Porter v. Yuba City Police Dept. ( 2021 )

BRUCE A. KILDAY, SB No. 066415 1 Email: bkilday@akk-law.com 2 DERICK E. KONZ, SB No. 286902 Email: dkonz@akk-law.com 3 DANIELLE J. WILLIAMS, SB No. 317229 Email: dwilliams@akk-law.com 4 ANGELO, KILDAY & KILDUFF, LLP 5 Attorneys at Law 601 University Avenue, Suite 150 6 Sacramento, CA 95825 Telephone: (916) 564-6100 7 8 Attorneys for Defendants YUBA CITY POLICE OFFICERS HANSEN, JURADO (erroneously named as HURARDO), JENSEN, AND ESCHEMAN (erroneously named as ESHMAN) 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 QUIANA PORTER, ) No. 2:20-cv-01554 KJM DB ) 14 Plaintiff, ) STIPULATED PROTECTIVE ORDER ) 15 vs. ) 16 ) YUBA CITY POLICE OFFICERS HANSEN, ) 17 HURARDO, JENSEN AND ESHMAN, and ) DOES 1-25, ) 18 ) 19 Defendants. ) ) 20 21 1. PURPOSES AND LIMITATIONS 22 Disclosure and discovery activity in this action are likely to involve production of 23 confidential, proprietary, or private information for which special protection from public 24 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 25 Accordingly, the parties hereby stipulate to the following Protective Order. The parties 26 acknowledge that this Order does not confer blanket protections on all disclosures or responses to 27 discovery, and that the protection it affords from public disclosure and use extends only to the 28 1 limited information or items that are entitled to confidential treatment under the applicable legal 2 principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Order 3 does not entitle them to file confidential information under seal; Local Rule 141 sets forth the 4 procedures that must be followed and the standards that will be applied when a party seeks 5 permission from the court to file material under seal. 6 2. DEFINITIONS 7 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 8 information or items under this Order. 9 2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is 10 generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule 11 of Civil Procedure 26(c). 12 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 13 well as their support staff). 14 2.4 Designating Party: a Party or Non-Party that designates information or items that it 15 produces in disclosures or in responses to discovery as "CONFIDENTIAL." 16 2.5 Disclosure or Discovery Material: all items or information, regardless of the 17 medium or manner in which it is generated, stored, or maintained (including, among other things, 18 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 19 responses to discovery in this matter. 20 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 21 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 22 consultant in this action. 23 2.7 House Counsel: attorneys who are employees of a party to this action. House 24 Counsel does not include Outside Counsel of Record or any other outside counsel. 25 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 26 entity not named as a Party to this action. 27 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 28 1 action but are retained to represent or advise a party to this action and have appeared in this action 2 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 3 2.10 Party: any party to this action, including all of its officers, directors, employees, 4 consultants, retained experts, and Outside Counsel of Record (and their support staff). 5 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 6 Material in this action. 7 2.12 Professional Vendors: persons or entities that provide litigation support services 8 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 9 organizing, storing, or retrieving data in any form or medium) and their employees and 10 subcontractors. 11 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 12 "CONFIDENTIAL." 13 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 14 Producing Party. 15 3. SCOPE 16 The protections conferred by this Order cover not only Protected Material (as defined 17 above), but also (1) any information copied or extracted from Protected Material; (2) all copies, 18 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, 19 or presentations by Parties or their Counsel that might reveal Protected Material. However, the 20 protections conferred by this Order do not cover the following information: (a) any information 21 that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the 22 public domain after its disclosure to a Receiving Party as a result of publication not involving a 23 violation of this Order, including becoming part of the public record through trial or otherwise; 24 and (b) any information known to the Receiving Party prior to the disclosure or obtained by the 25 Receiving Party after the disclosure from a source who obtained the information lawfully and 26 under no obligation of confidentiality to the Designating Party. Any use of Protected Material at 27 trial shall be governed by a separate agreement or order. 28 1 4. DURATION 2 Even after final disposition of this litigation, the confidentiality obligations imposed by this 3 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 4 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 5 and defenses in this action, with or without prejudice; and (2) final judgment herein after the 6 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 7 including the time limits for filing any motions or applications for extension of time pursuant to 8 applicable law. 9 5. DESIGNATING PROTECTED MATERIAL 10 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 11 or Non-Party that designates information or items for protection under this Order must take care 12 to limit any such designation to specific material that qualifies under the appropriate standards. 13 The Designating Party must designate for protection only those parts of material, documents, 14 items, or oral or written communications that qualify, so that other portions of the material, 15 documents, items, or communications for which protection is not warranted are not swept 16 unjustifiably within the ambit of this Order. 17 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 18 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 19 unnecessarily encumber or impede the case development process or to impose unnecessary 20 expenses and burdens on other parties) expose the Designating Party to sanctions. 21 If it comes to a Designating Party's attention that information or items that it designated for 22 protection do not qualify for protection, that Designating Party must promptly notify all other 23 Parties that it is withdrawing the mistaken designation. 24 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 25 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 26 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 27 designated before the material is disclosed or produced. Designation in conformity with this Order 28 1 requires: 2 (a) for information in documentary form (e.g., paper or electronic documents, 3 but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 4 Party affix the legend "CONFIDENTIAL" to each page that contains protected material. If only 5 a portion or portions of the material on a page qualifies for protection, the Producing Party also 6 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 7 margins). 8 A Party or Non-Party that makes original documents or materials available for inspection 9 need not designate them for protection until after the inspecting Party has indicated which material 10 it would like copied and produced. During the inspection and before the designation, all of the 11 material made available for inspection shall be deemed "CONFIDENTIAL." After the inspecting 12 Party has identified the documents it wants copied and produced, the Producing Party must 13 determine which documents, or portions thereof, qualify for protection under this Order. 14 Then, before producing the specified documents, the Producing Party must affix the 15 "CONFIDENTIAL" legend to each page that contains Protected Material. If only a portion or 16 portions of the material on a page qualifies for protection, the Producing Party also must clearly 17 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 18 (b) for testimony given in deposition or in other pretrial or trial proceedings, 19 that the Designating Party identify on the record, before the close of the deposition, hearing, or 20 other proceeding, all protected testimony. 21 (c) for information produced in some form other than documentary and for any 22 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 23 container or containers in which the information or item is stored the legend "CONFIDENTIAL." 24 If only a portion or portions of the information or item warrant protection, the Producing Party, to 25 the extent practicable, shall identify the protected portion(s). 26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 27 designate qualified information or items does not, standing alone, waive the Designating Party's 28 1 right to secure protection under this Order for such material. Upon timely correction of a 2 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 3 in accordance with the provisions of this Order. 4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 6 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 7 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 8 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 9 challenge a confidentiality designation by electing not to mount a challenge promptly after the 10 original designation is disclosed. 11 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 12 process by providing written notice of each designation it is challenging and describing the basis 13 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 14 notice must recite that the challenge to confidentiality is being made in accordance with this 15 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 16 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 17 forms of communication are insufficient) within 14 calendar days of the date of service of notice. 18 In conferring, the Challenging Party must explain the basis for its belief that the confidentiality 19 designation was improper and must give the Designating Party an opportunity to review the 20 designated material, to reconsider the circumstances, and, if no change in designation is offered, 21 to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage 22 of the challenge process only if it has engaged in this meet and confer process first or establishes 23 that the Designating Party is unwilling to participate in the meet and confer process in a timely 24 manner. 25 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 26 intervention, the parties shall follow the procedures set forth in Local Rule 251 to resolve the 27 challenge. The burden of persuasion in any such challenge proceeding shall be on the Designating 28 1 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 2 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 3 sanctions. Until the court rules on the challenge, the Parties shall continue to afford the material 4 in question the level of protection to which it is entitled under the Producing Party's designation. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 7 or produced by another Party or by a Non-Party in connection with this case only for prosecuting, 8 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 9 to the categories of persons and under the conditions described in this Order. When the litigation 10 has been terminated, a Receiving Party must comply with the provisions of Section 13 below. 11 Protected Material must be stored and maintained by a Receiving Party at a location and in 12 a secure manner that ensures that access is limited to the persons authorized under this Order. 13 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered 14 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 15 information or item designated "CONFIDENTIAL" only to: 16 (a) the Receiving Party's Outside Counsel of Record in this action, as well as 17 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 18 information for this litigation and who have signed the "Acknowledgment and Agreement to Be 19 Bound" that is attached hereto as Exhibit A; 20 (b) the officers, directors, and employees (including House Counsel) of the 21 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed 22 the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 23 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure 24 is reasonably necessary for this litigation and who have signed the "Acknowledgment and 25 Agreement to Be Bound" (Exhibit A); 26 (d) the court and its personnel; 27 (e) court reporters and their staff, professional jury or trial consultants, mock 28 1 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and 2 who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 3 (f) during their depositions, witnesses in the action to whom disclosure is 4 reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound" 5 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. If counsel 6 for the parties stipulate, or the Designating Party requests separate binding of Protected Material, 7 pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material 8 must be separately bound by the court reporter and may not be disclosed to anyone except as 9 permitted under this Stipulated Protective Order; 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 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 13 LITIGATION 14 If a Party is served with a subpoena or a court order issued in other litigation that compels 15 disclosure of any information or items designated in this action as "CONFIDENTIAL," that Party 16 must: 17 (a) promptly notify in writing the Designating Party. Such notification shall include a 18 copy of the subpoena or court order; 19 (b) promptly notify in writing the party who caused the subpoena or order to issue in 20 the other litigation that some or all of the material covered by the subpoena or order is subject to 21 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 22 and 23 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 24 Designating Party whose Protected Material may be affected. 25 If the Designating Party timely seeks a protective order, the Party served with the subpoena 26 or court order shall not produce any information designated in this action as "CONFIDENTIAL" 27 before a determination by the court from which the subpoena or order issued, unless the Party has 28 1 obtained the Designating Party's permission. The Designating Party shall bear the burden and 2 expense of seeking protection in that court of its confidential material, and nothing in these 3 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 4 disobey a lawful directive from another court. 5 9. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 6 LITIGATION 7 (a) The terms of this Order are applicable to information produced by a Non-Party in 8 this action and designated as "CONFIDENTIAL." Such information produced by Non-Parties in 9 connection with this litigation is protected by the remedies and relief provided by this Order. 10 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 11 additional protections. 12 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 13 Party's confidential information in its possession, and the Party is subject to an agreement with the 14 Non-Party not to produce the Non-Party's confidential information, then the Party shall: 15 (1) promptly notify in writing the Requesting Party and the Non-Party that 16 some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 17 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 18 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of 19 the information requested; and 20 (3) make the information requested available for inspection by the Non-Party. 21 (c) If the Non-Party fails to object or seek a protective order from this court within 14 22 days of receiving the notice and accompanying information, the Receiving Party may produce the 23 Non-Party's confidential information responsive to the discovery request. If the Non-Party timely 24 seeks a protective order, the Receiving Party shall not produce any information in its possession 25 or control that is subject to the confidentiality agreement with the Non-Party before a 26 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 27 burden and expense of seeking protection in this court of its Protected Material. 28 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 3 Material to any person or in any circumstance not authorized under this Stipulated Protective 4 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 5 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 6 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 7 terms of this Order, and (d) request such person or persons to execute the "Acknowledgment and 8 Agreement to Be Bound" that is attached hereto as Exhibit A. 9 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 10 MATERIAL 11 When a Producing Party gives notice to Receiving Parties that certain inadvertently 12 produced material is subject to a claim of privilege or other protection, the obligations of the 13 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 14 is not intended to modify whatever procedure may be established in an e-discovery order that 15 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 16 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 17 communication or information covered by the attorney-client privilege or work product protection, 18 the parties may incorporate their agreement in the stipulated protective order submitted to the 19 court. 20 12. MISCELLANEOUS 21 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 22 seek its modification by the court in the future. 23 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 24 Order no Party waives any right it otherwise would have to object to disclosing or producing any 25 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 26 no Party waives any right to object on any ground to use in evidence of any of the material covered 27 by this Protective Order. 28 1 12.3 Filing Protected Material. Without written permission from the Designating Party 2 or a court order secured after appropriate notice to all interested persons, a Party may not file in 3 the public record in this action any Protected Material. A Party that seeks to file under seal any 4 Protected Material must comply with Local Rule 141. Protected Material may only be filed under 5 seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If 6 a Receiving Party’s request to file Protected Material under seal pursuant to Local Rule 141 is 7 denied by the court, then the Receiving Party may file the information in the public record unless 8 otherwise instructed by the court. 9 13. FINAL DISPOSITION 10 Within 60 calendar days after the final disposition of this action, as defined in Section 4, 11 upon written notification served by the Producing or Designating Party, each Receiving Party must 12 return all Protected Material to the Producing Party or destroy such material. As used in this 13 subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries, and 14 any other format reproducing or capturing any of the Protected Material. Whether the Protected 15 Material is returned or destroyed, the Receiving Party must submit a written certification to the 16 Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day 17 deadline that (1) identifies (by category, where appropriate) all the Protected Material that was 18 returned or destroyed, and (2) affirms that the Receiving Party has not retained any copies, 19 abstracts, compilations, summaries, or any other format reproducing or capturing any of the 20 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy 21 of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 22 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 23 and expert work product, even if such materials contain Protected Material. Any such archival 24 copies that contain or constitute Protected Material remain subject to this Protective Order as set 25 forth in Section 4. 26 // 27 // 28 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 Dated: December 2, 2021 ANGELO, KILDAY & KILDUFF, LLP 3 4 /s/ DANIELLE J. WILLIAMS By:_________________________________ 5 Attorneys for Defendants YUBA CITY POLICE OFFICERS HANSEN, 6 JURADO, JENSEN AND ESCHEMAN 7 8 Dated: December 1, 2021 LAW OFFICE OF STANLEY GOFF 9 /s/ STANLEY GOFF as authorized on 12/1/21 By:_________________________________ 10 STANLEY GOFF 11 Attorneys for Plaintiff Quiana Porter 12 ORDER 13 14 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 15 IT IS FURTHER ORDERED THAT: 16 1. Requests to seal documents shall be made by motion before the same judge who will 17 decide the matter related to that request to seal. 18 2. The designation of documents (including transcripts of testimony) as confidential 19 pursuant to this order does not automatically entitle the parties to file such a document with the 20 court under seal. Parties are advised that any request to seal documents in this district is governed 21 22 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 23 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 24 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 25 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 26 the requested duration, the identity, by name or category, of persons to be permitted access to the 27 document, and all relevant information.” L.R. 141(b). 28 1 3. A request to seal material must normally meet the high threshold of showing that 2 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially 3 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 4 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana 5 v. City and County of Honolulu, 447 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 7 certain documents, at any court hearing or trial – such determinations will only be made by the 8 court at the hearing or trial, or upon an appropriate motion. 9 10 5. With respect to motions regarding any disputes concerning this protective order which 11 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 12 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex parte 13 basis or on shortened time. 14 6. The parties may not modify the terms of this Protective Order without the court’s 15 approval. If the parties agree to a potential modification, they shall submit a stipulation and 16 proposed order for the court’s consideration. 17 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement 18 of the terms of this Protective Order after the action is terminated. 19 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 20 21 hereby DISAPPROVED. 22 DATED: December 2, 2021 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 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 5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Eastern District of California on 7 ____________ [date] in the case of Porter v. Yuba City Police Department Officers, et 8 al, No. 2:20-CV-01554-KJM-DB. I agree to comply with and to be bound by all the terms of this 9 Stipulated Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will 11 not disclose in any manner any information or item that is subject to this Stipulated Protective 12 Order to any person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint _________________________________ [print or type full name] of 17 _______________________________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 Date: 21 22 City and State where sworn and signed: 23 24 Printed Name: 25 26 Signature: 27 28