Juan Pagan Jr. v. City of Fullerton

11 James R. Touchstone, SBN 184584 jrt@jones-mayer.com 22 Denise L. Rocawich, SBN 232792 dlr@jones-mayer.com 33 JONES MAYER 3777 North Harbor Boulevard 44 Fullerton, CA 92835 Telephone: (714) 446-1400 55 Facsimile: (714) 446-1448 66 Attorneys for Defendants CITY OF FULLERTON, RENE VALDES, JAIME ARROYO, GHARRETT 77 WILTSE, TRAVIS KOWALEC, MATTHEW LEVIN, SGT. DIAZ, CPL. MURPHY, CPL. CAZARES [88] SKAPIK LAW GROUP 99 Mark J. Skapik (SBN 164957) Geralyn L. Skapik (SBN 145055) 1100 Blair J. Berkley (SBN 222293) Matthew T. Falkenstein (SBN 333302) 1111 5861 Pine Avenue, Suite A-1 Chino Hills, California 91709 1122 Telephone: (909) 398-4404 Facsimile: (909) 398-1883 [1133] Attorneys for Plaintiff JUAN PAGAN [1144] 1155 UNITED STATES DISTRICT COURT 1166 CENTRAL DISTRICT OF CALIFORNIA 1177 SOUTHERN DIVISION 1188 JUAN PAGAN JR., an individual, Case No: 8:cv-23-02492 HDV-KES Judge: Hon. Hernan D. Vera 1199 Plaintiff, 2200 vs. STIPULATED PROTECTIVE 2211 ORDER 2222 CITY OF FULLERTON, RENE VALDES, an individual, JAIME 2233 ARROYO, an individual, GHARRETT WILTSE, an individual, 2244 TRAVIS KOWALEC, an individual, MATTHEW LEVIN, an individual, 2255 SGT. DIAZ, an individual, CPL. MURPHY, an individual, CPL. 2266 CAZARES, an individual and DOES 1 through 10, inclusive, [2277] Defendants. 11 1. A. PURPOSES AND LIMITATIONS 22 Discovery in this action is likely to involve production of confidential, 33 proprietary, or private information for which special protection from public 44 disclosure and from use for any purpose other than prosecuting this litigation may 55 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 66 enter the following Stipulated Protective Order. The parties acknowledge that this 77 Order does not confer blanket protections on all disclosures or responses to 88 discovery and that the protection it affords from public disclosure and use extends 99 only to the limited information or items that are entitled to confidential treatment 1100 under the applicable legal principles. The parties further acknowledge, as set forth 1111 in Section 12.3, below, that this Stipulated Protective Order does not entitle them 1122 to file confidential information under seal; Civil Local Rule 79-5 sets forth the 1133 procedures that must be followed and the standards that will be applied when a 1144 party seeks permission from the court to file material under seal. [1155] 1166 B. GOOD CAUSE STATEMENT 1177 The Parties represent that pre-trial discovery in this case is likely to include 1188 the production of information and/or documents that are confidential and/or 1199 privileged including the production of peace officer personnel file information 2200 and/or documents which the Parties agree includes: (1) Personal data, including 2211 marital status, family members, educational and employment history, home 2222 addresses, or similar information; (2) Medical history; (3) Election of employee 2233 benefits; (4) Employee advancement, appraisal, or discipline; and (5) Complaints, 2244 or investigations of complaints, concerning an event or transaction in which a 2255 peace officer participated, or which a peace officer perceived, and pertaining to the 2266 manner in which the peace officer performed his or her duties including compelled 2277 statements by peace officers unless specifically denoted as “not confidential” pursuant to Penal Code section 832.7. Defendants contend that such information is 11 privileged as official information. Sanchez v. City of Santa Ana, 936 F.2d 1027 , 22 1033 (9th Cir. Cal. 1990); see also Kerr v. United States Dist. Ct. for N.D. Cal., [33] 511 F.2d 192, 198 (9th Cir.1975), aff'd, 426 U.S. 394 , 96 S.Ct. 2119 , 48 L.Ed.2d 44 725 (1976). Further, discovery may require the production of certain Fullerton 55 Police Department Policies and Procedures not available to the public and the 66 public disclosure of which could comprise officer safety, raise security issues, 77 and/or impede investigations. Peace officer personnel file information and/or 88 documents and security-sensitive policies and procedures are hereinafter referred 99 to as "Confidential Information". 1100 Defendants contend that that public disclosure of such material poses a 1111 substantial risk of embarrassment, oppression and/or physical harm to peace 1122 officers whose Confidential Information is disclosed. The Parties further agree that 1133 the risk of harm to peace officers is greater than with other government employees 1144 due to the nature of their profession. Finally, the Defendants contend that the 1155 benefit of public disclosure of Confidential Information is minimal while the 1166 potential disadvantages are great. 1177 Accordingly, good cause exists for entry of this Protective Order to facilitate 1188 pre-trial disclosure while assuring the safety of these sensitive disclosures. See 1199 Fed. R. Civ. Proc. 26(c). [2200] 2211 2. DEFINITIONS 2222 2.1 Action: This pending federal law suit. 2233 2.2 Challenging Party: A Party or Non-Party that challenges the 2244 designation of information or items under this Order. 2255 2.3 “CONFIDENTIAL” Information or Items: Information (regardless of 2266 how it is generated, stored or maintained) or tangible things that qualify for 2277 protection under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement. 11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 22 their support staff). 33 2.5 Designating Party: A Party or Non-Party that designates information 44 or items that it produces in disclosures or in responses to discovery as 55 “CONFIDENTIAL.” 66 2.6 Disclosure or Discovery Material: All items or information, regardless 77 of the medium or manner in which it is generated, stored, or maintained (including, 88 among other things, testimony, transcripts, and tangible things), that are produced 99 or generated in disclosures or responses to discovery in this matter. 1100 2.7 Expert: A person with specialized knowledge or experience in a 1111 matter pertinent to the litigation who has been retained by a Party or its counsel to 1122 serve as an expert witness or as a consultant in this Action. 1133 2.8 House Counsel: Attorneys who are employees of a party to this 1144 Action. House Counsel does not include Outside Counsel of Record or any other 1155 outside counsel. 1166 2.9 Non-Party: Any natural person, partnership, corporation, association, 1177 or other legal entity not named as a Party to this action. 1188 2.10 Outside Counsel of Record: Attorneys who are not employees of a 1199 party to this Action but are retained to represent or advise a party to this Action 2200 and have appeared in this Action on behalf of that party or are affiliated with a law 2211 firm which has appeared on behalf of that party, and includes support staff. 2222 2.11 Party: Any party to this Action, including all of its officers, directors, 2233 employees, consultants, retained experts, and Outside Counsel of Record (and their 2244 support staffs). 2255 2.12 Producing Party: A Party or Non-Party that produces Disclosure or 2266 Discovery Material in this Action. 2277 2.13 Professional Vendors: Persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or 11 demonstrations, and organizing, storing, or retrieving data in any form or medium) 22 and their employees and subcontractors. 33 2.14 Protected Material: Any Disclosure or Discovery Material that is 44 designated as “CONFIDENTIAL.” 55 2.15 Receiving Party: A Party that receives Disclosure or Discovery 66 Material from a Producing Party. [77] 88 3. SCOPE 99 The protections conferred by this Stipulation and Order cover not only 1100 Protected Material (as defined above), but also (1) any information copied or 1111 extracted from Protected Material; (2) all copies, excerpts, summaries, or 1122 compilations of Protected Material; and (3) any testimony, conversations, or 1133 presentations by Parties or their Counsel that might reveal Protected Material. Any 1144 use of Protected Material at trial shall be governed by the orders of the trial judge. 1155 This Order does not govern the use of Protected Material at trial. [1166] 1177 4. DURATION 1188 Even after final disposition of this litigation, the confidentiality obligations 1199 imposed by this Order shall remain in effect until a Designating Party agrees 2200 otherwise in writing or a court order otherwise directs. Final disposition shall be 2211 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 2222 with or without prejudice; and (2) final judgment herein after the completion and 2233 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 2244 including the time limits for filing any motions or applications for extension of 2255 time pursuant to applicable law. [2277] 11 5. DESIGNATING PROTECTED MATERIAL 22 5.1 Exercise of Restraint and Care in Designating Material for Protection. 33 Each Party or Non-Party that designates information or items for protection 44 under this Order must take care to limit any such designation to specific material 55 that qualifies under the appropriate standards. The Designating Party must 66 designate for protection only those parts of material, documents, items, or oral or 77 written communications that qualify so that other portions of the material, 88 documents, items, or communications for which protection is not warranted are not 99 swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or 1100 routinized designations are prohibited. Designations that are shown to be clearly 1111 unjustified or that have been made for an improper purpose (e.g., to unnecessarily 1122 encumber the case development process or to impose unnecessary expenses and 1133 burdens on other parties) may expose the Designating Party to sanctions. If it 1144 comes to a Designating Party’s attention that information or items that it 1155 designated for protection do not qualify for protection, that Designating Party must 1166 promptly notify all other Parties that it is withdrawing the inapplicable designation. 1177 5.2 Manner and Timing of Designations. 1188 Except as otherwise provided in this Order (see, e.g., second paragraph of 1199 section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or 2200 Discovery Material that qualifies for protection under this Order must be clearly so 2211 designated before the material is disclosed or produced. Designation in conformity 2222 with this Order requires: (a) for information in documentary form (e.g., paper or 2233 electronic documents, but excluding transcripts of depositions or other pretrial or 2244 trial proceedings), that the Producing Party affix at a minimum, the legend 2255 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 2266 contains protected material. If only a portion or portions of the material on a page 2277 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). A Party 11 or Non-Party that makes original documents available for inspection need not 22 designate them for protection until after the inspecting Party has indicated which 33 documents it would like copied and produced. During the inspection and before the 44 designation, all of the material made available for inspection shall be deemed 55 “CONFIDENTIAL.” After the inspecting Party has identified the documents it 66 wants copied and produced, the Producing Party must determine which documents, 77 or portions thereof, qualify for protection under this Order. Then, before producing 88 the specified documents, the Producing Party must affix the “CONFIDENTIAL 99 legend” to each page that contains Protected Material. If only a portion or portions 1100 of the material on a page qualifies for protection, the Producing Party also must 1111 clearly identify the protected portion(s) (e.g., by making appropriate markings in 1122 the margins). (b) for testimony given in depositions that the Designating Party 1133 identify the Disclosure or Discovery Material on the record, before the close of the 1144 deposition all protected testimony. (c) for information produced in some form 1155 other than documentary and for any other tangible items, that the Producing Party 1166 affix in a prominent place on the exterior of the container or containers in which 1177 the information is stored the legend “CONFIDENTIAL.” If only a portion or 1188 portions of the information warrants protection, the Producing Party, to the extent 1199 practicable, shall identify the protected portion(s). 2200 5.3 Inadvertent Failures to Designate. 2211 If timely corrected, an inadvertent failure to designate qualified information 2222 or items does not, standing alone, waive the Designating Party’s right to secure 2233 protection under this Order for such material. Upon timely correction of a 2244 designation, the Receiving Party must make reasonable efforts to assure that the 2255 material is treated in accordance with the provisions of this Order. [2277] 11 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 22 6.1 Timing of Challenges. 33 Any Party or Non-Party may challenge a designation of confidentiality at 44 any time that is consistent with the Court’s Scheduling Order. 55 6.2 Meet and Confer. 66 The Challenging Party shall initiate the dispute resolution process under 77 Local Rule 37.1 et seq. or follow the procedures for informal, telephonic 88 discovery hearings on the Court's website. 99 6.3 The burden of persuasion in any such challenge proceeding shall be 1100 on the Designating Party. Frivolous challenges, and those made for an improper 1111 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 1122 parties) may expose the Challenging Party to sanctions. Unless the Designating 1133 Party has waived or withdrawn the confidentiality designation, all parties shall 1144 continue to afford the material in question the level of protection to which it is 1155 entitled under the Producing Party’s designation until the Court rules on the 1166 challenge. [1177] 1188 7. ACCESS TO AND USE OF PROTECTED MATERIAL 1199 7.1 Basic Principles. 2200 A Receiving Party may use Protected Material that is disclosed or produced 2211 by another Party or by a Non-Party in connection with this Action only for 2222 prosecuting, defending, or attempting to settle this Action. Such Protected Material 2233 may be disclosed only to the categories of persons and under the conditions 2244 described in this Order. When the Action has been terminated, a Receiving Party 2255 must comply with the provisions of section 13 below (FINAL DISPOSITION). 2266 Protected Material must be stored and maintained by a Receiving Party at a 2277 location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 11 7.2 Disclosure of “CONFIDENTIAL” Information or Items. 22 Unless otherwise ordered by the court or permitted in writing by the 33 Designating Party, a Receiving Party may disclose any information or item 44 designated “CONFIDENTIAL” only to: 55 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 66 well as employees of said Outside Counsel of Record to whom it is reasonably 77 necessary to disclose the information for this Action; 88 (b) the officers, directors, and employees (including House Counsel) 99 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 1100 (c) Experts (as defined in this Order) of the Receiving Party to whom 1111 disclosure is reasonably necessary for this Action and who have signed the 1122 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1133 (d) the court and its personnel; 1144 (e) court reporters and their staff; 1155 (f) professional jury or trial consultants, mock jurors, and Professional 1166 Vendors to whom disclosure is reasonably necessary for this Action and who have 1177 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1188 (g) the author or recipient of a document containing the information or 1199 a custodian or other person who otherwise possessed or knew the information; 2200 (h) during their depositions, witnesses ,and attorneys for witnesses, in 2211 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 2222 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 2233 they will not be permitted to keep any confidential information unless they sign the 2244 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 2255 agreed by the Designating Party or ordered by the court. Pages of transcribed 2266 deposition testimony or exhibits to depositions that reveal Protected Material may 2277 be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order; and 11 (i) any mediator or settlement officer, and their supporting personnel, 22 mutually agreed upon by any of the parties engaged in settlement discussions. [33] 44 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 55 PRODUCED IN OTHER LITIGATION 66 If a Party is served with a subpoena or a court order issued in other litigation 77 that compels disclosure of any information or items designated in this Action as 88 “CONFIDENTIAL,” that Party must: 99 (a) promptly notify in writing the Designating Party. Such notification shall 1100 include a copy of the subpoena or court order; 1111 (b) promptly notify in writing the party who caused the subpoena or order to 1122 issue in the other litigation that some or all of the material covered by the subpoena 1133 or order is subject to this Protective Order. Such notification shall include a copy 1144 of this Stipulated Protective Order; and 1155 (c) cooperate with respect to all reasonable procedures sought to be pursued 1166 by the Designating Party whose Protected Material may be affected. If the 1177 Designating Party timely seeks a protective order, the Party served with the 1188 subpoena or court order shall not produce any information designated in this action 1199 as “CONFIDENTIAL” before a determination by the court from which the 2200 subpoena or order issued, unless the Party has obtained the Designating Party’s 2211 permission. The Designating Party shall bear the burden and expense of seeking 2222 protection in that court of its confidential material and nothing in these provisions 2233 should be construed as authorizing or encouraging a Receiving Party in this Action 2244 to disobey a lawful directive from another court. [2255] 2266 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 2277 PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non11 Party in this Action and designated as “CONFIDENTIAL.” Such information 22 produced by Non-Parties in connection with this litigation is protected by the 33 remedies and relief provided by this Order. Nothing in these provisions should be 44 construed as prohibiting a Non-Party from seeking additional protections. 55 (b) In the event that a Party is required, by a valid discovery request, to 66 produce a Non-Party’s confidential information in its possession, and the Party is 77 subject to an agreement with the Non-Party not to produce the Non-Party’s 88 confidential information, then the Party shall: 99 (1) promptly notify in writing the Requesting Party and the Non1100 Party that some or all of the information requested is subject to a confidentiality 1111 agreement with a Non-Party; 1122 (2) promptly provide the Non-Party with a copy of the Stipulated 1133 Protective Order in this Action, the relevant discovery request(s), and a reasonably 1144 specific description of the information requested; and 1155 (3) make the information requested available for inspection by the 1166 Non-Party, if requested. 1177 (c) If the Non-Party fails to seek a protective order from this court within 1188 14 days of receiving the notice and accompanying information, the Receiving 1199 Party may produce the Non-Party’s confidential information responsive to the 2200 discovery request. If the Non-Party timely seeks a protective order, the Receiving 2211 Party shall not produce any information in its possession or control that is subject 2222 to the confidentiality agreement with the Non-Party before a determination by the 2233 court. Absent a court order to the contrary, the Non-Party shall bear the burden 2244 and expense of seeking protection in this court of its Protected Material. [2255] 2266 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2277 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized 11 under this Stipulated Protective Order, the Receiving Party must immediately (a) 22 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 33 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 44 the person or persons to whom unauthorized disclosures were made of all the terms 55 of this Order, and (d) request such person or persons to execute the 66 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 77 A. 88 99 11. INADVERTENT PRODUCTION OF PRIVILEGED OR 1100 OTHERWISE PROTECTED MATERIAL 1111 When a Producing Party gives notice to Receiving Parties that certain 1122 inadvertently produced material is subject to a claim of privilege or other 1133 protection, the obligations of the Receiving Parties are those set forth in Federal 1144 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 1155 whatever procedure may be established in an e-discovery order that provides for 1166 production without prior privilege review. Pursuant to Federal Rule of Evidence 1177 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 1188 of a communication or information covered by the attorney-client privilege or 1199 work product protection, the parties may incorporate their agreement in the 2200 stipulated protective order submitted to the court. [2211] 2222 12. MISCELLANEOUS 2233 12.1 Right to Further Relief. 2244 Nothing in this Order abridges the right of any person to seek its 2255 modification by the Court in the future. 2266 12.2 Right to Assert Other Objections. 2277 By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any information or 11 item on any ground not addressed in this Stipulated Protective Order. Similarly, no 22 Party waives any right to object on any ground to use in evidence of any of the 33 material covered by this Protective Order. 44 12.3 Filing Protected Material. 55 A Party that seeks to file under seal any Protected Material must comply 66 with Civil Local Rule 79-5. Protected Material may only be filed under seal 77 pursuant to a court order authorizing the sealing of the specific Protected Material 88 at issue. If a Party's request to file Protected Material under seal is denied by the 99 court, then the Receiving Party may file the information in the public record 1100 unless otherwise instructed by the court. [1111] 1122 13. FINAL DISPOSITION 1133 After the final disposition of this Action, as defined in paragraph 4, within 1144 60 days of a written request by the Designating Party, each Receiving Party must 1155 return all Protected Material to the Producing Party or destroy such material. As 1166 used in this subdivision, “all Protected Material” includes all copies, abstracts, 1177 compilations, summaries, and any other format reproducing or capturing any of the 1188 Protected Material. Whether the Protected Material is returned or destroyed, the 1199 Receiving Party must submit a written certification to the Producing Party (and, if 2200 not the same person or entity, to the Designating Party) by the 60 day deadline that 2211 (1) identifies (by category, where appropriate) all the Protected Material that was 2222 returned or destroyed and (2)affirms that the Receiving Party has not retained any 2233 copies, abstracts, compilations, summaries or any other format reproducing or 2244 capturing any of the Protected Material. Notwithstanding this provision, Counsel 2255 are entitled to retain an archival copy of all pleadings, motion papers, trial, 2266 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 2277 and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival 11 copies that contain or constitute Protected Material remain subject to this 22 Protective Order as set forth in Section 4 (DURATION). [33] 44 14. Any violation of this Order may be punished by any and all appropriate 55 measures including, without limitation, contempt proceedings and/or monetary 66 sanctions. [77] IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD [1100] 1111 DATED: March 29, 2024 /s/ Denise Lynch Rocawich JAMES R. TOUCHSTONE 1122 DENISE LYNCH ROCAWICH 1133 Attorneys for City of Fullerton, Rene Valdes, Jaime Arroyo, Gharrett Wiltse, 1144 Travis Kowalec, Matthew Levin, Sgt. Diaz, 1155 Cpl. Murphy, and Cpl. Cazares [1166] DATED: March 29, 2024 /s/ Matthew T. Falkenstein [1177] MARK J. SKAPIK 1188 GERALYN L. SKAPIK BLAIR J. BERKLEY 1199 MATTHEW T. FALKENSTEIN Attorneys for Plaintiff Juan Pagan [2200] . [2222] FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. [2255] DATED: April 1, 2024 _________________________________ 2266 HONORABLE KAREN E. SCOTT United States Magistrate Judge [2277] 11 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND [33] I, [print or type full name], of [44] [print or type full address], declare under penalty of perjury that I [55] have read in its entirety and understand the Stipulated Protective Order that was [66] issue by the United States District Court for the Central District of California on [77] ____________ [Date] in the case of Juan Pagan v. City of Fullerton et al., Case [88] No. CV 23-02492 HDV-KES. I agree to comply with and to be bound by all the [99] terms of this Stipulated Protective Order and I understand and acknowledge that [1100] failure to so comply could expose me to sanctions and punishment in the nature of [1111] contempt. I solemnly promise that I will not disclose in any manner any [1122] information or item that is subject to this Stipulated Protective Order to any person [1133] or entity except in strict compliance with the provisions of this Order. [1144] I further agree to submit to the jurisdiction of the United States District [1155] Court for the Central District of California for the purpose of enforcing the terms [1166] of this Stipulated Protective Order, even if such enforcement proceedings occur [1177] after termination of this action. I hereby appoint [print [1188] or type full name] of [print or type full address and [1199] telephone number] as my California agent for service of process in connection with [2200] this action or any proceedings related to enforcement of this Stipulated Protective [2211] Order. [2222] Date: [2233] City and State where sworn and signed: [2244] Printed Name: [2255] Signature: