Evalyn Martinez v. City of Los Angeles ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EVALYN MARTINEZ, an individual, | Case No. 2:23-ev-09491-SVW-SK 12 B Plaintiff, STIPULATED PROTECTIVE ORDER 14 V. 15| CITY OF LOS ANGELES, DOES 1 16 through 20, inclusive, M7 Defendant. 8] 1. A. PURPOSES AND LIMITATIONS 19 Discovery in this action is likely to involve production of confidential, 20| proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 23] enter the following Stipulated Protective Order. The parties acknowledge that this 24] Order does not confer blanket protections on all disclosures or responses to 25 discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment 27] under the applicable legal principles. The parties further acknowledge, as set forth 28] in Section 12.3 (Filing Protected Material), below, that this Stipulated Protective 1 Order does not entitle them to a file confidential information under seal; Civil Local 2 Rule 79-5 sets forth the procedures that must be followed and the standards that will 3 be applied when a party seeks permission from the court to file material under seal. 4 5 B. GOOD CAUSE STATEMENT 6 This action involves the City of Los Angeles and members of the Los Angeles 7 Police Department. Plaintiff is seeking materials and information that Defendants the 8 City of Los Angeles et al. (“City”) maintains as confidential, such as personnel files 9 of the police officers involved in this incident, Internal Affairs materials and information, video recordings, audio recordings, photographs, Internal Investigation 10 materials and information and other administrative materials and information 11 currently in the possession of the City and which the City believes need special 12 protection from public disclosure and from use for any purpose other than prosecuting 13 this litigation. Further, Plaintiff is seeking information that involves minors and 14 information provided by third-party witnesses. Plaintiff is also seeking official 15 information contained in the personnel files of the police officers involved in the 16 subject incident, which the City maintains as strictly confidential and which the City 17 believes need special protection from public disclosure and from use for any purpose 18 other than prosecuting this litigation. 19 The City asserts that the confidentiality of the materials and information sought 20 by Plaintiff is recognized by California and federal law, as evidenced inter alia by 21 California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for N.D. Cal., 22 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). The City has not 23 publicly released the materials and information referenced above except under 24 protective order or pursuant to a court order, if at all. These materials and information 25 are of the type that has been used to initiate disciplinary action against Los Angeles 26 Police Department (“LAPD”) officers, and has been used as evidence in disciplinary 27 proceedings, where the officers’ conduct was considered to be contrary to LAPD 28 policy. 1 The City contends that absent a protective order delineating the responsibilities 2 of nondisclosure on the part of the parties hereto, there is a specific risk of unnecessary 3 and undue disclosure by one or more of the many attorneys, secretaries, law clerks, 4 paralegals and expert witnesses involved in this case, as well as the corollary risk of embarrassment, harassment and professional and legal harm on the part of the LAPD 5 officers referenced in the materials and information. 6 The City also contends that the unfettered disclosure of the materials and 7 information, absent a protective order, would allow the media to share this 8 information with potential jurors in the area, impacting the rights of the City herein to 9 receive a fair trial. 10 Accordingly, to expedite the flow of information, to facilitate the prompt 11 resolution of disputes over confidentiality of discovery materials, to adequately 12 protect information the parties are entitled to keep confidential, to ensure that the 13 parties are permitted reasonable necessary uses of such material in preparation for and 14 in the conduct of trial, to address their handling at the end of the litigation, and serve 15 the ends of justice, a protective order for such information is justified in this matter. 16 It is the intent of the parties that information will not be designated as confidential for 17 tactical reasons and that nothing be so designated without a good faith belief that it 18 has been maintained in a confidential, non-public manner, and there is good cause 19 why it should not be part of the public record of this case. 20 Plaintiff agrees that there is Good Cause for a Protective Order so as to preserve 21 the respective interests of the parties while streamlining the process of resolving any 22 disagreements. 23 The parties therefore stipulate that there is Good Cause for, and hereby 24 jointly request that the honorable Court issue a Protective Order regarding 25 confidential documents consistent with the terms and provisions of this Stipulation. 26 However, the entry of a Protective Order by the Court pursuant to this Stipulation 27 shall not be construed as any ruling by the Court on the aforementioned legal 28 1 statements or privilege claims in this section, no shall this section be construed as 2 part of any such Court Order. 3 2. DEFINITIONS 4 2.1 Action: this pending federal law suit. 5 2.2 Challenging Party: a Party or Non-Party that challenges the 6 designation of information or items under this Order. 7 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 8 how it is generated, stored, or maintained) or tangible things that qualify for 9 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 10 the Good Cause Statement. 11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 12 their support staff). 13 2.5 Designating Party: a Party or Non-Party that designates information 14 or items that it produces in disclosures or in responses to discovery as 15 “CONFIDENTIAL.” 16 2.6 Disclosure or Discovery Material: all items or information, regardless 17 of the medium or manner in which it is generated, stored, or maintained (including, 18 among other things, testimony, transcripts, and tangible things), that are produced 19 or generated in disclosures or responses to discovery in this matter. 20 2.7 Expert: a person with specialized knowledge or experience in a matter 21 pertinent to the litigation who has been retained by a Party or its counsel to serve as 22 an expert witness or as a consultant in this Action. 23 2.8 House Counsel: attorneys who are employees of a party to this Action. 24 House Counsel does not include Outside Counsel of Record or any other outside 25 counsel. 26 2.9 Non-Party: any natural person, partnership, corporation, association, 27 or other legal entity not named as a Party to this action. 28 2.10 Outside Counsel of Record: attorneys who are not employees of a 1 party to this Action but are retained to represent or advise a party to this Action and 2 have appeared in this Action on behalf of that party or are affiliated with a law firm 3 which has appeared on behalf of that party, including support staff. 4 2.11 Party: any party to this Action, including all of its officers, directors, 5 employees, consultants, retained experts, and Outside Counsel of Record (and their 6 support staffs). 7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 8 Discovery Material in this Action. 9 2.13 Professional Vendors: persons or entities that provide litigation 10 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 11 demonstrations, and organizing, storing, or retrieving data in any form or medium) 12 and their employees and subcontractors. 13 2.14 Protected Material: any Disclosure or Discovery Material that is 14 designated as “CONFIDENTIAL.” 15 2.15 Receiving Party: a Party that receives Disclosure or Discovery 16 Material from a Producing Party. 17 18 3. SCOPE 19 The protections conferred by this Stipulation and Order cover not only 20 Protected Material (as defined above), but also (1) any information copied or 21 extracted from Protected Material; (2) all copies, excerpts, summaries, or 22 compilations of Protected Material; and (3) any testimony, conversations, or 23 presentations by Parties or their Counsel that might reveal Protected Material. 24 Any use of Protected Material at trial shall be governed by the orders of the 25 trial judge. This Order does not govern the use of Protected Material at trial. 26 27 28 /// 1 4. DURATION 2 Once a case proceeds to trial, all of the information that was designated as 3 confidential or maintained as such pursuant to this protective order and that is 4 introduced or admitted as an exhibit at trial becomes public and will be presumptively 5 available to all members of the public, including the press, unless compelling reasons 6 supported by specific factual findings to proceed otherwise are made to the trial judge 7 in advance of the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 8 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing 9 documents produced in discovery from “compelling reasons” standard when merits- 10 related documents are part of court record). Accordingly, the terms of this protective 11 order do not extend to that Protected Material admitted into evidence beyond the 12 commencement of the trial. 13 Even after final disposition of this Action, the confidentiality obligations 14 imposed by this Order shall remain in effect as to all Protected Material that was not 15 introduced or not admitted into evidence at trial, until a Designating Party agrees 16 otherwise in writing or a court order otherwise directs. Final disposition shall be 17 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 18 or without prejudice; and (2) final judgment herein after the completion and 19 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 20 including the time limits for filing any motions or applications for extension of time 21 pursuant to applicable law. 22 23 5. DESIGNATING PROTECTED MATERIAL 24 5.1 Exercise of Restraint and Care in Designating Material for Protection. 25 Each Party or Non-Party that designates information or items for protection under 26 this Order must take care to limit any such designation to specific material that 27 qualifies under the appropriate standards. The Designating Party must designate for 28 protection only those parts of material, documents, items, or oral or written 1 communications that qualify so that other portions of the material, documents, 2 items, or communications for which protection is not warranted are not swept 3 unjustifiably within the ambit of this Order. 4 Mass, indiscriminate, or routinized designations are prohibited. Designations 5 that are shown to be clearly unjustified or that have been made for an improper 6 purpose (e.g., to unnecessarily encumber the case development process or to impose 7 unnecessary expenses and burdens on other parties) may expose the Designating 8 Party to sanctions. 9 If it comes to a Designating Party’s attention that information or items that it 10 designated for protection do not qualify for protection, that Designating Party must 11 promptly notify all other Parties that it is withdrawing the inapplicable designation. 12 5.2 Manner and Timing of Designations. Except as otherwise provided in 13 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise 14 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 15 under this Order must be clearly so designated before the material is disclosed or 16 produced. 17 Designation in conformity with this Order requires: 18 (a) for information in documentary form (e.g., paper or electronic 19 documents, but excluding transcripts of depositions or other pretrial or trial 20 proceedings), that the Producing Party affix at a minimum, the legend 21 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 22 contains protected material. If only a portion or portions of the material on a page 23 qualifies for protection, the Producing Party also must clearly identify the protected 24 portion(s) (e.g., by making appropriate markings in the margins). 25 A Party or Non-Party that makes original documents available for 26 inspection need not designate them for protection until after the inspecting Party has 27 indicated which documents it would like copied and produced. During the 28 inspection and before the designation, all of the material made available for 1 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 2 identified the documents it wants copied and produced, the Producing Party must 3 determine which documents, or portions thereof, qualify for protection under this 4 Order. Then, before producing the specified documents, the Producing Party must 5 affix the “CONFIDENTIAL legend” to each page that contains Protected Material. 6 If only a portion or portions of the material on a page qualifies for protection, the 7 Producing Party also must clearly identify the protected portion(s) (e.g., by making 8 appropriate markings in the margins). 9 (b) for testimony given in depositions that the Designating Party identify 10 the Disclosure or Discovery Material on the record, before the close of the 11 deposition all protected testimony. 12 (c) for information produced in some form other than documentary and 13 for any other tangible items, that the Producing Party affix in a prominent place on 14 the exterior of the container or containers in which the information is stored the 15 legend “CONFIDENTIAL.” If only a portion or portions of the information 16 warrants protection, the Producing Party, to the extent practicable, shall identify the 17 protected portion(s). 18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 19 failure to designate qualified information or items does not, standing alone, waive 20 the Designating Party’s right to secure protection under this Order for such material. 21 Upon timely correction of a designation, the Receiving Party must make reasonable 22 efforts to assure that the material is treated in accordance with the provisions of this 23 Order. 24 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 27 designation of confidentiality at any time that is consistent with the Court’s 28 Scheduling Order. 1 6.2 Meet and Confer. The Challenging Party Shall initiate the dispute 2 resolution process under Civil Local Rule 37-1 et seq. 3 6.3 The burden of persuasion in any such challenge proceeding shall be 4 on the Designating Party. Frivolous challenges, and those made for an improper 5 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 6 parties), may expose the Challenging Party to sanctions. Unless the Designating 7 Party has waived or withdrawn the confidentiality designation, all parties shall 8 continue to afford the material in question the level of protection to which it 9 is entitled under the Producing Party’s designation until the Court rules on the 10 challenge. 11 12 7. ACCESS TO AND USE OF PROTECTED MATERIAL 13 7.1 Basic Principles. A Receiving Party may use Protected Material that 14 is disclosed or produced by another Party or by a Non-Party in connection with 15 this Action only for prosecuting, defending, or attempting to settle this Action. 16 Such Protected Material may be disclosed only to the categories of persons and 17 under the conditions described in this Order. When the Action has been 18 terminated, a Receiving Party must comply with the provisions of Section 13 below 19 (FINAL DISPOSITION). 20 Protected Material must be stored and maintained by a Receiving Party at 21 a location and in a secure manner that ensures that access is limited to the 22 persons authorized under this Order. 23 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 24 otherwise ordered by the Court or permitted in writing by the Designating Party, a 25 Receiving Party may disclose any information or item designated 26 “CONFIDENTIAL” only to: 27 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 28 well as employees of said Outside Counsel of Record to whom it is reasonably 1 necessary to disclose the information for this Action; 2 (b) the officers, directors, and employees (including House Counsel) of 3 the Receiving Party to whom disclosure is reasonably necessary for this Action; 4 (c) Experts (as defined in this Order) of the Receiving Party to whom 5 disclosure is reasonably necessary for this Action and who have signed the 6 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 (d) the Court and its personnel; 8 (e) court reporters and their staff; 9 (f) professional jury or trial consultants, mock jurors, and Professional 10 Vendors to whom disclosure is reasonably necessary for this Action and who have 11 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 12 (g) the author or recipient of a document containing the information or a 13 custodian or other person who otherwise possessed or knew the information; 14 (h) during their depositions, witnesses, and attorneys for witnesses, in 15 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 16 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 17 they will not be permitted to keep any confidential information unless they sign the 18 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 19 agreed by the Designating Party or ordered by the Court. Pages of transcribed 20 deposition testimony or exhibits to depositions that reveal Protected Material may 21 be separately bound by the court reporter and may not be disclosed to anyone except 22 as permitted under this Stipulated Protective Order; and 23 (i) any mediator or settlement officer, and their supporting personnel, 24 mutually agreed upon by any of the parties engaged in settlement discussions and 25 who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A). 26 27 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 28 IN OTHER LITIGATION 1 If a Party is served with a subpoena or a court order issued in other litigation 2 that compels disclosure of any information or items designated in this Action as 3 “CONFIDENTIAL,” that Party must: 4 (a) promptly notify in writing the Designating Party. Such notification 5 shall include a copy of the subpoena or court order; 6 (b) promptly notify in writing the party who caused the subpoena or order 7 to issue in the other litigation that some or all of the material covered by the 8 subpoena or order is subject to this Protective Order. Such notification shall include 9 a copy of this Stipulated Protective Order; and 10 (c) cooperate with respect to all reasonable procedures sought to be 11 pursued by the Designating Party whose Protected Material may be affected. 12 If the Designating Party timely seeks a protective order, the Party served with 13 the subpoena or court order shall not produce any information designated in this 14 action as “CONFIDENTIAL” before a determination by the court from which the 15 subpoena or order issued, unless the Party has obtained the Designating Party’s 16 permission. The Designating Party shall bear the burden and expense of seeking 17 protection in that court of its confidential material, and nothing in these provisions 18 should be construed as authorizing or encouraging a Receiving Party in this Action 19 to disobey a lawful directive from another court. 20 21 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 22 PRODUCED IN THIS LITIGATION 23 (a) The terms of this Order are applicable to information produced by a 24 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 25 produced by Non-Parties in connection with this litigation is protected by the 26 remedies and relief provided by this Order. Nothing in these provisions should be 27 construed as prohibiting a Non-Party from seeking additional protections. 28 (b) In the event that a Party is required, by a valid discovery request, to 1 produce a Non-Party’s confidential information in its possession, and the Party is 2 subject to an agreement with the Non-Party not to produce the Non-Party’s 3 confidential information, then the Party shall: 4 (1) promptly notify in writing the Requesting Party and the Non-Party 5 that some or all of the information requested is subject to a confidentiality agreement 6 with a Non-Party; 7 (2) promptly provide the Non-Party with a copy of the Stipulated 8 Protective Order in this Action, the relevant discovery request(s), and a reasonably 9 specific description of the information requested; and 10 (3) make the information requested available for inspection by the Non- 11 Party, if requested. 12 (c) If the Non-Party fails to seek a protective order from this Court within 13 14 days of receiving the notice and accompanying information, the Receiving Party 14 may produce the Non-Party’s confidential information responsive to the discovery 15 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 16 not produce any information in its possession or control that is subject to the 17 confidentiality agreement with the Non-Party before a determination by the Court. 18 Absent a court order to the contrary, the Non-Party shall bear the burden and 19 expense of seeking protection in this Court of its Protected Material. 20 21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 22 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 23 Protected Material to any person or in any circumstance not authorized under this 24 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 25 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 26 to retrieve all unauthorized copies of the Protected Material, (c) inform the person 27 or persons to whom unauthorized disclosures were made of all the terms of this 28 Order, and (d) request such person or persons to execute the “Acknowledgment and 1 Agreement to Be Bound” that is attached hereto as Exhibit A. 2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 3 PROTECTED MATERIAL 4 When a Producing Party gives notice to Receiving Parties that certain 5 inadvertently produced material is subject to a claim of privilege or other protection, 6 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 7 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 8 procedure may be established in an e-discovery order that provides for production 9 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 10 (e), insofar as the parties reach an agreement on the effect of disclosure of a 11 communication or information covered by the attorney-client privilege or work 12 product protection, the parties may incorporate their agreement in the stipulated 13 protective order submitted to the Court. 14 15 12. MISCELLANEOUS 16 12.1 Right to Relief. Nothing in this Order abridges the right of any person 17 to seek its modification by the Court in the future. 18 12.2 Right to Assert Other Objections. By stipulating to the entry of this 19 Protective Order, no Party waives any right it otherwise would have to object to 20 disclosing or producing any information or item on any ground not addressed in this 21 Stipulated Protective Order. Similarly, no Party waives any right to object on any 22 ground to use in evidence of any of the material covered by this Protective Order. 23 12.3 Filing Protected Material. A Party that seeks to file under seal any 24 Protected Material must comply with Civil Local Rule 79-5. Protected Material 25 may only be filed under seal pursuant to a court order authorizing the sealing of the 26 specific Protected Material at issue. If a Party’s request to file Protected Material 27 under seal is denied by the court, then the Receiving Party may file the information 28 in the public record unless otherwise instructed by the court. 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in Section 4 3 (DURATION), within 60 days of a written request by the Designating Party, each 4 Receiving Party must return all Protected Material to the Producing Party or destroy 5 such material. As used in this subdivision, “all Protected Material” includes all 6 copies, abstracts, compilations, summaries, and any other format reproducing or 7 capturing any of the Protected Material. Whether the Protected Material is returned 8 or destroyed, the Receiving Party must submit a written certification to the 9 Producing Party (and, if not the same person or entity, to the Designating Party) by 10 the 60 day deadline that (1) identifies (by category, where appropriate) all the 11 Protected Material that was returned or destroyed; and (2) affirms that the Receiving 12 Party has not retained any copies, abstracts, compilations, summaries, or any other 13 format reproducing or capturing any of the Protected Material. Notwithstanding this 14 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 15 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 16 deposition and trial exhibits, expert reports, attorney work product, and consultant 17 and expert work product, even if such materials contain Protected Material. Any 18 such archival copies that contain or constitute Protected Material remain subject to 19 this Protective Order as set forth in Section 4 (DURATION). 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 14. Any violation of this Order may be punished by any and all appropriate 2 measures including, without limitation, contempt proceedings and/or 3 monetary sanctions. 4 5} ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7| DATED: February 14, 2024 8| SKAPIK LAW GROUP 9| _/s! Mathew F, Falhenstein 19 | Matthew T. Falkenstein Attorneys for Plaintiff '? | DATED: February 14, 2024 | OFFICE OF THE LOS ANGELES CITY ATTORNEY "| Isl Shant Taslekian Shant Taslakian, Deputy City Attorney 16| Attorneys for Defendant 17| FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 19| DATED: February 15, 2024 20 7 HONORABLE STEVE KIM United States Magistrate Judge 24 25 26 27 28 1& 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, [print or type full name], of 5 [print or type full address], declare under penalty of perjury 6| that I have read in its entirety and understand the Stipulated Protective Order that 7 | was issued by the United States District Court for the Central District of California on [date] in the case of [insert formal name of the case and the 9| number and initials assigned to it by the court]. I agree to comply with and to be 10) bound by all the terms of this Stipulated Protective Order, and I understand and 11 | acknowledge that failure to so comply could expose me to sanctions and punishment 12) inthe nature of contempt. I solemnly promise that I will not disclose in any manner 13 | any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16| for the Central District of California for the purpose of enforcing the terms of this 17| Stipulated Protective Order, even if such enforcement proceedings occur after 18 | termination of this action. I hereby appoint [print 19| or type full name] of [print or type 20| full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. Date: 24| City and State where sworn and signed: 25| Printed name: 26 27 Signature: 28 164