Zakhary Gabriel Mallett v. County of Los Angeles ( 2020 )

1 Tomas A. Guterres, Esq. (State Bar No. 152729) 5 Chandler A. Parker, Esq. (State Bar No. 277902) COLLINS COLLINS MUIR + STEWART LLP 3 || 1100 El Centro Street 4 South Pasadena, CA 91030 (626) 243-1100 — FAX (626) 243-1111 5 6 Attorneys for Defendants, COUNTY OF LOS ANGELES and Deputy MICHAEL SAMPSON 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA ZAKHARY GABRIEL MALLETT, _) CASE NO. 2:19-cv-08506-JAK-RAO 12 ) [Assigned to Hon. John A. Kronstadt, ) Courtroom I0B] 13 Plaintiff, ) 14 ) STIPULATION AND PROPOSED ) PROTECTIVE ORDER! 15|| vs. ) 16 ) Complaint Filed: 10/02/2019 17|| COUNTY OF LOS ANGELES; ) Trial Date: Not Set MICHAEL SAMPSON; an ) individually and as Deputy Sheriff No.:) 19 || 014592 for the Los Angeles County ) Sheriff's Department; and DOES 1 ) 20]! through 50, 21 ) 22 Defendants. ) 23||TO ALL PARTIES AND TO THE HONORABLE COURT: 94||/// |}/// 26 |}/// 27 | |! Accordingly, the parties hereby stipulate to and petition the Court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does 7 ||not confer blanket protections on all disclosures or responses to discovery and that 8 the protection it affords from public disclosure and use extends only to the limited 9 |!information or items that are entitled to confidential treatment under the applicable 10]| legal principles. 11}/11. GOOD CAUSE STATEMENT 12 This action is likely to involve materials contained in the personnel records of 13]|| peace officers which may be protected by California Evidence Code sections 1040, 14]| the official information privilege or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. Additionally, this 16|| action may involve other proprietary information concerning police practices for 17|| which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of 20|| discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling 23)| at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, 27|| non-public manner, and there is good cause why it should not be part of the public record of this case. 22153 > ! ll101. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 2 The parties further acknowledge, as set forth in Section 14.3, below, that this 3 Stipulated Protective Order does not entitle them to file confidential information + under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and > || the standards that will be applied when a party seeks permission from the court to file 6 || material under seal. There is a strong presumption that the public has a right of acces: 7 judicial proceedings and records in civil cases. In connection with non-dispositive 8 || motions, good cause must be shown to support a filing under seal. See Kamakana v. 9 || City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. 10|| Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony 11|| Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause showing), and a specific showing of good cause or 13 || compelling reasons with proper evidentiary support and legal justification, must be made with respect to Protected Material that a party seeks to file under seal. The parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL 16|| does not— without the submission of competent evidence by declaration, 17|| establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable—constitute good cause. 19 Further, if a party requests sealing related to a dispositive motion or trial, then 20 || compelling reasons, not only good cause, for the sealing must be shown, and the 21 || relief sought shall be narrowly tailored to serve the specific interest to be protected. 92||See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For 23 each item or type of information, document, or thing sought to be filed or introduced 4 || under seal, the party seeking protection must articulate compelling reasons, 5 || supported by specific facts and legal justification, for the requested sealing order. 26 || Again, competent evidence supporting the application to file documents under seal 57 || must be provided by declaration. cOLINS 28 || 22153 | Any document that is not confidential, privileged, or otherwise protectable in 2 |lits entirety will not be filed under seal if the confidential portions can be redacted. If 3 |) documents can be redacted, then a redacted version for public viewing, omitting only + || the confidential, privileged, or otherwise protectable portions of the document, shall 5 ||be filed. Any application that seeks to file documents under seal in their entirety 6 |! should include an explanation of why redaction is not feasible. 7 \!IV. DEFINITIONS 8 4.1 Action: This pending lawsuit entitled ZAKHARY GABRIEL MALLETT 9 |lv. COUNTY OF LOS ANGELES, et al. (Case No. 2:19-cv-08506-JAK-RAO ) 10 4.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 12 4.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement. 16 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 17)| support staff). 18 4.5 Designating Party: a Party or Non-Party that designates information or 19)! items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 21 4.6 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, 23]! among other things, testimony, transcripts, and tangible things), that are produced or senerated in disclosures or responses to discovery. 25 4.7 Expert: a person with specialized knowledge or experience in a matter 26 || pertinent to the litigation who has been retained by a Party or its counsel to serve as 271) an expert witness or as a consultant in this Action. COLLINS 28 4.8 House Counsel: attorneys who are employees of a party to this Action. || 22153 House Counsel does not include Outside Counsel of Record or any other outside > counsel. 3 4.9 Non-Party: any natural person, partnership, corporation, association or + other legal entity not named as a Party to this action. > 4.10 Outside Counsel of Record: attorneys who are not employees of a party tc © this Action but are retained to represent a party to this Action and have appeared in 7 this Action on behalf of that party or are affiliated with a law firm that has appeared 8 || on behalf of that party, and includes support staff. ? 4.11 Party: any party to this Action, including all of its officers, directors, 10 employees, consultants, retained experts, and Outside Counsel of Record (and their M support staffs). 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 13 Discovery Material in this Action. 4.13 Professional Vendors: persons or entities that provide litigation support 15 ll services (e.g., photocopying, videotaping, translating, preparing exhibits or 16 demonstrations, and organizing, storing, or retrieving data in any form or medium) 17!) and their employees and subcontractors. 18 4.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 20 4.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 2!lv. SCOPE 23 The protections conferred by this Stipulation and Order cover not only 241! Protected Material (as defined above), but also (1) any information copied or 25 extracted from Protected Material; (2) all copies, excerpts, summaries, or 26 compilations of Protected Material; and (3) any testimony, conversations, or 27 presentations by Parties or their Counsel that might reveal Protected Material. 28 || 2215 ; | Any use of Protected Material at trial shall be governed by the orders of the > |l trial judge and other applicable authorities. This Order does not govern the use of 3 |! Protected Material at trial. * IlVI. DURATION 5 Once a case proceeds to trial, information that was designated as © || CONFIDENTIAL or maintained pursuant to this protective order used or introduced 7 Il as an exhibit at trial becomes public and will be presumptively available to all 8 || members of the public, including the press, unless compelling reasons supported by ? specific factual findings to proceed otherwise are made to the trial judge in advance 101 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing documents produced in discovery from “compelling reasons” 121 standard when merits-related documents are part of court record). Accordingly, the terms of this protective order do not extend beyond the commencement of the trial. VII. DESIGNATING PROTECTED MATERIAL IS 7.1 Exercise of Restraint and Care in Designating Material for Protection. Eacl 16 Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. 19 The Designating Party must designate for protection only those parts of 20 material, documents, items or oral or written communications that qualify so that 21 other portions of the material, documents, items or communications for which 22 protection is not warranted are not swept unjustifiably within the ambit of this Order. 23 Mass, indiscriminate or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper 25 purpose (e.g., to unnecessarily encumber the case development process or to impose 26 unnecessary expenses and burdens on other parties) may expose the Designating 27 Party to sanctions. 28 || 2215 ; | If it comes to a Designating Party’s attention that information or items that it designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 7.2 Manner and Timing of Designations. Except as otherwise provided in this 5 Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material that 6 qualifies for protection under this Order must be clearly so designated before the 7 || material is disclosed or produced. 8 Designation in conformity with this Order requires: ? (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 12 |) “CONFIDENTIAL legend”), to each page that contains protected material. If only a 13 portion of the material on a page qualifies for protection, the Producing Party also 141) must clearly identify the protected portion(s) (e.g., by making appropriate markings 'S ll in the margins). 16 A Party or Non-Party that makes original documents available for inspection 17!) need not designate them for protection until after the inspecting Party has indicated 181! which documents it would like copied and produced. During the inspection and 19 || before the designation, all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL 24 legend” to each page that contains Protected Material. If only a portion of the material on a page qualifies for protection, the Producing Party also must clearly 26 identify the protected portion(s) (e.g., by making appropriate markings in the 27 margins). cOLINS 28 || 22153 , | (b) for testimony given in depositions that the Designating Party identifies the 2 Disclosure or Discovery Material on the record, before the close of the deposition all 3 protected testimony. 4 (c) for information produced in some form other than documentary and for any > || other tangible items, that the Producing Party affix in a prominent place on the © |! exterior of the container or containers in which the information is stored the legend 7 |l*CONFIDENTIAL.” If only a portion or portions of the information warrants 8 protection, the Producing Party, to the extent practicable, shall identify the protected ? portion(s). 10 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 111! failure to designate qualified information or items does not, standing alone, waive the Designating Party’s right to secure protection under this Order for such material. 13 Upon timely correction of a designation, the Receiving Party must make reasonable 141 efforts to assure that the material is treated in accordance with the provisions of this Order. 161! VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS M7 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19)! Scheduling Order. 20 8.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37-1 et seq. 2218.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint stipulation pursuant to Local Rule 37-2. 24 8.4 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper 26 || purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties 27||may expose the Challenging Party to sanctions. Unless the Designating Party has cous 28 || waived or withdrawn the confidentiality designation, all parties shall continue to || 22153 ! || afford the material in question the level of protection to which it is entitled under the 2 Producing Party’s designation until the Court rules on the challenge. 3 llIx. ACCESS TO AND USE OF PROTECTED MATERIAL 4 9.1 Basic Principles. A Receiving Party may use Protected Material that is > || disclosed or produced by another Party or by a Non-Party in connection with this © || Action only for prosecuting, defending or attempting to settle this Action. Such 7 |! Protected Material may be disclosed only to the categories of persons and under the 8 |! conditions described in this Order. When the Action has been terminated, a ? Receiving Party must comply with the provisions of section 15 below (FINAL DISPOSITION Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the 12 persons authorized under this Order. 13 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Is Party may disclose any information or item designated “CONFIDENTIAL” only to: 16 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 7 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this Action; 19 (b) the officers, directors, and employees (including House Counsel) of the 20 Receiving Party to whom disclosure is reasonably necessary for this Action; 21 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this Action and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A) [TO BE NEGOTIATED AND PREPARED BY PARTIES AND ATTACHED TO STIPULATION AND PROPOSED ORDER]; 26 (d) the court and its personnel; 27 (e) court reporters and their staff; 28 29 | (f) professional jury or trial consultants, mock jurors, and Professional Vendor. 2 || to whom disclosure is reasonably necessary for this Action and who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (g) the author or recipient of a document containing the information or a > custodian or other person who otherwise possessed or knew the information; 6 (h) during their depositions, witnesses, and attorneys for witnesses, in the 7 |! Action to whom disclosure is reasonably necessary provided: (1) the deposing party 8 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will ? |Inot be permitted to keep any confidential information unless they sign the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise M agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be 13 separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order; and IS (1) any mediators or settlement officers and their supporting personnel, 16 mutually agreed upon by any of the parties engaged in settlement discussions. 17||X. PROTECTED MATERIAL SUBPOENAED OR ORDERED 18 PRODUCED IN OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation 50 that compels disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party must: 0 (a) promptly notify in writing the Designating Party. Such notification shall 33 include a copy of the subpoena or court order; 34 (b) promptly notify in writing the party who caused the subpoena or order to 35 issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy of 37 this Stipulated Protective Order; and 3g (c) cooperate with respect to all reasonable procedures sought to be pursued by 29 10 ll the Designating Party whose Protected Material may be affected. If the Designating 2 Party timely seeks a protective order, the Party served with the subpoena or court 3 |l order shall not produce any information designated in this action as + ||“CONFIDENTIAL” before a determination by the court from which the subpoena or > || order issued, unless the Party has obtained the Designating Party’s permission. The 6 Designating Party shall bear the burden and expense of seeking protection in that 7 |l court of its confidential material and nothing in these provisions should be construed 8 authorizing or encouraging a Receiving Party in this Action to disobey a lawful ? || directive from another court. XI. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non- 3 Party in this Action and designated as “CONFIDENTIAL.” Such information 4 produced by Non-Parties in connection with this litigation is protected by the 5 remedies and relief provided by this Order. Nothing in these provisions should be 6 construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to ig produce a Non-Party’s confidential information in its possession, and the Party is 19 subject to an agreement with the Non-Party not to produce the Non-Party’s 50 confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non- Party that 0 some or all of the information requested is subject to a confidentiality agreement □□□□ 33 a Non-Party; 34 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 35 Order in this Action, the relevant discovery request(s), and a reasonably specific description of the information requested; and (3) make the information requested 37 available for inspection by the Non-Party, if requested. 3g (c) If the Non-Party fails to seek a protective order from this court within 14 29 11 | days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s confidential information responsive to the discovery 3 request. If the Non-Party timely seeks a protective order, the Receiving Party shall + □□□ produce any information in its possession or control that is subject to the > confidentiality agreement with the Non-Party before a determination by the court. © |! Absent a court order to the contrary, the Non-Party shall bear the burden and expense 7 Wlof seeking protection in this court of its Protected Material. 8 ||XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL ? If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 101! Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, 1S ll and (d) request such person or persons to execute the “Acknowledgment an 16 Agreement to Be Bound” attached hereto as Exhibit A. 17|| XIN. INADVERTENT PRODUCTION OF PRIVILEGED OR 18 CONFIDENTIAL MATERIAL 19 When a Producing Party gives notice to Receiving Parties that certain 50 inadvertently produced material 1s subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 0 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 33 may be established in an e-discovery order that provides for production without prior 34 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 35 parties reach an agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection, the 37 parties may incorporate their agreement in the stipulated protective order submitted 3g to the court. 29 12 | ||XIV. MISCELLANEOUS 2 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 3 person to seek its modification by the Court in the future. 4 14.2 Right to Assert Other Objections. By stipulating to the entry of this > |! Protective Order, no Party waives any right it otherwise would have to object to 6 disclosing or producing any information during discovery or otherwise. Similarly, no 7 Party waives any right to object on any ground to use in evidence of any of the 8 || material covered by this Protective Order. ? 14.3 Filing Protected Material. A Party that seeks to file under seal any 101! Protected Material must comply with Local Civil Rule 79-5. Protected Material may M only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material. If a Party’s request to file Protected Material under seal 13 lis denied by the court, then the Receiving Party may file the information in the public 141) ecord unless otherwise instructed by the court. 'S\|Xv. FINAL DISPOSITION 16 After the final disposition of this Action, as defined in paragraph 6, within 60 M7 days of a written request by the Designating Party, each Receiving Party must return 181 all Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected 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 (1) identifies 24 (by category, where appropriate) all the Protected Material that was returned or 25 destroyed and (2) affirms that the Receiving Party has not retained any copies, 26 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. N otwithstanding this provision, Counsel are entitled to 28 29 13 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 3 reports, attorney work product, and consultant and expert work product, even if such + || materials contain Protected Material. Any such archival copies that contain or > constitute Protected Material remain subject to this Protective Order as set forth in © Section 6 (DURATION). 7 ||XVI. VIOLATION 8 Any violation of this Order may be punished by appropriate measures ? including, without limitation, contempt proceedings and/or monetary 10 sanctions. IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: May 19, 2020 COLLINS COLLINS MUIR + STEWART LLP 13 4 By: _/s/ Chandler A. Parker CHANDLER A. PARKER 15 TOMAS A. GUTERRES 16 Attorneys for Defendants, COUNTY OF LOS ANGELES and 17 MICHAEL SAMPSON 18 9 DATED: May 19, 2020 JASS LAW 20 By: _/s/ Jeremy Jass 5 JEREMY JASS Attorneys for Plaintiff, 22 ZAKHARY GABRIEL MALLETT 23 54 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. || DATED: May 20, 2020 26|| Rapehha dr. G2... 27|| HON. ROZELLA A. OLIVER United States Magistrate Judge COLLINS 22153 ! EXHIBIT A 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 > that I have read in its entirety and understand the Stipulated Protective Order that © || was issued by the United States District Court for the Central District of California 7 Ilon [date] in the case of Zakhary Gabriel Mallett v. County of Los Angeles (Case No. 8 |)2: 19-cv-08506-JAK-RAO). I agree to comply with and to be bound by all the terms ? of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and punishment the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any 13 person or entity except in strict compliance with the provisions of this Order. I furthe agree to submit to the jurisdiction of the United States District Court for the Central !5 1! District of California for enforcing the terms of this Stipulated Protective Order, ever 161) if such enforcement proceedings occur after termination of this action. I hereby M7 appoint [print or type full name] of 18 [print or type full address and 19 telephone number] as my California agent for service of process in connection with 701! this action or any proceedings related to enforcement of this Stipulated Protective Order. Date: 23 City and State where sworn and signed: Printed name: 25 Signature: 26 27 28 29 15