Estate of Haile Neil v. County of Colusa ( 2020 )

WQO00 4.497 UV VES ti TRIN EY PYVUULPIOCLIIL Oe Vifivurcy raye ivi ff Mark E. Merin (State Bar No. 043849) Paul H. Masuhara (State Bar No. 289805) 2 |) LAW OFFICE OF MARK E. MERIN 3 1010 F Street, Suite 300 Sacramento, California 95814 4|| Telephone: (916) 443-6911 Facsimile: (916) 447-8336 5 || E-Mail: mark @markmerin.com 6 paul @ markmerin.com 7 Attorneys for Plaintiffs ESTATE OF HAILE NEIL, 8 TARA KUCK, and MICHAEL NEIL 9|/|}PORTER | SCOTT A PROFESSIONAL CORPORATION 10 || William E. Camy, SBN 291397 350 University Ave., Suite 200 Matthew W. Gross, SBN 324007 Sacramento, California 95825 TEL: 916.929.1481 B FAX: 916.927.3706 14 Attorneys for Defendants COUNTY OF COLUSA, COLUSA COUNTY 15 SHERIFF’S DEPARTMENT, and JOE GAROFALO 16 UNITED STATES DISTRICT COURT 17 EASTERN DISTRICT OF CALIFORNIA 18 19 || ESTATE OF HAILE NEIL, et al., No. 2:19-cv-02441 TLN DB 20 Plaintiffs, STIPULATED PROTECTIVE ORDER RE: II vs INVESTIGATION REPORTS; ORDER 22 || COUNTY OF COLUSA, et al., 23 Defendants. 24 Pursuant to Fed. R. Civ. P. 26(c) and E.D. Cal. L.R. 141.1, the Court issues the following 25 || protective order: 26 || 1. INFORMATION COVERED 27 A “court may, for good cause, issue an order to protect a party or person from annoyance, 28 || embarrassment, oppression, or undue burden or expense...” Fed. R. Civ. P. 26(c). 1 Covered Information: 2 Pursuant to E.D. Cal. L.R. 141.1(c)(1), a description of the information eligible for protection 3 under this Protective Order is limited to the following: 4 (A) “Investigation Report” from Colusa County Sheriff’s Office’s Administrative 5 Investigation concerning the death of Hail Neil [Bates Nos. COUNTY 01452-01470]; 6 (B) “Investigation Report” from Colusa County Sheriff’s Office’s Citizen Complaint No. 7 2019-004 [Bates Nos. COUNTY 01376-01388]; 8 (C) Investigator Notes of interviews of witnesses for Citizen Complaint No. 2019-004 [Bates 9 Nos. COUNTY 01389-01451]; 10 (D) Recorded/Transcribed Interviews with witnesses by investigators [Bates Nos. COUNTY 11 01471-01505, 01533-01571]; 12 (E) DMV/DOJ Reports [Bates Nos COUNTY 01506-01513]; and 13 (F) “Investigation Report” from Colusa County District Attorney’s Bureau of Investigation 14 Case No. #DA2019-0415 [Bates Nos. COUNTY 01514-01532]. 15 The Court and the parties acknowledge the possibility that these records contain sensitive and 16 private information that is not relevant to this action or subject to disclosure, such as but not limited to 17 home addresses, contact information, social security numbers, dates of birth, etc. The Court permits 18 Defendants’ pre-production redaction of such limited information, to the extent that any redacted 19 documents are accompanied by a redaction log/designation obviously identifying each instance of 20 redaction and the information redacted. 21 Particularized Need for Protection: 22 Pursuant to E.D. Cal. L.R. 141.1(c)(2), Defendants maintain that a specific, particularized need 23 for protection as to the information covered by this Protective Order exists. In good faith, Defendants 24 certify to the Court that the materials designated to be covered by this Protective Order are limited solely 25 to those which would qualify for protection under Fed. R. Civ. P. 26(c)—if Defendants had appropriately 26 \ \ \ 27 \ \ \ 28 \ \ \ 1 and timely sought a protective order under Fed. R. Civ. P. 26(c)1—and does not include information 2 which has been subject to protection on a blanket or indiscriminate basis. See, e.g., In re Roman Catholic 3 Archbishop of Portland, 661 F.3d 417, 424 (9th Cir. 2011) (identifying the two-part test for obtaining a 4 protective order under Fed. R. Civ. P. 26(c)). This Court has not viewed the documents covered by this 5 Protective Order prior to its issuance and, as a result, relies on Defendants and their counsels’ 6 representations concerning the appropriateness of this Protective Order. 7 Showing of Need for a Protective Order: 8 Pursuant to E.D. Cal. L.R. 141.1(c)(3), the need for protection pursuant to this Protective Order is 9 for the convenience of the parties and the Court. The Court seeks to avoid litigation and expenditure of 10 resources concerning a potential Fed. R. Civ. P. 26(c) motion for protective order. The entry of this 11 Protective Order prevents the parties and the Court from conducting the usual document-by-document 12 analysis necessary to obtain protection under Fed. R. Civ. P. 26(c), in favor of a procedure whereby 13 presumptive protection is afforded based on Defendants’ good faith representations. See, e.g., Cipollone 14 v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986) (“[T]he burden of justifying the 15 confidentiality of each and every document sought to be covered by a protective order remains on the 16 party seeking the protective order; any other conclusion would turn [Fed. R. Civ. P.] 26(c) on its head.”). 17 As a result, production may be made with this Protective Order in place and, if necessary, will permit 18 discrete and narrowed challenges to the documents covered by this Protective Order. 19 2. SCOPE 20 The protections conferred by this Protective Order cover the information defined above, as well 21 as any information copied from the materials. However, the protections conferred by this Protective 22 Order do not cover: (A) any information that is in the public domain at the time of disclosure or which 23 subsequently becomes part of the public domain after its disclosure, including becoming part of the 24 public record through trial or otherwise; and (B) any information known prior to the disclosure or 25 26 1 The Court does not find that a party challenging protection has waived, forfeited, or abandoned any 27 contention that Defendants failed timely and appropriately to move for a protective order under Fed. R. Civ. P. 26(c), by entering this Protective Order. If this Protective Order is subject to challenge, the party 28 challenging protection will be permitted to raise these arguments. 1 obtained after the disclosure from a source who obtained the information lawfully and under no 2 obligation of confidentiality. 3 3. ACCESS AND USE 4 Information covered by this Protective Order may be disclosed only to the parties and the parties’ 5 counsel and their personnel, experts, or professional vendors (e.g., private investigators, professional 6 jury, trial consultants, mock jurors, etc.), and must be stored and maintained at a location and in a secure 7 manner that ensures that access is limited to the persons to whom access and use is permitted. 8 Nothing in this Protective Order shall limit or prevent a party from introducing or questioning a 9 party concerning the information covered by this Protective Order during the course of discovery or 10 taking of testimony, including depositions. If necessary, a party may seek to designate specific portions 11 of testimony subject to Fed. R. Civ. P. 26(c) protection. 12 4. CHALLENGES 13 Any party or non-party to this action may challenge the appropriateness of this Protective Order 14 at any time, including after the action has been disposed or terminated. The party or non-party 15 challenging this Protective Order does not waive its right to challenge by electing not to mount its 16 challenge promptly after the entry of this Protective Order or after the production of documents covered 17 by this Protective Order. This Court retains jurisdiction of this Protective Order. 18 If the Court determines that the materials which Defendants and their counsel represented to this 19 Court were subject to Fed. R. Civ. P. 26(c) protection are not, in fact, subject to such protection, expenses 20 or sanctions may be awarded pursuant to Fed. R. Civ. P. 37(c). 21 Challenge Procedure: 22 Any party or non-party challenging this Protective Order shall initiate the dispute resolution 23 process by providing written notice of each document or piece of information covered by this Protective 24 Order which is being challenged and by describing the basis for each such challenge. The parties shall 25 attempt to resolve each challenge in good faith and must begin the process by conferring, either via 26 telephone or in-person, within fourteen (14) days of the date of service of the challenger’s notice. The 27 challenging party must: (1) explain the basis for its belief that the confidentiality designation was not 28 proper; and (2) provide the opposing party an opportunity to review the challenged material(s), a period 1 of which shall not exceed seven (7) calendar days, and to respond. 2 Within seven (7) days of the parties’ conference, the opposing party must either: (A) rescind the 3 protection conferred by this Protective Order by filing a notice with the Court, if the opposing party 4 believes that the challenge is meritorious or does not wish to object to the challenge; or (B) defend and 5 explain the basis for the appropriateness of the Fed. R. Civ. P. 26(c) protection. If the opposing party 6 does not take the required action within seven (7) days of the parties’ conference, the challenged 7 documents or information is automatically discharged from this Protective Order, and Fed. R. Civ. P. 8 26(c) protection no longer applies. 9 If the parties cannot resolve a challenge without Court intervention, the opposing party shall 10 comply with the terms of E.D. Cal. L.R. 251 associated with seeking Fed. R. Civ. P. 26(c) protection. At 11 all times, the burden of demonstrating Fed. R. Civ. P. 26(c) protection shall remain on the opposing party 12 (i.e., the party seeking to maintain Fed. R. Civ. P. 26(c) protection over the documents or information 13 challenged). If the opposing party demonstrates an unwillingness to participate in the challenge 14 procedure outlined above in a timely manner, nothing precludes the challenging party from affirmatively 15 moving to challenge the entry of this Protective Order (e.g., filing a motion to compel, motion to 16 intervene, motion for sanctions, etc.). 17 5. SEALING ORDERS 18 Information covered by this Protective Order does not automatically entitle parties to file such 19 information or documents with the Court under seal. Any request to seal documents covered by this 20 Protective Order is governed by E.D. Cal. L.R. 141, which provides that documents may only be sealed 21 by a written order of the Court and after a specific request to seal has been made and the applicable 22 showing demonstrated by the party seeking to seal documents. 23 \ \ \ 24 \ \ \ 25 \ \ \ 26 \ \ \ 27 \ \ \ 28 \ \ \ WwOAOW 42.497 VV VES ti TiN □□ MVVULITICETI 2e PUM Virouricdy raye vvull 1 ITIS SO STIPULATED. 2 || Dated: July 29, 2020 Respectfully Submitted, 4 LAW OFFICE OF MARK E. MERIN 4 /s/ Mark E. Merin 5 By: Mark E. Merin 6 Paul H. Masuhara 7 Attorneys for Plaintiffs ESTATE OF HAILE NEIL, 8 TARA KUCK, and MICHAEL NEIL ? Dated: July 29, 2020 Respectfully Submitted, 10 PORTER | SCOTT ll /s/ William E. Camy (as authorized on July 29, 2020) 12 By: yo 13 William E. Camy Attorney for Defendants COUNTY OF COLUSA, COLUSA COUNTY 15 SHERIFF’S DEPARTMENT, and JOE GAROFALO 16 ORDER 17 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 18 IT IS FURTHER ORDERED THAT: 19 1. Requests to seal documents shall be made by motion before the same judge who will decid 20 || the matter related to that request to seal. 21 2. The designation of documents (including transcripts of testimony) as confidential pursuant te 22 || this order does not automatically entitle the parties to file such a document with the court under seal 23 || Parties are advised that any request to seal documents in this district is governed by Local Rule 141. I 24 || brief, Local Rule 141 provides that documents may only be sealed by a written order of the court after | 25 || specific request to seal has been made. L.R. 141(a). However, a mere request to seal is not enoug! 26 || under the local rules. In particular, Local Rule 141(b) requires that “[t]he “Request to Seal Documents 27 || shall set forth the statutory or other authority for sealing, the requested duration, the identity, by name o 28 || category, of persons to be permitted access to the document, and all relevant information.” L.R. 141(b). 1 3. A request to seal material must normally meet the high threshold of showing that “compelling 2 reasons” support secrecy; however, where the material is, at most, “tangentially related” to the merits of a 3 case, the request to seal may be granted on a showing of “good cause.” Ctr. for Auto Safety v. Chrysler 4 Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and County of Honolulu, 447 5 F.3d 1172, 1178-80 (9th Cir. 2006). 6 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of certain 7 documents, at any court hearing or trial – such determinations will only be made by the court at the 8 hearing or trial, or upon an appropriate motion. 9 5. With respect to motions regarding any disputes concerning this protective order which the 10 parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 251. 11 Absent a showing of good cause, the court will not hear discovery disputes on an ex parte basis or on 12 shortened time. 13 6. The parties may not modify the terms of this Protective Order without the court’s approval. If 14 the parties agree to a potential modification, they shall submit a stipulation and proposed order for the 15 court’s consideration. 16 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement of the 17 terms of this Protective Order after the action is terminated. 18 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is hereby 19 DISAPPROVED. 20 DATED: July 29, 2020 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28