICATE OF CONFERENCE Pursuant to TEX. R. APP. PROC. 10.5, I certify that counsel for all Parties in the lawsuit made the basis of this appeal are in agreement with and join in this motion as indicated by the above signatures.
/s/ Lynn E. Carter Lynn E. Carter Assistant City Attorney Counsel for Defendant – Appellee
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of this notice on counsel of record electronically, in accordance with the Court’s rules on electronic filing, on September 12, 2016, as listed below:
Via E-Service to: Mark W. Crampton Crampton Law Office 3355 Bee Caves Road, Suite 301-B Austin, Texas 78746 COUNSEL FOR PLAINTIFFS - APPELLANTS
I further certify that a Copy of this motion is being provided to the Travis County District Clerk on the date of electronic filing of this Motion
/s/ Lynn E. Carter Lynn E. Carter Assistant City Attorney Counsel for Defendant – Appellee
13 EXHIBIT 1
JOINT MOTION TO LIFT STAY FOR ENTRY OF CONFIDENTIALITY ORDERS AND TO PERMIT SUPPEMENTATION OF THE CLERK’S RECORD AS TO CERTAIN PLEADINGS 6/16/2016 11:35:21 PM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-14-002459 D-1-GN-14-002459 Jonathan Sanders
AARON BISHOP, RONALD J. § IN THE DISTRICT COURT OF BOOKER, RICHARD BURNS, § ALBERT CORTEZ, JR., § ERIC DE LOS SANTOS, JOVITA § LOPEZ, AURELIO MARTINEZ, § NORRIS McKENZIE, TOMAS § MONTEZ, HENRY D. MORENO, § RICARDO PELAYO, JESSE PRADO, § OSCAR RAMIREZ, RICARDO § REZA, JAMES STANESIC, § TRAVIS COUNTY, TEXAS LESTER VANZURA, § RODERICK WESLEY, and § MONROE YARBROUGH, JR., § Plaintiffs, § § V. § § CITY OF AUSTIN, § Defendant. § 353RD JUDICIAL DISTRICT
JOINT MOTION FOR TEMPORARY SEALING OF EXHIBITS PURSUANT TO TEXAS RULE OF CIVIL PROCEDURE 76a
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs and Defendant, City of Austin, also referred to as “the Parties”, request that the
Court grant their Joint Motion for Temporary Sealing of Exhibits pursuant to Texas Rule of Civil
Procedure 76a. Prior to filing of this joint motion, Plaintiffs’ counsel reviewed and concurred
with sections I, II, III and IV(a) and with the general position that information made confidential
by the Family Medical Leave Act is confidential by law and that dates of birth are protected by
individual rights of privacy. The remainder of the joint motion (sections IV(B)(C), and (D)) is
the product of the City of Austin, unless and until Plaintiffs subsequently indicate their
agreement with these specific sections of the motion. I. SUMMARY OF ARGUMENT
It is the Parties’ position that the following information is “Confidential” by federal or
state law: dates of birth (protected by individual rights of privacy under federal and state law);
information protected by the Family Medical Leave Act (federal law); and records contained in
the Austin Police Department Internal Affairs investigation files (Texas Local Government Code
section 143.089(g) and 143.051-.055). The City further asserts that the above records under Rule
76a(2)(a) constitute “documents in court files to which access is otherwise restricted by law”,
and therefore, the Court should enter an order (1) temporarily sealing the records listed in section
III below; (2) permitting the parties to redact all dates of birth from any exhibits attached to
pleadings, motions, responses, or replies that contain dates of birth of any Austin Police
Department employee or former employee; and (3) permitting the parties to seal, or otherwise
withdraw or redact, any deposition testimony of Robert “Bob” Travis designated as
“Confidential” and filed under seal or, otherwise, filed with or without notation of
confidentiality.
II. LIST OF EXHIBITS
The parties incorporate by reference the following:
A. Amended Joint Motion for Agreed Protective Order (12/2/14);
B. Select Rule 11 Agreements; and
C. Plaintiffs’ List of Exhibits that reference Exhibits “4” and “5” of Dr. Pearson’s expert reports (dates of birth) and confidential portions of Robert “Bob” Travis’ deposition1.
In addition to the above-described exhibits, the Parties rely on the pleadings and all other 1 Counsel for the City does not have a clear understanding as to what has been substituted in regard to Bob Travis’ deposition testimony, Ex. “D” of Plaintiffs’ Response to…Exhibits AAA-EEE, p. 3 of Exhibit “3” to this motion.
2 relevant Rule 11 Agreements on file in this cause.
III. LIST OF RECORDS AT ISSUE
A. Records of the City of Austin filed under Seal
COA’s PTJs/MSJs Exhibits Filed Under Seal
1. Baker
Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No-Evidence Summary Judgment Re: Donald Baker (9/30/15)
Exhibit “CC” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No- Evidence Summary Judgment Re: Donald Baker (9/30/15)
Exhibits 1-4 of Exhibit “D” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No-Evidence Summary Judgment Re: Donald Baker (9/30/15)
2. HTU Statement of Facts to City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “D” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “E” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “G” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “H” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
3 Exhibit “J” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “K” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “L” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “N” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “P” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “Q” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “S” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Exhibit “V” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
Attachments to Exhibit “XX” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
3. Lieutenants, Sergeants & Lopez
Exhibit “AA” of City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence Motion for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita Lopez, Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)
4 Exhibit “A-Aff-S” of City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence Motion for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita Lopez, Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)
Exhibits 7 and 8 to Exhibit “O” of City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence Motion for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita Lopez, Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)
4. Burns, Moreno, Prado, Stanesic, & Vanzura
Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No Evidence Summary Judgment Re: Richard Burns (9/30/15)
Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No Evidence Summary Judgment Re: Henry Moreno (9/30/15)
Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No Evidence Summary Judgment Re: Jesse Prado (9/30/15)
Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No Evidence Summary Judgment Re: James Stanesic (9/30/15)
Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No Evidence Summary Judgment Re: Lester Vanzura (9/30/15)
5. COA Post-Hearing Reply (filed June 10, 2016)
Exhibit “D” of Defendant, City of Austin’s, Reply to Plaintiffs’ Post Hearing Submission of June 1, 2016 (6/10/16)
B. Records filed by Plaintiffs—generally with the notation of “CONTAINS SENSITIVE DATA” or “CONTAINS SENSITIVE INFORMATION” or “Confidential”
1. Internal Affairs Division Files and Statements Quoted from the IA Files
Paragraphs 19-20 of Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment.
Exhibit “C”, Affidavit of Donald Baker, which bears the denotation, “CONTAINS SENSITIVE DATA”
5 Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (3/29/16)
Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (3/29/16)
Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (4/11/16)
Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (4/11/16)
Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (3/29/16)
Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (4/11/16)
C. Records containing Dates of Birth or Information Protected by FMLA
On the date of filing of this motion, Plaintiffs had taken steps to substitute records with
the Travis County District Attorneys’ Office to redact dates of birth from Exhibits “4” and “5”
of Plaintiffs’ expert, Dr. Pearson’s reports (the original report, amended report and second
amended report) filed by Plaintiffs as “ (Bishop COA 005563-5567)(also bears denotation of
Exhibit “C” and “CONTAINS SENSITIVE DATA”). See Exhibit “3” to this motion, pp. 1-3.
Additionally, Plaintiffs had taken steps to address the filing of the Deposition Transcript
designated as “Confidential” of Robert “Bob” Travis’ Deposition filed as:
a. Exhibit “D” to Plaintiffs’ Response to Defendant City of Austin’s Late-Filed 6 Exhibits AAA-EEE” (6/1/16), and designated as “*** Confidential Portion ***” and “CONTAINS SENSITIVE DATA” (the second transcript, pp. 6 -62).
b. Exhibit “D” of Defendant, City of Austin’s Reply to Plaintiffs’ Post-Hearing Submission of June 1, 2016 (6/10/16), which submitted for filing under seal by the City.
IV. ARGUMENTS AND AUTHORITIES
A. Internal Affairs Investigation Files of the Austin Police Department
In Chapter 143 of Texas Local Government Code, the Texas Legislature authorized
police and fire departments to maintain confidential records of police officers and fire fighters
(section 143.089(g)) and specified that the department’s confidential file may not include records
related to the following types of disciplinary actions: removal, suspension, demotion, and
uncompensated duty. See TEX. LOCAL GOV'T CODE §§ 143.051-.055; OR 2011-16265; see
OR2001-2888 at 2 and Atty Gen’l Op. JC-0257 at 1 (2000)(written reprimand is not disciplinary
action for purposes of chapter 143 of the Local Government Code; a written reprimand must be
placed in the confidential departmental file—not in the public civil service file). Information
reasonably relating to an officer's employment relationship with a police or fire department and
maintained in the department's internal file pursuant to section 143.098(g) is confidential. City of
San Antonio v. San Antonio Express-News, No.04-99-00848-CV, 2000 WL 1918877 (Tex. App.
-- San Antonio, Dec. 20, 2000, no pet. h.); OR 2001-2888 at 2.
Additionally, APD’s Internal Affairs Division files are protected—not only under Texas
Local Government Code §143.089 under Texas law—but also by the terms of the Collective
Bargaining Agreement between the City of Austin and the Austin Police Association. See Ex. N,
p. 53 (COA 14237)(2008-2013 contract); p. 46 (2013-2017 contract)(“Information concerning
the administrative review of complaints against officers, including but not limited to Internal
Affairs Division files and all contents thereof, are intended solely for the Department’s use
7 pursuant to Section 143.089(g) of the Texas Local Government Code (the 143.089(g) file.”)
Section 143.089(g) of the Texas Local Gov’t Code authorizes, police departments to
maintain for the police department’s use “a separate and independent personnel file on a police
officer.” TEX. LOCAL GOV'T CODE § 143.089(g); see Ex. “N” to Defendant’s Second Amended
Response to Plaintiffs’ Second Amended Motion to Compel…. (1/22/15). Subsection (g) also
regulates the keeping of these files, providing that “the department may not release any
information contained in the department file to any agency or person requesting information
relating to a police officer”. Abbott v. City of Corpus Christi, 109 S.W.3d 113, 116 (Tex. App.—
Austin 2003, no pet.); see Ealoms v. State, 983 S.W.2d 853, 858 (Tex. App.–Waco 1998, writ
ref’d)(Statutorily, files maintained under section 143.089(g) are not subject to disclosure.); City
of San Antonio v. Texas Atty. Gen., 851 S.W.2d 946, 948 (Tex.App.—Austin 1993, writ
denied)(Under the legislative policy of section 143.089, “allegations of misconduct made against
a police officer shall not be subject to compelled disclosure under the Act unless they have been
substantiated and resulted in disciplinary action.”)
The Meet and Confer Agreements also expressly state that information provided or made
available for review “remains confidential in the hands of the Officer and his/her representative
pursuant to 143.089(g), APD police, and orders of noncommunication about internal
investigations.” Ex. N to Defendant’s Second Amended Response to Plaintiffs’ Second Amended
Motion to Compel…. (1/22/15) at pp. 53-57 (COA 14240-42); see pp. 50-51 (COA 14234-35);
pp. 52, 60 of the 2013-2017 agreement. Also, as explained by the certified copy of the letter of
Diane Webb, there is no waiver of this privilege by the City’s producing Internal Affairs
investigation files to the Equal Employment Opportunity Commission (EEOC). Ex. “J” to
Defendant’s Second Amended Response to Plaintiffs’ Second Amended Motion to Compel….
8 (1/22/15).
Because section 143.089(g) files including Internal Affairs Division files are maintained
for the purposes of the department rather than the employee, the employee does not possess the
right to waive section 143.089(g)’s confidentiality provisions. Pursuant to Texas Local
Government Code section 143.089(g) and sections 6 and 8 of the Meet and Confer Agreements 2
that apply to plaintiffs (and the preceding authorities), all internal affairs investigation files
produced to Plaintiffs and marked as “Confidential” in this lawsuit are confidential under Texas
law. Based on the terms of the Agreed Protective Order in this case, the City marked as
“confidential” or for “attorneys eyes only” and produced all relevant Internal Affairs Division
(IA) records to Plaintiffs with the exception of the file withheld at the request of the Travis
County District Attorney’s Office subject to the ongoing criminal investigation privilege. See
Order related to Plaintiffs’ Second Amended Motion to Compel (3/12/15), ¶10. Plaintiffs’ filing
of information from APD’s Internal Affairs investigation files and marking those filings as
“CONTAINS SENSITIVE INFORMATION” or “CONTAINS SENSITIVE DATA” does not
operate as a waiver of the “Confidentiality” designation in regard to Plaintiffs’ filings.
B. FMLA Information and Privacy Interests in Dates of Birth
The Family Medical Leave Act (FMLA) and federal regulations of the U.S. Department
of Labor established pursuant to the FMLA contain confidentiality requirements. 29 U.S.C.
2601, et seq. 29 C.F.R. § 825.500(g). Detective Bob Travis testified that he wanted to retain the
confidentiality of the facts relevant to leave taken by him under the FMLA and in regard to the
2 The terms of the Meet and Confer Agreement are preemptive of the section 143.089(g) to the extent there is any conflict. TEX. LOCAL GOV'T CODE § 142.067; Ex. N at 55 (COA 14239)(2008-13); p. 59 (2013-2017).
9 private health information of his family members. Confidential transcript of deposition of Bob
Travis at 45-46, 49. (During the hearing on this motion, the cited pages of the confidential
transcript of Travis’ deposition will be submitted to the Court for in camera review or for filing
under seal—as the Court deems appropriate.) Accordingly, based on non-party, Robert “Bob”
Travis’ privacy interests and the FMLA, the Parties request that the Court enter an order that
protects the confidentiality of the deposition testimony of Mr. Travis that has been designated as
confidential and submitted by either party as part of their summary judgment/plea to the
jurisdiction evidence or evidence submitted in response to same.
The Texas Supreme Court has recognized public employees’ privacy interests in
maintaining the confidentiality of their dates of birth, and has held that disclosing birth dates
under the Texas Public Information Act would constitute a clearly unwarranted invasion of
personal privacy. Texas Comptroller of Pub. Accounts v. Attorney Gen. of Texas, 354 S.W.3d
336, 347-48 (Tex. 2010). Likewise, the U.S. Supreme Court has held that “[i]nformation such as
place of birth, date of birth, date of marriage, employment history, and comparable data…if
contained in a ‘personnel’ or ‘medical’ file” is exempt from any disclosure under the Freedom of
Information Act “as such disclosure would constitute a clearly unwarranted invasion of personal
privacy.” U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 600, 102 S.Ct. 1957, 72 L.Ed.2d
358 (1982). In the Texas Supreme Court decision cited above, the threat of identity theft
connected to disclosure of birth dates was discussed at length. Texas Comptroller of Pub.
Accounts, 354 S.W.3d at 343-348. Accordingly, the parties have substituted exhibits to their
pleadings with redacted dates of birth to protect the privacy interests of Austin Police
Department employees—some of whom are plaintiffs and the majority of whom are non-parties.
The Parties request that the Court enter an order approving the Parties substitution of exhibits
10 with redacted dates of birth.
C. Specific, Serious and Substantial Interest
Because the Parties intended for the records at issue to be confidential and because the
records at issue are confidential under federal and state law, the Parties have shown that a
specific, serious and substantial interests that clearly outweigh any presumption of openness
involved in any unintended disclosure of the records to the public. Further a review of the
records themselves shows that sealing the records would have no effect upon the general public
health or safety. Where records sought to be sealed were originally intended to be confidential
and that the underlying matter may not have been finally resolved, the party seeking to seal the
record established a “specific, serious and substantial interest” in having the records sealed. In
re Browning-Ferris Indus., Inc., 267 S.W.3d 508, 513 (Tex. App. 2008)
D. CONFLICT BETWEEN SUBSTANTIVE RULES OF CONFIDENTIALITY AND RULE 176A
It is the City’s position that to the extent Rule 76a requires a showing of immediate or
irreparable injury prior to temporarily sealing records that are confidential by federal or state
law, that Rule 76a conflicts with section 22.004(a) of the Texas Government Code, which
provides: “The supreme court has the full rulemaking power in the practice and procedure in
civil actions, except that its rules may not abridge, enlarge, or modify the substantive rights of a
litigation.” As shown by the Parties’ agreements and stipulations in their joint motion for
protective order, their Rule 11 Agreements in this cause, and the content of the actual records
filed under seal, as well as the content of the records filed with notations indicating the records
are confidential in nature, there was no intent by the City to waive any confidentiality of the
records at issue; nor is there evidence of any other act of waiver (by intent or inadvertence) by a
11 party with the authority to waive the confidentiality of any records at issue. Because Texas and
federal substantive law provide for the confidentiality of the records at issue, any further required
showing of immediate or irreparable harm provides a temporary substantive right to the public
that conflicts with the substantive rights of individuals to their privacy interests and to the City’s
interests in maintaining the confidentiality of Internal Affairs investigative files. Accordingly,
Rule 76a is in conflict with section 22.004 of the Texas Government Code, as well as federal and
state substantive law, because requiring such additional proof would abridge, limit, or modify the
substantive rights of litigants, as well as non-parties to the litigation. Further, it is the City’s
position that no party should be able to waive the privacy or the confidentiality interests of
another party or a non-party by filing records designated as confidential in a manner that does
not comply with the terms of an Agreed Protective Order, or in a manner that fails to protect the
confidentiality of the records. “[W]hen a rule of procedure conflicts with a statute, the statute
prevails unless the rule has been passed subsequent to the statute and repeals the statute as
provided by Texas Government Code section 22.004.” Johnstone v. State, 22 S.W.3d 408, 409
(Tex. 2000); Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex.1971); see Kirkpatrick
v. Hurst, 484 S.W.2d 587, 589 (Tex.1972)(Rule 4 may not be given effect to conflict with
substantive statutes of limitations.)
WHEREFORE, PREMISES CONSIDERED, the Parties request that the Court enter
an order temporarily sealing the records identified in section III of this motion, and that the Court
further enter an order in compliance with Rule 76a to ensure the sealing of the identified records
permanently, and if appropriate, that the Court’s order include the additional requirements of
Rule 76a for setting a hearing on the parties’ motion to permanently seal court records. The
Parties further request any and all other relief that the Court deems they are entitled.
12 RESPECTFULLY SUBMITTED,
/s/ Lynn E. Carter Lynn E. Carter, Assistant City Attorney Attorney in Charge State Bar No. 03925990 lynn.carter@austintexas.gov H. Gray Laird, Assistant City Attorney State Bar No. 24087054 gray.laird@austintexas.gov Megan T. Mosby, Assistant City Attorney State Bar No. 24073392 megan.mosby@austintexas.gov Michael Siegel, Assistant City Attorney State Bar No. 24093148 michael.siegel@austintexas.gov City of Austin Law Department P.O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2171 Facsimile: (512) 974-1311 ATTORNEYS FOR DEFENDANT
_/s/Mark Crampton_(signed with permission)_ Mark Crampton Crampton Law Office 3355 Bee Caves Road, Suite 301-B Austin, Texas 78746 Telephone: (512) 892-9300 Facsimile: (512) 891-0262 mark@cloatx.com mike@cloatx.com
13 Jerry Galow Justin Studdard Galow & Studdard, P.C. 2203 Onion Creek Parkway, Unit 10 Austin, Texas 78747 Telephone: (512) 481-0200 Facsimile: (512) 481-0250 jerry@galowlaw.com justin@galowlaw.com jolynn@galowlaw.com ATTORNEYS FOR PLAINTIFFS
I hereby certify that on the 16th day of June, 2016, I electronically filed the above
pleading with the Clerk of the Court and that I served Plaintiffs as follows:
Via E-Service:
Mark Crampton Jerry Galow Crampton Law Office Justin Studdard 3355 Bee Caves Road, Suite 301-B Galow & Studdard, P.C. Austin, Texas 78746 2203 Onion Creek Parkway, Unit 10 Telephone: (512) 892-9300 Austin, Texas 78747 Facsimile: (512) 891-0262 Telephone: (512) 481-0200 mark@cloatx.com Facsimile: (512) 481-0250 mike@cloatx.com jerry@galowlaw.com justin@galowlaw.com ATTORNEYS FOR PLAINTIFFS jolynn@galowlaw.com
/s/ Lynn E. Carter Lynn E. Carter
14 EXHIBIT A JOINT MOTION FOR TEMPORARY SEALING OF EXHIBITS PURSUANT TO TEXAS RULES OF CIVIL PROCEDURE 76a 12/2/2014 9:24:18 AM Amalia Rodriguez-Mendoza District Clerk Travis County CAUSE NO. D-1-GN-14-002459 D-1-GN-14-002459
AARON BISHOP, RONALD J. § IN THE DISTRICT COURT OF BOOKER, RICHARD BURNS, § ALBERT CORTEZ, JR., § ERIC DE LOS SANTOS, JOVITA § LOPEZ, AURELIO MARTINEZ, § NORRIS McKENZIE, TOMAS § MONTEZ, HENRY D. MORENO, § RICARDO PELAYO, JESSE PRADO, § OSCAR RAMIREZ, RICARDO § REZA, JAMES STANESIC, § TRAVIS COUNTY, TEXAS LESTER VANZURA, § RODERICK WESLEY, and § MONROE YARBROUGH, JR., § Plaintiffs, § § V. § § CITY OF AUSTIN, § Defendant. § 353RD JUDICIAL DISTRICT
AMENDED JOINT MOTION FOR AGREED PROTECTIVE ORDER
Pursuant to Texas Rule of Civil Procedure 176.6(e), Plaintiffs and Defendant (“the
Parties”) file this amended joint motion to request that the Court enter an Agreed Protective
Order, which addresses in part the issues for which a protective order may be appropriate in this
lawsuit.
The parties acknowledge that they have not been able to reach agreement on all issues in
dispute in regard to the terms of a protective order. However, the attached includes the
agreement reached between the parties to date, as well as substituted language in paragraph 12
and 13 of the proposed order pursuant to the Court’s “Preferred Rule 76a Language to Modify
Western District Protective Order”. PRAYER
PREMISES CONSIDERED, the Parties request that the Court enter into the record the
“Agreed Protective Order” attached as Exhibit A to this motion.
RESPECTFULLY SUBMITTED,
/s/ Lynn E. Carter LYNN E. CARTER Assistant City Attorney Attorney in Charge State Bar No. 03925990 City of Austin Law Department P. O. Box 1546 Austin, Texas 78767-1546 (512) 974-2171 (Telephone) (512) 974-1311 (Facsimile) lynn.carter@austintexas.gov ATTORNEYS FOR DEFENDANT
_____________________________________ MARK CRAMPTON Crampton Law Office 1601 Rio Grande Street, Suite 348 Austin, Texas 78701 512-892-9300 phone 512-891-0262 fax mark@cramptonassociates.com
WALTER L. TAYLOR Taylor Law Firm 1601 Rio Grande Street, Suite 348 Austin, TX 78701 512-474-6600 512-474-6700 fax taylorlawfirmatx@gmail.com
ATTORNEYS FOR PLAINTIFFS
JOINT MOTION FOR AGREED PROTECTIVE ORDER Page 2 of 3 CERTIFICATE OF SERVICE
I hereby certify that on December 2, 2014, I served the above pleading on Plaintiffs, by and through their attorneys of record, in compliance with the Texas Rules of Civil Procedure.
Via E-filing and Facsimile to: Mark Crampton Walter L. Taylor Crampton Law Office Taylor Law Firm 1601 Rio Grande Street, Suite 348 1601 Rio Grande Street, Suite 348 Austin, Texas 78701 Austin, TX 78701 512-892-9300 phone 512-474-6600 512-891-0262 fax 512-474-6700 fax mark@cramptonassociates.com taylorlawfirmatx@gmail.com
JOINT MOTION FOR AGREED PROTECTIVE ORDER Page 3 of 3 CAUSE NO. D-1-GN-14-002459
AARON BISHOP, RONALD J. § IN THE DISTRICT COURT OF BOOKER, RICHARD BURNS, § ALBERT CORTEZ, JR., § ERIC DE LOS SANTOS, JOVITA § LOPEZ, AURELIO MARTINEZ, § NORRIS McKENZIE, TOMAS § MONTEZ, HENRY D. MORENO, § RICARDO PELAYO, JESSE PRADO, § OSCAR RAMIREZ, RICARDO § REZA, JAMES STANESIC, § TRAVIS COUNTY, TEXAS LESTER VANZURA, § RODERICK WESLEY, and § MONROE YARBROUGH, JR., § Plaintiffs, § § V. § § CITY OF AUSTIN, § Defendant. § 353RD JUDICIAL DISTRICT
AGREED PROTECTIVE ORDER
On the ______ day of ____________, the Court considered the Parties Joint Motion for
Agreed Protective Order created pursuant to Texas Rule of Civil Procedure 176.6(e). The Parties
have acknowledged that this Order does not resolve all issues in dispute between the parties in
regard confidential information or claims of privilege. However, the Court finds that the
following will assist the Parties in proceeding with discovery in the lawsuit.
It is hereby ORDERED that:
1. All Classified Information produced or exchanged in the course of this litigation
shall be used solely for the purpose of preparation and trial of this litigation or similar litigation
involving third parties who were former detectives in the Human Trafficking/Vice Unit of the
Organized Crime Division, and for no other purpose whatsoever, and shall not be disclosed to
any person except in accordance with the terms of this Order. Although this Order does not
Page 1 of 11 directly apply to any potential lawsuits, the City is ordered to present a copy of this Order to any
opposing party in a lawsuit involving incidents made the basis of this lawsuit.
2. "Classified Information," as used herein, means any information of any type,
kind, or character which is designated as "Confidential" or "For Counsel Only" (or "Attorneys'
Eyes Only") by any of the supplying or receiving parties, whether it be a document, information
contained in a document, information revealed during a deposition, information revealed in an
interrogatory answer or otherwise. In designating information as "Confidential" or "For Counsel
Only" (or "Attorneys' Eyes Only"), a party will make such designation only as to that
information that it in good faith believes contains confidential information, and any information
that is specifically addressed herein. Information or material that is available to the public,
including public records, advertising materials, or similar information or material shall not be
classified.
3. The Parties to this lawsuit agree that the following described categories of
information are “Confidential” and shall be designated and marked as “Confidential” by any
Party who obtains such documents produced for inspection and copying or by any Party
producing such documents in discovery in this Lawsuit and in any other lawsuit (subject to third
party and/or the court’s approval in that separate lawsuit) that may be filed by former detectives
in the Human Trafficking/Vice Unit (HTU) of the Austin Police Department (APD) during the
tenure of any Plaintiff in HTU.
(a) Confidential health/medical information and individually identifiable medical/health information of APD personnel pursuant to the Health Insurance Portability and Accountability Act and the Family Medical Leave Act. The Parties further agree that the identities of any non-parties to this Agreement shall be redacted prior to use of same in either Lawsuit.
AGREED PROTECTIVE ORDER Page 2 of 11 (b) Personal identifying information, including dates of birth, driver’s license numbers, social security numbers, e-mail addresses, home address information, home phone numbers, or personal cell phone numbers that appear in records produced in this lawsuit. APD uniformed employee personnel records and photos of APD uniformed personnel that fit within the definition of TEX. LOCAL GOV’T CODE §143,089(g) and 143.090. Personal identifying information and medical/health-related information of family members/relatives of APD personnel.
(c) Records that identify victims of a crime or suspected crime.
(d) Records of any kind related to juvenile offenders or juvenile victims.
(e) Disciplinary records, charges of misconduct, Internal Affairs Division (IAD) files,
communications to/from Internal Affairs related to specific complaints or disciplinary actions,
Special Investigations Unit (SIU) files, communications to/from SIU related to specific non-
public complaints or disciplinary actions, and any other personnel records or files that fit within
the definition of section 143.089 of the Texas Local Government Code.
(f) Any information marked by the City or any Plaintiff as constituting confidential
intelligence information; confidential informant information; or confidential investigative
strategies for work groups or task forces.
(g) Records of ongoing criminal investigations. (The parties acknowledge that there
are records of ongoing criminal investigations that remain in dispute between the parties.).
(h) Records contained in the following numbered Internal Affairs Division files:
2013-0476
2013-0746
2013-1017
2013-1018
2013-1048
AGREED PROTECTIVE ORDER Page 3 of 11 2013-1081
4. "Qualified Persons," as used herein means:
(a) Attorneys of record for the parties in this litigation and employees of such
attorneys to whom it is necessary that the material be shown for purposes of this litigation;
(b) Consulting experts who receive information subject to the confidential
consulting expert privilege. Retained experts or testifying experts (non-consulting experts), who
have been designated in writing by notice to all counsel prior to any disclosure of "Confidential"
or "For Counsel Only" (or Attorneys' Eyes Only"). Information shall be provided to retained or
testifying experts who have signed a document agreeing to be bound by the terms of this
protective order (such signed document to be served on opposing counsel upon disclosure or
designation of the expert witness);
(c) The party or one party representative (in regard to the City of Austin) who
shall be designated in writing by the party prior to any disclosure of “Confidential” information
to such person and who shall sign a document agreeing to be bound by the terms of this
protective order (such signed document to be filed with the Clerk of this Court by the party
designating such person); and
(d) Identified third parties who are providing court reporting services;
videotaping of depositions; or copying, scanning, bates labeling, or other production of
documents in this Lawsuit.
(e) If this Court so elects, any other person may be designated as a Qualified
Person by agreement of the Parties to this Lawsuit, or by order of this Court, after notice and
hearing to all parties.
AGREED PROTECTIVE ORDER Page 4 of 11 5. Documents produced in this action may be designated by any party or parties as
"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") information by marking each
page of the document(s) so designated with a stamp stating "Confidential" or "For Counsel
Only" (or "Attorneys' Eyes Only").
In lieu of marking the original of a document, if the original is not produced, the
designating party may mark the copies that are produced or exchanged. Originals shall be
preserved for inspection.
6. Information disclosed at (a) the deposition of a party or one of its present or
former officials, representatives, employees, agents or testifying experts retained by counsel for
the purpose of this litigation, or (b) the deposition of a third party (which information pertains to
a party) may be designated by any party as "Confidential" or "For Counsel Only" (or “Attorneys'
Eyes Only") information by indicating on the record at the deposition that the testimony is
"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") and is subject to the
provisions of this Order.
Any party may also designate information disclosed at such deposition as "Confidential"
or "For Counsel Only" (or "Attorneys' Eyes Only") by notifying all of the parties in writing
within thirty (30) days of receipt of the transcript, of the specific pages and lines of the transcript
which should be treated as "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only")
thereafter. Each party shall attach a copy of such written notice or notices to the face of the
transcript and each copy thereof in his possession, custody, or control. Similar protections shall
be applied to all electronic copies of the transcript. All deposition transcripts shall be treated as
"For Counsel Only" (or "Attorneys' Eyes Only") for a period of thirty (30) days after the receipt
of the transcript.
AGREED PROTECTIVE ORDER Page 5 of 11 To the extent possible, the court reporter shall segregate into separate transcripts
information designated as "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only"),
with blank, consecutively numbered pages being provided in a non-designated main transcript.
The separate transcript containing "Confidential" and/or "For Counsel Only" (or "Attorneys'
Eyes Only") information shall have page numbers that correspond to the blank pages in the main
transcript.
7. (a) "Confidential" information shall not be disclosed or made available by the
receiving party to persons other than Qualified Persons. Information designated as "For Counsel
Only" (or "Attorneys' Eyes Only") shall be restricted in circulation to Qualified Persons
described in Paragraphs 3(a) and (b) above.
(b) Copies of "For Counsel Only" (or "Attorneys' Eyes Only") information
provided to a receiving party shall be maintained in the offices of counsel for Plaintiff(s) and
Defendant(s). Any documents produced in this litigation, regardless of classification, which are
provided to Qualified Persons of Paragraph 3(b) above, shall be maintained only at the office of
such Qualified Person and only working copies shall be made of any such documents. Copies of
documents produced under this Protective Order may be made, or exhibits prepared by
independent copy services, printers or illustrators for the purpose of this litigation.
(c) Each party's counsel shall maintain a log of all copies of "For Counsel
Only" (or "Attorneys' Eyes Only") documents which are delivered to any one or more Qualified
Person of Paragraph 3 above.
8. Documents previously produced shall be retroactively designated by notice in
writing of the designated class of each document by Bates number within thirty (30) days of the
entry of this order. Documents unintentionally produced without designation as "Confidential"
AGREED PROTECTIVE ORDER Page 6 of 11 may be retroactively designated in the same manner and shall be treated appropriately from the
date written notice of the designation is provided to the receiving party.
Documents to be inspected for the purposes of being produced for inspection and copying
shall be treated as "For Counsel Only" (or "Attorneys' Eyes Only") during inspection. At the
time of copying for the receiving parties, such inspected documents shall be stamped
prominently "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") by the producing
party.
9. Nothing herein shall prevent disclosure beyond the terms of this order if each
party designating the information as "Confidential" or "For Counsel Only" (or “Attorneys' Eyes
Only") consents to such disclosure or, if the court, after notice to all affected parties, orders such
disclosures. Nor shall anything herein prevent any counsel of record from utilizing
"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") information in the
examination or cross-examination of any person who is a plaintiff, a current APD employee, or
an expert in regard to any document identified as "Confidential" or "For Counsel Only” (or
"Attorneys' Eyes Only") information, irrespective of which party produced such information.
The parties agree to confer in an attempt to reach agreement as to any former APD employee
who is a non-plaintiff and for whom examination or cross-examination is sought by a party in
regard to documents identified as “Confidential or “For Counsel Only” (or “Attorneys’ Eyes
Only”)
10. A party shall not be obligated to challenge the propriety of a designation as
"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") at the time made, and a failure
to do so shall not preclude a subsequent challenge thereto. In the event that any party to this
litigation disagrees at any stage of these proceedings with the designation by the designating
AGREED PROTECTIVE ORDER Page 7 of 11 party of any information as "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only"), or
the designation of any person as a Qualified Person, the parties shall first try to resolve such
dispute in good faith on an informal basis, such as production of redacted copies. If the dispute
cannot be resolved, the objecting party may invoke this Protective Order by objecting in writing
to the party who has designated the document or information as "Confidential" or "For Counsel
Only" (or "Attorneys' Eyes Only"). The designating party shall be required to move the Court
for an order preserving the designated status of such information within fourteen (14) days of
receipt of the written objection, and failure to do so shall constitute a termination of the restricted
status of such item.
The parties may, by stipulation, provide for exceptions to this order and any party may
seek an order of this Court modifying this Protective Order.
11. Nothing shall be designated as "For Counsel Only" (or "Attorneys' Eyes Only")
information except information of the most sensitive nature, which if disclosed to persons of
expertise in the area would reveal information that is ,for example, confidential by statute.
Nothing shall be regarded as "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only")
information if it is information that either:
(a) is in the public domain at the time of disclosure, as evidence by a written
document;
(b) becomes part of the public domain through no fault of the other party, as
evidenced by a written document;
(c) the receiving party can show by written document that the information
was in its rightful and lawful possession at the time of disclosure; or
AGREED PROTECTIVE ORDER Page 8 of 11 (d) the receiving party lawfully receives such information at a later date from
a third party without restriction as to disclosure, provided such third party has the right to
make the disclosure to the receiving party.
12. If a party wishes to include a document, or portions of a document marked as
“Confidential” or "For Counsel Only" (or "Attorneys' Eyes Only") in a pleading or other paper to
be filed with the Clerk, that party shall serve the pleading or other paper on opposing parties but
shall not file it. Service alone shall constitute filing for the purpose of any deadline. For 7 days
following service, no party shall file the pleading or other paper with the Clerk except pursuant
to a ruling on a motion for a Temporary Sealing Order under Rule 76a. Immediately thereafter,
if no motion for a Temporary Sealing Order has been granted, the party who served the pleading
or other paper shall file it unsealed with the Clerk.
13. If a party wishes to offer a document, or portions of a document marked as
“Confidential” or "For Counsel Only" (or "Attorneys' Eyes Only") in evidence, any party may, at
the time the document is offered, move for a Temporary Sealing Order.
14. Unless otherwise agreed to in writing by the parties or ordered by the Court, all
proceedings involving or relating to documents or any other information shall be subject to the
15. Within one-hundred twenty (120) days after conclusion of this litigation and any
appeal thereof, any document and all reproductions of documents produced by a party, in the
possession of any of the persons qualified under Paragraphs 3(a) through (d) shall be returned to
the producing party, except as this Court may otherwise order or to the extent such information
was used as evidence at the trial. As far as the provisions of any protective orders entered in this
action restrict the communication and use of the documents produced thereunder, such orders
AGREED PROTECTIVE ORDER Page 9 of 11 shall continue to be binding after the conclusion of this litigation, except (a) that there shall be
no restriction on documents that are used as exhibits in Court unless such exhibits were filed
under seal, and (b) that a party may seek the written permission of the producing party or order
of the Court with respect to dissolution or modification of such protective orders.
16. This order shall not bar any attorney herein in the course of rendering advice to
his client with respect to this litigation from conveying to any party client his evaluation in a
general way of "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") information
produced or exchanged herein; provided, however that in rendering such advice and otherwise
communicating with his client, the attorney shall not disclose the specific contents of any
"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") information produced by
another party herein, which disclosure would be contrary to the terms of this Protective Order.
17. Any party designating any person as a Qualified Person shall have the duty to
reasonably ensure that such person observes the terms of this Protective Order and shall be
responsible upon breach of such duty for the failure of any such person to observe the terms of
this Protective Order.
SIGNED this ____ day of _______________, 2014.
PRESIDING JUDGE
AGREED PROTECTIVE ORDER Page 10 of 11 APPROVED AS TO FORM AND SUBSTANCE:
/s/ Lynn E. Carter LYNN E. CARTER Assistant City Attorney Attorney in Charge State Bar No. 03925990 City of Austin Law Department P. O. Box 1546 Austin, Texas 78767-1546 (512) 974-2171 (Telephone) (512) 974-1311 (Facsimile) lynn.carter@austintexas.gov ATTORNEYS FOR DEFENDANT
_____________________________________ MARK CRAMPTON Crampton Law Office 1601 Rio Grande Street, Suite 348 Austin, Texas 78701 512-892-9300 phone 512-891-0262 fax mark@cramptonassociates.com
WALTER L. TAYLOR Taylor Law Firm 1601 Rio Grande Street, Suite 348 Austin, TX 78701 512-474-6600 512-474-6700 fax taylorlawfirmatx@gmail.com
AGREED PROTECTIVE ORDER Page 11 of 11 EXHIBIT B JOINT MOTION FOR TEMPORARY SEALING OF EXHIBITS PURSUANT TO TEXAS RULES OF CIVIL PROCEDURE 76a City of Austin
· Law Department City Hall, 301West2nd Street, P.O. Box 1546 Austin, Texas 78767-1546 (512) 974-2268
Writer's Direct Line Writer's Fax Line 512-974-2171 512-974-1311
October 27, 2014
VIA E-MAIL: Mark Crampton Walter L. Taylor Crampton Law Office Taylor Law Firm 1601 Rio Grande Street, Suite 348 1601 Rio Grande Street, Suite 348 Austin, Texas 78701 Austin, TX 78701 512-891-0262 fax 512-474-6700 fax mark@cramptonassociates.com taylorlawfirmatx@gmail.com
RULEllAGREEMENT
Re: RULE 11 AGREEMENT: Cause No. D-1-GN-14-002459; Aaron Bishop, et al. v. City ofAustin in the District Court of Travis County, Texas, 353rd Judicial District.
Dear Mark and Walt,
Following is a proposed Rule 11 Agreement, which includes agreements related to confidential records and a clawback/snap back agreement. The City proposes thi~ Rule 11 Agreement so the City can move forward with producing for inspection and copying confidential personnel records and additional documents for your review while the parties (and Bermudez' attorney) attempt to work out the terms of a more comprehensive agreed protective order that addresses relevant Internal Affairs files, ongoing criminal investigation records, and other privileged, relevant records.
Plaintiffs and their counsel agree to maintain the confidentiality of the following described information by ( 1) redaction prior to filing with the court; and (2) by all other reasonable means necessary to protect the confidential nature of the information:
CONFIDENTIAL AND PRIVILEGED INFORMATION
1. Confidential health/medical information and individually identifiable medical/health information of Austin Police Department personnel pursuant to. the Health Insurance Portability and accountability Act and the Family Medical Leave Act. October 27, 2014, Rule 11 Agreement Page2
2. Personal identifying information, including dates of birth, driver's license numbers, social security numbers, e-mail addresses, home address information, home phone numbers, or personal cell phone numbers that appear in records produced in this lawsuit. APD uniformed employee personnel records and photos of APD uniformed personnel. TEx. LocAL Gov'T CODE § 143,089(g) and 143.090. Personal identifying information and medical/health- related information of family members/relatives of APD personnel. 3. Records that identify victims of a crime or suspected crime.
4. Records of any kind related to juvenile offenders or juvenile victims.
CLAWBACKAGREEMENT The parties agree that for the purposes of facilitating discovery, the City is turning over voluminous documents and document files (in electronic and paper form), including electronic mail (e-mails), that may contain confidential or privileged communications or information, including private/personal health information; private/personal home address, personal e-mail addresses, and home or personal phone information; attorney-client communications; attorney work product; and information protected by the ongoing criminal investigation privilege, other privileges, or by APD Policy.
The parties further agree that during the thirty (30) day period following the date of delivery of any electronic information or paper documents following the signing of this agreement, the City may identify to Plaintiffs' counsel any documents or electronic information that it claims to be confidential pursuant to the attorney-client or work product privileges, the ongoing criminal investigation privilege, or other confidential information described as confidential in the APD Policy Manual and that such documents or electronic information, including all copies of such documents or electronic data will be returned to the City of Austin. In the event Plaintiffs intend to challenge the confidential nature of the documents or electronic information identified by the City as privileged, Plaintiffs will submit such information for in- camera inspection by the Court, and will retain the confidential nature of the documents and information until the court has made a final ruling or the parties reach further agreement in regard to the documents or information.
Assistant City Attorney City of Austin
Agreed: - - -- - - - - -- - - - Date: - - - -- -- - - Mark Crampton Walter L. Taylor Attorneys for Plaintiffs October 27, 2014, Rule 11 Agreement Page2
2. Personal identifying information, including dates of birth, driver's license numbers, social security numbers, e-mail addresses, home address information, home phone numbers, or personal cell phone numbers that appear in records produced in this lawsuit. APD uniformed employee personnel records and photos of APD uniformed personnel. TEX. LOCAL Gov'T CODE §143,089(g) and 143.090. Personal identifying information and medical/health- related information of family members/relatives of APD personnel.
3. Records that identify victims of a crime or suspected crime.
4. Records of any kind related to juvenile offenders or juvenile victims.
CLAWBACKAGREEMENT The parties agree that for the purposes of facilitating discovery, the City is turning over voluminous documents and document files (in electronic and paper form), including electronic mail (e-mails), that may contain confidential or privileged communications or information, including private/personal health information; private/personal home address, personal e-mail addresses, and home or personal phone information; attorney-client communications; attorney work product; and information protected by the ongoing criminal investigation privilege, other privileges, or by APD Policy.
The parties further agree that during the thirty (30) day period following the date of delivery of any electronic information or paper documents following the signing of this agreement, the City may identify to Plaintiffs' counsel any documents or electronic information that it claims to be confidential pursuant to the attorney-client or work product privileges, the ongoing criminal investigation privilege, or other confidential information described as confidential in the APD Policy Manual and that such documents or electronic information, including all copies of such documents or electronic data will be returned to the City of Austin. In the event Plaintiffs intend to challenge the confidential nature of the documents or electronic information identified by the City as privileged, Plaintiffs will submit such information for in- camera inspection by the Court, and will retain the confidential nature of the documents and information until the court has made a final ruling or the parties reach further agreement in regard to the documents or information.
Sincerely,
Lynn E. Carter Assistant City Attorney City of Austin
Date: November 12, 2014 Mark Crampton Walter L. Taylor Attorneys for Plaintiffs City of Austin
Law Deparbnent City Hall, 301 West 2nd Street, P.O. Box 1546 Austin, Texas 78767-1546 (512) 974-2268
Writer's Direct Line Writer's Fax Line 512-974-2171 512-974-1311 April 19,2016 RULE 11 AGREEMENT
Mark Crampton JenyGalow Crampton Law Office Justin Studdard 812 San Antonio Street, Ste G-12 Galow & Smith, P.c. Austin, TX 78701 1204 Nueces Street mark@cloatx.com Austin, Texas 78701 mikc@c1oatx.com jerry@galowlaw.coll1 megan(?i)cloatx.com i ustin@galow.com jolYlU1@ga!ow.com
Re: Rule 11 Agreement: Cause No. D-I-GN-14-002459; Aaron V. Bishop, et al. v. City of Austin in the District Court of Travis County, Texas, 353 rd Judicial District
Dear Counselors:
The following sets forth our agreement regarding all pending motions on file. If accurate, please review, sign, and return to me for filing.
(1) The parties have agreed to set all pleas to the jurisdiction and motions for summary judgment, as well as Defendant's objections to Plaintiffs expert and motion to exclude the expert, for hearing on May 9, 2016 for four hours (due to conflicts in Plaintiffs counsel's pre-trial and trial schedule).
(2) All responses or amended responses to the City'S pleas to the jurisdiction or motions for summary judgment that were filed on or before April 12, 2016 by Plaintiffs are considered timely in exchange for Plaintiffs' agreement to a 30-day extension oftime for the City to file its brief on appeal, if requested and if interlocutory appeal is taken in regard to any ruling on the pending pleas to the court's jurisdiction set for hearing on May 9,2016.
(3) The deadline for the City to reply to Plaintiff Donald Baker's responses to the City's plea to the jurisdiction and motion for summary judgment is May 2,2016.
(4) The deadline for the City to reply to Plaintiffs Bishop, Cortez, Martinez, Montez, Pelayo, and Wesley's amended response to the City's plea to the jurisdiction and motion for summary judgment is May 2,2016.
(5) The deadline for the City to reply to the remaining plaintiffs' response or amended response to the City's pleas to the jurisdiction and motions for summary judgment is May 6,2016. April 19, 2016 Rule 11 Agreement, Bishop, et al. v. City ofAustin Page 2
(6) Plaintiffs will work with the Travis County District Court Clerk to ensure that any exhibits to any responses or pleadings filed since March 1,2016, are corrected so that no dates of birth, or other personal identifying information addressed by Rule 11 Agreement or the Agreed Protective order are contained in the public record.
(7) The City will file its reply to Plaintiffs' Response to Defendant's Motion to Strike Expelt on or before May 2, 2016.
Agreed:U~JC_P>= Jerry Galow
Date: 4. (-z..:o " {l1c. "\
Cc: Gray Laird, Megan Mosby, Mike Siegel (City of Austin Law Department) EXHIBIT C JOINT MOTION FOR TEMPORARY SEALING OF EXHIBITS PURSUANT TO TEXAS RULES OF CIVIL PROCEDURE 76a Exhibits to be Substituted Cause No. D-1-GN-14-002459 Bishop, et al. v. City of Austin
Substitution from Pearson’s Expert Report Exhibits 4 and 5
Envelope # Date Document Exhibit Page 9752674 3/23/16 Plaintiffs’ Booker, et al. Response to Exhibit “P” pp. 125-129 and Defendant City of Austin’s Plea to the 131-132 Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 9837475 3/29/16 Plaintiffs’ Bishop, et al. Response to Exhibit “N: pp. 117-121 and Defendant City of Austin’s Plea to the 123-124 Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 9860767 3/30/16 Plaintiff Prado’s Response to Exhibit “F” pp. 76-80 and Defendant City of Austin’s Plea to the 82-83 Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 9877545 3/31/16 Plaintiff Moreno’s Response to Exhibit “F” pp. 92-96 and Defendant City of Austin’s Plea to the 98-99 Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 9903926 4/1/16 Plaintiff Burns’ Response to Defendant Exhibit “F” pp. 64-68 and City of Austin’s Plea to the Jurisdiction 70-71 and Motion for Traditional and No- Evidence Summary Judgment 9951693 4/5/16 Plaintiff Stanesic’s Response to Exhibit “E” pp. 79-83 and Defendant City of Austin’s Plea to the 85-86 Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment Substitution from Pearson 1st Amended Report Exhibits 4 and 5
Envelope # Date Document Exhibit Page 9986782 4/6/16 Plaintiff Vanzura’s Response to Exhibit “H” pp. 69-73 and Defendant City of Austin’s Plea to the 75-76 Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 10034856 4/8/16 Plaintiffs’ Response to Defendant’s Exhibit 2 pp. 38-42 and Motion to Strike Expert 44-45 10042868 4/11/16 Plaintiff Stanesic’s Amended Response Exhibit “E” pp. 79-83 and to Defendant City of Austin’s Plea to 85-86 the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 10048895 4/11/16 Plaintiff Prado’s Amended Response to Exhibit “F” pp. 76-80 and Defendant City of Austin’s Plea to the 82-83 Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 10049210 4/11/16 Plaintiff Moreno’s Amended Response Exhibit “F” pp. 92-96 and to Defendant City of Austin’s Plea to 98-99 the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 10049554 4/11/16 Plaintiff Burns’ Amended Response to Exhibit “F” pp. 64-68 and Defendant City of Austin’s Plea to the 70-71 Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 10050051 4/11/16 Plaintiffs’ Booker, et al. Amended Exhibit “P” pp. 127-131 and Response to Defendant City of Austin’s 133-134 Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 10050392 4/11/16 Plaintiffs’ Bishop, et al. Amended Exhibit “N” pp. 117-121 Response to Defendant City of Austin’s and 123-124 Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment 10070576 4/12/16 Plaintiffs’ Amended Response to Exhibit 2 pp. 39-43 and Defendant’s Motion to Strike Expert 45-46
2 Substitution from Pearson 2nd Amended Report Exhibits 4 and 5
Envelope # Date Document Exhibit Page 10919571 6/1/16 Plaintiffs’ Response to Defendant City Exhibit “C” pp. 44-48 and of Austin’s Late-Filed Exhibits AAA- 50-51 EEE
Removing Bob Travis’ Confidential Deposition Portion Envelope # Date Document Exhibit Page 10919571 6/1/16 Plaintiffs’ Response to Defendant City Exhibit “D” pp. 96-123 of Austin’s Late-Filed Exhibits AAA- EEE
3 EXHIBIT 2
JOINT MOTION TO LIFT STAY FOR ENTRY OF CONFIDENTIALITY ORDERS AND TO PERMIT SUPPEMENTATION OF THE CLERK’S RECORD AS TO CERTAIN PLEADINGS City of Austin
Law Department 301 West 2nd Street, P.O. Box 1546 Austin, Texas 78767-1546 (512) 974-2268
Writer’s Direct Line Writer’s Fax Line (512) 974-2171 (512) 974-1311
June 28, 2016
The Honorable Stephen Yelenosky Via email to: claire.webb@traviscountytx.gov 345th District Court Travis County District Court 1000 Guadalupe Street, 4th Floor Austin, TX 78701
RE: Cause No. D-1-GN-14-002459; Aaron Bishop, et al. v. City of Austin in the District Court of Travis County, Texas, 353rd Judicial District.
Dear Judge Yelenosky:
As requested by the Court, the following is a list of confidential records by subject matter.
List of Confidential Records at Issue by Subject Matter:
I. Records of the Austin Police Department (APD) Internal Affairs Division
A. Evidence Relevant mainly to the PTJ/MSJ re Baker
1. Baker’s affidavit marked, “CONTAINS SENSITIVE DATA”, which was submitted by Plaintiffs as an exhibit to numerous responses and amended responses to pleas to the jurisdiction (PTJ)/motions for summary judgment(MSJ).
(a) Exhibit “C” to Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment;
(b) Exhibit “D” to Vanzura’s Amended Response (and response) to the City’s PTJ/MSJ
(c) Exhibit “E” to Burns’ Amended Response (and response) to the City’s PTJ/MSJ
(d) Exhibit “E” to Prado’s Amended Response (and response) to the City’s PTJ/MSJ
(e) Exhibit “E” to Amended Response (and response) to the City’s PTJ/MSJ re Lt/Sgt/Lopez 2. Paragraphs 19-20 of pages 7-8 (highlighted) of Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No- Evidence Summary Judgment (3/10/16)
3. Exhibits to the City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No- Evidence Summary Judgment Re: Donald Baker (9/30/15)
(a) Exhibit 5 of Exhibit “A-Aff”, Internal Affairs file records attached to Acevedo Affidavit, which contains two confidential memos that are part of APD’s Internal Affairs Division files (Also filed with all of the City’s PTJs/MSJs re all plaintiffs.)
(b) Exhibit “CC”, Confidential deposition testimony by Plaintiff Baker, also filed with the City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
(c ) Exhibits 1-4 of Exhibit “D”, Internal Affairs file records attached to Manley Affidavit
4. Unredacted paragraphs 19-20 of Acevedo’s affidavit, which disusses the subject matter and outcome of a confidential Internal Affairs investigation, attached as Exhibit “A-Aff- S” of the City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence Motion for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita Lopez, Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)
B. Evidence relevant mainly to the PTJ/MSJ re HTU Detectives
5. The Statement of Facts to the City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15), which was submitted under seal
6. Sworn statements in IA investigation files, submitted under seal by the City as Exhibits “D”, “E”, “G”, “H”, “J”, “K”, “L”, “N”, “P”, “Q”, and “S” of the City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
7. Confidential Internal Affairs Case Summary related to File No. 2013-0746; Exhibit “H” of the City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)(submitted under seal)
8. IA Complaint related to Internal Affairs File No. 2013-0746, submitted under seal by the City as Exhibit “G” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
9. IA Complaint related to Internal Affairs File No. 2013-1081, submitted under seal by the City as Exhibit “V” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
10. File No. 2013-0749 of APD’s Internal Affairs Division submitted under seal as attachments to Exhibit “XX”, the affidavit of APD records custodian, Chris Foley, to the City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)
11. Paragraphs 32-40, 43-45 of pages 22-29 (highlighted) of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (4/11/16)(same was submitted as Plaintiff’s original response)
12. Statements contained in APD Internal Affairs files, Exhibits “V” and “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (4/11/16). (Same was submitted with the Plaintiffs’ response by similar name (3/29/16) )(same was submitted as Plaintiff’s original response)
C. Evidence mainly Relevant to both Baker and the HTU detectives
13. Confidential testimony of APD Chief Acevedo (by deposition) related to confidential Internal Affairs investigation files and outcomes of those investigations: filed as Exhibit “AA” to the City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence Motion for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita Lopez, Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)
II. Confidential Deposition Testimony Protected by the Family Medical Leave Act
14. City’s Submission under Seal of an excerpt from the Confidential Deposition transcript of Robert “Bob” Travis, submitted on June 10, 2016 as Exhibit “D” of Defendant, City of Austin’s, Reply to Plaintiffs’ Post Hearing Submission of June 1, 2016
15. Plaintiff’s Inadvertent Submission of the Confidential Transcript of Robert “Bob” Travis’ deposition as Exhibit “D” to Plaintiffs’ Response to Defendant City of Austin’s Late-Filed Exhibits AAA-EEE” (6/1/16), designated as “*** Confidential Portion ***” and “CONTAINS SENSITIVE DATA” (the second transcript, pp. 6 -62).
The confidential portions of Travis’ deposition testimony submitted by Plaintiffs are still viewable on the District Clerk’s e-filing website. To the City’s knowledge no further word has been received from the Travis County District Clerk on this inadvertent filing and Plaintiffs’ request to withdraw same.
III. Confidential Dates of Birth in which Redaction has been Completed
The District Clerk’s e-filing website has now been updated so that all dates of birth are redacted in regard to Exhibits “4” and “5” of Dr. Pearson’s reports filed by Plaintiffs. IV. Confidential Dates of Birth Submitted under Seal, and which the City Requests to Remain Under Seal
16. Exhibits “7” and “8” to Exhibit “O” of City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence Motion for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita Lopez, Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)”.
I believe the above accurately reflects all confidential records at issue, and which are listed by subject matter.
Sincerely, /s/Lynn E. Carter (electronic signature) Lynn E. Carter Assistant City Attorney lynn.carter@austintexas.gov
Cc: Plaintiffs’ Counsel: Mark Crampton; Jerry Galow, and Justin Studdard Assistant City Attorneys: Gray Laird, Megan Mosby, and Michael Siegel
Related
Cite This Page — Counsel Stack
the City of Austin v. Donald Baker, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-city-of-austin-v-donald-baker-texapp-2016.