Choudhry v. Tulare County ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MAHWISH CHOUDHRY, Case No. 1:21-cv-01287-AWI-SAB 12 Plaintiff, ORDER ENTERING STIPULATED PROTECTIVE ORDER 13 v. (ECF No. 51) 14 TULARE COUNTY, et al., 15 Defendants. 16 17 18 19 20 STIPULATED PROTECTIVE ORDER 21 1. A. PURPOSES AND LIMITATIONS 22 Discovery in this action is likely to involve production of confidential, proprietary, or 23 private information for which special protection from public disclosure and from use for any 24 purpose other than prosecuting this litigation may be warranted. Accordingly, the parties stipulate 25 to and request that the Court enter the following Stipulated 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 limited information or items that are entitled to confidential treatment under the applicable legal 1 principles. The parties further acknowledge, as set forth in Section 12.3, below, that this 2 Stipulated Protective Order does not entitle them to file confidential information under seal; Local 3 Rule 141 sets forth the procedures that must be followed and the standards that will be applied 4 when a party seeks permission from the court to file material under seal. 5 B. GOOD CAUSE STATEMENT 6 This Stipulation and Protective Order applies to records provided by Defendant, the 7 Tulare County Sheriff’s Office in connection with jail videos, and any other videos produced by 8 the County, Sheriff. On behalf of Defendants Cervantes and Pimentel, the California Highway 9 Patrol, as their employer, may be producing documents concerning its confidential internal 10 policies, which documents are generally unavailable to the public. The disclosure of this 11 information may jeopardize the security of defendants’ operations, and jeopardize the safety of 12 peace officers. Defendants may also be producing documents that contain personal and 13 confidential information regarding individuals, which information is generally unavailable to the 14 public, including peace officer personnel records and records related to third parties. The 15 disclosure of this information to the public may violate those individuals’ privacy rights. 16 Defendants may also be producing video, audio and still photo images related to the incident at 17 issue in this case which is generally unavailable to the public. In addition, defendants may be 18 producing investigation reports which are generally unavailable to the public, the disclosure of 19 which could violate individuals’ privacy rights and jeopardize the safety of officers. This 20 Stipulation also applies to Plaintiff’s booking photograph. Filing of other identifying information 21 including birthdate will be governed by Federal Rule of Civil Procedure 5.2 and Eastern District 22 Local Rule 140. 23 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of 24 disputes over confidentiality of discovery materials, to adequately protect information the parties 25 are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses 26 of such material in preparation for and in the conduct of trial, to address their handling at the end 27 of the litigation, and serve the ends of justice, a protective order for such information is justified 28 in this matter. It is the intent of the parties that information will not be designated as confidential 1 for tactical reasons and that nothing be so designated without a good faith belief that it has been 2 maintained in a confidential, non-public manner, and there is good cause why it should not be 3 part of the public record of this case. 4 The parties recognize that it will be necessary for such videos and documents pertaining to 5 peace officers to be disclosed during the discovery portion of this litigation. The parties recognize 6 that California law recognizes the confidentiality of sheriff’s peace officer personnel records, and 7 peace officer personnel records of California Highway Patrol officers. The parties agree that 8 video footage and other records that may depict the lay out of the jail could jeopardize the 9 security of the facility, and that there is a compelling need to maintain the confidentiality of such 10 records. For protections based upon public policy protecting certain law enforcement records 11 pertaining to law enforcement agencies, the parties hereby agree to maintain the confidentiality of 12 the videos and records as stated herein by seeking this protective order. 13 C. LOCAL RULE 141.1 STATEMENT 14 In accordance with the provisions of Local Rule 141.1, the parties state as follows: 15 (1) The information eligible for a protective order in this case is: 16 a. employment records that would otherwise be privileged; 17 b. law enforcement tactical and evaluative information; 18 c. unredacted Mobile Video Audio Recording System (MVARS), and county 19 jail videos; 20 d. medical and/or mental health records; 21 e. social security numbers and similar sensitive identifying information 22 (unless redacted by order or by agreement of all parties); 23 f. Plaintiff’s booking photos; 24 g. Birthdates and financial account numbers except as provided by Federal 25 Rule of Civil Procedure 5.2 and Eastern District Local Rule 140; 26 h. information to which third parties have a right of privacy as provided under 27 law. 28 (2) A particularized need exists as to these categories as follows: 1 a. These records contain confidential and personal information; 2 b. These records contain information that may constitute official information 3 and could risk the safety and security of law enforcement officers if publicly 4 disseminated; 5 c. These records contain information of third parties to this lawsuit that are 6 confidential and personal in nature. 7 (3) A court order is needed to ensure that the privacy and confidentiality of this 8 information is enforceable after the litigation has ended. 9 2. DEFINITIONS 10 2.1 Action: Mahwesh Choudhry v. Tulare County, et al., United States District Court for 11 the Eastern District of California, Case No. 21-CV-01287-AWI-SAB. 12 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information 13 or items under this Order. 14 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is 15 generated, stored or maintained) or tangible things that qualify for protection under California 16 law, and as specified above in the Good Cause Statement. 17 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support 18 staff). 19 2.5 Designating Party: a Party or Non-Party that designates information or items that it 20 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 21 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium 22 or manner in which it is generated, stored, or maintained (including, among other things, 23 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 24 responses to discovery in this matter. 25 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the 26 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 27 consultant in this Action. 28 2.8 House Counsel: attorneys who are employees of a party to this Action. House Counsel 1 does not include Outside Counsel of Record or any other outside counsel. 2 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal 3 entity not named as a Party to this action. 4 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this 5 Action but are retained to represent or advise a party to this Action and have appeared in this 6 Action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 7 that party, and includes support staff. 8 2.11 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 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 11 Material in this Action. 12 2.13 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 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 16 “CONFIDENTIAL.” 17 2.15 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 21 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 22 all 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 Any use of Protected Material at trial shall be governed by the orders of the trial judge. 25 4. DURATION 26 Even after final disposition of this litigation, the confidentiality obligations imposed by 27 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 28 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 1 claims and defenses in this Action, with or without prejudice; and (2) final judgment after the 2 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 3 including the time limits for filing any motions or applications for extension of time under 4 applicable law. This Order does not govern the use of Protected Material at trial. 5 5. DESIGNATING PROTECTED MATERIAL 6 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 7 or Non-Party that designates information or items for protection under this Order must take care 8 to limit any such designation to specific material that qualifies under the appropriate standards. 9 The Designating Party must designate for protection only those parts of material, documents, 10 items, or oral or written communications that qualify so that other portions of the material, 11 documents, items, or communications for which protection is not warranted are not swept 12 unjustifiably within the ambit of this Order. 13 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 14 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 15 unnecessarily encumber the case development process or to impose unnecessary expenses and 16 burdens on other parties) may expose the Designating Party to sanctions. 17 If it comes to a Designating Party’s attention that information or items that it designated 18 for protection do not qualify for protection, that Designating Party must promptly notify all other 19 Parties that it is withdrawing the inapplicable designation. 20 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 21 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 22 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 23 designated before the material is disclosed or produced. Designation in conformity with this 24 Order requires: 25 (a) for information in documentary form (e.g., paper or electronic documents, but 26 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 27 Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL 28 legend”), to each page that contains protected material. If only a portion or portions of the 1 material on a page qualifies for protection, the Producing Party also must clearly identify the 2 protected portion(s) (e.g., by making appropriate markings in the margins). 3 A Party or Non-Party that makes original documents available for inspection need not 4 designate them for protection until after the inspecting Party has indicated which documents it 5 would like copied and produced. During the inspection and before the designation, all of the 6 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 7 Party has identified the documents it wants copied and produced, the Producing Party must 8 determine which documents, or portions thereof, qualify for protection under this Order. Then, 9 before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL 10 legend” to each page that contains Protected Material. If only a portion or portions of the material 11 on a page qualifies for protection, the Producing Party also must clearly identify the protected 12 portion(s) (e.g., by making appropriate markings in the margins). 13 (b) for testimony given in depositions that the Designating Party identify the Disclosure or 14 Discovery Material on the record, before the close of the deposition all protected testimony. 15 (c) for information produced in some form other than documentary and for any other 16 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 17 or containers in which the information is stored the legend “CONFIDENTIAL.” If only a portion 18 or portions of the information warrants protection, the Producing Party, to the extent practicable, 19 shall identify the protected portion(s). 20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 21 designate qualified information or items does not, standing alone, waive the Designating Party’s 22 right to secure protection under this Order for such material. Upon timely correction of a 23 designation, the Receiving Party must make reasonable efforts to assure that the material is 24 treated in accordance with the provisions of this Order. 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 27 confidentiality at any time that is consistent with the Court’s Scheduling Order. 28 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 1 process under Local Rule 251. 2 6.3 The burden of persuasion in any such challenge proceeding shall be on the 3 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 4 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 5 to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality 6 designation, all parties shall continue to afford the material in question the level of protection to 7 which it is entitled under the Producing Party’s designation until the Court rules on the challenge. 8 7. ACCESS TO AND USE OF PROTECTED MATERIAL 9 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 10 produced by another Party or by a Non-Party in connection with this Action only for prosecuting, 11 defending, or attempting to settle this Action. Such Protected Material may be disclosed only to 12 the categories of persons and under the conditions described in this Order. When the Action has 13 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 14 DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 15 location and in a secure manner that ensures that access is limited to the persons authorized under 16 this Order. 17 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 18 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 19 information or item designated “CONFIDENTIAL” only to: 20 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees 21 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 22 for this Action; 23 (b) the officers, directors, and employees (including House Counsel) of the Receiving 24 Party to whom disclosure is reasonably necessary for this Action; 25 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 26 reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement 27 to Be Bound” (Exhibit A); 28 (d) the court and its personnel; 1 (e) court reporters and their staff; 2 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom 3 disclosure is reasonably necessary for this Action and who have signed the 4 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (g) the author or recipient of a document containing the information or a custodian or 6 other person who otherwise possessed or knew the information; 7 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom 8 disclosure is reasonably necessary provided: (1) the deposing party requests that the witness sign 9 the form attached as Exhibit 1 hereto; and (2) they will not be permitted to keep any confidential 10 information unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 11 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 12 deposition testimony or exhibits to depositions that reveal Protected Material may be separately 13 bound by the court reporter and may not be disclosed to anyone except as permitted under this 14 Stipulated Protective Order; and 15 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed 16 upon by any of the parties engaged in settlement discussions. 17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 18 OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation that compels 20 disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that 21 Party must: 22 (a) promptly notify in writing the Designating Party. Such notification shall include a 23 copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 25 other litigation that some or all of the material covered by the subpoena or order is subject to this 26 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 27 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 28 Designating Party whose Protected Material may be affected. 1 If the Designating Party timely seeks a protective order, the Party served with the 2 subpoena or court order shall not produce any information designated in this action as 3 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 4 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 5 shall bear the burden and expense of seeking protection in that court of its confidential material 6 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 7 Party in this Action to disobey a lawful directive from another court. 8 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 9 THIS LITIGATION 10 (a) The terms of this Order are applicable to information produced by a Non-Party in this 11 Action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 12 connection with this litigation is protected by the remedies and relief provided by this Order. 13 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 14 additional protections. 15 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 16 Party’s confidential information in its possession, and the Party is subject to an agreement with 17 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 18 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of 19 the information requested is subject to a confidentiality agreement with a Non-Party; 20 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 21 Action, the relevant discovery request(s), and a reasonably specific description of the information 22 requested; and 23 (3) make the information requested available for inspection by the Non-Party, if 24 requested. 25 (c) If the Non-Party fails to seek a protective order from this court within 14 days of 26 receiving the notice and accompanying information, the Receiving Party may produce the Non- 27 Party’s confidential information responsive to the discovery request. If the Non-Party timely 28 seeks a protective order, the Receiving Party shall not produce any information in its possession 1 or control that is subject to the confidentiality agreement with the Non-Party before a 2 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 3 burden and expense of seeking protection in this court of its Protected Material. 4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 6 Material to any person or in any circumstance not authorized under this Stipulated Protective 7 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 8 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 9 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 10 made of all the terms of this Order, and (d) request such person or persons to execute the 11 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 12 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 13 PROTECTED MATERIAL 14 When a Producing Party gives notice to Receiving Parties that certain inadvertently 15 produced material is subject to a claim of privilege or other protection, the obligations of the 16 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 17 provision is not intended to modify whatever procedure may be established in an e-discovery 18 order that provides for production without prior privilege review. Pursuant to Federal Rule of 19 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 20 communication or information covered by the attorney-client privilege or work product 21 protection, the parties may incorporate their agreement in the stipulated protective order 22 submitted to the court. 23 12. MISCELLANEOUS 24 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 25 seek its modification by the Court in the future. 26 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 27 Order no Party waives any right it otherwise would have to object to disclosing or producing any 28 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 1 Party waives any right to object on any ground to use in evidence of any of the material covered 2 by this Protective Order. 3 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 4 Material must comply with Civil Local Rule 141. Protected Material may only be filed under seal 5 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a 6 Party's request to file Protected Material under seal is denied by the court, then the Receiving 7 Party may file the information in the public record unless otherwise instructed by the court. All 8 Parties will first seek to file under seal any information designated by any other Party as 9 “CONFIDENTIAL,” unless the designation no longer applies pursuant to stipulation or order of 10 the Court. 11 13. FINAL DISPOSITION 12 After the final disposition of this Action, as defined in paragraph 4, within 60 days of a 13 written request by the Designating Party, each Receiving Party must return all Protected Material 14 to the Producing Party or destroy such material. As used in this subdivision, “all Protected 15 Material” includes all copies, abstracts, compilations, summaries, and any other format 16 reproducing or capturing any of the Protected Material. Whether the Protected Material is 17 returned or destroyed, the Receiving Party must submit a written certification to the Producing 18 Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that 19 (1) identifies (by category, where appropriate) all the Protected Material that was returned or 20 destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, 21 compilations, summaries or any other format reproducing or capturing any of the Protected 22 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 23 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 24 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 25 consultant and expert work product, even if such materials contain Protected Material. Any such 26 archival copies that contain or constitute Protected Material remain subject to this Protective 27 Order as set forth in Section 4 (DURATION). 28 14. This Protective Order may only be modified or amended by further order of the Court 1 for good cause shown. 2 15. Any violation of this Order may be punished by any and all appropriate measures 3 including, without limitation, contempt proceedings and/or monetary sanctions. 4 /// 5 /// 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of _________________ 5 [print or type full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States District Court for 7 the Eastern District of California on [date] in the case of Dinh v. State of California, et al., Case 8 No. 1:21-cv-01627-DAD-SKO. 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. I hereby 16 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 City and State where sworn and signed: _________________________________ 22 Printed name: _______________________________ 23 Signature: __________________________________ 24 /// 25 /// 26 /// 27 /// 28 /// 1 COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY 3 | ORDERED that: 4 1. The above stipulated protective order is ENTERED; 5 2. The provisions of the parties’ stipulation and this protective order shall remain in 6 effect until further order of the Court; 7 3. The parties are advised that pursuant to the Local Rules of the United States 8 District Court, Eastern District of California, any documents which are to be filed 9 under seal will require a written request which complies with Local Rule 141; 10 4. The party making a request to file documents under seal shall be required to show 11 either good cause or compelling reasons to seal the documents, depending on the 12 type of filing, Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 13 2009); Ctr. for Auto Safety v. Chrysler Grp... LLC, 809 F.3d 1092, 1101 (9th Cir. 14 2016); and 15 5. If a party’s request to file Protected Material under seal is denied by the Court, 16 then the previously filed material shall be immediately accepted by the court and 17 become information in the public record and the information will be deemed filed 18 as of the date that the request to file the Protected Information under seal was 19 made. 20 IT IS SO ORDERED. DAM Le 22 | Dated: _March 30, 2023 _ Of 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 15