Sanchez v. County of Sacramento ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CRYSTAL R. SANCHEZ, No. 2:19-cv-01545 MCE AC 11 Plaintiff, 12 v. PROTECTIVE ORDER 13 COUNTY OF SACRAMENTO, et al., 14 Defendants. 15 16 The court has reviewed the proposed protective orders submitted by the parties following an 17 informal discovery conference. ECF Nos. 21 (minute order), 22 (plaintiff’s proposed protective 18 order), 23 (defendants’ proposed protective order). Having considered the parties’ positions and 19 the Local and Federal Rules, the undersigned ORDERS as follows: 20 I. DEFINITIONS 21 The following definitions shall apply to this Protective Order: 22 1. The “Action” shall mean and refer to the above-captioned matter and to all actions now or 23 later consolidated with the Action, and any appeal from the Action and from any other action 24 consolidated at any time under the above-captioned matter, through final judgment. 25 2. “Documents” or “Confidential Documents” shall mean the Documents that Defendants 26 designate as “Confidential” in the manner set forth in this Protective Order. 27 3. “Confidential” shall mean information designated “Confidential” pursuant to this Protective 28 Order. Information designated “Confidential” shall be information that is determined in good 1 faith by the attorneys representing the Designating Party to be subject to protection pursuant 2 to Fed. R. Civ. P. 26(c). Confidential Documents, material, and/or information shall be used 3 solely for purposes of litigation. Confidential Information shall not be used by the non- 4 Designating Party for any business or other purpose, unless agreed to in writing by all Parties 5 to this action or as authorized by further order of the Court. 6 4. “Defendants” shall mean Defendants County of Sacramento, Deputy Albee. 7 5. “Plaintiff” shall mean Crystal Sanchez. 8 6. “Parties” shall mean Plaintiffs and Defendants, identified above 9 II. SUBJECT 10 This Protective Order is limited in applicability to documents contained in the personnel 11 files of defendant Albee, inclusive of training documents. The Court acknowledges the 12 possibility that these records contain sensitive and private information that is not relevant to this 13 action or subject to disclosure, such as home addresses, contact information, social security 14 numbers, dates of birth, etc. The Court permits Defendants’ pre-production redaction of such 15 limited information, to the extent that any redacted documents are accompanied by a redaction 16 log/designation obviously identifying each instance of redaction and the information redacted. 17 III. TERMS OF THE PROTECTIVE ORDER 18 Confidential Documents subject to protection may be designated as “Confidential” by the 19 Defendants and produced subject to the following Protective Order: 20 1. The Confidential Documents shall be used solely in connection with the above captioned civil 21 case, and in the preparation and trial of the case. The Parties do not waive any objections to 22 the admissibility of the documents or portions thereof in future proceedings in this case, 23 including trial. 24 2. Defendants will designate the Confidential Documents as confidential by affixing a mark 25 labelling them “Confidential.” 26 3. The Confidential Documents may only be disclosed to the following persons: 27 a. Mark E. Merin and Paul H. Masuhara of THE LAW OFFICE OF MARK E. MERIN, 28 partners and associate attorneys in that office, if any, as counsel for Plaintiffs in the 1 case enumerated above; 2 b. John R. Whitefleet of PORTER SCOTT, partners and associate attorneys in that 3 office, as counsel for Defendants in the case enumerated above; 4 c. Paralegal, clerical, and secretarial personnel regularly employed by counsel referred 5 to in subparts (a) and (b) immediately above, including stenographic deposition 6 reports or videographers retained in connection with this action; 7 d. Court personnel, including stenographic reporters or videographers engaged in 8 proceedings as are necessarily incidental to the preparation for the trial in the civil 9 action; 10 e. Any expert, consultant, or investigator retained in connection with this action, 11 however, such persons must be advised of and abide by this protective order; 12 f. The finder of facts at the time of trial, subject to the court’s rulings on in limine 13 motions and objections of counsel; and, 14 g. Witnesses during their depositions in this action. If confidential documents are used 15 in the deposition, the documents must be identified as “Confidential” and the portion 16 of the deposition in which the documents are described should also be considered 17 confidential. 18 4. If the Confidential Documents are filed with any motion or other pleading, a party may seek 19 permission from the Court to file the Confidential Documents under seal according to E.D. 20 Cal. L.R. 141. If permission is granted, the Confidential Documents will be filed and served 21 in accordance with E.D. Cal. L.R. 141. 22 5. The designation of documents (including transcripts of testimony) as confidential pursuant to 23 this order does not automatically entitle the parties to file such a document with the court 24 under seal. Parties are advised that any request to seal documents in this district is governed 25 by E.D. Cal. R. (“Local Rule”) 141. In brief, Local Rule 141 provides that documents may 26 only be sealed by a written order of the court after a specific request to seal has been made. 27 Local Rule 141(a). However, a mere request to seal is not enough under the local rules. In 28 particular, Local Rule 141(b) requires that “[t]he ‘Request to Seal Documents’ shall set forth 1 the statutory or other authority for sealing, the requested duration, the identity, by name or 2 category, of persons to be permitted access to the document, and all relevant information.” 3 Local Rule 141(b) (emphasis added). 4 6. A request to seal material must normally meet the high threshold of showing that “compelling 5 reasons” support secrecy; however, where the material is, at most, “tangentially related” to the 6 merits of a case, the request to seal may be granted on a showing of “good cause.” Ctr. for 7 Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir.), cert. denied, 137 S. 8 Ct. 38 (2016); Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 9 2006). 10 7. Nothing in this order shall limit the testimony of parties or non-parties, or the use of certain 11 documents, at any court hearing or trial – such determinations will only be made by the court 12 at the hearing or trial, or upon an appropriate motion. 13 8. The designation of the Confidential Documents as “Confidential” and the subsequent 14 production thereof is without prejudice to the right of any party to oppose the admissibility of 15 the Confidential Documents or information contained therein. 16 9. Any party or non-party may challenge a designation of confidentiality at any time. A party or 17 non-party does not waive its right to challenge a confidentiality designation by electing not to 18 mount a challenge promptly after the original designation is disclosed. The Challenging Party 19 shall initiate the dispute resolution process by providing written notice of each designation it 20 is challenging and describing the basis for each challenge. The parties shall attempt to resolve 21 each challenge in good faith and must begin the process by conferring directly (in voice-to- 22 voice dialogue; other forms of communication are not sufficient) within seven (7) days of the 23 date of service of notice. In conferring, the Challenging Party must explain the basis for its 24 belief that the confidentiality designation was not proper and must give the Designating Party 25 an opportunity to review the designated material, to reconsider the circumstances, and, if no 26 change in designation is offered, to explain the basis for the chosen designation. A 27 Challenging Party may proceed to the next stage of the challenge process only if it has 28 engaged in this meet and confer process first or establishes that the Designating Party is 1 unwilling to participate in the meet and confer process in a timely manner. If the Parties 2 cannot resolve a challenge without Court intervention, the Designating Party shall file and 3 serve a motion for protective order pursuant to Fed. R. Civ. P. 26(c) and E.D. Cal. L.R. 251 4 within twenty-one (21) days of the initial notice of challenge or within seven (7) days of the 5 parties agreeing that the meet and confer process will not resolve their dispute, whichever is 6 earlier. Failure by the Designating Party to make such a motion within twenty-one (21) days 7 (or seven (7) days, if applicable) shall automatically waive the “Confidential” designation for 8 each challenged designation. In addition, the Challenging Party may file a motion 9 challenging a confidentiality designation at any time if there is good cause for doing so. The 10 burden of persuasion in any such challenge proceeding shall be on the Designating Party. 11 Unless the Designating Party has waived the confidentiality designation by failing to file a 12 motion to retain confidentiality as described above, all parties shall continue to afford the 13 material in question the level of protection to which it is entitled under the Designating 14 Party’s designation until the Court rules on the challenge. 15 10. Notwithstanding the provisions of Paragraph 3, the Confidential Documents and information 16 contained therein may not be delivered, exhibited or otherwise disclosed to any reporter, 17 writer or employee of any trade publication, newspaper, magazine or other media 18 organization including but not limited to radio and television media. 19 11. Should the Confidential Documents or any information contained therein be disclosed, 20 through inadvertence or otherwise, to any person not authorized to receive it under this 21 Protective Order, the disclosing person(s) shall promptly (a) inform counsel for the 22 Defendants of the recipient(s) and the circumstances of the unauthorized disclosure to the 23 relevant producing person(s) and (b) use best efforts to bind the recipient(s) to the terms of 24 this Protective Order. 25 12. The Confidential Documents shall not lose its confidential status because it was inadvertently 26 or unintentionally disclosed to a person not authorized to receive it under this Protective 27 Order. 28 1 | 13. The protections conferred by this Protective Order do not cover: (A) any information that is in 2 the public domain at the time of disclosure or which subsequently becomes part of the public 3 domain after its disclosure, including becoming part of the public record through trial or 4 otherwise; and (B) any information known prior to the disclosure or obtained after the 5 disclosure from a source who obtained the information lawfully and under no obligation of 6 confidentiality. 7 | 14. After the conclusion of this litigation, the Confidential Documents will remain confidential. 8 “Conclusion” of this litigation means a termination of the case following a trial, settlement, or 9 dismissal of the Action with prejudice for any other reason. 10 | 15. This Protective Order shall remain in full force and effect and shall continue to be binding on 11 all parties and affected persons until this litigation terminates, subject to any subsequent 12 modifications of this Protective Order for good cause shown by this Court or any Court 13 having jurisdiction over an appeal of this action. Pursuant to Local Rule 141.1(f), the court 14 will not retain jurisdiction over enforcement of the terms of this Protective Order after the 15 action is terminated. Upon termination of this litigation, the parties agree the Protective Order 16 shall continue in force as a private agreement between the parties. 17 | 16. The parties may not modify the terms of this Protective Order without the court’s approval. If 18 the parties agree to a potential modification, they shall submit a stipulation and proposed 19 order for the court’s consideration. 20 | 17. During the pendency of this lawsuit, the Court shall (a) make such amendments, 21 modifications and additions to this Protective Order as it may deem appropriate upon good 22 cause shown; and, (b) adjudicate any dispute arising under it. 23 IT IS SO ORDERED. 24 || DATED: March 27, 2020 ~ 25 Chien —Chare ALLISON CLAIRE 26 UNITED STATES MAGISTRATE JUDGE 27 28