Bradley Montgomery v. City of Costa Mesa ( 2019 )

1 Jjratm@ejso nRe.s T-mouacyhesr.tcoonme, SBN 184584 2 Denise L. Rocawich, SBN 232792 dlr@jones-mayer.com 3 JONES & MAYER 3777 North Harbor Boulevard 4 Fullerton, CA 92835 Telephone: (714) 446-1400 5 Facsimile: (714) 446-1448 6 Attorneys for Defendant: City of Costa Mesa 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRADLEY MONTGOMERY, Case No. 8:19-cv-01874 DOC DFM 12 Plaintiff, Hon. David O. Carter 13 [XPXRXOXPOXXSEXDX] STIPULATED 14 vs. PROTECTIVE ORDER 15 CITY OF COSTA MESA; DANA POTTS; and DOES 1 through 10, 16 inclusive, 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 1 [XPXRXOXPXOXSEXDX] STIPULATED PROTECTIVE ORDER 2 1. PURPOSES AND LIMITATIONS 3 Discovery in this action involves production of confidential, proprietary, or 4 private information for which special protection from public disclosure and from 5 use for any purpose other than prosecuting this litigation may be warranted. 6 Accordingly, the parties hereby stipulate to and petition the Court to enter the 7 following Order. The parties acknowledge that this Order does not confer blanket 8 protections on all disclosures or responses to discovery and that the protection it 9 affords from public disclosure and use extends only to the limited information or 10 items that are entitled to confidential treatment under the applicable legal 11 principles. The parties further acknowledge, as set forth in Section 13.3, below, that 12 this Order does not entitle them to file confidential information under seal; Civil 13 Local Rule 79-5 sets forth the procedures that must be followed and the standards 14 that will be applied when a party seeks permission from the court to file material 15 under seal. 16 17 2. GOOD CAUSE STATEMENT 18 This action involves law enforcement tactics, procedures, training, 19 regulations, personnel, investigations and rules for which special protection from 20 public disclosure and from use for any purpose other than prosecution of this action 21 is warranted. Such confidential and proprietary materials and information consist 22 of, among other things, documents maintained by the Costa Mesa Police 23 Department and include, but are not limited to, internal policies and procedures, 24 internal affairs investigation files, criminal investigation files, personnel files of 25 current and/or former CMPD officers, and other documents and information which 26 implicate the privacy rights of parties and non-parties, which information is 27 generally unavailable to the public and which is privileged or otherwise protected 28 from disclosure under state and federal statutes, court rules, case decisions, or 1 common law. Accordingly, to expedite the flow of information, to facilitate the 2 prompt resolution of disputes over confidentiality of discovery materials, to 3 adequately protect information the parties are entitled to keep confidential, to 4 ensure that the parties are permitted reasonable necessary uses of such material in 5 preparation for and in the conduct of trial, to address their handling at the end of the 6 litigation, and serve the ends of justice, a protective order for such information is 7 justified in this matter. It is the intent of the parties that information will not be 8 designated as confidential for tactical reasons and that nothing be so designated 9 without a good faith belief that it has been maintained in a confidential, non-public 10 manner, and there is good cause why it should not be part of the public record in 11 this case. 12 13 3. DEFENITIONS 14 3.1 Action: This pending lawsuit filed by Bradley Montgomery 15 against the City of Costa Mesa, Dana Potts; USDC Case No. 8:19-cv-01874 DOC 16 DFM. 17 3.2 Challenging Party: A Party that challenges the designation of 18 information or items under this Order. 19 3.3 "CONFIDENTIAL" Information or Items: Disclosure or 20 Discovery Material (as defined in sub-paragraph 3.6 below) that qualify for 21 protection under Fed. R. Civ. P. 26(c), and as specified above in the Good Cause 22 Statement. 23 3.4 Counsel: Outside Counsel of Record and House Counsel (as 24 well as their support staff). 25 3.5 Designating Party: A Party that designates information or items 26 that it produces in disclosures or in responses to discovery as "CONFIDENTIAL" 27 or "ATTORNEYS EYES ONLY." 28 3.6 Disclosure or Discovery Material: All items or information, 1 regardless of the medium or manner in which it is generated, stored, or maintained 2 (including, among other things, testimony, transcripts, and tangible things), that are 3 produced or generated in disclosures or responses to discovery in this Action. 4 3.7 Expert: A person with specialized knowledge or experience in a 5 matter pertinent to the litigation who has been retained by a Party or its counsel to 6 serve as an expert witness or as a consultant in this Action. 7 3.8 "ATTORNEYS EYES ONLY" Information or Items: Disclosure 8 or Discovery Material (as defined in sub-paragraph 3.6 above) that qualify for 9 protection under Fed. R. Civ. P. 26(c), and as specified above in the Good Cause 10 Statement, and that qualify for the highest level of confidentiality. 11 3.9 House Counsel: Attorneys who are employees of a Party to this 12 Action. House Counsel does not include Outside Counsel of Record or any other 13 outside counsel. 14 3.10 Non-Party: Any natural person, partnership, corporation, 15 association, or other legal entity not named as a Party to this action. 16 3.11 Order: This Stipulated Protective Order. 17 3.12 Outside Counsel of Record: Attorneys who are not employees of 18 a Party to this Action but are retained to represent or advise a Party to this Action 19 and have appeared in this Action on behalf of that Party or are affiliated with a law 20 firm which has appeared on behalf of that Party. 21 3.13 Party: Any party to this Action, including all of its officers, and 22 directors (and their support staffs). 23 3.14 Personal Information: Personal Information includes, but is not 24 limited to, Social Security numbers, home addresses, telephone numbers, driver's 25 license numbers, and license plate numbers. 26 3.15 Producing Party: A Party or Non-Party that produces Disclosure 27 or Discovery Material in this Action. 28 3.16 Professional Vendors: Persons or entities that provide litigation 1 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 2 demonstrations, and organizing, storing, or retrieving data in any form or medium) 3 and their employees and subcontractors. 4 3.17 Protected Material: Any Disclosure or Discovery Material that is 5 designated as "CONFIDENTIAL" or "ATTORNEYS EYES ONLY." 6 3.18 Receiving Party: A Party that receives Disclosure or Discovery 7 Material from a Producing Party. 8 9 4. SCOPE 10 The protections conferred by this Order cover not only Protected Material (as 11 defined above), but also (1) any information copied or extracted from Protected 12 Material; (2) all copies, excerpts, abstracts, summaries, or compilations of Protected 13 Material; and (3) any testimony, conversations, or presentations by Parties or their 14 Counsel that might reveal Protected Material. 15 The protections conferred by this Order do not cover the following 16 information: (a) any information that is in the public domain at the time of 17 disclosure to a Receiving Party or becomes part of the public domain after its 18 disclosure to a Receiving Party as a result of publication not involving a violation 19 of this Order, including becoming part of the public record through trial or 20 otherwise; and (b) any information known to the Receiving Party prior to the 21 disclosure or obtained by the Receiving Party after the disclosure from a source 22 who obtained the information lawfully and under no obligation of confidentiality to 23 the Designating Party. 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 5. DURATION 27 Once a case proceeds to trial, all of the court-filed information that is to be 28 introduced that was previously designated as confidential or maintained pursuant to 1 this protective Order becomes public and will be presumptively available to all 2 members of the public, including the press, unless compelling reasons supported by 3 specific factual findings to proceed otherwise are made to the trial judge in advance 4 of the trial. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th 5 Cir. 2006) [distinguishing "good cause" showing for sealing documents produced in 6 discovery from "compelling reasons" standard when merits-related documents are 7 part of court record]. Accordingly, the terms of this Order do not extend beyond the 8 commencement of the trial. 9 6. DESIGNATING PROTECTED MATERIAL 10 6.1 Exercise of Restraint and Care in Designating Material for 11 Protection: Each Party or Non-Party that designates information or items for 12 protection under this Order must take reasonable care to limit any such designation 13 to specific material that qualifies under the appropriate standards. The Designating 14 Party must designate for protection only those parts of material, documents, items, 15 or oral or written communications that qualify so that other portions of the material, 16 documents, items, or communications for which protection is not warranted are not 17 swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or 18 routinized designations are prohibited. Designations that are shown to be clearly 19 unjustified or that have been made for an improper purpose (e.g., to unnecessarily 20 encumber the case development process or to impose unnecessary expenses and 21 burdens on other Parties) may expose the Designating Party to sanctions. If it 22 comes to a Designating Party's attention that information or items that it designated 23 for protection do not qualify for protection, that Designating party must promptly 24 notify all other Parties that it is withdrawing the inapplicable designation. 25 6.2 Manner and Timing of Designations: Except as otherwise 26 provided in this Order, or as otherwise stipulated or ordered, Disclosure or 27 Discovery Material that qualifies for protection under this Order must be clearly so 28 designated before the material is disclosed or produced. 1 Designation in conformity with this Order requires: 2 (a) For information in documentary form (e.g., paper or electronic 3 documents, but excluding transcripts of depositions or other pretrial or trial 4 proceedings), that the Producing Party affix, at a minimum, the legend 5 "CONFIDENTIAL" (hereinafter "CONFIDENTIAL legend") or the legend 6 "ATTORNEYS EYES ONLY" (hereinafter "ATTORNEYS EYES ONLY legend") 7 to each page that contains protected material. If only a portion or portions of the 8 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 10 margins). 11 A Party or Non-Party that makes original documents or materials available 12 for inspection need not designate them for protection until after the inspecting Party 13 has indicated which documents or materials it would like copied and produced. 14 During the inspection and before the designation, all of the material made available 15 for inspection shall be deemed "ATTORNEYS EYES ONLY." After the inspecting 16 Party has identified the documents or materials it wants copied and produced, the 17 Producing Party must determine which documents, or portions thereof, qualify for 18 protection under this Order. Then, before producing the specified documents, the 19 Producing Party must affix the "CONFIDENTIAL legend" or the "ATTORNEYS 20 EYES ONLY legend" to each page that contains Protected Material. If only a 21 portion or portions of the material on a page qualifies for protection, the Producing 22 Party also must clearly identify the protected portion(s) (e.g., by making 23 appropriate markings in the margins). 24 (b) For testimony given in depositions or in other pretrial proceedings, that 25 the Designating Party identify the Disclosure or Discovery Material on the record, 26 before the close of the deposition, hearing, or other proceeding. 27 (c) For information produced in some form other than documentary and 28 for any other tangible items, that the Producing Party affix in a prominent place on 1 the exterior of the container or containers in which the information or item is stored 2 the "CONFIDENTIAL legend" or the "ATTORNEYS EYES ONLY legend." If 3 only a portion or portions of the information warrants protection, the Producing 4 Party, to the extent practicable, shall identify the protected portion(s). 5 6.3 Inadvertent Failures to Designate: If timely corrected, an 6 inadvertent failure to designate qualified information or items does not, standing 7 alone, waive the Designating Party's right to secure protection under this Order for 8 such material. Upon timely correction of a designation, the Receiving Party must 9 make reasonable efforts to assure that the material is treated in accordance with the 10 provisions of this Order. 11 6.4 Redacting Personal Information in Disclosure or Discovery 12 Material: 13 (a) In addition to and/or in lieu of affixing the "CONFIDENTIAL" legend or 14 the "ATTORNEYS EYES ONLY" legend to Disclosure or Discovery Material 15 subject to this Order, the Parties reserve the right to redact Personal Information 16 contained in Disclosure or Discovery Material. 17 (b) Information that may be redacted pursuant to this Order includes, but 18 is not limited to, any Party's Personal Information as defined in sub-paragraph 3.13 19 above, and the Personal Information of any Party's family members. 20 (c) Any Party may challenge another Party's redaction of Personal 21 Information in accordance with paragraph 7 below. 22 7. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23 7.1 Timing of Challenges: Any Party may challenge a designation 24 of confidentiality at any time that is consistent with the Court's Scheduling Order 25 and any amendments thereto. 26 7.2 Meet and Confer: The Challenging Party shall initiate the 27 dispute resolution process under Local Rule 37.1, et seq. Any discovery motion 28 must strictly comply with the procedures set forth in Local Rules 37-1, 37-2, and 1 37-3. 2 7.3 Burden: The burden of persuasion in any such challenge 3 proceeding shall be on the Designating Party, Frivolous challenges, and those made 4 for an improper purpose (e.g., to harass or impose unnecessary expenses and 5 burdens on other Parties) may expose the Challenging Party to sanctions. Unless 6 the Designating Party has waived or withdrawn the confidentiality designation, all 7 Parties shall continue to afford the material in question the level of protection to 8 which it is entitled under the Producing Party's designation until the Court rules on 9 the challenge. 10 8. ACCESS TO AND USE OF PROTECTED MATERIAL 11 8.1 Basic Principles: A Receiving Party may use Protected Material 12 that is disclosed or produced by another Party or by a Non-Party in connection with 13 this Action only for prosecuting, defending, or attempting to settle this Action. 14 Such Protected Material may be disclosed only to the categories of persons and 15 under the conditions described in this Order, When the Action has been terminated, 16 a Receiving Party must comply with the provisions of section 14 below (FINAL 17 DISPOSITION). 18 Protected Material must be stored and maintained by a Receiving Party 19 at a location and in a secure manner that ensures that access is limited to the 20 persons authorized under this Order. 21 8.2 Disclosure of "CONFIDENTIAL" Disclosure or Discovery 22 Material. Unless otherwise ordered by the Court or permitted in writing by the 23 Designating Party, a Receiving Party may disclose any Disclosure or Discovery 24 Material designated "CONFIDENTIAL" only to: 25 (a) The Receiving Party's Outside Counsel of Record in this Action, as 26 well as employees of said Outside Counsel of Record to whom it is reasonably 27 necessary to disclose the information for this Action; 28 (b) The officers, directors, and employees (including House Counsel) of 1 the Receiving Party to whom disclosure is reasonably necessary for this Action; 2 (c) EXPERTS (as defined in this Order) of the Receiving Party to whom 3 disclosure is reasonably necessary for this Action and who have signed the 4 "Acknowledgment and Agreement to Be Bound" (Exhibit A); 5 (d) The Court and its personnel; 6 (e) Court reporters and their staff; 7 (f) Professional jury or trial consultants, mock jurors, and Professional 8 Vendors to whom disclosure is reasonably necessary for this Action and who have 9 signed the "Acknowledgement and Agreement to Be Bound" (Exhibit A); 10 (g) The author or recipient of a document containing the information or a 11 custodian or other person who otherwise possessed or knew the information; 12 (h) During their depositions, witnesses and attorneys for witnesses in the 13 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 14 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they 15 will not be permitted to .keep any confidential information unless they sign the 16 "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise 17 agreed by the Designating Party or ordered by the Court. Pages of transcribed 18 deposition testimony or exhibits to depositions that reveal Protected Material must 19 be separately bound by the court reporter and may not be disclosed to anyone 20 except as permitted under this Order; and 21 (i) Any mediator or settlement officer, and their supporting personnel, 22 mutually agreed upon by any of the Parties engaged in settlement discussions. 23 8.3 Disclosure of "ATTORNEYS EYES ONLY" Disclosure or 24 Discovery Material. Unless otherwise ordered by the Court or permitted in writing 25 by the Designating Party, a Receiving Party may disclose any Disclosure or 26 Discovery Material designated "ATTORNEYS EYES ONLY" only to: 27 (a) Counsel as defined in sub-paragraph 3,4 above, so long as they do not 28 share the content of any ATTORNEYS EYES ONLY material with any Party); and 1 (b) Anyone identified in the foregoing sub-paragraphs 8.2(c), (d), (e), (g) 2 and (h). In the event any ATTORNEYS EYES ONLY material is used in a 3 deposition and/or attached to a deposition transcript as an exhibit, the provisions of 4 sub-paragraph 8.2(h) above shall apply. 5 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED 6 PRODUCED IN OTHER LITIGATION 7 If a Party is served with a subpoena or a court order issued in other litigation 8 that compels disclosure of any information or items designated in this Action as 9 "CONFIDENTIAL" or "ATTORNEYS EYES ONLY," that Party must: 10 (a) Promptly notify in writing the Designating Party, Such notification 11 shall include a copy of the subpoena or court order; 12 (b) Promptly notify in writing the party who caused the subpoena or order 13 to issue in the other litigation that some or all of the material covered by the 14 subpoena or order is subject to this Order. Such notification shall include a copy of 15 this Order; and 16 (c) Cooperate with respect to all reasonable procedures sought to be 17 pursued by the Designating Party whose Protected Material may be affected. If the 18 Designating Party timely seeks a protective order, the Party served with the 19 subpoena or court order shall not produce any information designated in this action 20 as "CONFIDENTIAL" or "ATTORNEYS EYES ONLY" before a determination by 21 the court from which the subpoena or order issued, unless the Party has obtained 22 the Designating Party's permission. The Designating Party shall bear the burden and 23 expense of seeking protection in that court of its confidential material, and nothing 24 in these provisions should be construed as authorizing or encouraging a Receiving 25 Party in this Action to disobey a lawful directive from another court. 26 10. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE 27 PRODUCED IN THIS LITIGATION 28 (a) The terms of this Order are applicable to information produced by a 1 Non-Party in this action and designated as "CONFIDENTIAL" or "ATTORNEYS 2 EYES ONLY". Such information produced by Non-Parties in connection with this 3 litigation is protected by the remedies and relief provided by this Order. Nothing in 4 these provisions should be construed as prohibiting a Non-Party from seeking 5 additional protections. 6 (b) In the event that a Party is required, by a valid discovery request, to 7 produce a Non-Party's confidential information in its possession, and the Party is 8 subject to an agreement with the Non-Party not to produce the Non-Party's 9 confidential information, then the Party shall: 10 (1) Promptly notify in writing the Requesting Party and the Non- 11 Party that some or all of the information requested is subject to a confidentiality 12 agreement with a Non-Party; 13 (2) Promptly provide the Non-Party with a copy of this Order, the 14 relevant discovery request(s), and a reasonably specific description of the 15 information requested; and 16 (3) Make the information requested available for inspection by the 17 Non-Party, if requested. 18 (c) If the Non-Party fails to seek a protective order from this Court within 19 14 days of receiving the notice and accompanying information, the Receiving Party 20 may produce the Non-Party's confidential information responsive to the discovery 21 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 22 not produce any information in its possession or control that is subject to the 23 confidentiality agreement with the Non-Party before a determination by the Court. 24 Absent a court order to the contrary, the Non-Party shall bear the burden and 25 expense of seeking protection in this Court of its Protected Material. 26 11. UNAUTHORIZED DISCLOSURE OF PROTECTED 27 MATERIAL 28 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 1 Protected Material to any person or in any circumstance not authorized under this 2 Order, the Receiving Party must immediately (a) notify in writing the Designating 3 Party of the unauthorized disclosures, (b) use its best efforts to retrieve all 4 unauthorized copies of the Protected Material, (c) inform the person or persons to 5 whom unauthorized disclosures were made of all the terms of this Order, and (d) 6 request such person or persons to execute the "Acknowledgment and Agreement to 7 Be Bound" that is attached hereto as Exhibit A. 8 12. INADVERTENT PRODUCTION OF PRIVILEGED OR 9 OTHERWISE PROTECTED MATERIAL 10 When a Producing Party gives notice to Receiving Parties that certain 11 inadvertently produced material is subject to a claim of privilege or other 12 protection, the obligations of the Receiving Parties are those set forth in Fed. R. 13 Civ. P. 26(b)(5)(B). This provision is not intended to modify whatever procedure 14 may be established in an e-discovery order that provides for production without 15 prior privilege review. Pursuant to Fed. R. Evid. 502(d) and (e), insofar as the 16 parties reach an agreement on the effect of disclosure of a communication or 17 information covered by the attorney-client privilege or work product protection, the 18 parties may incorporate their agreement in the stipulated protective order submitted 19 to the Court. 20 13. MISCELLANEOUS 21 13.1 Right to Further Relief: Nothing in this Order abridges the right 22 of any person to seek its modification by the Court in the future. 23 13.2 Right to Assert Other Objections: By stipulating to the entry of 24 this Order, no Party waives any right it otherwise would have to object to disclosing 25 or producing any information or item on any ground not addressed in this Order. 26 Similarly, no Party waives any right to object on any ground to use in evidence of 27 any of the material covered by this Order. 28 13.3 Filing Protected Material: A Party that seeks to file under seal 1 any Protected Material must comply with Civil Local Rule 79-5. Protected Material 2 may only be filed under seal pursuant to a court order authorizing the sealing of the 3 specific Protected Material at issue; good cause must be shown in the request to file 4 under seal. If a Party's request to file Protected Material under seal is denied by the 5 Court, then the Receiving Party may file the information in the public record unless 6 otherwise instructed by the Court. 7 14. FINAL DISPOSITION 8 After the final disposition of this action, within 60 days of a written request 9 by the Designating Party, each Receiving Party must return all Protected Material to 10 the Producing Party or destroy such material. As used in this subdivision, "all 11 Protected Material" includes all copies, abstracts, compilations, summaries, and any 12 other format reproducing or capturing any of the Protected Material. Whether the 13 Protected Material is returned or destroyed, the Receiving Party must submit a 14 written certification to the Producing Party (and, if not the same person or entity, to 15 the Designating Party) by the 60 day deadline that (1) identifies (by category, where 16 appropriate) all the Protected Material that was returned or destroyed and (2) 17 affirms that the Receiving Party has not retained any copies, abstracts, 18 compilations, summaries or any other format reproducing or capturing any of the 19 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 20 archival copy of all pleadings, motion papers, trial, deposition, and hearing 21 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 22 reports, attorney work product, and consultant and expert work product, even if 23 such materials contain Protected Material, Any such archival copies that contain or 24 constitute Protected Material remain subject to this Order as set forth in Section 5 25 (DURATION). 26 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 27 28 SIGNATURES AND ORDER FOLLOW IMMEDIATELY ON THE NEXT PAGE 1 2 | Dated: November 21, 2019 Respectfully Submitted, 3 4 By:/s/ James R. Touchstone 5 James R. Touchstone, Esq. Denise L. Rocawich, Esq. 6 Attorneys for Defendant, City of Costa Mesa 7 8 | Dated: November 21, 2019 Respectfully submitted, 9 LAW OFFICES OF GREGORY PEACOCK 10 11 By:/s/ Gregory Peacock 12 Gregory Peacock, Esq. 13 Attorney for Plaintiff, Bradley Montgomery 14 15 16 V7 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 19 Dated: December 13, 2019 20 21 Hon. Dougias F. McCormick 99 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 -15-