Dexter Hubert White v. City of Los Angeles ( 2019 )

1 2 3 4 5 6 7 8 9 10 11 12 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 DEXTER HUBERT WHITE, ) 16 Plaintiff, ) Case No: 2:19-cv-00243-DDP-RAO 17 V. ) ) ) P[ rA es gs eig rsn oe nd ] t o the Hon. Judge Dean D. 18 ) CITY OF LOS ANGELES, LOS ANGELES ) ) PROTECTIVE ORDER 19 POLICE DEPARTMENT, COUNTY OF LOS ) ANGELES, OFFICER CORY MCMICHAEL, ) 20 OFFICER JAVIER TAFOYA, AND DOES 1 ) TO 10, INCLUSIVE, ) 21 ) Defendants. ) 22 ) Complaint Filed: 01/10/2019 ) Trial Date: 6/9/2020 23 ) ) 24 ) 25 /// 26 /// 1. A. PURPOSES AND LIMITATIONS 1 Discovery in this action is likely to involve production of confidential, 2 proprietary or private information for which special protection from public disclosure 3 and from use for any purpose other than prosecuting this litigation may be warranted. 4 Accordingly, the parties hereby stipulate to and petition the Court to enter the 5 following Stipulated Protective Order. The parties acknowledge that this Order does 6 not confer blanket protections on all disclosures or responses to discovery and that the 7 protection it affords from public disclosure and use extends only to the limited 8 information or items that are entitled to confidential treatment under the applicable 9 10 legal principles. 11 12 B. GOOD CAUSE STATEMENT 13 This action is likely to involve third party privacy, HIPPA information, peace 14 officer personnel and official information for which special protection from public 15 disclosure and from use for any purpose other than prosecution of this action is 16 warranted. Such confidential and proprietary materials and information consist of, 17 among other things, (including information implicating privacy rights of third parties), 18 information otherwise generally unavailable to the public, or which may be privileged 19 or otherwise protected from disclosure under state or federal statutes, court rules, case 20 decisions, or common law. Accordingly, to expedite the flow of information, to 21 facilitate the prompt resolution of disputes over confidentiality of discovery materials, 22 to adequately protect information the parties are entitled to keep confidential, to ensure 23 that the parties are permitted reasonable necessary uses of such material in preparation 24 for and in the conduct of trial, to address their handling at the end of the litigation, and 25 serve the ends of justice, a protective order for such information is justified in this 26 matter. It is the intent of the parties that information will not be designated as 27 confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is 1 good cause why it should not be part of the public record of this case. 2 3 4 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 5 The parties further acknowledge, as set forth in Section 12.3, below, that this 6 Stipulated Protective Order does not entitle them to file confidential information under 7 seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and the 8 standards that will be applied when a party seeks permission from the court to file 9 material under seal. 10 There is a strong presumption that the public has a right of access to judicial 11 proceedings and records in civil cases. In connection with non-dispositive motions, 12 good cause must be shown to support a filing under seal. See Kamakana v. City and 13 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 14 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 15 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good 16 cause showing), and a specific showing of good cause or compelling reasons with 17 proper evidentiary support and legal justification, must be made with respect to 18 Protected Material that a party seeks to file under seal. The parties’ mere designation 19 of Disclosure or Discovery Material as CONFIDENTIAL does not—without the 20 submission of competent evidence by declaration, establishing that the material sought 21 to be filed under seal qualifies as confidential, privileged, or otherwise protectable— 22 constitute good cause. 23 Further, if a party requests sealing related to a dispositive motion or trial, then 24 compelling reasons, not only good cause, for the sealing must be shown, and the relief 25 sought shall be narrowly tailored to serve the specific interest to be protected. See 26 Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item 27 or type of information, document, or thing sought to be filed or introduced under seal 1 in connection with a dispositive motion or trial, the party seeking protection must 2 articulate compelling reasons, supported by specific facts and legal justification, for the 3 requested sealing order. Again, competent evidence supporting the application to file 4 documents under seal must be provided by declaration. 5 Any document that is not confidential, privileged, or otherwise protectable in its 6 entirety will not be filed under seal if the confidential portions can be redacted. If 7 documents can be redacted, then a redacted version for public viewing, omitting only 8 the confidential, privileged, or otherwise protectable portions of the document, shall be 9 filed. Any application that seeks to file documents under seal in their entirety should 10 include an explanation of why redaction is not feasible. 11 12 2. DEFINITIONS 13 2.1 Action: this pending federal lawsuit. 14 2.2 Challenging Party: a Party or Non-Party that challenges the designation 15 of information or items under this Order. 16 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 17 how it is generated, stored or maintained) or tangible things that qualify for protection 18 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 19 Statement. 20 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 21 support staff). 22 2.5 Designating Party: a Party or Non-Party that designates information or 23 items that it produces in disclosures or in responses to discovery as 24 “CONFIDENTIAL.” 25 2.6 Disclosure or Discovery Material: all items or information, regardless of 26 the medium or manner in which it is generated, stored, or maintained (including, 27 among other things, testimony, transcripts, and tangible things), that are produced or 1 generated in disclosures or responses to discovery in this matter. 2 2.7 Expert: a person with specialized knowledge or experience in a matter 3 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 4 expert witness or as a consultant in this Action. 5 2.8 House Counsel: attorneys who are employees of a party to this Action. 6 House Counsel does not include Outside Counsel of Record or any other outside 7 counsel. 8 2.9 Non-Party: any natural person, partnership, corporation, association or 9 other legal entity not named as a Party to this action. 10 2.10 Outside Counsel of Record: attorneys who are not employees of a party 11 to this Action but are retained to represent or advise a party to this Action and have 12 appeared in this Action on behalf of that party or are affiliated with a law firm that has 13 appeared on behalf of that party, and includes support staff. 14 2.11 Party: any party to this Action, including all of its officers, directors, 15 employees, consultants, retained experts, and Outside Counsel of Record (and their 16 support staffs). 17 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 18 Discovery Material in this Action. 19 2.13 Professional Vendors: persons or entities that provide litigation support 20 services (e.g., photocopying, videotaping, translating, preparing exhibits or 21 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 22 their employees and subcontractors. 23 2.14 Protected Material: any Disclosure or Discovery Material that is 24 designated as “CONFIDENTIAL.” A watermark may be affixed to the documents. 25 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 26 from a Producing Party. 27 /// 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only Protected 3 Material (as defined above), but also (1) any information copied or extracted from 4 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 5 Material; and (3) any testimony, conversations, or presentations by Parties or their 6 Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of the trial 8 judge. This Order does not govern the use of Protected Material at trial. 9 10 4. DURATION 11 Once a case proceeds to trial, information that was designated as 12 CONFIDENTIAL or maintained pursuant to this protective order used or introduced as 13 an exhibit at trial becomes public and will be presumptively available to all members 14 of the public, including the press, unless compelling reasons supported by specific 15 factual findings to proceed otherwise are made to the trial judge in advance of the trial. 16 See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing 17 documents produced in discovery from “compelling reasons” standard when merits- 18 related documents are part of court record). Accordingly, the terms of this protective 19 order do not extend beyond the commencement of the trial. 20 21 5. DESIGNATING PROTECTED MATERIAL 22 5.1 Exercise of Restraint and Care in Designating Material for Protection. 23 Each Party or Non-Party that designates information or items for protection under this 24 Order must take care to limit any such designation to specific material that qualifies 25 under the appropriate standards. The Designating Party must designate for protection 26 only those parts of material, documents, items or oral or written communications that 27 1 which protection is not warranted are not swept unjustifiably within the ambit of this 2 Order. 3 Mass, indiscriminate or routinized designations are prohibited. Designations 4 that are shown to be clearly unjustified or that have been made for an improper 5 purpose (e.g., to unnecessarily encumber the case development process or to impose 6 unnecessary expenses and burdens on other parties) may expose the Designating Party 7 to sanctions. 8 If it comes to a Designating Party’s attention that information or items that it 9 designated for protection do not qualify for protection, that Designating Party must 10 promptly notify all other Parties that it is withdrawing the inapplicable designation. 11 5.2 Manner and Timing of Designations. Except as otherwise provided in this 12 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated 13 or ordered, Disclosure or Discovery Material that qualifies for protection under this 14 Order must be clearly so designated before the material is disclosed or produced. 15 Designation in conformity with this Order requires: 16 (a) for information in documentary form (e.g., paper or electronic 17 documents, but excluding transcripts of depositions or other pretrial or trial 18 proceedings), that the Producing Party affix at a minimum, the legend 19 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 20 contains protected material. If only a portion of the material on a page qualifies for 21 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 22 by making appropriate markings in the margins). 23 A Party or Non-Party that makes original documents available for inspection 24 need not designate them for protection until after the inspecting Party has indicated 25 which documents it would like copied and produced. During the inspection and before 26 the designation, all of the material made available for inspection shall be deemed 27 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 1 copied and produced, the Producing Party must determine which documents, or 2 portions thereof, qualify for protection under this Order. Then, before producing the 3 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to 4 each page that contains Protected Material. If only a portion of the material on a page 5 qualifies for protection, the Producing Party also must clearly identify the protected 6 portion(s) (e.g., by making appropriate markings in the margins). 7 (b) for testimony given in depositions that the Designating Party identifies 8 the Disclosure or Discovery Material on the record, before the close of the deposition 9 all protected testimony. 10 (c) for information produced in some form other than documentary and for 11 any other tangible items, that the Producing Party affix in a prominent place on the 12 exterior of the container or containers in which the information is stored the legend 13 “CONFIDENTIAL.” If only a portion or portions of the information warrants 14 protection, the Producing Party, to the extent practicable, shall identify the protected 15 portion(s). 16 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 17 failure to designate qualified information or items does not, standing alone, waive the 18 Designating Party’s right to secure protection under this Order for such material. 19 Upon timely correction of a designation, the Receiving Party must make reasonable 20 efforts to assure that the material is treated in accordance with the provisions of this 21 Order. 22 23 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 24 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 25 designation of confidentiality at any time that is consistent with the Court’s Scheduling 26 Order. 27 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 1 resolution process under Local Rule 37.1 et seq. 2 6.3 The burden of persuasion in any such challenge proceeding shall be on the 3 Designating Party. Frivolous challenges, and those made for an improper purpose 4 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 5 expose the Challenging Party to sanctions. Unless the Designating Party has waived or 6 withdrawn the confidentiality designation, all parties shall continue to afford the 7 material in question the level of protection to which it is entitled under the Producing 8 Party’s designation until the Court rules on the challenge. 9 10 7. ACCESS TO AND USE OF PROTECTED MATERIAL 11 7.1 Basic Principles. A Receiving Party may use Protected Material that is 12 disclosed or produced by another Party or by a Non-Party in connection with this 13 Action only for prosecuting, defending or attempting to settle this Action. Such 14 Protected Material may be disclosed only to the categories of persons and under the 15 conditions described in this Order. When the Action has been terminated, a Receiving 16 Party must comply 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 secure manner that ensures that access is limited to the persons 19 authorized under this Order. 20 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 21 otherwise ordered by the court or permitted in writing by the Designating Party, a 22 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 23 only to: 24 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 25 as employees of said Outside Counsel of Record to whom it is reasonably necessary to 26 disclose the information for this Action; 27 (b) the officers, directors, and employees (including House Counsel) of the 1 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 “Acknowledgment 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 A hereto; and (2) they will 15 not be permitted to keep any confidential information unless they sign the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 17 by the Designating Party or ordered by the court. Pages of transcribed deposition 18 testimony or exhibits to depositions that reveal Protected Material may be separately 19 bound by the court reporter and may not be disclosed to anyone except as permitted 20 under this Stipulated Protective 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 24 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 25 OTHER LITIGATION 26 If a Party is served with a subpoena or a court order issued in other litigation that 27 compels disclosure of any information or items designated in this Action as 1 “CONFIDENTIAL,” that Party must: 2 (a) promptly notify in writing the Designating Party. Such notification shall 3 include a copy of the subpoena or court order; 4 (b) promptly notify in writing the party who caused the subpoena or order to 5 issue in the other litigation that some or all of the material covered by the subpoena or 6 order is subject to this Protective Order. Such notification shall include a copy of this 7 Stipulated Protective Order; and 8 (c) cooperate with respect to all reasonable procedures sought to be pursued 9 by the Designating Party whose Protected Material may be affected. 10 If the Designating Party timely seeks a protective order, the Party served with 11 the subpoena or court order shall not produce any information designated in this action 12 as “CONFIDENTIAL” before a determination by the court from which the subpoena 13 or order issued, unless the Party has obtained the Designating Party’s permission. The 14 Designating Party shall bear the burden and expense of seeking protection in that court 15 of its confidential material and nothing in these provisions should be construed as 16 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 17 directive from another court. 18 19 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 20 IN THIS LITIGATION 21 (a) The terms of this Order are applicable to information produced by a Non- 22 Party in this Action and designated as “CONFIDENTIAL.” Such information 23 produced by Non-Parties in connection with this litigation is protected by the remedies 24 and relief provided by this Order. Nothing in these provisions should be construed as 25 prohibiting a Non-Party from seeking additional protections. 26 (b) In the event that a Party is required, by a valid discovery request, to 27 produce a Non-Party’s confidential information in its possession, and the Party is 1 subject to an agreement with the Non-Party not to produce the Non-Party’s 2 confidential information, then the Party shall: 3 (1) promptly notify in writing the Requesting Party and the Non-Party 4 that some or all of the information requested is subject to a confidentiality agreement 5 with a Non-Party; 6 (2) promptly provide the Non-Party with a copy of the Stipulated 7 Protective Order in this Action, the relevant discovery request(s), and a reasonably 8 specific description of the information requested; and 9 (3) make the information requested available for inspection by the Non- 10 Party, if requested. 11 (c) If the Non-Party fails to seek a protective order from this court within 14 12 days of receiving the notice and accompanying information, the Receiving Party may 13 produce the Non-Party’s confidential information responsive to the discovery request. 14 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce 15 any information in its possession or control that is subject to the confidentiality 16 agreement with the Non-Party before a determination by the court. Absent a court 17 order to the contrary, the Non-Party shall bear the burden and expense of seeking 18 protection in this court of its Protected Material. 19 20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 21 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 22 Protected Material to any person or in any circumstance not authorized under this 23 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 24 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 25 all unauthorized copies of the Protected Material, (c) inform the person or persons to 26 whom unauthorized disclosures were made of all the terms of this Order, and (d) 27 request such person or persons to execute the “Acknowledgment and Agreement to Be 1 Bound” that is attached hereto as Exhibit A. 2 3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 4 PROTECTED MATERIAL 5 When a Producing Party gives notice to Receiving Parties that certain 6 inadvertently produced material is subject to a claim of privilege or other protection, 7 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 8 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 9 may be established in an e-discovery order that provides for production without prior 10 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 11 parties reach an agreement on the effect of disclosure of a communication or 12 information covered by the attorney-client privilege or work product protection, the 13 parties may incorporate their agreement in the stipulated protective order submitted to 14 the court. 15 16 12. MISCELLANEOUS 17 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 18 person to seek its modification by the Court in the future. 19 12.2 Right to Assert Other Objections. By stipulating to the entry of this 20 Protective Order, no Party waives any right it otherwise would have to object to 21 disclosing or producing any information or item on any ground not addressed in this 22 Stipulated Protective Order. Similarly, no Party waives any right to object on any 23 ground to use in evidence of any of the material covered by this Protective Order. 24 12.3 Filing Protected Material. A Party that seeks to file under seal any 25 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 26 only be filed under seal pursuant to a court order authorizing the sealing of the specific 27 Protected Material at issue. If a Party’s request to file Protected Material under seal is 1 denied by the court, then the Receiving Party may file the information in the public 2 record unless otherwise instructed by the court. 3 4 13. FINAL DISPOSITION 5 After the final disposition of this Action, as defined in paragraph 4, within 60 6 days of a written request by the Designating Party, each Receiving Party must return 7 all Protected Material to the Producing Party or destroy such material. As used in this 8 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 9 summaries, and any other format reproducing or capturing any of the Protected 10 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 11 must submit a written certification to the Producing Party (and, if not the same person 12 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 13 category, where appropriate) all the Protected Material that was returned or destroyed 14 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 15 compilations, summaries or any other format reproducing or capturing any of the 16 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 17 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 18 legal memoranda, correspondence, deposition and trial exhibits, expert reports, 19 attorney work product, and consultant and expert work product, even if such materials 20 contain Protected Material. Any such archival copies that contain or constitute 21 Protected Material remain subject to this Protective Order as set forth in Section 4 22 (DURATION). 23 /// 24 /// 25 /// 26 /// 27 /// 1 14. VIOLATION 2 Any violation of this Order may be punished by appropriate measures including, 3 without limitation, contempt proceedings and/or monetary sanctions. 4 5 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 6 7 Dated: December 23, 2019 _______________/s/_________________ HON. ROZELLA A. OLIVER 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27