Jorge Castillo v. City of Los Angeles ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JORGE CASTILLO CASE NO.: CV 18-09924-R-SK 12 Plaintiff, STIPULATED PROTECTIVE 13 ORDER 14 vs. 15 CITY OF LOS ANGELES, et al. 16 Defendants. 17 18 19 20 1. A. PURPOSES AND LIMITATIONS 21 Discovery in this action is likely to involve production of confidential, 22 proprietary, or private information for which special protection from public disclosure 23 and from use for any purpose other than prosecuting this litigation may be warranted. 24 Accordingly, the parties hereby stipulate to and petition the Court to enter the 25 following Stipulated Protective Order. The parties acknowledge that this Order does 26 not confer blanket protections on all disclosures or responses to discovery and that the 27 protection it affords from public disclosure and use extends only to the limited 28 information or items that are entitled to confidential treatment under the applicable 1 legal principles. 2 The parties further acknowledge, as set forth in Section 12.3, below, that this 3 Stipulated Protective Order does not entitle them to file confidential information 4 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 5 the standards that will be applied when a party seeks permission from the court to file 6 material under seal. 7 B. GOOD CAUSE STATEMENT 8 This action involves the City of Los Angeles and members of the Los Angeles 9 Police Department (“LAPD”). Plaintiff is seeking materials and information that 10 Defendants the City of Los Angeles, et al. (CITY) maintains as confidential, such as 11 personnel files of the police officers involved in this incident, Internal Affairs 12 materials and information, video recordings, audio recordings, Force Investigation 13 Division materials and information and other administrative materials and information 14 currently in the possession of the CITY and which the CITY believes need special 15 protection from public disclosure and from use for any purpose other than prosecuting 16 this litigation. 17 The CITY asserts that the confidentiality of the materials and information 18 sought by Plaintiff is recognized by California and federal law, as evidenced inter alia 19 by California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for N.D. 20 Cal., 511 F.2d 192, 198 (9th Cir. 1975), aff’d, 426 U.S. 394 (1976). The CITY has not 21 publicly released materials and information referenced above except under protective 22 order or pursuant to court order, if at all. These materials and information are of the 23 type that has been used to initiate disciplinary action against Los Angeles Police 24 Department (“LAPD”) officers, and has been used as evidence in disciplinary 25 proceedings, where the officers’ conduct was considered to be contrary to LAPD 26 policy. 27 /// 28 /// 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 5 embarrassment, harassment and professional and legal harm on the part of the LAPD 6 officers referenced in the materials and information. 7 The CITY also contends that the unfettered disclosure of the materials and 8 information, absent a protective order, would allow the media to share this information 9 with potential jurors in the area, impacting the rights of the CITY herein to receive a 10 fair trial. 11 Accordingly, to expedite the flow of information, to facilitate the prompt 12 resolution of disputes over confidentiality of discovery materials, to adequately protect 13 information the parties are entitled to keep confidential, to ensure that the parties are 14 permitted reasonable necessary uses of such material in preparation for and in the 15 conduct of trial, to address their handling at the end of the litigation, and serve the ends 16 of justice, a protective order for such information is justified in this matter. It is the 17 intent of the parties that information will not be designated as confidential for tactical 18 reasons and that nothing be so designated without a good faith belief that it has been 19 maintained in a confidential, non-public manner, and there is good cause why it should 20 not be part of the public record of this case. 21 2. DEFINITIONS 22 2.1 Action: Jorge Castillo v. City of Los Angeles, et al., CV 18-09924-R-SK 23 2.2 Challenging Party: a Party or Non-Party that challenges the designation of 24 information or items under this Order. 25 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it 26 is generated, stored or maintained) or tangible things that qualify for protection under 27 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 28 Statement. 1 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 2 support staff). 3 2.5 Designating Party: a Party or Non-Party that designates information or items 4 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 5 2.6 Disclosure or Discovery Material: all items or information, regardless of the 6 medium or manner in which it is generated, stored, or maintained (including, among 7 other things, testimony, transcripts, and tangible things), that are produced or generated 8 in disclosures or responses to discovery in this matter. 9 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent 10 to the litigation who has been retained by a Party or its counsel to serve as an expert 11 witness or as a consultant in this Action. 12 2.8 House Counsel: attorneys who are employees of a party to this Action. 13 House Counsel does not include Outside Counsel of Record or any other outside 14 counsel. 15 2.9 Non-Party: any natural person, partnership, corporation, association, or other 16 legal entity not named as a Party to this action. 17 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this 18 Action but are retained to represent or advise a party to this Action and have appeared 19 in this Action on behalf of that party or are affiliated with a law firm which has 20 appeared on behalf of that party, and includes support staff. 21 2.11 Party: any party to this Action, including all of its officers, directors, employees, 22 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 23 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 24 Material in this Action. 25 2.13 Professional Vendors: persons or entities that provide litigation support 26 services (e.g., photocopying, videotaping, translating, preparing exhibits or 27 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 28 their employees and subcontractors. 1 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 2 “CONFIDENTIAL.” 3 2.15 Receiving Party: a Party that receives Disclosure or Discovery 4 Material from a Producing Party. 5 2.16 Final Disposition: when this Action has been fully and completely terminated 6 by way of settlement, dismissal, trial, appeal and/or remand to state court. 7 3. SCOPE 8 The protections conferred by this Stipulation and Order cover not only Protected 9 Material (as defined above), but also (1) any information copied or extracted from 10 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 11 Material; and (3) any testimony, conversations, or presentations by Parties or their 12 Counsel that might reveal Protected Material. 13 Any use of Protected Material at trial shall be governed by the orders of the trial 14 judge. This Order does not govern the use of Protected Material at trial. 15 4. DURATION 16 Once a case proceeds to trial, all of the information that was designated as 17 confidential or maintained pursuant to this protective order becomes public and will be 18 presumptively available to all members of the public, including the press, unless 19 compelling reasons supported by specific factual findings to proceed otherwise are 20 made to the trial judge in advance of the trial. See Kamakana v. City and County of 21 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” 22 showing for sealing documents produced in discovery from “compelling reasons” 23 standard when merits-related documents are part of court record). Accordingly, the 24 terms of this protective order do not extend beyond the commencement of the trial. 25 5. DESIGNATING PROTECTED MATERIAL 26 5.1 Exercise of Restraint and Care in Designating Material for Protection. 27 Each Party or Non-Party that designates information or items for protection 28 under this Order must take care to limit any such designation to specific material that 1 qualifies under the appropriate standards. The Designating Party must designate for 2 protection only those parts of material, documents, items, or oral or written 3 communications that qualify so that other portions of the material, documents, items, 4 or communications for which protection is not warranted are not swept unjustifiably 5 within the ambit of this Order. Mass, indiscriminate, or routinized designations are 6 prohibited. Designations that are shown to be clearly unjustified or that have been made 7 for an improper purpose (e.g., to unnecessarily encumber the case development process 8 or to impose unnecessary expenses and burdens on other parties) may expose the 9 Designating Party to sanctions. 10 If it comes to a Designating Party’s attention that information or items that it 11 designated for protection do not qualify for protection, that Designating Party must 12 promptly notify all other Parties that it is withdrawing the inapplicable designation. 13 5.2 Manner and Timing of Designations. Except as otherwise provided in 14 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 15 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 16 under this Order must be clearly so designated before the material is disclosed or 17 produced. 18 Designation in conformity with this Order requires: 19 (a) for information in documentary form (e.g., paper or electronic documents, but 20 excluding transcripts of depositions or other pretrial or trial proceedings), that the 21 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 22 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 23 portion or portions of the material on a page qualifies for protection, the Producing 24 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 25 markings in the margins). 26 A Party or Non-Party that makes original documents available for inspection 27 need not designate them for protection until after the inspecting Party has indicated 28 which documents it would like copied and produced. During the inspection and before 1 the designation, all of the material made available for inspection shall be deemed 2 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 3 copied and produced, the Producing Party must determine which documents, or 4 portions thereof, qualify for protection under this Order. Then, before producing the 5 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to 6 each page that contains Protected Material. If only a portion or portions of the material 7 on a page qualifies for protection, the Producing Party also must clearly identify the 8 protected portion(s) (e.g., by making appropriate markings in the margins). 9 (b) for testimony given in depositions that the Designating Party identify the 10 Disclosure or Discovery Material on the record, before the close of the deposition all 11 protected testimony. 12 (c) for information produced in some form other than documentary and for any 13 other tangible items, that the Producing Party affix in a prominent place on the exterior 14 of the container or containers in which the information is stored the legend 15 “CONFIDENTIAL.” If only a portion or portions of the information warrants 16 protection, the Producing Party, to the extent practicable, shall identify the protected 17 portion(s). 18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 19 designate qualified information or items does not, standing alone, waive the 20 Designating Party’s right to secure protection under this Order for such material. Upon 21 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 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 25 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 26 confidentiality at any time that is consistent with the Court’s Scheduling Order. 27 process under Local Rule 37.1 et seq. 28 /// 1 6.3 The burden of persuasion in any such challenge proceeding shall be on the 2 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., 3 to harass or impose unnecessary expenses and burdens on other parties) may expose the 4 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn 5 the confidentiality designation, all parties shall continue to afford the material in 6 question the level of protection to which it is entitled under the Producing Party’s 7 designation until the Court rules on the challenge. 8 7. ACCESS TO AND USE OF PROTECTED MATERIAL 9 7.1 Basic Principles. A Receiving Party may use Protected Material that is 10 disclosed or produced by another Party or by a Non-Party in connection with this 11 action only for prosecuting, defending, or attempting to settle this Action. Such 12 Protected Material may be disclosed only to the categories of persons and under the 13 conditions described in this Order. When the Action has been terminated, a 14 Receiving Party must comply with the provisions of section 13 below (FINAL 15 DISPOSITION). Protected Material must be stored and maintained by a Receiving 16 Party at a location and in a secure manner that ensures that access is limited to the 17 persons authorized under this Order. 18 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 19 otherwise ordered by the court or permitted in writing by the Designating Party, a 20 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 21 only to: 22 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 23 well as employees of said Outside Counsel of Record to whom it is reasonably 24 necessary to disclose the information for this Action; 25 (b) the officers, directors, and employees (including House Counsel) of 26 the Receiving Party to whom disclosure is reasonably necessary for this Action; 27 (c) Experts (as defined in this Order) of the Receiving Party to whom 28 disclosure is reasonably necessary for this Action and who have signed the 1 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 2 (d) the court and its personnel; 3 (e) court reporters and their staff; 4 (f) professional jury or trial consultants, mock jurors, and Professional 5 Vendors to whom disclosure is reasonably necessary for this Action and who have 6 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 (g) the author or recipient of a document containing the information or a 8 custodian or other person who otherwise possessed or knew the information; 9 (h) during their depositions, witnesses ,and attorneys for witnesses, in the 10 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 11 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 12 not be permitted to keep any confidential information unless they sign the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 14 by the Designating Party or ordered by the court. Pages of transcribed deposition 15 testimony or exhibits to depositions that reveal Protected Material may be separately 16 bound by the court reporter and may not be disclosed to anyone except as permitted 17 under this Stipulated Protective Order; and 18 (i) any mediator or settlement officer, and their supporting personnel, mutually 19 agreed upon by any of the parties engaged in settlement discussions. 20 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 21 IN OTHER LITIGATION 22 If a Party is served with a subpoena or a court order issued in other litigation 23 that compels disclosure of any information or items designated in this Action as 24 “CONFIDENTIAL,” that Party must: 25 (a) promptly notify in writing the Designating Party. Such notification 26 shall include a copy of the subpoena or court order; 27 (b) promptly notify in writing the party who caused the subpoena or order 28 to issue in the other litigation that some or all of the material covered by the 1 subpoena or order is subject to this Protective Order. Such notification shall include 2 a copy of this Stipulated Protective Order; and 3 (c) cooperate with respect to all reasonable procedures sought to be 4 pursued by the Designating Party whose Protected Material may be affected. 5 If the Designating Party timely seeks a protective order, the Party served with 6 the subpoena or court order shall not produce any information designated in this 7 action as “CONFIDENTIAL” before a determination by the court from which the 8 subpoena or order issued, unless the Party has obtained the Designating Party’s 9 permission. The Designating Party shall bear the burden and expense of seeking 10 protection in that court of its confidential material and nothing in these provisions 11 should be construed as authorizing or encouraging a Receiving Party in this Action 12 to disobey a lawful directive from another court. 13 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 14 PRODUCED IN THIS LITIGATION 15 (a) The terms of this Order are applicable to information produced by a 16 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 17 produced by Non-Parties in connection with this litigation is protected by the 18 remedies and relief provided by this Order. Nothing in these provisions should be 19 construed as prohibiting a Non-Party from seeking additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, to 21 produce a Non-Party’s confidential information in its possession, and the Party is 22 subject to an agreement with the Non-Party not to produce the Non-Party’s 23 confidential information, then the Party shall: 24 (1) promptly notify in writing the Requesting Party and the Non-Party 25 that some or all of the information requested is subject to a confidentiality 26 agreement with a Non-Party; 27 (2) promptly provide the Non-Party with a copy of the Stipulated 28 Protective Order in this Action, the relevant discovery request(s), and a reasonably 1 specific description of the information requested; and 2 (3) make the information requested available for inspection by the 3 Non-Party, if requested. 4 (c) If the Non-Party fails to seek a protective order from this court within 14 5 days of receiving the notice and accompanying information, the Receiving Party 6 may produce the Non-Party’s confidential information responsive to the discovery 7 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 8 not produce any information in its possession or control that is subject to the 9 confidentiality agreement with the Non-Party before a determination by the court. 10 Absent a court order to the contrary, the Non-Party shall bear the burden and 11 expense of seeking protection in this court of its Protected Material. 12 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 13 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 14 Protected Material to any person or in any circumstance not authorized under this 15 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 16 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 17 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 18 persons to whom unauthorized disclosures were made of all the terms of this Order, 19 and (d) request such person or persons to execute the “Acknowledgment and 20 Agreement to Be Bound” that is attached hereto as Exhibit A. 21 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 22 PROTECTED MATERIAL 23 When a Producing Party gives notice to Receiving Parties that certain 24 inadvertently produced material is subject to a claim of privilege or other protection, 25 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 26 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 27 may be established in an e-discovery order that provides for production without 28 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar 1 as the parties reach an agreement on the effect of disclosure of a communication or 2 information covered by the attorney-client privilege or work product protection, the 3 parties may incorporate their agreement in the stipulated protective order submitted 4 to the court. 5 12. MISCELLANEOUS 6 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 7 person to seek its modification by the Court in the future. 8 12.2 Right to Assert Other Objections. By stipulating to the entry of this 9 Protective Order no Party waives any right it otherwise would have to object to 10 disclosing or producing any information or item on any ground not addressed in this 11 Stipulated Protective Order. Similarly, no Party waives any right to object on any 12 ground to use in evidence of any of the material covered by this Protective Order. 13 12.3 Filing Protected Material. A Party that seeks to file under seal any 14 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 15 only be filed under seal pursuant to a court order authorizing the sealing of the 16 specific Protected Material at issue. If a Party's request to file Protected Material 17 under seal is denied by the court, then the Receiving Party may file the information 18 in the public record unless otherwise instructed by the court. 19 13. FINAL DISPOSITION 20 After the final disposition of this Action, as defined in paragraph 4, within 60 21 days of a written request by the Designating Party, each Receiving Party must return 22 all Protected Material to the Producing Party or destroy such material. As used in 23 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 24 summaries, and any other format reproducing or capturing any of the Protected 25 Material. Whether the Protected Material is returned or destroyed, the Receiving 26 Party must submit a written certification to the Producing Party (and, if not the same 27 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 28 (by category, where appropriate) all the Protected Material that was returned or 1 destroyed and (2) affirms that the Receiving Party has not retained any copies, 2 abstracts, compilations, summaries or any other format reproducing or capturing any 3 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 4 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 5 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 6 reports, attorney work product, and consultant and expert work product, even if such 7 materials contain Protected Material. Any such archival copies that contain or 8 constitute Protected Material remain subject to this Protective Order as set forth in 9 Section 4 (DURATION). 10 /// 11 /// 12 /// 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ! 14, VIOLATION 2 Any violation of this Order may be punished by any and all appropriate 3 || measures including, without limitation, contempt proceedings and/or monetary * || sanctions. > SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 DATED: December 18, 2019 8 THE HEMMING FIRM ? By:__/S/ 10 KRISTA R. HEMMING, ESQ. 1 Attorney for Plaintiff JORGE CASTILLO 12 || DATED: December 18, 2019 13 MICHAEL N. FEUER, City Attorney 14 KATHLEEN A. KENEALY, Chief Assistant City Attorney SCOTT MARCUS, Chief, Civil Litigation Branch 15 CORY M. BRENTE, Senior Assistant City Attorney 16 By:___/S/ Elisabeth 7. ssgerate 17 ELIZABETH T. FITZGERALD, Deputy City Attorney Atrorneys Jor Defondants CITY OF LOS AN ES and LO 18 ANGELES POLICE DEPARTMENT 19 29 |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 21 DATED: December 19, 2019 23 cee oe 4 —~S eK 25 HONORABLE STEVE KIM 26 United States Magistrate Judge 27 28 14 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of Jorge Castillo v. City of Los Angeles, et, al, Case Number: 8 CV18-09924-R-SK. 9 I agree to comply with and to be bound by all the terms of this Stipulated 10 Protective Order and I understand and acknowledge that failure to so comply could 11 expose me to sanctions and punishment in the nature of contempt. I solemnly promise 12 that I will not disclose in any manner any information or item that is subject to this 13 Stipulated Protective Order to any person or entity except in strict compliance with 14 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. 19 I hereby appoint __________________________ 20 [print or type full name] of _______________________________________ 21 [print or type full address and telephone number] as my California agent for service 22 of process in connection with this action or any proceedings related to enforcement of 23 this Stipulated Protective Order. 24 Date: ______________________________ 25 City and State where sworn and signed: ______________________________ 26 _______________. 27 Printed name: ____________________________________ 28 Signature: _______________________________________