Molesky v. Carrillo ( 2023 )

1 NICHOLAS J. STREET, ESQ. – SBN 249156 ZIMMER & MELTON, LLP 2 11601 Bolthouse Drive, Suite 100 Bakersfield, CA 93311 3 Tel: (661) 463-6700 / Fax: (661) 501-4221 Email: nstreet@zimmermelton.com 4 Attorneys for Defendants, Stallion Springs Police FILING FEE EXEMPT 5 Department Officer Oscar Carrillo, Stallion [GOV. CODE § 6103] Springs Police Department Officer James 6 Barnard, and Stallion Springs Police Department Sergeant Mike Bonsness 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 * * * 11 LISA MOLESKY, as Guardian ad Litem for CASE NO. 1:22-CV-01567-ADA-CBD 12 J.M., a minor, Complaint filed: 12/02/2022 Trial Date: None 13 Plaintiffs, 14 vs. STIPULATED PROTECTIVE ORDER 15 STALLION SPRINGS POLICE 16 DEPARTMENT OFFICER OSCAR CARRILLO (No. 117); STALLION 17 SPRINGS POLICE DEPARTMENT OFFICER JAMES BARNARD (No. 111); 18 STALLION SPRINGS POLICE DEPARTMENT SERGEANT MIKE 19 BONSNESS (No. 108); AND DOES 1 TO 15, 20 21 Defendants. 22 23 1. A. PURPOSES AND LIMITATIONS 24 Discovery in this action is likely to involve production of confidential or private 25 information for which special protection from public disclosure and from use for any 26 purpose other than prosecuting this litigation may be warranted. Accordingly, the parties 27 hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. 1 The parties acknowledge that this Order does not confer blanket protections on all 2 disclosures or responses to discovery and that the protection it affords from public disclosure 3 and use extends only to the limited information or items that are entitled to confidential 4 treatment under the applicable legal principles. The parties further acknowledge, as set forth 5 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file 6 confidential information under seal; Civil Local Rule 141 sets forth the procedures that must 7 be followed and the standards that will be applied when a party seeks permission from the 8 court to file material under seal. 9 B. GOOD CAUSE STATEMENT 10 This action is likely to involve confidential and private statements made by third-party 11 minors to law enforcement, as well as information otherwise generally unavailable to the 12 public, or which may be privileged or otherwise protected from disclosure under state or 13 federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the 14 flow of information, to facilitate the prompt resolution of disputes over confidentiality of 15 discovery materials, to adequately protect information the parties are entitled to keep 16 confidential and private, to ensure that the parties are permitted reasonable necessary uses of 17 such material in preparation for and in the conduct of trial, to address their handling at the 18 end of the litigation, and serve the ends of justice, a protective order for such information is 19 justified in this matter. It is the intent of the parties that information will not be designated as 20 confidential for tactical reasons and that nothing be so designated without a good faith belief 21 that it has been maintained in a confidential, non-public manner, and there is good cause why 22 it should not be part of the public record of this case. 23 2. DEFINITIONS 24 2.1 Action: Eastern District of California; Case No.: 1:22-CV-01567-ADA-CBD. 25 2.2 Challenging Party: a Party or Non-Party that challenges the designation of 26 information or items under this Order. 27 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is 1 Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement. 2 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 3 support staff). 4 2.5 Designating Party: a Party or Non-Party that designates information or items 5 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 6 2.6 Disclosure or Discovery Material: all items or information, regardless of the 7 medium or manner in which it is generated, stored, or maintained (including, among other 8 things, testimony, transcripts, and tangible things), that are produced or generated in 9 disclosures or responses to discovery in this matter. 10 2.7 Expert: a person with specialized knowledge or experience in a matter 11 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 12 witness or as a consultant in this Action. 13 2.8 House Counsel: attorneys who are employees of a party to this Action. House 14 Counsel does not include Outside Counsel of Record or any other outside counsel. 15 2.9 Non-Party: any natural person, partnership, corporation, association, or other 16 legal entity not named as a Party to this action. 17 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this 18 Action but are retained to represent or advise a party to this Action and have appeared in this 19 Action on behalf of that party or are affiliated with a law firm which has appeared on behalf 20 of that party, and includes support staff. 21 2.11 Party: any party to this Action, including all of its officers, directors, 22 employees, consultants, retained experts, and Outside Counsel of Record (and their support 23 staff). 24 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 25 Material in this Action. 26 2.13 Professional Vendors: persons or entities that provide litigation support 27 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, 1 subcontractors. 2 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 3 “CONFIDENTIAL” or “ATTORNEYS EYES ONLY.” 4 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a 5 Producing Party. 6 3. SCOPE 7 The protections conferred by this Stipulation and Order cover not only Protected 8 Material (as defined above), but also: (1) any information copied or extracted from Protected 9 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) 10 any testimony, conversations, or presentations by Parties or their Counsel that might reveal 11 Protected Material. 12 Any use of Protected Material at trial shall be governed by the orders of the trial 13 judge. This Order does not govern the use of Protected Material at trial. 14 4. DURATION 15 Once a case proceeds to trial, all of the information that was designated as confidential or 16 maintained pursuant to this protective order becomes public and will be presumptively available to 17 all members of the public, including the press, unless compelling reasons supported by specific 18 factual findings to proceed otherwise are made to the trial judge in advance of the trial. See 19 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing 20 “good cause” showing for sealing documents produced in discovery from “compelling reasons” 21 standard when merits-related documents are part of court record). Accordingly, the terms of this 22 protective order do not extend beyond the commencement of the trial. 23 5. DESIGNATING PROTECTED MATERIAL 24 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 25 Party or Non-Party that designates information or items for protection under this Order must 26 take care to limit any such designation to specific material that qualifies under the 27 appropriate standards. The Designating Party must designate for protection only those parts 1 portions of the material, documents, items, or communications for which protection is not 2 warranted are not swept unjustifiably within the ambit of this Order. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 4 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 5 unnecessarily encumber the case development process or to impose unnecessary expenses 6 and burdens on other parties) may expose the Designating Party to sanctions. 7 In this case, the parties anticipate that the only documents that will be marked and 8 designated as “CONFIDENTIAL-ATTORNEY EYES ONLY” will be the videos (and/or 9 statements or reports) that include and/or identify certain minor witnesses. To the extent that 10 other documents contain confidential or private information, it is anticipated that those 11 documents will be marked and designated as “CONFIDENTIAL,” and subject to the broader 12 disclosure limitations. 13 If it comes to a Designating Party’s attention that information or items that it 14 designated for protection do not qualify for protection, that Designating Party must promptly 15 notify all other Parties that it is withdrawing the inapplicable designation. 16 5.2 Manner and Timing of Designations. Except as otherwise provided in this 17 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 18 ordered, Disclosure or Discovery Material that qualifies for protection under this Order must 19 be clearly so designated before the material is disclosed or produced. 20 Designation in conformity with this Order requires: 21 (a) for information in documentary form (e.g., paper or electronic documents, but 22 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 23 Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL 24 legend”), to each page that contains protected material. If only a portion or portions of the 25 material on a page qualifies for protection, the Producing Party also must clearly identify the 26 protected portion(s) (e.g., by making appropriate markings in the margins). 27 /// 1 A Party or Non-Party that makes original documents available for inspection need not 2 designate them for protection until after the inspecting Party has indicated which documents 3 it would like copied and produced. During the inspection and before the designation, all of 4 the material made available for inspection shall be deemed “CONFIDENTIAL.” After the 5 inspecting Party has identified the documents it wants copied and produced, the Producing 6 Party must determine which documents, or portions thereof, qualify for protection under this 7 Order. Then, before producing the specified documents, the Producing Party must affix the 8 “CONFIDENTIAL legend” 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 10 clearly identify the protected portion(s) (e.g., by making appropriate markings in the 11 margins). 12 (b) for testimony given in depositions that the Designating Party identify the 13 Disclosure or Discovery Material on the record, before the close of the deposition all 14 protected testimony. 15 (c) for information produced in some form other than documentary and for any 16 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 17 container or containers in which the information is stored the legend “CONFIDENTIAL.” If 18 only a portion or portions of the information warrants protection, the Producing Party, to the 19 extent practicable, 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 22 Party’s right to secure protection under this Order for such material. Upon timely correction 23 of a designation, the Receiving Party must make reasonable efforts to assure that the material 24 is 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. 1 6.2 Meet and Confer. The Challenging Party shall initiate an informal dispute 2 resolution process first to try to resolve the dispute informally. 3 6.3 The burden of persuasion in any such challenge proceeding shall be on the 4 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to 5 harass or impose unnecessary expenses and burdens on other parties) may expose the 6 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn the 7 confidentiality designation, all parties shall continue to afford the material in question the 8 level of protection to which it is entitled under the Producing Party’s designation until the 9 Court rules on the challenge. 10 7. ACCESS TO AND USE OF PROTECTED MATERIAL 11 7.1 Basic Principles. A Receiving Party may use Protected Material that is 12 disclosed or produced by another Party or by a Non-Party in connection with this Action 13 only for prosecuting, defending, or attempting to settle this Action. Such Protected Material 14 may be disclosed only to the categories of persons and under the conditions described in this 15 Order. When the Action has been terminated, a Receiving Party must comply with the 16 provisions of section 13 below (FINAL DISPOSITION). 17 Protected Material must be stored and maintained by a Receiving Party at a location 18 and in a secure manner that ensures that access is limited to the persons authorized under this 19 Order. 20 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 21 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 22 disclose any information or item designated “CONFIDENTIAL” only to: 23 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 24 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose 25 the information for this Action; 26 (b) the officers, directors, and employees (including House Counsel) of the 27 Receiving Party to whom disclosure is reasonably necessary for this Action; 1 reasonably necessary for this Action and who have signed the “Acknowledgment and 2 Agreement to Be Bound” (Exhibit A); 3 (d) the court and its personnel; 4 (e) court reporters and their staff; 5 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to 6 whom disclosure is reasonably necessary for this Action and who have signed the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (g) the author or recipient of a document containing the information or a custodian 9 or other person who otherwise possessed or knew the information; 10 (h) during their depositions, witnesses ,and attorneys for witnesses, in the Action 11 to whom disclosure is reasonably necessary provided: (1) the deposing party requests that the 12 witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted to keep 13 any confidential information unless they sign the “Acknowledgment and Agreement to Be 14 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the 15 court. Pages of transcribed deposition testimony or exhibits to depositions that reveal 16 Protected Material may be separately bound by the court reporter and may not be disclosed 17 to anyone except as permitted under this Stipulated Protective Order; and 18 (i) any mediator or settlement officer, and their supporting personnel, mutually 19 agreed upon by any of the parties engaged in settlement discussions. 20 7.3 Disclosure of “CONFIDENTIAL-ATTORNEYS EYES ONLY” Information 21 or Items. Unless otherwise ordered by the court or permitted in writing by the Designating 22 Party, a Receiving Party may disclose any information or item designated 23 “CONFIDENTIAL-ATTOREYS EYES ONLY” only to: 24 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 25 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose 26 the information for this Action. 27 /// 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 2 OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation that 4 compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS EYES ONLY,” that Party must: 6 (a) promptly notify in writing the Designating Party. Such notification shall include a 7 copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order to issue in 9 the other litigation that some or all of the material covered by the subpoena or order is 10 subject to this Protective Order. Such notification shall include a copy of this Stipulated 11 Protective Order; and, 12 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 13 Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served with the 15 subpoena or court order shall not produce any information designated in this action as 16 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS EYES ONLY” before a 17 determination by the court from which the subpoena or order issued, unless the Party has 18 obtained the Designating Party’s permission. The Designating Party shall bear the burden 19 and expense of seeking protection in that court of its confidential material and nothing in 20 these provisions should be construed as authorizing or encouraging a Receiving Party in this 21 Action to disobey a lawful directive from another court. 22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 23 THIS LITIGATION 24 (a) The terms of this Order are applicable to information produced by a Non-Party 25 in this Action and designated as “CONFIDENTIAL.” Such information produced by Non- 26 Parties in connection with this litigation is protected by the remedies and relief provided by 27 this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from 1 (b) In the event that a Party is required, by a valid discovery request, to produce a 2 Non-Party’s confidential information in its possession, and the Party is subject to an 3 agreement with the Non-Party not to produce the Non-Party’s confidential information, then 4 the Party shall: 5 (1) promptly notify in writing the Requesting Party and the Non-Party that 6 some or all of the information requested is subject to a confidentiality agreement with a Non- 7 Party; 8 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 9 Order in this Action, the relevant discovery request(s), and a reasonably specific description 10 of the information requested; and, 11 /// 12 (3) make the information requested available for inspection by the Non- 13 Party, if requested. 14 (c) If the Non-Party fails to seek a protective order from this court within 14 days 15 of receiving the notice and accompanying information, the Receiving Party may produce the 16 Non-Party’s confidential information responsive to the discovery request. If the Non-Party 17 timely seeks a protective order, the Receiving Party shall not produce any information in its 18 possession or control that is subject to the confidentiality agreement with the Non-Party 19 before a determination by the court. Absent a court order to the contrary, the Non-Party shall 20 bear the burden and expense of seeking protection in this court of its Protected Material. 21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 22 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 23 Protected Material to any person or in any circumstance not authorized under this Stipulated 24 Protective Order, the Receiving Party must immediately: (a) notify in writing the 25 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all 26 unauthorized copies of the Protected Material, (c) inform the person or persons to whom 27 unauthorized disclosures were made of all the terms of this Order, and (d) request such 1 attached hereto as Exhibit A. 2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 3 PROTECTED MATERIAL 4 When a Producing Party gives notice to Receiving Parties that certain inadvertently 5 produced material is subject to a claim of privilege or other protection, the obligations of the 6 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 7 provision is not intended to modify whatever procedure may be established in an e-discovery 8 order that provides for production without prior privilege review. Pursuant to Federal Rule of 9 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 10 of a communication or information covered by the attorney-client privilege or work product 11 protection, the parties may incorporate their agreement in the stipulated protective order 12 submitted to the court. 13 12. MISCELLANEOUS 14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person 15 to seek its modification by the Court in the future. 16 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 17 Order no Party waives any right it otherwise would have to object to disclosing or producing 18 any information or item on any ground not addressed in this Stipulated Protective Order. 19 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 20 material covered by this Protective Order. 21 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 22 Material must comply with Civil Local Rule 141. Protected Material may only be filed 23 under seal pursuant to a court order authorizing the sealing of the specific Protected Material 24 at issue. If a Party's request to file Protected Material under seal is denied by the court, then 25 the Receiving Party may file the information in the public record unless otherwise instructed 26 by the court. 27 /// 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 60 days of 3 a written request by the Designating Party, each Receiving Party must return all Protected 4 Material to the Producing Party or destroy such material. As used in this subdivision, “all 5 Protected Material” includes all copies, abstracts, compilations, summaries, and any other 6 format reproducing or capturing any of the Protected Material. Whether the Protected 7 Material is returned or destroyed, the Receiving Party must submit a written certification to 8 the Producing Party (and, if not the same person or entity, to the Designating Party) by the 9 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 10 that was returned or destroyed and (2)affirms that the Receiving Party has not retained any 11 copies, abstracts, compilations, summaries or any other format reproducing or capturing any 12 of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 13 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 14 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 15 product, and consultant and expert work product, even if such materials contain Protected 16 Material. Any such archival copies that contain or constitute Protected Material remain 17 subject to this Protective Order as set forth in Section 4 (DURATION). 18 14. Any violation of this Order may be punished by any and all appropriate measures 19 including, without limitation, contempt proceedings and/or monetary sanctions. 20 21 [SIGNATURES ON NEXT PAGE] 22 23 24 25 26 27 1 |} ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 || DATED: July 12, 2023 LAW OFFICE OF ERIN DARLING 4 5 By /s/ Erin Darling ERIN DARLING, ESQ. 6 Attorneys for Plaintiff, LISA MOLESKY, 7 as Guardian ad Litem for J.M., a minor 8 9 DATED: July 12, 2023 ZIMMER & MELTON, LLP 10 By /s/ Nicholas J. Street 11 NICHOLAS J. STREET, ESQ. 2 Attorneys for Defendants, STALLION SPRINGS POLICE 13 DEPARTMENT OFFICERS OSCAR CARRILLO AND JAMES BARNARD; AND, STALLION SPRINGS POLICE 15 DEPARTMENT SERGEANT MIKE BONSNESS 16 17 IT IS SO ORDERED. de Mw DR — Dated: _ July 12, 2023 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 13 STIPTTT ATED PROTECTIVE ORDER: ORDER 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 perjury that 5 I have read in its entirety and understand the Stipulated Protective Order that was issued by 6 the United States District Court for the Eastern District of California on [date] in the case of 7 LISA MOLESKY, as Guardian ad Litem for J.M., a minor versus STALLION SPRINGS 8 POLICE DEPARTMENT OFFICER OSCAR CARRILLO (No. 117); STALLION 9 SPRINGS POLICE DEPARTMENT OFFICER JAMES BARNARD (No. 111); STALLION 10 SPRINGS POLICE DEPARTMENT SERGEANT MIKE BONSNESS (No. 108); Eastern 11 District of California; Case No.: 1:22-CV-01567-ADA-CBD. I agree to comply with and to 12 be bound by all the terms of this Stipulated Protective Order and I understand and 13 acknowledge that failure to so comply could expose me to sanctions and punishment in the 14 nature of contempt. I solemnly promise that I will not disclose in any manner any 15 information or item that is subject to this Stipulated Protective Order to any person or entity 16 except in strict compliance with the provisions of this Order. 17 I further agree to submit to the jurisdiction of the United States District Court for the 18 Eastern District of California for the purpose of enforcing the terms of this Stipulated 19 Protective Order, even if such enforcement proceedings occur after termination of this 20 action. I hereby appoint __________________________________________________[print 21 or type full name] of _____________________________________________ [print or type 22 full address and telephone number] as my California agent for service of process in 23 connection with this action or any proceedings related to enforcement of this Stipulated 24 Protective Order. 25 Date: 26 City and State where sworn and signed: _________________________________________ 27 Printed name: ____________________________________