The Estate of Christopher Nash v. County of Los Angeles

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 THE ESTATE OF CHRISTOPHER ) Case No.: 2:20-cv-05012-MWF-GJS NASH, by and through his successor-in-) 12 interest ANTHONY NASH an ) individual; and ANTHONY NASH, an ) ** DISCOVERY MATTER ** 13 individual, ) ) 14 Plaintiffs, ) [PROPOSED] STIPULATED ) PROTECTIVE ORDER 15 v. ) ) COUNTY OF LOS ANGELES; and 16 DOES 1-50, inclusive, ) ) Hon. Gail J. Standish 17 Defendants. ) U.S. Magistrate Judge ) 18 ) [19] 20 IT IS HEREBY STIPULATED by and among the parties hereto, through 21 their respective counsel of record as follows: 22 I. PURPOSES AND LIMITATIONS 23 Discovery in this action is likely to involve production of confidential and 24 private information for which special protection from public disclosure and from 25 use for any purpose other than prosecuting this litigation may be warranted. 26 Accordingly, the parties hereby stipulate to and petition the Court to enter the 27 following Stipulated Protective Order. The parties acknowledge that this Order 28 does not confer blanket protections on all disclosures or responses to discovery and 1 that the protection it affords from public disclosure and use extends only to the 2 limited information or items that are entitled to confidential treatment under the 3 applicable legal principles. 4 II. GOOD CAUSE STATEMENT 5 This action is likely to involve confidential and private information for 6 which special protection from public disclosure and from use for any purpose other 7 than prosecution of this action is warranted. Such information may implicate the 8 privacy interests of the parties and are properly protected through a Fed. R. Civ. P. 9 26(c) protective order. See Seattle Times Co. v. Rhinehart, 467 U.S. 20 , 35 n.21 10 (1984) (“Rule 26(c) includes among its express purposes the protection of a ‘party 11 or person from annoyance, embarrassment, oppression or undue burden or 12 expense.’ Although the Rule contains no specific reference to privacy or to other 13 rights or interests that may be implicated, such matters are implicit in the broad 14 purpose and language of the Rule.”); Soto v. City of Concord, 162 F.R.D. 603 , 617 15 (N.D. Cal. 1995) (a party’s privacy rights are to be protected through a “carefully 16 crafted protective order.”). 17 Such confidential materials and information consist of, among other things, 18 Los Angeles County Sheriff’s Department investigations, coroner’s reports, 19 medical records, information implicating privacy rights of third parties, and 20 information otherwise generally unavailable to the public, or which may be 21 privileged or otherwise protected from disclosure under state or federal statutes, 22 court rules, case decisions, or common law. Accordingly, to expedite the flow of 23 information, to facilitate the prompt resolution of disputes over confidentiality of 24 discovery materials, to adequately protect information the parties are entitled to 25 keep confidential, to ensure that the parties are permitted reasonable necessary uses 26 of such material in preparation for and in the conduct of trial, to address their 27 handling at the end of the litigation, and serve the ends of justice, a protective 28 order for such information is justified in this matter. It is the intent of the parties 1 that information will not be designated as confidential for tactical reasons and that 2 nothing be so designated without a good faith belief that it has been maintained in 3 a confidential, non-public manner, and there is good cause why it should not be 4 part of the public record of this case. 5 III. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 6 SEAL 7 The parties further acknowledge, as set forth in Section XIV(C), below, that 8 this Stipulated Protective Order does not entitle them to file confidential 9 information under seal; Local Civil Rule 79-5 sets forth the procedures that must 10 be followed and the standards that will be applied when a party seeks permission 11 from the court to file material under seal. 12 There is a strong presumption that the public has a right of access to judicial 13 proceedings and records in civil cases. In connection with non-dispositive 14 motions, good cause must be shown to support a filing under seal. See Kamakana 15 v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. 16 Gen. Motors Corp., 307 F.3d 1206 , 1210-11 (9th Cir. 2002), Makar-Welbon v. 17 Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated 18 protective orders require good cause showing), and a specific showing of good 19 cause or compelling reasons with proper evidentiary support and legal justification, 20 must be made with respect to Protected Material that a party seeks to file under 21 seal. The parties’ mere designation of Disclosure or Discovery Material as 22 CONFIDENTIAL does not—without the submission of competent evidence by 23 declaration, establishing that the material sought to be filed under seal qualifies as 24 confidential, privileged, or otherwise protectable—constitute good cause. 25 Further, if a party requests sealing related to a dispositive motion or trial, then 26 compelling reasons, not only good cause, for the sealing must be shown, and the 27 relief sought shall be narrowly tailored to serve the specific interest to be protected. 28 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 1 each item or type of information, document, or thing sought to be filed or 2 introduced under seal in connection with a dispositive motion or trial, the party 3 seeking protection must articulate compelling reasons, supported by specific facts 4 and legal justification, for the requested sealing order. Again, competent evidence 5 supporting the application to file documents under seal must be provided by 6 declaration. 7 Any document that is not confidential, privileged, or otherwise protectable 8 in its entirety will not be filed under seal if the confidential portions can be 9 redacted. If documents can be redacted, then a redacted version for public 10 viewing, omitting only the confidential, privileged, or otherwise protectable 11 portions of the document, shall be filed. Any application that seeks to file 12 documents under seal in their entirety should include an explanation of why 13 redaction is not feasible. 14 IV. DEFINITIONS 15 A. Action: This pending federal lawsuit, Case No. 2:20-cv-05012-MWF16 GJS. 17 B. Challenging Party: A Party or Non-Party that challenges the 18 designation of information or items under this Order. 19 C. “CONFIDENTIAL” Information or Items: Information (regardless of 20 how it is generated, stored or maintained) or tangible things that qualify for 21 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 22 the Good Cause Statement. 23 D. Counsel: Outside Counsel of Record and House Counsel (as well as 24 their support staff). 25 E. Designating Party: A Party or Non-Party that designates information 26 or items that it produces in disclosures or in responses to discovery as 27 “CONFIDENTIAL.” 28 F. Disclosure or Discovery Material: All items or information, regardless 1 of the medium or manner in which it is generated, stored, or maintained (including, 2 among other things, testimony, transcripts, and tangible things), that are produced 3 or generated in disclosures or responses to discovery in this matter. 4 G. Expert: A person with specialized knowledge or experience in a 5 matter pertinent to the litigation who has been retained by a Party or its counsel to 6 serve as an expert witness or as a consultant in this Action. 7 H. House Counsel: Attorneys who are employees of a Party to this 8 Action. House Counsel does not include Outside Counsel of Record or any other 9 outside counsel. 10 I. Non-Party: Any natural person, partnership, corporation, association, 11 or other legal entity not named as a Party to this action. 12 J. Outside Counsel of Record: Attorneys who are not employees of a 13 Party to this Action but are retained to represent or advise a party to this Action 14 and have appeared in this Action on behalf of that Party or are affiliated with a law 15 firm which has appeared on behalf of that Party, and includes support staff. 16 K. Party: Any Party to this Action, including all of its officers, directors, 17 employees, consultants, retained experts, and Outside Counsel of Record (and their 18 support staffs). 19 L. Producing Party: A Party or Non-Party that produces Disclosure or 20 Discovery Material in this Action. 21 M. Professional Vendors: Persons or entities that provide litigation 22 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 23 demonstrations, and organizing, storing, or retrieving data in any form or medium) 24 and their employees and subcontractors. 25 N. Protected Material: Any Disclosure or Discovery Material that is 26 designated as “CONFIDENTIAL.” 27 O. Receiving Party: A Party that receives Disclosure or Discovery 28 Material from a Producing Party. 1 V. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also: (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. Any 7 use of Protected Material at trial shall be governed by the orders of the trial judge. 8 This Order does not govern the use of Protected Material at trial. 9 VI. DURATION 10 FINAL DISPOSITION of the action is defined as the conclusion of any 11 appellate proceedings, or, if no appeal is taken, when the time for filing of an 12 appeal has run. Except as set forth below, the terms of this protective order apply 13 through FINAL DISPOSITION of the action. The parties may stipulate that they 14 will be contractually bound by the terms of this agreement beyond FINAL 15 DISPOSITION, but will have to file a separate action for enforcement of the 16 agreement once all proceedings in this case are complete. 17 Once a case proceeds to trial, information that was designated as 18 CONFIDENTIAL or maintained pursuant to this Order used or introduced as an 19 exhibit at trial becomes public and will be presumptively available to all members 20 of the public, including the press, unless compelling reasons supported by specific 21 factual findings to proceed otherwise are made to the trial judge in advance of the 22 trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing 23 for sealing documents produced in discovery from “compelling reasons” standard 24 when merits-related documents are part of court record). Accordingly, for such 25 materials, the terms of this protective order do not extend beyond the 26 commencement of the trial. 27 VII. DESIGNATING PROTECTED MATERIAL 28 A. Exercise of Restraint and Care in Designating Material for Protection. 1 Each Party or Non-Party that designates information or items for protection 2 under this Order must take care to limit any such designation to specific material 3 that qualifies under the appropriate standards. The Designating Party must 4 designate for protection only those parts of material, documents, items or oral or 5 written communications that qualify so that other portions of the material, 6 documents, items or communications for which protection is not warranted are not 7 swept unjustifiably within the ambit of this Order. 8 Mass, indiscriminate or routinized designations are prohibited. Designations 9 that are shown to be clearly unjustified or that have been made for an improper 10 purpose (e.g., to unnecessarily encumber the case development process or to 11 impose unnecessary expenses and burdens on other parties) may expose the 12 Designating Party to sanctions. 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 15 promptly notify all other Parties that it is withdrawing the inapplicable designation. 16 B. Manner and Timing of Designations. Except as otherwise provided in 17 this Order (see, e.g., second paragraph of Section VII(B)(1) below), or as 18 otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for 19 protection under this Order must be clearly so designated before the material is 20 disclosed or produced. 21 /// 22 Designation in conformity with this Order requires: 23 1. For information in documentary form (e.g., paper or electronic 24 documents, but excluding transcripts of depositions or other pretrial or trial 25 proceedings), that the Producing Party affix at a minimum, the legend 26 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 27 contains protected material. If only a portion or portions of the material on a page 28 qualifies for protection, the Producing Party also must clearly identify the 1 protected portion(s) (e.g., by making appropriate markings in the margins). 2 A Party or Non-Party that makes original documents available for inspection 3 need not designate them for protection until after the inspecting Party has indicated 4 which documents it would like copied and produced. During the inspection and 5 before the designation, all of the material made available for inspection shall be 6 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 7 documents it wants copied and produced, the Producing Party must determine 8 which documents, or portions thereof, qualify for protection under this Order. 9 Then, before producing the specified documents, the Producing Party must affix 10 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 11 only a portion or portions of the material on a page qualifies for protection, the 12 Producing Party also must clearly identify the protected portion(s) (e.g., by making 13 appropriate markings in the margins). 14 2. For testimony given in depositions that the Designating Party 15 identify the Disclosure or Discovery Material on the record, before the close of the 16 deposition all protected testimony. 17 3. For information produced in some form other than documentary 18 and for any other tangible items, that the Producing Party affix in a prominent 19 place on the exterior of the container or containers in which the information is 20 stored the legend “CONFIDENTIAL.” If only a portion or portions of the 21 information warrants protection, the Producing Party, to the extent practicable, 22 shall identify the protected portion(s). 23 C. Inadvertent Failures to Designate. If timely corrected, an inadvertent 24 failure to designate qualified information or items does not, standing alone, waive 25 the Designating Party’s right to secure protection under this Order for such 26 material. Upon timely correction of a designation, the Receiving Party must make 27 reasonable efforts to assure that the material is treated in accordance with the 28 provisions of this Order. 1 VIII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 2 A. Timing of Challenges. Any Party or Non-Party may challenge a 3 designation of confidentiality at any time that is consistent with the Court’s 4 Scheduling Order. 5 B. Meet and Confer. The Challenging Party shall initiate the dispute 6 resolution process under Local Rule 37.1 et seq. 7 C. The burden of persuasion in any such challenge proceeding shall be 8 on the Designating Party. Frivolous challenges, and those made for an improper 9 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 10 parties) may expose the Challenging Party to sanctions. Unless the Designating 11 Party has waived or withdrawn the confidentiality designation, all parties shall 12 continue to afford the material in question the level of protection to which it is 13 entitled under the Producing Party’s designation until the Court rules on the 14 challenge. 15 IX. ACCESS TO AND USE OF PROTECTED MATERIAL 16 A. Basic Principles. A Receiving Party may use Protected Material that 17 is disclosed or produced by another Party or by a Non-Party in connection with 18 this Action only for prosecuting, defending, or attempting to settle this Action. 19 Such Protected Material may be disclosed only to the categories of persons and 20 under the conditions described in this Order. When the Action has been 21 terminated, a Receiving Party must comply with the provisions of Section XV 22 below (FINAL DISPOSITION). 23 Protected Material must be stored and maintained by a Receiving Party at a 24 location and in a secure manner that ensures that access is limited to the persons 25 authorized under this Order. 26 B. Disclosure of “CONFIDENTIAL” Information or Items. Unless 27 otherwise ordered by the court or permitted in writing by the Designating Party, a 28 Receiving Party may disclose any information or item designated 1 “CONFIDENTIAL” only to: 2 1. The Receiving Party’s Outside Counsel of Record in this 3 Action, as well as employees of said Outside Counsel of Record to whom it is 4 reasonably necessary to disclose the information for this Action; 5 2. The officers, directors, and employees (including House 6 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for 7 this Action; 8 3. Experts (as defined in this Order) of the Receiving Party to 9 whom disclosure is reasonably necessary for this Action and who have signed the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 4. The court and its personnel; 12 5. Court reporters and their staff; 13 6. Professional jury or trial consultants, mock jurors, and 14 Professional Vendors to whom disclosure is reasonably necessary for this Action 15 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 16 A); 17 7. The author or recipient of a document containing the 18 information or a custodian or other person who otherwise possessed or knew the 19 information; 20 8. During their depositions, witnesses ,and attorneys for witnesses, 21 in the Action to whom disclosure is reasonably necessary provided: (i) the 22 deposing party requests that the witness sign the form attached as Exhibit A hereto; 23 and (ii) they will not be permitted to keep any confidential information unless they 24 sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 25 otherwise agreed by the Designating Party or ordered by the court. Pages of 26 transcribed deposition testimony or exhibits to depositions that reveal Protected 27 Material may be separately bound by the court reporter and may not be disclosed 28 to anyone except as permitted under this Stipulated Protective Order; and 1 9. Any mediator or settlement officer, and their supporting 2 personnel, mutually agreed upon by any of the parties engaged in settlement 3 discussions. 4 X. PROTECTED MATERIAL SUBPOENAED OR ORDERED 5 PRODUCED IN OTHER LITIGATION 6 If a Party is served with a subpoena or a court order issued in other litigation 7 that compels disclosure of any information or items designated in this Action as 8 “CONFIDENTIAL,” that Party must: 9 A. Promptly notify in writing the Designating Party. Such notification 10 shall include a copy of the subpoena or court order; 11 B. Promptly notify in writing the party who caused the subpoena or order 12 to issue in the other litigation that some or all of the material covered by the 13 subpoena or order is subject to this Protective Order. Such notification shall 14 include a copy of this Stipulated Protective Order; and 15 C. Cooperate with respect to all reasonable procedures sought to be 16 pursued by the Designating Party whose Protected Material may be affected. 17 If the Designating Party timely seeks a protective order, the Party served 18 with the subpoena or court order shall not produce any information designated in 19 this action as “CONFIDENTIAL” before a determination by the court from which 20 the subpoena or order issued, unless the Party has obtained the Designating Party’s 21 permission. The Designating Party shall bear the burden and expense of seeking 22 protection in that court of its confidential material and nothing in these provisions 23 should be construed as authorizing or encouraging a Receiving Party in this Action 24 to disobey a lawful directive from another court. 25 XI. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 26 PRODUCED IN THIS LITIGATION 27 A. The terms of this Order are applicable to information produced by a 28 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 1 produced by Non-Parties in connection with this litigation is protected by the 2 remedies and relief provided by this Order. Nothing in these provisions should be 3 construed as prohibiting a Non-Party from seeking additional protections. 4 B. In the event that a Party is required, by a valid discovery request, to 5 produce a Non-Party’s confidential information in its possession, and the Party is 6 subject to an agreement with the Non-Party not to produce the Non-Party’s 7 confidential information, then the Party shall: 8 1. Promptly notify in writing the Requesting Party and the Non9 Party that some or all of the information requested is subject to a confidentiality 10 agreement with a Non-Party; 11 2. Promptly provide the Non-Party with a copy of the Stipulated 12 Protective Order in this Action, the relevant discovery request(s), and a reasonably 13 specific description of the information requested; and 14 3. Make the information requested available for inspection by the 15 Non-Party, if requested. 16 C. If the Non-Party fails to seek a protective order from this court within 17 14 days of receiving the notice and accompanying information, the Receiving 18 Party may produce the Non-Party’s confidential information responsive to the 19 discovery request. If the Non-Party timely seeks a protective order, the Receiving 20 Party shall not produce any information in its possession or control that is subject 21 to the confidentiality agreement with the Non-Party before a determination by the 22 court. Absent a court order to the contrary, the Non-Party shall bear the burden 23 and expense of seeking protection in this court of its Protected Material. 24 XII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has 26 disclosed Protected Material to any person or in any circumstance not authorized 27 under this Stipulated Protective Order, the Receiving Party must immediately (a) 28 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 1 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 2 the person or persons to whom unauthorized disclosures were made of all the terms 3 of this Order, and (d) request such person or persons to execute the 4 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 5 A. 6 XIII. INADVERTENT PRODUCTION OF PRIVILEGED OR 7 OTHERWISE PROTECTED MATERIAL 8 When a Producing Party gives notice to Receiving Parties that certain 9 inadvertently produced material is subject to a claim of privilege or other 10 protection, the obligations of the Receiving Parties are those set forth in Federal 11 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 12 whatever procedure may be established in an e-discovery order that provides for 13 production without prior privilege review. 14 XIV. MISCELLANEOUS 15 A. Right to Further Relief. Nothing in this Order abridges the right of 16 any person to seek its modification by the Court in the future. 17 B. Right to Assert Other Objections. By stipulating to the entry of this 18 Protective Order no Party waives any right it otherwise would have to object to 19 disclosing or producing any information or item on any ground not addressed in 20 this Stipulated Protective Order. Similarly, no Party waives any right to object on 21 any ground to use in evidence of any of the material covered by this Protective 22 Order. 23 C. Filing Protected Material. A Party that seeks to file under seal any 24 Protected Material must comply with Civil Local Rule 79-5. Protected Material 25 may only be filed under seal pursuant to a court order authorizing the sealing of the 26 specific Protected Material at issue. If a Party’s request to file Protected Material 27 under seal is denied by the court, then the Receiving Party may file the information 28 in the public record unless otherwise instructed by the court. 1 XV. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in Section VI, within 60 3 days of a written request by the Designating Party, each Receiving Party must 4 return all Protected Material to the Producing Party or destroy such material. As 5 used in this subdivision, “all Protected Material” includes all copies, abstracts, 6 compilations, summaries, and any other format reproducing or capturing any of the 7 Protected Material. Whether the Protected Material is returned or destroyed, the 8 Receiving Party must submit a written certification to the Producing Party (and, if 9 not the same person or entity, to the Designating Party) by the 60 day deadline that 10 (1) identifies (by category, where appropriate) all the Protected Material that was 11 returned or destroyed and (2) affirms that the Receiving Party has not retained any 12 copies, abstracts, compilations, summaries or any other format reproducing or 13 capturing any of the Protected Material. Notwithstanding this provision, Counsel 14 are entitled to retain an archival copy of all pleadings, motion papers, trial, 15 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 16 and trial exhibits, expert reports, attorney work product, and consultant and expert 17 work product, even if such materials contain Protected Material. Any such 18 archival copies that contain or constitute Protected Material remain subject to this 19 Protective Order as set forth in Section VI (DURATION). 20 [CONTINUED ON NEXT PAGE] [28] 5 XVI. VIOLATION 3 Any violation of this Order may be punished by any and all appropriate 4 || measures including, without limitation, contempt proceedings and/or monetary 5 sanctions. 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. g DATED: August 21, 2020 CARPENTER, ROTHANS & DUMONT /s/ Danielle C. Foster By: 10 Jill Williams ll Danielle C. Foster Attorneys for Defendant [12] 13 || DATED: August 21, 2020 McMURRAY HENRIKS, LLP [14] /s/ Lauren I. Freidenberg 15 By: 16 Randy H. McMurray Yana G. Henriks 17 Lauren I. Freidenberg 18 Attorneys for Plaintiff [19] FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. [21] DATED: August 21, 2020 [22] 23 AA GAIL J. STANDISH 24 UNITED STATES MAGISTRATE JUDGE [28] 15. 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 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of ___________ [insert formal name of the case and the 8 number and initials assigned to it by the court]. I agree to comply with and to be 9 bound by all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not disclose 12 in any manner any information or item that is subject to this Stipulated Protective 13 Order to any person or entity except in strict compliance with the provisions of this 14 Order. I further agree to submit to the jurisdiction of the United States District 15 Court for the Central District of California for the purpose of enforcing the terms 16 of this Stipulated Protective Order, even if such enforcement proceedings occur 17 after termination of this action. I hereby appoint __________________________ 18 [print or type full name] of _______________________________________ [print 19 or type full address and telephone number] as my California agent for service of 20 process in connection with this action or any proceedings related to enforcement of 21 this Stipulated Protective Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: _______________________________ 25 Signature: __________________________________