Cavazos v. County of Fresno ( 2024 )

1 LAW OFFICES OF DALE K. GALIPO Dale K. Galipo – SBN 144074 2 dalekgalipo@yahoo.com Eric Valenzuela – SBN 284500 3 evalenzuela@galipolaw.com 4 21800 Burbank Boulevard, Suite 310 Woodland Hills, CA 91367 5 Telephone: (818) 347-3333 Facsimile: (818) 347-4118 6 7 Attorneys for Plaintiff Loida Cavazos 8 PRENTICE LONG, PC Margaret E. Long – SBN 227176 9 Caitlin Smith – SBN 269716 2240 Court Street 10 Redding, CA 96001 11 Telephone: (530) 691-0800 Facsimile: (530) 691-0700 12 E-Mail: margaret@prenticelongpc.com caitlin@prenticelongpc.com 13 Attorneys for Defendant County of Fresno 14 15 UNITED STATES DISTRICT COURT 16 EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION 17 18 19 LOIDA CAVAZOS, No. 1:23-CV-00859-JLT-BAM 20 Plaintiff, STIPULATION AND [PROPOSED] 21 v. PROTECTIVE ORDER 22 COUNTY OF FRESNO; EMILO REYES; and DOES 2-10, inclusive, 23 Defendants. 24 25 1. PURPOSES AND LIMITATIONS 26 Disclosure and discovery activity in this action are likely to involve production of 27 confidential, proprietary, or private information for which special protection from public 28 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 1 Accordingly, the parties hereby stipulate to and petition the court to enter the following 2 Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from 3 public disclosure and use extends only to the limited information or items that are entitled to 4 confidential treatment under the applicable legal principles. The parties further acknowledge, 5 as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 6 file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that 7 must be followed and the standards that will be applied when a party seeks permission from the 8 court to file material under seal. 9 2. DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 10 information or items under this Order. 11 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 12 generated, stored or maintained) or tangible things that qualify for protection under Federal 13 Rule of Civil Procedure 26(c). 14 2.3 Counsel: (1) attorneys who have been retained on behalf of a Party to this Action 15 and their support staff; (2) attorneys who are employees of a Party to this action; and/or (3) attorneys representing an insurer or indemnitor of any Defendant, including the legal personnel 16 of the insurer or indemnitor. 17 2.4 Designating Party: a Party or Non-Party that designates information or items that 18 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 19 2.5 Disclosure or Discovery Material: all items or information, regardless of the 20 medium or manner in which it is generated, stored, or maintained (including, among other 21 things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 22 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent 23 to the litigation who has been retained by a Party or its counsel to serve as an expert witness or 24 as a consultant in this action. 25 2.7 House Counsel: attorneys who are employees of a party to this action. House 26 Counsel does not include Outside Counsel of Record or any other outside counsel. 27 2.8 Non-Party: any natural person, partnership, corporation, association, or other 28 legal entity not named as a Party to this action. 1 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 2 action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 3 that party. 4 2.10 Party: any party to this action, including all of its officers, directors, employees, 5 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 6 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 7 Material in this action. 8 2.12 Professional Vendors: persons or entities that provide litigation support services 9 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 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 The protections conferred by this Stipulation and Order cover not only Protected 16 Material (as defined above), but also (1) any information copied or extracted from Protected 17 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 18 testimony, conversations, or presentations by Parties or their Counsel that might reveal 19 Protected Material. However, the protections conferred by this Stipulation and Order do not 20 cover the following information: (a) any information that is in the public domain at the time of 21 disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including 22 becoming part of the public record through trial or otherwise; and (b) any information known 23 to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the 24 disclosure from a source who obtained the information lawfully and under no obligation of 25 confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed 26 by a separate agreement or order. 27 / / / 28 / / / 1 4. DURATION 2 The confidentiality obligations imposed by this Order shall remain in effect until the disposition of the internal investigation of the District Attorney’s office regarding the death of 3 Mr. Cavazos. It shall be revisited after 90 days, and either party may seek an order by the Court 4 if mutual extension is not agreed upon. 5 6 5. DESIGNATING PROTECTED MATERIAL 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 8 Party or Non-Party that designates information or items for protection under this Order must 9 take care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must designate for protection only those parts of material, 10 documents, items, or oral or written communications that qualify – so that other portions of the 11 material, documents, items, or communications for which protection is not warranted are not 12 swept unjustifiably within the ambit of this Order. If it comes to a Designating Party’s attention 13 that information or items that it designated for protection do not qualify for protection, that 14 Designating Party must promptly notify all other Parties that it is withdrawing the mistaken 15 designation. The parties agree that this Protective Order encompasses three categories of 16 protected production, to include: (1) radio communications, (2) 9-1-1 call(s), and (3) officer- worn body camera footage. 17 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 18 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 19 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly 20 so designated before the material is disclosed or produced. 21 Designation in conformity with this Order requires: 22 (a) For information in documentary form (e.g., paper or electronic documents, but 23 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to the first page of every document that contains 24 protected material. If only a portion or portions of the material on a page qualifies for protection, 25 the Producing Party also must clearly identify the protected portion(s) (e.g., by making 26 appropriate markings in the margins). 27 A Party or Non-Party that makes original documents or materials available for 28 inspection need not designate them for protection until after the inspecting Party has indicated 1 which material it would like copied and produced. During the inspection and before the 2 designation, all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied 3 and produced, the Producing Party must determine which documents, or portions thereof, 4 qualify for protection under this Order. Then, before producing the specified documents, the 5 Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected 6 Material. If only a portion or portions of the material on a page qualifies for protection, the 7 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 8 markings in the margins). 9 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, or other 10 proceeding, all protected testimony. 11 (c) for information produced in some form other than documentary and for any other 12 tangible items, that the Producing Party affix in a prominent place on the exterior of the 13 container or containers in which the information or item is stored the legend 14 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 15 the Producing Party, to the extent practicable, shall identify the protected portion(s). 16 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 17 designate qualified information or items does not, standing alone, waive the Designating Party’s right to secure protection under this Order for such material. Upon timely correction of a 18 designation, the Receiving Party must make reasonable efforts to assure that the material is 19 treated in accordance with the provisions of this Order. 20 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 21 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 22 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 23 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 24 challenge a confidentiality designation by electing not to mount a challenge promptly after the 25 original designation is disclosed. 26 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 27 process by providing written notice of each designation it is challenging and describing the basis 28 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 1 notice must recite that the challenge to confidentiality is being made in accordance with this 2 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in voice to voice dialogue; other 3 forms of communication are not sufficient) within 14 days of the date of service of notice. In 4 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 5 designation was not proper and must give the Designating Party an opportunity to review the 6 designated material, to reconsider the circumstances, and, if no change in designation is offered, 7 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 8 stage of the challenge process only if it has engaged in this meet and confer process first or 9 establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner. 10 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 11 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 12 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days 13 of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 14 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 15 accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure by the Designating Party 16 to make such a motion including the required declaration within 21 days (or 14 days, if 17 applicable) shall automatically waive the confidentiality designation for each challenged 18 designation. In addition, the Challenging Party may file a motion challenging a confidentiality 19 designation at any time if there is good cause for doing so, including a challenge to the 20 designation of a deposition transcript or any portions thereof. Any motion brought pursuant to 21 this provision must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed by the preceding paragraph. 22 The burden of persuasion in any such challenge proceeding shall be on the Designating 23 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 24 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 25 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 26 file a motion to retain confidentiality as described above, all parties shall continue to afford the 27 material in question the level of protection to which it is entitled under the Producing Party’s 28 designation until the court rules on the challenge. 1 7. ACCESS TO AND USE OF PROTECTED MATERIAL 2 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this case only for 3 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 4 disclosed only to the categories of persons and under the conditions described in this Order. 5 When the litigation has been terminated, a Receiving Party must comply with the provisions of 6 section 13 below (FINAL DISPOSITION). Protected Material must be stored and maintained 7 by a Receiving Party at a location and in a secure manner that ensures that access is limited to 8 the persons authorized under this Order. 9 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 10 disclose any information or item designated “CONFIDENTIAL” only to Counsel of Record for 11 the Receiving Party, as well as employees of said Counsel of Record to whom it is reasonably 12 necessary to disclose the information for this litigation and who have signed the 13 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 14 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 15 If a Party is served with a subpoena or a court order issued in other litigation that 16 compels disclosure of any information or items designated in this action as 17 “CONFIDENTIAL,” that Party must: 18 (a) promptly notify in writing the Designating Party. Such notification shall include a 19 copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the 20 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 or court order shall not produce any information designated in this action as 26 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 27 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 28 1 shall bear the burden and expense of seeking protection in that court of its confidential material 2 – and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court. 3 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 4 THIS LITIGATION 5 (a) The terms of this Order are applicable to information produced by a Non-Party in 6 this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties 7 in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 8 additional 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 11 the 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 13 or all 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 15 Order in this litigation, the relevant discovery request(s), and a reasonably specific 16 description of the 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 Non-Party’s confidential information responsive to the discovery request. If the Non-Party 20 timely seeks a protective order, the Receiving Party shall not produce any information in its 21 possession or control that is subject to the confidentiality agreement with the Non-Party before 22 a determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 23 burden and expense of seeking protection in this court of its Protected Material. 24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective 26 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 27 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 28 1 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 2 made of all the terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 4 PROTECTED MATERIAL 5 When a Producing Party gives notice to Receiving Parties that certain inadvertently 6 produced material is subject to a claim of privilege or other protection, the obligations of the 7 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 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 of 10 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 to seek its modification by the court in the future. 15 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 16 Order no Party waives any right it otherwise would have to object to disclosing or producing 17 any information or item on any ground not addressed in this Stipulated Protective Order. 18 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 19 material covered by this Protective Order, 20 12.3 Filing Protected Material. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not 21 file in the public record in this action any Protected Material. A Party that seeks to file under 22 seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material may 23 only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected 24 Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a 25 request establishing that the Protected Material at issue is privileged, protectable as a trade 26 secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5 is denied by the court, then the 27 28 1 Receiving Party may file the information in the public record pursuant to Civil Local Rule 79- 2 5 unless otherwise instructed by the court. 3 13. FINAL DISPOSITION 4 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 5 Receiving Party must return all Protected Material to the Producing Party or destroy such 6 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected 7 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 8 submit a written certification to the Producing Party (and, if not the same person or entity, to 9 the Designating Party) by the 60 day deadline that (1) identifies (by category, where 10 appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the 11 Receiving Party has not retained any copies, abstracts, compilations, summaries or any other 12 format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, 13 and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 14 reports, attorney work product, and consultant and expert work product, even if such materials 15 contain Protected Material. Any such archival copies that contain or constitute Protected 16 Material remain subject to this Protective Order as set forth in Section 4 (DURATION). 17 18 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 19 Dated: February 9, 2024 LAW OFFICES OF DALE K. GALIPO 20 21 By: /s/ Eric Valenzuela DALE K. GALIPO 22 ERIC VALENZUELA Attorneys for Plaintiff 23 Loida Cavazos / / / 24 25 / / / 26 / / / 27 / / / 28 1 Dated: February 9, 2024 PRENTICE LONG, PC 2 By: /s/ Margaret E. Long 3 MARGARET E. LONG 4 Attorneys for Defendant County of Fresno 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 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 I, _____________________________ [print or type full name], of _________________ 3 [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court 4 for the Northern District of California on [date] in the case of Loida Cavazos v. County of Fresno, Emilo Reyes, and Does 2-10, inclusive, No. 1:23-CV-00859-JLT-BAM. I agree to 5 comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and 6 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any 7 person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Northern 8 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. 9 I hereby appoint __________________________ [print or type full name] of _______________________________________ [print or type full address and telephone 10 number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. 11 12 Date: ______________________________________ 13 City and State where sworn and signed: _________________________________ 14 Printed name: _______________________________ 15 Signature: __________________________________ 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ORDER 2 Having considered the above stipulation and finding good cause, the Court adopts the 3 signed stipulated protective order. 4 The parties are advised that pursuant to the Local Rules of the United States District 5 Court, Eastern District of California, any documents subject to the protective order to be filed 6 under seal must be accompanied by a written request which complies with Local Rule 141 prior 7 to sealing. The party making a request to file documents under seal shall be required to show 8 good cause for documents attached to a non-dispositive motion or compelling reasons for 9 documents attached to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 10 677-78 (9th Cir. 2009). Within five (5) days of any approved document filed under seal, the party 11 shall file a redacted copy of the sealed document. The redactions shall be narrowly tailored to 12 protect only the information that is confidential or was deemed confidential. 13 Additionally, the parties shall consider resolving any dispute arising under the protective 14 order according to the Court’s informal discovery dispute procedure. 15 16 IT IS SO ORDERED. 17 Dated: February 12, 2024 /s/ Barbara A. McAuliffe _ 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28