Richards v. City of Citrus Heights ( 2022 )

Morin I. Jacob, Bar No. 204598 1 mjacob@lcwlegal.com 2 Nathan T. Jackson, Bar No. 285620 njackson@lcwlegal.com 3 LIEBERT CASSIDY WHITMORE A Professional Law Corporation 4 135 Main Street, 7th Floor San Francisco, California 94105 5 Telephone: 415.512.3000 Facsimile: 415.856.0306 6 Attorneys for Defendants CITY OF CITRUS HEIGHTS, RONALD 7 LAWRENCE, GINA ANDERSON, and CHRISTOPHER BOYD 8 Johnny L. Griffin, III, Bar No. 118694 9 Manolo Olaso, Bar No. 195629 LAW OFFICE OF JOHNNY L. GRIFFIN III 10 1010 F Street, Suite 200 Sacramento, CA 95814 11 Telephone: (916) 444-5557 12 Facsimile: (916) 444-5558 13 Attorneys for Plaintiff SANRA RICHARDS 14 15 UNITED STATES DISTRICT COURT 16 EASTERN DISTRICT OF CALIFORNIA - SACRAMENTO 17 SANDRA RICHARDS, Case No.: 2:20-cv-02159-DAD-JDP 18 Plaintiff, Complaint Filed: October 27, 2020 FAC Filed: October 30, 2020 19 v. SAC Filed: April 5, 2022 20 CITY OF CITRUS HEIGHTS; STIPULATED PROTECTIVE ORDER RONALD LAWRENCE, an individual; 21 GINA ANDERSON, an individual; CHRISTOPHER BOYD, an individual; 22 and DOES 1 through 50, inclusive, 23 Defendants. 24 25 1. PURPOSES AND LIMITATIONS 26 Disclosure and discovery activity in this action are likely to involve production of 27 1 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 2 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 3 Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures 4 or responses to discovery and that the protection it affords from public disclosure and use extends 5 only to the limited information or items that are entitled to confidential treatment under the 6 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that 7 this Stipulated Protective Order does not entitle them to file confidential information under seal; 8 Judge Drozd’s Standing Order sets forth the procedures that must be followed and the standards that 9 will be applied when a party seeks permission from the court to file material under seal. 10 2. DEFINITIONS 11 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 12 information or items under this Order. 13 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 14 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 15 Civil Procedure 26(c). 16 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 17 as their support staff). 18 2.4 Designating Party: a Party or Non-Party that designates information or items that it 19 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 20 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 21 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 22 transcripts, and tangible things), that are produced or generated in disclosures or responses to 23 discovery in this matter. 24 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 25 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 26 consultant in this action. 27 1 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel 2 does not include Outside Counsel of Record or any other outside counsel. 3 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 4 entity not named as a Party to this action. 5 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 6 but are retained to represent or advise a party to this action and have appeared in this action on 7 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 8 2.10 Party: any party to this action, including all of its officers, directors, employees, 9 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 10 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 11 Material in this action. 12 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., 13 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 14 storing, or retrieving data in any form or medium) and their employees and subcontractors. 15 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 16 “CONFIDENTIAL.” 17 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 18 Producing Party. 19 3. SCOPE 20 The protections conferred by this Stipulation and Order cover not only Protected Material (as 21 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 22 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 23 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 24 However, the protections conferred by this Stipulation and Order do not cover the following 25 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 26 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 27 publication not involving a violation of this Order, including becoming part of the public record 1 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 2 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 3 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 4 Protected Material at trial shall be governed by a separate agreement or order. 5 4. DURATION 6 Even after final disposition of this litigation, the confidentiality obligations imposed by this 7 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 8 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 9 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 10 and exhaustion of all appeals, re-hearings, remands, trials, or reviews of this action, including the 11 time limits for filing any motions or applications for extension of time pursuant to applicable law. 12 5. DESIGNATING PROTECTED MATERIAL 13 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 14 Non-Party that designates information or items for protection under this Order must take care to 15 limit any such designation to specific material that qualifies under the appropriate standards. The 16 Designating Party must designate for protection only those parts of material, documents, items, or 17 oral or written communications that qualify – so that other portions of the material, documents, 18 items, or communications for which protection is not warranted are not swept unjustifiably within 19 the ambit of this Order. 20 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 21 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 22 encumber or retard the case development process or to impose unnecessary expenses and burdens on 23 other parties) expose the Designating Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that it designated for 25 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 26 that it is withdrawing the mistaken designation. 27 1 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 2 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or 3 Discovery Material that qualifies for protection under this Order must be clearly so designated 4 before the material is disclosed or produced. 5 Designation in conformity with this Order requires: 6 (a) For information in documentary form (e.g., paper or electronic documents, but 7 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 8 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 9 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 10 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 11 A Party or Non-Party that makes original documents or materials available for inspection need not 12 designate them for protection until after the inspecting Party has indicated which material it would 13 like copied and produced. During the inspection and before the designation, all of the material made 14 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 15 identified the documents it wants copied and produced, the Producing Party must determine which 16 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 17 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 18 that contains Protected Material. If only a portion or portions of the material on a page qualifies for 19 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 20 appropriate markings in the margins). 21 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 22 Designating Party identify on the record, before the close of the deposition, hearing, or other 23 proceeding, all protected testimony. 24 (c) for information produced in some form other than documentary and for any other 25 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 26 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 27 portion or portions of the information or item warrant protection, the Producing Party, to the extent 1 practicable, shall identify the protected portion(s). 2 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 3 designate qualified information or items does not, standing alone, waive the Designating Party’s 4 right to secure protection under this Order for such material. Upon timely correction of a 5 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 6 accordance with the provisions of this Order. 7 6. CHALLENGES OF CONFIDENTIALITY DESIGNATIONS 8 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 9 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 10 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 11 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 12 confidentiality designation by electing not to mount a challenge promptly after the original 13 designation is disclosed. 14 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 15 by providing written notice of each designation it is challenging and describing the basis for each 16 challenge. Any Party may propose redactions on confidential portions of documents to resolve any 17 dispute about the basis of a designation, which may result in the removal of a designation so that the 18 Designating Party need not take steps with the Court to retain confidentiality, pursuant to paragraph 19 12.3 below. To avoid ambiguity as to whether a challenge has been made, the written notice must 20 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 21 of the Protective Order. Consistent with Judge Drozd’s Standing Order, the parties shall attempt to 22 resolve each challenge in good faith and must begin the process by conferring directly (in voice to 23 voice dialogue; other forms of communication are not sufficient) within 14 days of the date of 24 service of notice. In conferring, the Challenging Party must explain the basis for its belief that the 25 confidentiality designation was not proper and must give the Designating Party an opportunity to 26 review the designated material, to reconsider the circumstances, and, if no change in designation is 27 offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next 1 stage of the challenge process only if it has engaged in this meet and confer process first or 2 establishes that the Designating Party is unwilling to participate in the meet and confer process in a 3 timely manner. 4 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 5 intervention the Designating Party shall initiate efforts to retain confidentiality under Local Rule 251 6 (and in compliance with Judge Drozd’s Standing Order and Local Rules 240-241 as applicable) 7 within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the 8 meet and confer process will not resolve their dispute, whichever is earlier. The Parties may 9 stipulate informally to extend these deadlines to further the meet and confer process. 10 Measures to retain confidentiality may include a motion to request that the Court allow the 11 challenged material be filed under seal or redacted. Within 7 days of the Court’s ruling on the 12 motion to seal or redact, the party seeking to uphold a confidential designation shall file a motion to 13 retain the designation, including as appropriate the sealed or redacted documents. 14 Each such motion must be accompanied by a competent declaration affirming that the 15 movant has complied with the meet and confer requirements imposed in paragraph 6.2. Failure by 16 the Designating Party to take measures to retain the confidentiality of challenged material within 21 17 days (or 14 days, if applicable), unless stipulated otherwise, shall automatically waive the 18 confidentiality designation for each challenged designation. In addition, the Challenging Party may 19 file a motion challenging a confidentiality designation at any time if there is good cause for doing so, 20 including a challenge to the designation of a deposition transcript or any portions thereof. Any 21 motion brought pursuant to this provision must be accompanied by a competent declaration 22 affirming that the movant has complied with the meet and confer requirements imposed by the 23 preceding paragraph, and it must otherwise comply with Judge Drozd’s Standing Order and any 24 applicable Local Rules. 25 The burden of persuasion in any such challenge proceeding shall be on the Designating 26 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 27 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 1 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 2 retain confidentiality as described above, all parties shall continue to afford the material in question 3 the level of protection to which it is entitled under the Producing Party’s designation until the court 4 rules on the challenge. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 7 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 to 9 the categories of persons and under the conditions described in this Order. When the litigation has 10 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 11 DISPOSITION). 12 Protected Material must be stored and maintained by a Receiving Party at a location and in a 13 secure manner that ensures that access is limited to the persons authorized under this Order. 14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 15 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 16 information or item designated “CONFIDENTIAL” only to: 17 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 18 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information; 19 (b) the officers, directors, employees (including House Counsel), and coverage 20 representatives of the Receiving Party to whom disclosure is reasonably necessary for this litigation; 21 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 22 reasonably necessary for this litigation; 23 (d) the court and its personnel; 24 (e) court reporters and their staff, 25 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom 26 disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and 27 Agreement to Be Bound” (Exhibit A); 1 (g) during their depositions, witnesses in the action to whom disclosure is reasonably 2 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 3 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 4 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 5 bound by the court reporter and may not be disclosed to anyone except as permitted under this 6 Stipulated Protective Order. 7 (h) the author or recipient of a document containing the information or a custodian or 8 other person who otherwise possessed or knew the information; 9 (i) any private mediator agreed upon by the Parties, and his/her staff. 10 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 11 LITIGATION 12 If a Party is served with a subpoena or a court order issued in other litigation that compels 13 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 14 must: 15 (a) promptly notify in writing the Designating Party. Such notification shall include a 16 copy of the subpoena or court order; 17 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 18 other litigation that some or all of the material covered by the subpoena or order is subject to this 19 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 20 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 21 Designating Party whose Protected Material may be affected. 22 If the Designating Party timely seeks a protective order, the Party served with the subpoena 23 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 24 before a determination by the court from which the subpoena or order issued, unless the Party has 25 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 26 expense of seeking protection in that court of its confidential material – and nothing in these 27 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 1 disobey a lawful directive from another court. 2 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 3 THIS LITIGATION 4 (a) The terms of this Order are applicable to information produced by a Non-Party in this 5 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 6 connection with this litigation is protected by the remedies and relief provided by this Order. 7 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 8 protections. 9 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 10 Party’s confidential information in its possession, and the Party is subject to an agreement with the 11 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all 13 of the information requested is subject to a confidentiality agreement with a Non-Party; 14 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in 15 this litigation, the relevant discovery request(s), and a reasonably specific description of the 16 information requested; and 17 (3) make the information requested available for inspection by the Non-Party. 18 (c) If the Non-Party fails to object or seek a protective order from this court within 14 19 days of receiving the notice and accompanying information, the Receiving Party may produce the 20 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 21 seeks a protective order, the Receiving Party shall not produce any information in its possession or 22 control that is subject to the confidentiality agreement with the Non-Party before a determination by 23 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 24 seeking protection in this court of its Protected Material. 25 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 26 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 27 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 1 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 2 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 3 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 4 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 5 Be Bound” that is attached hereto as Exhibit A. 6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 7 MATERIAL 8 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 9 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 10 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 11 modify whatever procedure may be established in an e-discovery order that provides for production 12 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 13 parties reach an agreement on the effect of disclosure of a communication or information covered by 14 the attorney-client privilege or work product protection, the parties may incorporate their agreement 15 in the stipulated protective order submitted to the court. 16 12. MISCELLANEOUS 17 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 18 its modification by the court in the future. 19 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 20 no Party waives any right it otherwise would have to object to disclosing or producing any 21 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 22 Party waives any right to object on any ground to use in evidence of any of the material covered by 23 this Protective Order. 24 12.3 Filing Protected Material. The sealing or redacting of any material covered by this 25 Protective Order must comply with section V. of Judge Drozd’s Standing Order. 26 12.4 The parties recognize that the California protections for peace office records under 27 Pitchess v. Superior Court (1974) 11 Cal.3d 531 do not apply to this federal litigation. However, 1 the Parties seek to maintain confidentiality of peace officer records pursuant to a tightly drawn 2 protective order consistent with the official information privilege and right to privacy, to protect 3 police officer safety by shielding their private information from public disclosure, and to protect 4 against the disclosure of important governmental functions. Defendants contend that discovery 5 produced in this litigation will consist of Protected Material, since the documents will likely 6 consist of confidential peace officer personnel records. The Parties agree peace officer personnel 7 records shall be deemed Protected Material under this Protective Order. Such personnel records 8 include any file maintained under that individual peace officer’s name by his or her employing 9 agency and containing records relating to any of the following: 10 a) Personal data, including marital status, family members, educational and 11 employment history, home addresses, or similar information. 12 b) Medical history. 13 c) Election of employee benefits. 14 d) Employee advancement, appraisal, or discipline. 15 e) Complaints, or investigations of complaints, concerning an event or transaction in 16 which he or she participated, or which he or she perceived, and pertaining to the 17 manner in which he or she performed his or her duties. 18 f) Any other information the disclosure of which would constitute an unwarranted 19 invasion of personal privacy. 20 13. FINAL DISPOSITION 21 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 22 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 23 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 24 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 25 the Protected Material is returned or destroyed, the Receiving Party must submit a written 26 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 27 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 1 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 2 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protect 3 || Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 4 || pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 5 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 6 || and expert work product, even if such materials contain Protected Material. Any such archival copi 7 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 8 || Section 4 (DURATION). 9 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 10 11 DATED: September 8, 2022 /s/ Manolo Olaso D Attorney for Plaintiff 13 14 || DATED: September 8, 2022 /s/ Nathan T. Jackson 5 Attorney for Defendant 16 17 || PURSUANT TO STIPULATION, 18 19 IT IS SO ORDERED. 20 ( 1 Oy — Dated: _ October 6, 2022 21 JEREMY D,. PETERSON 9 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 13 10210222.1 CI060-041 -9/8/22 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], declare under penalty of perjury that 4 I have read in its entirety and understand the Stipulated Protective Order that was issued by the 5 United States District Court for the Eastern District of California on [date] in the case of Richards v. 6 City of Citrus Heights et al, E.D. Cal., Case No. 2:20-cv-02159-KJM-JDP. 7 I agree to comply with and to be bound by all the terms of this Stipulated Protective Order 8 and I understand and acknowledge that failure to so comply could expose me to sanctions and 9 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any 10 information or item that is subject to this Stipulated Protective Order to any person or entity except 11 in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the Eastern 13 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even 14 if such enforcement proceedings occur after termination of this action. 15 16 Date: ______________________________________ 17 City and State where sworn and signed: _________________________________ 18 19 Printed name: _______________________________ 20 21 Signature: __________________________________ 22 23 24 25 26 27