Frye v. City of Sacramento ( 2024 )

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SHARRON FRYE, Case No. 2:22-cv-1936-DJC-CSK Plaintiff, ORDER GRANTING MODIFIED STIPULATED PROTECTIVE ORDER V. (ECF No. 31.) CITY OF SACRAMENTO, et al., Defendants. The Court has reviewed the parties’ stipulated protective order below (ECF No. 31), and finds it comports with the relevant authorities and the Court’s Local Rule. See L.R. 141.1. The Court APPROVES the protective order, subject to the following clarification. The Court’s Local Rules indicate that once an action is closed, it “will not retain jurisdiction over enforcement of the terms of any protective order filed in that action.” L.R. 141.1(f); see MD Helicopters, Inc. v. Aerometals, |Inc., 2017 WL 495778 (E.D. Cal., Feb. 03, 2017) (noting that courts in the district generally do not retain jurisdiction for disputes concerning protective orders after closure of the case). Thus, the Court will not retain jurisdiction over this protective order once the case is closed. Dated: May 30, 2024 yy 2 CHI SOO KIM UNITED STATES MAGISTRATE JUDGE 3, frye.1936 Jason O. Balogh (CSB # 238199) 1 jason@baloghlaw.com 2 BALOGH LAW 6680 Alhambra Avenue, Suite 101 3 Martinez, CA 94553 Telephone: 925-575-8056 4 5 Glenn Katon (CSB # 281841) gkaton@katon.law 6 KATON.LAW 385 Grand Avenue, Suite 200 7 Oakland, CA 94610 8 Telephone: 510-463-3350 Fax: 510-463-3349 9 ATTORNEYS FOR PLAINTIFF SHARRON FRYE 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 ) SHARRON FRYE, ) Case No.: 2:22-cv-01936-DJC-CSK 14 ) Plaintiff, 15 ) AMENDED STIPULATED [PROPOSED] v. ) PROTECTIVE ORDER 16 ) CITY OF SACRAMENTO, et al., ) 17 ) 18 Defendants. ) ) 19 20 1. PURPOSES AND LIMITATIONS 21 Disclosure and discovery activity in this action are likely to involve production of 22 confidential, proprietary, or private information for which special protection from public 23 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 24 Accordingly, the parties hereby stipulate to and petition the court to enter the following 25 Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 26 protections on all disclosures or responses to discovery and that the protection it affords from 27 public disclosure and use extends only to the limited information or items that are entitled to 28 confidential treatment under the applicable legal principles. 1 The parties agree that that this Stipulated Protective Order may protect: All law 2 enforcement officers’ personnel records, including but not limited to internal affairs 3 investigations, personal data, and memoranda. These records are confidential in nature, and extra 4 caution is necessary for protection from their dissemination by any party. Further, this Order may 5 protect data related to uninvolved third parties, including personal identifying information, 6 photographs, or other information specifically as it relates to complaints made to the Sacramento 7 Police Department. This information was given to the Sacramento Police Department by 8 individuals unrelated to the lawsuit at bar, and with the understanding that measures would be 9 taken to protect their privacy where feasible. Defendants maintain, and Plaintiff does not dispute 10 for purposes of this stipulation, that a protective order better protects the described materials than 11 a private agreement because of the interests at stake and the irreparable harm that could result 12 from disclosure of the materials. 13 The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated 14 Protective Order does not entitle them to file confidential information under seal; Local Rule 141 15 sets forth the procedures that must be followed and the standards that will be applied when a 16 party seeks permission from the court to file material under seal. 17 2. DEFINITIONS 18 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 19 information or items under this Order. 20 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 21 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 22 of Civil Procedure 26(c). 23 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 24 well as their support staff). 25 2.4 Designating Party: a Party or Non-Party that designates information or items that 26 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 27 2.5 Disclosure or Discovery Material: all items or information, regardless of the 28 medium or manner in which it is generated, stored, or maintained (including, among other things, 1 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 2 responses to discovery in this matter. 3 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 4 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 5 consultant in this action. 6 2.7 House Counsel: attorneys who are employees of a party to this action. House 7 Counsel does not include Outside Counsel of Record or any other outside counsel. 8 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 9 entity not named as a Party to this action. 10 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 11 action but are retained to represent or advise a party to this action and have appeared in this 12 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 13 that party. 14 2.10 Party: any party to this action, including all its officers, directors, employees, 15 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 16 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 17 Material in this action. 18 2.12 Professional Vendors: persons or entities that provide litigation support services 19 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 20 organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. 21 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 22 “CONFIDENTIAL.” 23 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 24 Producing Party. 25 3. SCOPE 26 The protections conferred by this Stipulation and Order cover not only Protected Material 27 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all 28 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 1 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 2 However, the protections conferred by this Stipulation and Order do not cover the following 3 information: (a) any information that is in the public domain at the time of disclosure to a 4 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 5 result of publication not involving a violation of this Order, including becoming part of the public 6 record through trial or otherwise; and (b) any information known to the Receiving Party prior to the 7 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 8 information lawfully and under no obligation of confidentiality to the Designating Party. Any use 9 of Protected Material at trial shall be governed by a separate agreement or order. 10 4. DURATION 11 Even after final disposition of this litigation, the confidentiality obligations imposed by this 12 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 13 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 14 defenses in this action, with or without prejudice; and (2) final judgment herein after the 15 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 16 including the time limits for filing any motions or applications for extension of time pursuant to 17 applicable law. 18 5. DESIGNATING PROTECTED MATERIAL 19 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 20 Non-Party that designates information or items for protection under this Order must take care to 21 limit any such designation to specific material that qualifies under the appropriate standards. The 22 Designating Party must designate for protection only those parts of material, documents, items, or 23 oral or written communications that qualify – so that other portions of the material, documents, 24 items, or communications for which protection is not warranted are not swept unjustifiably within 25 the ambit of this Order. 26 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 27 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens 28 1 If it comes to a Designating Party’s attention that information or items that it designated for 2 protection do not qualify for protection, that Designating Party must promptly notify all other 3 Parties that it is withdrawing the mistaken designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 5 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 6 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 7 designated before the material is disclosed or produced. 8 Designation in conformity with this Order requires: 9 (a) For information in documentary form (e.g., paper or electronic documents, but 10 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 11 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 12 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 13 identify the protected portion(s) (e.g., by making appropriate markings in the margins). A Party or 14 Non-Party that makes original documents or materials available for inspection need not designate 15 them for protection until after the inspecting Party has indicated which material it would like 16 copied and produced. During the inspection and before the designation, all of the material made 17 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 18 identified the documents it wants copied and produced, the Producing Party must determine which 19 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 20 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for 21 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 22 appropriate markings in the margins). 23 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 24 Designating Party identify on the record, before the close of the deposition, hearing, or other 25 proceeding, all protected testimony. 26 (c) for information produced in some form other than documentary and for any other 27 tangible items, that the Producing Party affix in a prominent place on the exterior of the 28 container or containers in which the information or item is stored the legend 1 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 2 the Producing Party, to the extent practicable, shall identify the protected portion(s). 3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 4 designate qualified information or items does not, standing alone, waive the Designating Party’s 5 right to secure protection under this Order for such material. Upon timely correction of a 6 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 7 in accordance with the provisions of this Order. 8 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 9 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 10 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 11 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 12 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 13 challenge a confidentiality designation by electing not to mount a challenge promptly after the 14 original designation is disclosed. 15 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 16 by providing written notice of each designation it is challenging and describing the basis for each 17 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 18 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 19 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 20 begin the process by conferring directly (in voice-to-voice dialogue; other forms of communication 21 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 22 Party must explain the basis for its belief that the confidentiality designation was not proper and 23 must give the Designating Party an opportunity to review the designated material, to reconsider the 24 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 25 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 26 has engaged in this meet-and-confer process first or establishes that the Designating Party is 27 unwilling to participate in the meet and confer process in a timely manner. 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 28 1 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 2 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 3 accompanied by a competent declaration affirming that the movant has complied with the meet and 4 confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make 5 such a motion including the required declaration within 21 days (or 14 days, if applicable) shall 6 automatically waive the confidentiality designation for each challenged designation. In addition, 7 the Challenging Party may file a motion challenging a confidentiality designation at any time if 8 there is good cause for doing so, including a challenge to the designation of a deposition transcript 9 or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a 10 competent declaration affirming that the movant has complied with the meet and confer 11 requirements imposed by the preceding paragraph. 12 The burden of persuasion in any such challenge proceeding shall be on the Designating 13 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 14 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 15 Unless the Designating Party has waived the confidentiality designation by failing to file a motion 16 to retain confidentiality as described above, all parties shall continue to afford the material in 17 question the level of protection to which it is entitled under the Producing Party’s designation until 18 the court rules on the challenge. 19 7. ACCESS TO AND USE OF PROTECTED MATERIAL 20 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 21 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 22 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 23 the categories of persons and under the conditions described in this Order. When the litigation has 24 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 25 DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 26 location and in a secure manner that ensures that access is limited to the persons authorized under 27 this Order. 28 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 2 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 3 information or item designated “CONFIDENTIAL” only to: 4 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 5 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 6 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 7 attached hereto as Exhibit A; 8 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party 9 to whom disclosure is reasonably necessary for this litigation and who have signed the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 12 reasonably necessary for this litigation and who have signed the “Acknowledgment and 13 Agreement to Be Bound” (Exhibit A); 14 (d) the court and its personnel; 15 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 16 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 17 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 19 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 20 A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 21 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 22 separately bound by the court reporter and may not be disclosed to anyone except as permitted 23 under this Stipulated Protective Order. 24 (g) the author or recipient of a document containing the information or a custodian or 25 other person who otherwise possessed or knew the information. 26 27 28 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 compels 4 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 5 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 the 9 other litigation that some or all of the material covered by the subpoena or order is subject to this 10 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 11 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 12 Designating Party whose Protected Material may be affected. 13 If the Designating Party timely seeks a protective order, the Party served with the 14 subpoena or court order shall not produce any information designated in this action as 15 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 16 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 17 shall bear the burden and expense of seeking protection in that court of its confidential material – 18 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 19 Party in this action to disobey a lawful directive from another court. 20 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 21 THIS LITIGATION 22 (a) The terms of this Order are applicable to information produced by a Non-Party in this 23 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 24 connection with this litigation is protected by the remedies and relief provided by this Order. 25 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 26 additional protections. 27 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- Party’s confidential information in its possession, and the Party is subject to an agreement with 28 1 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of 2 the information requested is subject to a confidentiality agreement with a Non-Party; 3 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 4 litigation, the relevant discovery request(s), and a reasonably specific description of the 5 information requested; and 6 (3) make the information requested available for inspection by the Non-Party. 7 (c) If the Non-Party fails to object or seek a protective order from this court within 14 8 days of receiving the notice and accompanying information, the Receiving Party may produce 9 the Non-Party’s confidential information responsive to the discovery request. If the Non-Party 10 timely seeks a protective order, the Receiving Party shall not produce any information in its 11 possession or control that is subject to the confidentiality agreement with the Non-Party before a 12 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 13 burden and expense of seeking protection in this court of its Protected Material. 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 16 Material to any person or in any circumstance not authorized under this Stipulated Protective 17 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 18 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 19 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 20 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 21 Agreement to Be Bound” that is attached hereto as Exhibit A. 22 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 23 PROTECTED MATERIAL 24 When a Producing Party gives notice to Receiving Parties that certain inadvertently 25 produced material is subject to a claim of privilege or other protection, the obligations of the 26 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 27 is not intended to modify whatever procedure may be established in an e-discovery order that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 28 1 communication or information covered by the attorney-client privilege or work product protection, 2 the parties may incorporate their agreement in the stipulated protective order submitted to the 3 court. 4 12. MISCELLANEOUS 5 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 6 seek its modification by the court in the future. 7 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 8 no Party waives any right it otherwise would have to object to disclosing or producing any 9 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 10 Party waives any right to object on any ground to use in evidence of any of the material covered by 11 this Protective Order. 12 12.3 Filing Protected Material. Without written permission from the Designating Party or 13 a court order secured after appropriate notice to all interested persons, a Party may not file in the 14 public record in this action any Protected Material. A Party that seeks to file under seal any 15 Protected Material must comply with Local Rule 141. Protected Material may only be filed under 16 seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. 17 Pursuant to Local Rule 141, a sealing order will issue only upon a request that sets forth the 18 statutory or other authority for sealing, the requested duration, the identity, by name or category, of 19 persons to be permitted access to the documents, and all other relevant information. If a Receiving 20 Party's request to file Protected Material under seal pursuant to Local Rule 141 is denied by the 21 court, then the Receiving Party may file the information in the public record unless otherwise 22 instructed by the court. 23 13. FINAL DISPOSITION 24 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 25 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 26 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 27 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 28 the Protected Material is returned or destroyed, the Receiving Party must submit a written 1 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 2 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected 3 Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained 4 any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of 5 the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival 6 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 7 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 8 and expert work product, even if such materials contain Protected Material. Any such archival 9 copies that contain or constitute Protected Material remain subject to this Protective Order as set 10 forth in Section 4 (DURATION). 11 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 12 13 /s/ Glenn Katon Glenn Katon for Plaintiff 14 15 16 /s/ Kate D.L. Brosseau Kate D.L. Brosseau for Defendants 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ 4 [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Eastern District of California on [date] in the case of ___________ [insert formal name of 7 the case and the number and initials assigned to it by the court]. I agree to comply with and 8 to be bound by all the terms of this Stipulated Protective Order and I understand and 9 acknowledge that failure to so comply could expose me to sanctions and punishment in the 10 nature of contempt. I solemnly promise that I will not disclose in any manner any information or 11 item that is subject to this Stipulated Protective Order to any person or entity except in strict 12 compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 Date: ______________________________________ 21 City and State where sworn and signed: _________________________________ 22 23 Printed name: _______________________________ 24 25 Signature: __________________________________ 26 27 28