Abo Issaian v. City of Los Angeles ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIETTE AGHAJANIAN, CASE NO. CV23-08031-CBM-JPRx individually, and as Successor in Interest Hon. Consuelo B. Marshall, Ctrm 8D, 8th Fl. 12 to ABO ISSAIAN, deceased; ANNETTE Hon. Mag. Jean P. Rosenbluth, Ctrm 690, ISSAIAN, individually, and as Successor Roybal 13 in Interest to ABO ISSAIAN, deceased; EMILIE KOENING, individually, and as 14 Successor in Interest to ABO ISSAIAN, deceased, PROTECTIVE ORDER 15 16 Plaintiffs, 17 v. 18 19 CITY OF LOS ANGELES, a municipal entity; and DOES 1 and through 10, 20 inclusive, 21 22 Defendants. 23 1. INTRODUCTION 24 1.1 PURPOSES AND LIMITATIONS 25 Discovery in this action may involve production of confidential, proprietary, 26 or private information for which special protection from public disclosure and from 27 use for any purpose other than prosecuting this litigation may be warranted. 28 1 Accordingly, the Parties hereby stipulate to and petition the Court to enter the 2 following Stipulated Protective Order. The Parties acknowledge that this Order 3 does not confer blanket protections on all disclosures or responses to discovery and 4 that the protection it affords from public disclosure and use extends only to the 5 limited information or items that are entitled to confidential treatment under the 6 applicable legal principles. The Parties further acknowledge, as set forth in Section 7 12.3 below, that this Order does not entitle them to file Confidential Information 8 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the 9 standards that will be applied when a Party seeks permission from the Court to file 10 material under seal. 11 1.2 GOOD CAUSE STATEMENT 12 This action involves the City of Los Angeles (the “City”) and members of the 13 City’s Los Angeles Police Department (“LAPD”). The nature of the incident that gives 14 rise to Plaintiffs’ suit and Plaintiffs’ claims and allegations, will result in discovery 15 production that includes: police reports and evidence; investigation reports and 16 evidence; peace officer personnel materials; information implicating the privacy rights 17 of third parties (i.e., bystander witnesses, emergency personnel information); and other 18 private and confidential materials for which require special protection from public 19 disclosure. 20 Specifically, Plaintiffs are seeking materials and information that Defendant 21 City (collectively, “Defendant”) maintains as confidential such as personnel files of 22 the police and/or sworn officers involved in this incident, Internal Affairs materials 23 and information, video recordings, audio recordings, photographs, Force Investigation 24 Division materials and information and other administrative materials and information 25 currently in the possession of Defendant and which Defendant believes need special 26 protection from public disclosure and from use for any purpose other than prosecuting 27 this litigation. Plaintiffs may also seek official information contained in the personnel 28 files of the police and/or sworn officers involved in the subject incident, which 1 Defendant maintains as strictly confidential and which Defendant believes need 2 special protection from public disclosure and from use for any purpose other than 3 prosecuting this litigation. 4 Defendant asserts that the confidentiality of the materials and information 5 sought by Plaintiffs is recognized by California and federal law, as evidenced inter alia 6 by California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for N.D. 7 Cal., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). Defendant has not 8 publicly released the materials and information referenced above except under 9 protective order or pursuant to a court order, if at all. The personnel materials and 10 information are of the type that has been used to initiate disciplinary action against the 11 City’s respective employees, and has been used as evidence in disciplinary 12 proceedings, where the employee conduct was considered to be contrary to policy. 13 Defendant contends that absent a protective order delineating the 14 responsibilities of nondisclosure on the part of the parties hereto, there is a specific 15 risk of unnecessary and undue disclosure by one or more of the many attorneys, 16 secretaries, law clerks, paralegals and expert witnesses involved in this case, as well 17 as the corollary risk of embarrassment, harassment and professional and legal harm on 18 the part of the City’s employees referenced in the materials and information. 19 Defendant also contends that the unfettered disclosure of the materials and 20 information, absent a protective order, would allow the media to share this information 21 with potential jurors in the area, impacting the rights of Defendant herein to receive a 22 fair trial. 23 Accordingly, to expedite the flow of information, to facilitate the prompt 24 resolution of disputes over confidentiality of discovery materials, to adequately protect 25 information the parties are entitled to keep confidential, to ensure that the parties are 26 permitted reasonable necessary uses of such material in preparation for and in the 27 conduct of trial, to address their handling at the end of the litigation, and serve the ends 28 of justice, a protective order for such information is justified in this matter. It is the 1 intent of the parties that information will not be designated as confidential for tactical 2 reasons and that nothing be so designated without a good faith belief that it has been 3 maintained in a confidential, non-public manner, and there is good cause why it should 4 not be part of the public record of this case. 5 Plaintiffs agree that there is Good Cause for a Protective Order so as to 6 preserve the respective interests of the parties while streamlining the process of 7 resolving any disagreements. The parties therefore stipulate that there is Good 8 Cause for, and hereby jointly request that the honorable Court issue a Protective Order 9 regarding confidential documents consistent with the terms and provisions of this 10 Stipulation. However, the entry of a Protective Order by the Court pursuant to this 11 Stipulation shall not be construed as any ruling by the Court on the aforementioned 12 legal statements or privilege claims in this section, no shall this section be construed 13 as part of any such Court Order. 14 2. DEFINITIONS 15 2.1 Action: Mariette Aghajanian, et al. v. City of Los Angeles, et al. USCD 16 Case No. 2:23-cv-08031-CBM-JPR 17 2.2 Challenging Party: a Party or Nonparty that challenges the designation 18 of information or items under this Order. 19 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 20 how it is generated, stored, or maintained) or tangible things that qualify for 21 protection under Federal Rule of Civil Procedure 26(c) and as specified above in the 22 Good Cause Statement. [Note: any request for a two-tiered, attorney-eyes-only 23 protective order that designates certain material as “Highly Confidential” 24 requires a separate, detailed showing of need.] 25 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 26 their support staff). 27 2.5 Designating Party: a Party or Nonparty that designates information or 28 items that it produces in disclosures or in responses to discovery as 1 “CONFIDENTIAL.” 2 2.6 Disclosure or Discovery Material: all items or information, regardless 3 of the medium or manner in which it is generated, stored, or maintained (including, 4 among other things, testimony, transcripts, and tangible things), that are produced or 5 generated in disclosures or responses to discovery in this matter. 6 2.7 Expert: a person with specialized knowledge or experience in a matter 7 pertinent to the litigation who has been retained by a Party or its counsel to serve as 8 an expert witness or as a consultant in this action. 9 2.8 House Counsel: attorneys who are employees of a Party to this Action. 10 House Counsel does not include Outside Counsel of Record or any other outside 11 counsel. 12 2.9 Nonparty: any natural person, partnership, corporation, association, or 13 other legal entity not named as a Party to this action. 14 2.10 Outside Counsel of Record: attorneys who are not employees of a 15 Party to this Action but are retained to represent or advise a Party and have appeared 16 in this Action on behalf of that Party or are affiliated with a law firm that has 17 appeared on behalf of that Party, including support staff. 18 2.11 Party: any Party to this Action, including all of its officers, directors, 19 employees, consultants, retained experts, and Outside Counsel of Record (and their 20 support staffs). 21 2.12 Producing Party: a Party or Nonparty that produces Disclosure or 22 Discovery Material in this Action. 23 2.13 Professional Vendors: persons or entities that provide litigation 24 support services (for example, photocopying, videotaping, translating, preparing 25 exhibits or demonstrations, and organizing, storing, or retrieving data in any form or 26 medium) and their employees and subcontractors. 27 2.14 Protected Material: any Disclosure or Discovery Material that is 28 designated as “CONFIDENTIAL.” 1 2.15 Receiving Party: a Party that receives Disclosure or Discovery 2 Material from a Producing Party. 3 3. SCOPE 4 The protections conferred by this Stipulation and Order cover not only 5 Protected Material (as defined above) but also any information copied or extracted 6 from Protected Material; all copies, excerpts, summaries, or compilations of 7 Protected Material; and any testimony, conversations, or presentations by Parties or 8 their Counsel that might reveal Protected Material. 9 Any use of Protected Material at trial will be governed by the orders of the 10 trial judge. This Order does not govern the use of Protected Material at trial. 11 4. DURATION 12 Once a case proceeds to trial, all the information that was designated as 13 confidential or maintained under this Order becomes public and will be presumptively 14 available to all members of the public, including the press, unless the trial judge finds 15 compelling reasons to proceed otherwise. See Kamakana v. City & Cnty. of Honolulu, 16 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for 17 sealing documents produced in discovery from “compelling reasons” needed for 18 merits-related documents). Accordingly, the terms of this Order do not extend beyond 19 the beginning of trial. 20 Even after final disposition of this litigation, the confidentiality obligations 21 imposed by this Order will remain in effect until a Designating Party agrees otherwise 22 in writing 23 or a court order otherwise directs. Final disposition is the later of (1) dismissal of all 24 claims and defenses in this Action, with or without prejudice, or (2) final judgment 25 after the completion and exhaustion of all appeals, rehearings, remands, trials, or 26 reviews of this Action, including the time limits for filing any motions or 27 applications for extension of time under applicable law. 28 5. DESIGNATING PROTECTED MATERIAL 1 5.1 Each Party or Nonparty that designates information or items for 2 protection under this Order must take care to limit any such designation to specific 3 material that qualifies under the appropriate standards. To the extent practicable, the 4 Designating Party must designate for protection only those parts of material, 5 documents, items, or oral or written communications that qualify so that other 6 portions of the material, documents, items, or communications for which protection 7 is not warranted are not swept unjustifiably within the ambit of this Order. 8 Indiscriminate or routinized designations are prohibited. Designations that 9 are shown to be clearly unjustified or that have been made for an improper purpose 10 (for example, to unnecessarily encumber the case-development process or to impose 11 unnecessary expenses and burdens on other parties) may expose the Designating 12 Party to sanctions. 13 If it comes to a Designating Party’s attention that information or items it 14 designated for protection do not qualify for that level of protection, that Designating 15 Party must promptly notify all other Parties that it is withdrawing the inapplicable 16 designation. 17 5.2 Except as otherwise provided in this Order, Disclosure or Discovery 18 Material that qualifies for protection under this Order must be clearly so designated 19 before the material is disclosed or produced. 20 Designation in conformity with this Order requires the following: 21 (a) for information in documentary form (for example, paper or electronic 22 documents but excluding transcripts of depositions or other pretrial or trial 23 proceedings), the Producing Party must affix at a minimum the legend 24 “CONFIDENTIAL” to each page that contains Protected Material. If only a portion 25 or portions of the material on a page qualify for protection, the Producing Party 26 should to the extent practicable clearly identify the protected portion(s) (for 27 example, by making appropriate markings in the margins). 28 A Party or Nonparty that makes original documents available for 1 inspection need not designate them for protection until after the inspecting Party has 2 indicated which documents it would like copied and produced. During the 3 inspection and before the designation, all material made available for inspection 4 must be treated as “CONFIDENTIAL.” After the inspecting Party has identified the 5 documents it wants copied and produced, the Producing Party must determine which 6 documents, or portions thereof, qualify for protection under this Order. Then, 7 before producing the specified documents, the Producing Party must affix the 8 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a 9 portion or portions of the material on a page qualify for protection, the Producing 10 Party should to the extent practical clearly identify the protected portion(s) (for 11 example, by making appropriate markings in the margins). 12 (b) for testimony given in depositions, the Designating Party must identify 13 the Disclosure or Discovery Material that is protected on the record, before the close 14 of the deposition. 15 (c) for information produced in some form other than documentary and for 16 any other tangible items, the Producing Party must affix in a prominent place on the 17 exterior of the container or containers in which the information is stored the legend 18 “CONFIDENTIAL.” If only a portion or portions of the information warrant 19 protection, the Producing Party, to the extent practicable, must identify the protected 20 portion(s). 21 5.3 If timely corrected, an inadvertent failure to designate qualified 22 information or items does not, standing alone, waive the Designating Party’s right to 23 secure protection under this Order for that material. On timely correction of a 24 designation, the Receiving Party must make reasonable efforts to assure that the 25 material is treated in accordance with the provisions of this Order. 26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 27 6.1 Any Party or Nonparty may challenge a designation of confidentiality 28 at any time consistent with the Court’s scheduling order. 1 6.2 The Challenging Party must initiate the dispute-resolution process (and, 2 if necessary, file a discovery motion) under Local Rule 37. 3 6.3 The burden of persuasion in any such proceeding is on the Designating 4 Party. Frivolous challenges, and those made for an improper purpose (for example, 5 to harass or impose unnecessary expenses and burdens on other parties), may expose 6 the Challenging Party to sanctions. Unless the Designating Party has waived or 7 withdrawn the confidentiality designation, all parties must continue to afford the 8 material in question the level of protection to which it is entitled under the 9 Producing Party’s designation until the Court rules on the challenge. 10 7. ACCESS TO AND USE OF PROTECTED MATERIAL 11 7.1 A Receiving Party may use Protected Material that is disclosed or 12 produced by another Party or by a Nonparty in connection with this Action only for 13 prosecuting, defending, or attempting to settle this Action. Such Protected Material 14 may be disclosed only to the categories of people and under the conditions described 15 in this Order. When the Action has been terminated, a Receiving Party must comply 16 with the provisions of Section 13 below (FINAL DISPOSITION). 17 Protected Material must be stored and maintained by a Receiving Party at a 18 location and in a manner sufficiently secure to ensure that access is limited to the 19 people authorized under this Order. 20 7.2 Unless otherwise ordered by the Court or permitted in writing by the 21 Designating Party, a Receiving Party may disclose any information or item 22 designated “CONFIDENTIAL” only to the following people: 23 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 24 well as employees of that Outside Counsel of Record to whom it is reasonably 25 necessary to disclose the information for this Action; 26 (b) the officers, directors, and employees (including House Counsel) of 27 the Receiving Party to whom disclosure is reasonably necessary for this Action; 28 (c) Experts (as defined in this Order) of the Receiving Party to whom 1 disclosure is reasonably necessary for this Action and who have signed the 2 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 3 (d) the Court and its personnel; 4 (e) court reporters and their staff; 5 (f) professional jury or trial consultants, mock jurors, and Professional 6 Vendors to whom disclosure is reasonably necessary for this Action and who have 7 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (g) the author or recipient of a document containing the information or a 9 custodian or other person who otherwise possessed or knew the information; 10 (h) during their depositions, witnesses and attorneys for witnesses to 11 whom disclosure is reasonably necessary, provided that the deposing party requests 12 that the witness sign the form attached as Exhibit A hereto and the witnesses will 13 not be permitted to keep any confidential information unless they sign the form, 14 unless otherwise agreed by the Designating Party or ordered by the Court. Pages of 15 transcribed deposition testimony or exhibits to depositions that reveal Protected 16 Material may be separately bound by the court reporter and may not be disclosed to 17 anyone except as permitted under this Order; and 18 (i) any mediator or settlement officer, and their supporting personnel, 19 mutually agreed on by any of the Parties engaged in settlement discussions or 20 appointed by the Court. 21 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 22 IN OTHER LITIGATION 23 If a Party is served with a subpoena or a court order issued in other litigation 24 that compels disclosure of any information or items designated in this Action as 25 “CONFIDENTIAL,” that Party must 26 (a) promptly notify in writing the Designating Party. Such notification 27 must include a copy of the subpoena or court order unless prohibited by law; 28 (b) promptly notify in writing the party who caused the subpoena or order 1 to issue in the other litigation that some or all of the material covered by the 2 subpoena or order is subject to this Protective Order. Such notification must include 3 a copy of this Order; and 4 (c) cooperate with respect to all reasonable procedures sought to be 5 pursued by the Designating Party whose Protected Material may be affected. 6 If the Designating Party timely seeks a protective order, the Party served with 7 the subpoena or court order should not produce any information designated in this 8 action as “CONFIDENTIAL” before a determination on the protective-order request 9 by the relevant court unless the Party has obtained the Designating Party’s 10 permission. The Designating Party bears the burden and expense of seeking 11 protection of its Confidential Material, and nothing in these provisions should be 12 construed as authorizing or encouraging a Receiving Party in this Action to disobey 13 a lawful directive from another court. 14 9. A NONPARTY’S PROTECTED MATERIAL SOUGHT TO BE 15 PRODUCED IN THIS LITIGATION 16 (a) The terms of this Order are applicable to information produced by a 17 Nonparty in this Action and designated as “CONFIDENTIAL.” Such information is 18 protected by the remedies and relief provided by this Order. Nothing in these 19 provisions should be construed as prohibiting a Nonparty from seeking additional 20 protections. 21 (b) In the event that a Party is required by a valid discovery request to 22 produce a Nonparty’s Confidential Information in its possession and the Party is 23 subject to an agreement with the Nonparty not to produce the Nonparty’s 24 Confidential Information, then the Party must 25 (1) promptly notify in writing the Requesting Party and the Nonparty that 26 some or all of the information requested is subject to a confidentiality agreement with 27 a Nonparty; 28 1 (2) promptly provide the Nonparty with a copy of this Order, the relevant 2 discovery request(s), and a reasonably specific description of the information 3 requested; and 4 (3) make the information requested available for inspection by the 5 Nonparty, if requested. 6 (c) If the Nonparty fails to seek a protective order within 21 days of 7 receiving the notice and accompanying information, the Receiving Party may 8 produce the Nonparty’s Confidential Information responsive to the discovery 9 request. If the Nonparty timely seeks a protective order, the Receiving Party must 10 not produce any information in its possession or control that is subject to the 11 confidentiality agreement with the Nonparty before a ruling on the protective-order 12 request. Absent a court order to the contrary, the Nonparty must bear the burden 13 and expense of seeking protection of its Protected Material. 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that by inadvertence or otherwise, it has disclosed 16 Protected Material to any person or in any circumstance not authorized under this 17 Order, the Receiving Party must immediately notify the Designating Party in writing 18 of the unauthorized disclosures, use its best efforts to retrieve all unauthorized 19 copies of the Protected Material, inform the person or people to whom unauthorized 20 disclosures were made of the terms of this Order, and ask that person or people to 21 execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto 22 as Exhibit A. 23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other protection, 27 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 28 Procedure 26(b)(5)(B). 1 12. MISCELLANEOUS 2 12.1 Nothing in this Order abridges the right of any person to seek its 3 modification by the Court. 4 12.2 By stipulating to the entry of this Order, no Party waives any right it 5 otherwise would have to object to disclosing or producing any information or item 6 on any ground not addressed in this Order. Similarly, no Party waives any right to 7 object on any ground to use in evidence of any of the material covered by this 8 Order. 9 12.3 A Party that seeks to file under seal any Protected Material must 10 comply with Civil Local Rule 79-5. Protected Material may be filed under seal only 11 pursuant to a court order authorizing the sealing of the specific Protected Material at 12 issue. If a Party's request to file Protected Material under seal is denied, then the 13 Receiving Party may file the information in the public record unless otherwise 14 instructed by the Court. 15 13. FINAL DISPOSITION 16 After the final disposition of this Action, as defined in paragraph 4, within 60 17 days of a written request by the Designating Party, each Receiving Party must return 18 all Protected Material to the Producing Party or destroy such material. As used in 19 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected 21 Material. Whether the Protected Material is returned or destroyed, the Receiving 22 Party must submit a written certification to the Producing Party (and, if not the same 23 person or entity, to the Designating Party) by the 60-day deadline that identifies (by 24 category, when appropriate) all the Protected Material that was returned or 25 destroyed and affirms that the Receiving Party has not retained any copies, abstracts, 26 compilations, summaries, or any other format reproducing or capturing any of the 27 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 28 archival copy of all pleadings; motion papers; trial, deposition, and hearing 1 transcripts; legal memoranda; correspondence; deposition and trial exhibits; expert 2 reports; attorney work product; and consultant and expert work product even if such 3 materials contain Protected Material. Any such archival copies that contain or 4 constitute Protected Material remain subject to this Order as set forth in Section 4 5 (DURATION). 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 14. SANCTIONS 2 Any willful violation of this Order may be punished by civil or criminal 3 |} contempt, financial or evidentiary sanctions, reference to disciplinary authorities, or other appropriate action at the discretion of the Court. 5 6 || IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 7 8 || DATED:March 19, 2024 COCHRAN FIRM CALIFORNIA 9 _/s/ Brian T. Dunn Brian T. Dunn, Esq. 10 Attorneys for Plaintiffs, Mariette Aghajanian, et al. 11 DATED: March 19, 2024 HYDEE FELDSTEIN SOTO, City Attorney 12 DENISE C. MILLS, Chief Deputy City Attorney SCOTT D. MARCUS, Chief Asst. City Attorney 13 CORY M. BRENTE, Senior Assistant City Attorney 14 By: /s/ Rebecoa ©. Lhinter: 15 REBECCA E, HUNTER’, Deputy City Attomey 16 Attorneys for Defendant, CITY OF LOS ANGELES 17 18 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 19 fo hrewMattr 20 || DATED: 3/19/2024 1 HONORABLE JEAN P. ROSENBLUTH UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 ' Pursuant to Local Rule 5 5-4.3.4(a)(2)(i), I attest that the other signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the filing. 28 15 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [full name], of _________________ 4 [full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the U.S. District Court 6 for the Central District of California on [date] in the case of Mariette Aghajanian, et 7 al. v. City of Los Angeles, et al. USCD Case No. 2:23-cv-08031-CBM-JPR. I agree to 8 comply with and to be bound by all terms of this Stipulated Protective Order, and I 9 understand and acknowledge that failure to so comply could expose me to sanctions 10 and punishment, including contempt. I solemnly promise that I will not disclose in any 11 manner any information or item that is subject to this Stipulated Protective Order to 12 any person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the U.S. District Court for the 14 Central District of California for the purpose of enforcing the terms of this 15 Stipulated Protective Order, even if such enforcement proceedings occur after 16 termination of this action. I hereby appoint __________________________ [full 17 name] of _______________________________________ [full address and 18 telephone number] as my California agent for service of process in connection with 19 this action or any proceedings related to enforcement of this Stipulated Protective 20 Order. 21 Date: ______________________________________ 22 City and State where signed: _________________________________ 23 Printed name: _______________________________ 24 Signature: _________________________________ 25 26 27 28