Yaqub v. Paynter.

• Court: District Court, E.D. California
• Decided: January 17, 2024
• Docket: 1:23-cv-01482
• Status: Unknown

Opinion

5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAHAT YAQUB, by and through his Case No. 1:23-cv-01482-NODJ-EPG Guardian Ad Litem, SADIA YAQUB, 12 ORDER APPROVING STIPULATED Plaintiff, PROTECTIVE ORDER 13

v. (ECF No. 19) 14

15 JACOB PAYNTER, et al., 16 Defendants. 17 18 1. PURPOSES AND LIMITATIONS 19 Disclosure and discovery activity in this action involve production of confidential, 20 proprietary, or private information for which special protection from public disclosure and from 21 use for any purpose other than prosecuting this litigation is warranted. The Parties have 22 determined that certain documents that may be subject to disclosure in this action contain 23 information that is (a) confidential, sensitive, or potentially invasive of an individual’s privacy 24 interests; (b) not generally known; and (c) not normally revealed to the public or third parties, or 25 if disclosed to third parties, would require such third parties to maintain the information in 26 confidence. This confidential or private information warrants special protection from public 27 disclosure and from use for any purpose other than prosecuting this litigation. 28 Accordingly, the parties hereby stipulate to and petition the Court to enter the following 1 Stipulated Protective Order on the basis that the documents described herein and anticipated to be 2 subject to disclosure in this matter contain confidential and protected information that may only 3 be disclosed and/or produced subject to the following terms, unless timely challenged subject to 4 the provisions in Section 6, below. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords 5 from public disclosure and use extends only to the limited information or items that are entitled to 6 confidential treatment under the applicable legal principles. The parties further acknowledge, as 7 set forth in Section 11.3, below, that this Stipulated Protective Order does not entitle them to file 8 confidential information under seal; Local Rule 141 sets forth the procedures that must be 9 followed and the standards that will be applied when a party seeks permission from the court to 10 file material under seal. 11 2. DEFINITIONS 12 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information 13 or items under this Order. 14 2.2 “CONFIDENTIAL” Information or Items: Protected Material, as defined in Section 15 2.13 below and marked as “Confidential” pursuant to the terms of this order. 16 2.3 Counsel: Counsel of Record (as well as their support staff). 17 2.4 Designating Party: a Party or Non-Party that designates information or items that it 18 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 19 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 20 or manner in which it is generated, stored, or maintained (including, among other things, 21 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 22 responses to discovery in this matter. 23 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 24 consultant in this action. 25 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 26 entity not named as a Party to this action. 27 2.9 Counsel of Record: attorneys who are not employees of a party to this action but are 28 1 retained to represent or advise a party to this action and have appeared in this action on behalf of 2 that party or are affiliated with a law firm which has appeared on behalf of that party. 3 2.10 Party: any party to this action, including all of its officers, directors, employees, 4 consultants, retained experts, and Counsel (and their support staffs). 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 5 Material in this action. 6 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., 7 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 8 storing, or retrieving data in any form or medium) and their employees and subcontractors. 9 2.13 Protected Material: any Disclosure or Discovery Material that is within the scope of 10 this order as described in Section 3 below and thereafter designated as “CONFIDENTIAL.” 11 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 12 Producing Party. 13 3. SCOPE 14 The documents eligible for protection under this Order are: 15 ▪ Law enforcement personnel file documents and materials that concern, relate, or refer 16 to fitness for duty reports and evaluations, performance evaluations, discipline, 17 awards, commendations and recognition, reassignments or position changes, employee 18 personal data, and related records; and 19 ▪ Police Department internal investigation documents and materials including internal 20 affairs investigation files, citizen complaints, personnel file documents and data, 21 incident reports, log books, and other related records. 22 ▪ Records and investigative materials pertaining to ongoing criminal investigations 23 and/or prosecutions. The protections conferred by this Stipulation and Order cover not only Protected Material 24 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 25 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 26 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 27 However, the protections conferred by this Stipulation and Order do not cover the following 28 1 information: (a) any information that is in the public domain at the time of disclosure to a 2 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 3 a result of publication not involving a violation of this Order, including becoming part of the 4 public record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 5 obtained the information lawfully and under no obligation of confidentiality to the Designating 6 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 7 4. DURATION 8 Even after final disposition of this litigation, the confidentiality obligations imposed by this 9 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 10 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 11 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 12 and exhaustion of all appeals, re-hearings, remands, trials, or reviews of this action, including the 13 time limits for filing any motions or applications for extension of time pursuant to applicable law. 14 5. DESIGNATING PROTECTED MATERIAL 15 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 16 Non-Party that designates information or items for protection under this Order must take care to 17 limit any such designation to specific material that qualifies under the appropriate standards. The 18 Designating Party must designate for protection only those parts of material, documents, items, or 19 oral or written communications that qualify – so that other portions of the material, documents, 20 items, or communications for which protection is not warranted are not swept unjustifiably within 21 the ambit of this Order. 22 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 23 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens 24 on other parties) expose the Designating Party to sanctions. 25 If it comes to a Designating Party’s attention that information or items that it designated for 26 protection do not qualify for protection, that Designating Party must promptly notify all other 27 Parties that it is withdrawing the mistaken designation. 28 1 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 2 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure 3 or Discovery Material that qualifies for protection under this Order must be clearly so designated 4 before the material is disclosed or produced. Designation in conformity with this Order requires: 5 (a) for information in documentary form (e.g., paper or electronic documents, but 6 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 7 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 8 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 9 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 10 A Party or Non-Party that makes original documents or materials available for inspection 11 need not designate them for protection until after the inspecting Party has indicated which material 12 it would like copied and produced. During the inspection and before the designation, all of the 13 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 14 Party has identified the documents it wants copied and produced, the Producing Party must 15 determine which documents, or portions thereof, qualify for protection under this Order. Then, 16 before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL” 17 legend to each page that contains Protected Material. If only a portion or portions of the material 18 on a page qualifies for protection, the Producing Party also must clearly identify the protected 19 portion(s) (e.g., by making appropriate markings in the margins). 20 (b) for testimony given in deposition or in other pretrial proceedings, that the 21 Designating Party identify on the record, before the close of the deposition, hearing, or other 22 proceeding, all protected testimony. 23 (c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container 24 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 25 portion or portions of the information or item warrant protection, the Producing Party, to the extent 26 practicable, shall identify the protected portion(s). 27 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 28 1 qualified information or items does not, standing alone, waive the Designating Party’s right to 2 secure protection under this Order for such material. Upon timely correction of a designation, the 3 Receiving Party must make reasonable efforts to assure that the material is treated in accordance 4 with the provisions of this Order. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 6 confidentiality. Such challenges must be made within 60 days of service of the materials designated 7 as confidential and/or subject to this Order. Failure to mount a challenge to a confidentiality 8 designation within this time frame constitutes a waiver of the challenge unless the court, for good 9 cause, excuses the failure. 10 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by 11 providing written notice of each designation it is challenging and describing the basis for each 12 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 13 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 14 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 15 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 16 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 17 Party must explain the basis for its belief that the confidentiality designation was not proper and 18 must give the Designating Party an opportunity to review the designated material, to reconsider the 19 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 20 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 21 has engaged in this meet and confer process first or establishes that the Designating Party is 22 unwilling to participate in the meet and confer process in a timely manner. 23 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, the Designating Party shall file and serve a motion to retain confidentiality under 24 Eastern District Local Rule 251 within 21 days of the initial notice of challenge or within 14 days 25 of the parties agreeing that the meet and confer process will not resolve their dispute, whichever is 26 earlier. Each such motion must be accompanied by a competent declaration affirming that the 27 movant has complied with the meet and confer requirements imposed in the preceding paragraph. 28 1 Failure by the Designating Party to make such a motion including the required declaration within 2 21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for each 3 challenged designation, unless the court, for good cause, excuses the failure. In addition, the 4 Challenging Party may file a motion challenging a confidentiality designation at any time if there is good cause for doing so, including a challenge to the designation of a deposition transcript or any 5 portions thereof. Any motion brought pursuant to this provision must be accompanied by a 6 competent declaration affirming that the movant has complied with the meet and confer 7 requirements imposed by the preceding paragraph. 8 The burden of persuasion in any such challenge proceeding shall be on the Designating 9 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 10 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 11 Unless the Designating Party has waived the confidentiality designation by failing to file a motion 12 to retain confidentiality as described above, all parties shall continue to afford the material in 13 question the level of protection to which it is entitled under the Producing Party’s designation until 14 the court rules on the challenge. 15 7. ACCESS TO AND USE OF PROTECTED MATERIAL 16 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 17 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 18 defending, or attempting to settle this litigation. Prior to trial, such Protected Material may be 19 disclosed only to the categories of persons described in Section 7.2 below and under the conditions 20 described in this Order. The parties anticipate disagreement at the time of trial regarding the use 21 of Protected Material. However, the parties agree that Protected Materials should not be deemed 22 inadmissible solely due to their status as a Protected Material. Should any party seek to introduce 23 Protected Material during trial, the parties agree that this issue and the handling of the Protected Material at the time of trial, including any limitations on use, distribution, publicity, and viewing, 24 should be addressed at the Final Pretrial Conference. 25 When the litigation has been terminated, a Receiving Party must comply with the provisions 26 of section 12 below (FINAL DISPOSITION). 27 Protected Material must be stored and maintained by a Receiving Party at a location and in 28 1 a secure manner that ensures that access is limited to the persons authorized under this Order. 2 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 3 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 4 information or item designated “CONFIDENTIAL” only to: (a) the Receiving Party’s Counsel in this action, as well as employees of said 5 Counsel to whom it is reasonably necessary to disclose the information for this litigation and who 6 have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 7 A; 8 (b) the officers, directors, and employees of the Receiving Party to whom disclosure 9 is reasonably necessary for this litigation and who have signed the “Acknowledgment and 10 Agreement to Be Bound” (Exhibit A); 11 (c) the Receiving Party may show any information or item designated 12 “CONFIDENTIAL” to a third party to whom disclosure is reasonably necessary for this litigation 13 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (d) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 15 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 16 to Be Bound” (Exhibit A); 17 (e) the court and its personnel; 18 (f) court reporters and their staff, professional jury or trial consultants, mock jurors, 19 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 20 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 21 (g) during their depositions, witnesses in the action to whom disclosure is reasonably 22 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 23 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately 24 bound by the court reporter and may not be disclosed to anyone except as permitted under this 25 Stipulated Protective Order. 26 (h) the author or recipient of a document containing the information or a custodian 27 or other person who otherwise possessed or knew the information. 28 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 2 OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation that compels 4 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party must: 5 (a) promptly notify in writing the Designating Party. Such notification shall include 6 a copy of the subpoena or court order; 7 (b) promptly notify in writing the party who caused the subpoena or order to issue 8 in the other litigation that some or all of the material covered by the subpoena or order is subject to 9 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 10 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 11 Designating Party whose Protected Material may be affected. 12 If the Designating Party timely seeks a protective order, the Party served with the subpoena 13 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 14 before a determination by the court from which the subpoena or order issued, unless the Party has 15 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 16 expense of seeking protection in that court of its confidential material – and nothing in these 17 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 18 disobey a lawful directive from another court. 19 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 20 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 21 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 22 the Receiving Party must immediately (a) notify in writing the Designating Party of the 23 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 24 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 25 Agreement to Be Bound” that is attached hereto as Exhibit A. 26 10. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECT 27 MATERIAL 28 1 When a Producing Party gives notice to Receiving Parties that certain inadvertently 2 produced material is subject to a claim of privilege or other protection, the obligations of the 3 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 4 is not intended to modify whatever procedure may be established in an e-discovery order that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) 5 and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or 6 information covered by the attorney-client privilege or work product protection, the parties may 7 incorporate their agreement in the stipulated protective order submitted to the court. 8 11. MISCELLANEOUS 9 11.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 10 its modification by the court in the future or by mutual agreement of the Parties is writing. 11 11.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 12 no Party waives any right it otherwise would have to object to disclosing or producing any 13 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 14 Party waives any right to object on any ground to use in evidence of any of the material covered by 15 this Protective Order. 16 11.3 Filing Protected Material. Without written permission from the Designating Party or a 17 court order secured after appropriate notice to all interested persons, a Party may not file in the 18 public record in this action any Protected Material. A Party that seeks to file under seal any 19 Protected Material must comply with Eastern District Local Rule 141. Protected Material may only 20 be filed under seal pursuant to a court order authorizing the sealing of the specific Protected 21 Material at issue. If a Receiving Party's request to file Protected Material under seal is denied by 22 the court, then the Receiving Party may file the information in the public record unless otherwise 23 instructed by the court. 12. FINAL DISPOSITION 24 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 25 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 26 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 27 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 28 1 the Protected Material is returned or destroyed, the Receiving Party must submit a written 2 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 3 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 4 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the 5 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy 6 of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 7 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 8 and expert work product, even if such materials contain Protected Material. Any such archival 9 copies that contain or constitute Protected Material remain subject to this Protective Order as set 10 forth in Section 4 (DURATION). 11

12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 13

14 Dated: January 12, 2024 LONGYEAR & LAVRA, LLP

16 By: /s/ Nicole M. Cahill VAN LONGYEAR 17 NICOLE M. CAHILL Attorneys for Defendant, 18 City of Merced

19 Dated: January 12, 2024 LAW OFFICE OF CHE L. HASHIM 20

21 By: /s/ Che L. Hashim [authorized 1-11-24] 22 CHE L. HASHIM Attorneys for Plaintiff 23 Dated: January 12, 2024 MESSING ADAM & JASMINE, LLP 24

25 By: /s/ Alison Berry Wilkinson[authorized 1-12-24] 26 ALISON BERRY WILKINSON Attorneys for Defendants 27 Paynter and Gaona-Santillan

28 ee nnn nen en nnn ne nen nnn nn OO OS

1 ORDER 2 Upon review, IT IS ORDERED that the parties’ stipulation and joint request for entry of 3 | protective order (ECF No. 19) is approved.! 4 5 | IT IS SO ORDERED. ° | pated: _ January 17, 2024 □□□ Fahey — 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 | | The Court notes that “a protective order may not bind the Court or its personnel.” Rangel v. Forest River, Inc., No. EDCV 17-0613 JFW (SS), 2017 WL 2825922, at *2 (C.D. Cal. June 29, 2017). Thus, to the 27 || extent that the protective order conflicts with the Court’s established practices or Rules, e.g., such as allowing the parties to bypass the Court’s informal discovery-dispute-resolution process, the Court’s 28 | established practices or Rules will govern. 12