Alvaro Carrillo Aguilera v. E. Ramos

[9] UNITED STATES DISTRICT COURT [10] CENTRAL DISTRICT OF CALIFORNIA [12] ALVARO CARRILLO AGUILERA No. 2:21-CV-01913-FMO (JEMx) [13] DISCOVERY MATTER 14 PLAINTIFF v. STIPULATED PROTECTIVE 15 ORDER GOVERNING PRODUCTION OF 16 OFFICER E. RAMOS (#679); “CONFIDENTIAL” OFFICER N. LONA (#678); OFFICER INFORMATION 17 BALZANO (#677); CITY OF EL 18 MONTE, by and through the EL [Assigned to Hon. Fernando M. Olguin MONTE POLICE DEPARTMENT; Courtroom 6D] 19 DOES 1-10, inclusive [Discovery Document: Referred to the 20 Hon. John E. McDermott, Magistrate DEFENDANTS Judge] [22] 23 I. PURPOSE AND LIMITATIONS 24 Discovery in this action is likely to involve production of confidential or 25 private information for which special protection from public disclosure and from use 26 for any purpose other than prosecuting this action may be warranted. Accordingly, 27 the parties hereby stipulate to and petition the Court to enter the following 1 acknowledge that this Order does not confer blanket protections on all disclosures or 2 responses to discovery; and that the protection it affords from public disclosure and 3 use extends only to the limited information or items that are entitled to confidential 4 treatment under the applicable legal principles. 5 II. GOOD CAUSE STATEMENT 6 This action is likely to involve confidential information pertaining to 7 personnel records and other materials subject to privacy protections for which 8 special protection from public disclosure and from use for any purpose other than 9 prosecution of this action is warranted. Limiting disclosure of these documents to 10 the context of this litigation as provided herein will, accordingly, further important 11 law enforcement objectives and interests, including the safety of personnel and the 12 public, as well as the privacy rights of plaintiff, the individual defendants, and third13 party witnesses. Such confidential materials and information consists of, among 14 other things, materials entitled to privileges and/or protections under the following: 15 the United States Constitution, First Amendment; the California Constitution, 16 Article I, Section 1; California Penal Code §§ 832.5, 832.7, and 832.8; California 17 Evidence Code §§ 1040 and 1043, et seq.; the Privacy Act of 1974, 5 U.S.C. § 552a; 18 Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 19 104-191, decisional law relating to such provisions; and information otherwise 20 generally unavailable to the public; or which may be privileged or otherwise 21 protected from disclosure under state or federal statutes, court rules, case decisions, 22 or common law. Defendants also contend that such confidential materials and 23 information consists of materials entitled to the Official Information Privilege. 24 Confidential Information with respect to the Defendants may include but is 25 not limited to: personnel files; internal investigative files and documents; email and 26 written correspondence records; and policies and procedures that are kept from the 27 public in the ordinary course of business; as well as other items subject to the 1 respect to the Plaintiff may include but is not limited to: email and written 2 correspondence records; and psychological and medical notes, evaluations, reports, 3 and treatment plans. 4 The parties reserve the right to challenge a designation of confidentiality 5 pursuant to the terms set forth under Paragraph 8 of this Order. 6 Accordingly, to expedite the flow of information; to facilitate the prompt 7 resolution of disputes over confidentiality of discovery materials; to adequately 8 protect information the parties are entitled to keep confidential; to ensure that the 9 parties are permitted to reasonably use such material in preparation for and in 10 conduct of trial; to address their handling at the end of the litigation; and serve the 11 ends of justice, a protective order for such information is justified in this matter. It 12 is the intent of the parties that information will not be designated as confidential for 13 tactical reasons and that nothing be so designated without a good faith belief that it 14 has been maintained in a confidential, non-public manner; and there is good cause 15 why it should not be part of the public record of this case. 16 III. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 17 SEAL 18 The parties further acknowledge, as set forth in Section 14.3, below, that this 19 Order does not entitle them to file confidential information under seal; Local Civil 20 Rule 79-5 sets forth the procedures that must be followed and the standards that will 21 be applied when a party seeks permission from the court to file material under seal. 22 There is a strong presumption that the public has a right of access to judicial 23 proceedings and records in civil cases. In connection with non-dispositive motions, 24 good cause must be shown to support a filing under seal. Kamakana v. City and 25 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors 26 Corp., 307 F.3d 1206 , 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics, 27 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 1 reasons with proper evidentiary support and legal justification, must be made with 2 respect to material that a party seeks to file under seal). The parties’ mere 3 designation of material as “CONFIDENTIAL” does not— without the submission 4 of competent evidence by declaration, establishing that the material sought to be 5 filed under seal qualifies as confidential, privileged, or otherwise protectable— 6 constitute good cause. Further, if a party requests sealing related to dispositive 7 motion or trial, then compelling reasons, not only good cause, for the sealing must 8 be shown, and the relief sought shall be narrowly tailored to serve the specific 9 interest to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665 , 677-79 10 (9th Cir. 2010). 11 Any document that is not confidential, privileged, or otherwise protectable in 12 its entirety will not be filed under seal if the confidential portions can be redacted. 13 If documents can be redacted, then a redacted version for public viewing, omitting 14 only the confidential, privileged, or otherwise protectable portions of the document, 15 shall be filed. Any application that seeks to file documents under seal in their 16 entirety should include an explanation of why redaction is not feasible. 17 IV. DEFINITIONS 18 4.1 Action: Alvaro Carrillo Aguilera v. Officer E. Ramos, et al., Case No. 19 2:21-cv-01913-FMO (JEMx). 20 4.2 Challenging Party: a Party or Non-Party that challenges the designation 21 of information or items under this Order. 22 4.3 “CONFIDENTIAL” Information or Items: Information (regardless of 23 the medium or manner in which it is generated, stored, or maintained) or tangible 24 things that qualify for protection under Federal Rule of Civil Procedure 26(c), and 25 as specified above in the Good Cause Statement. 26 4.4 Counsel: General Counsel of Record and House Counsel (as well as 27 their support staff). 1 items that it produces in disclosures or in responses to discovery as 2 “CONFIDENTIAL.” 3 4.6 Disclosure or Discovery Material: all items or information, regardless 4 of the medium or manner in which it is generated, stored, or maintained (including, 5 among other things, testimony, transcripts, and tangible things), that are produced or 6 generated in disclosures or responses to discovery in this matter. 7 4.7 Expert: a person with specialized knowledge or experience in a matter 8 pertinent to the litigation who has been retained by a Party or its counsel to serve as 9 an expert witness or as a consultant in this Action. 10 4.8 House Counsel: attorneys who are employees of a party to this Action. 11 House Counsel does not include General Counsel of Record or any other outside 12 Counsel. 13 4.9 Non-Party: any natural person, partnership, corporation, association or 14 other legal entity not named as a Party to this action. 15 4.10 General Counsel of Record: attorneys who are not employees of a 16 Party to this Action but are retained to represent or advise a Party to this Action and 17 have appeared in this Action on behalf of that party or are affiliated with a law firm 18 that has appeared on behalf of that Party, as well as their support staff. 19 4.11 Party: any Party to this Action, including all of its officers, directors, 20 employees, consultants, retained experts, and General Counsel of Record (and their 21 support staffs). 22 4.12 Producing Party: a Party or Non-Party that makes a Disclosure or 23 produces Discovery Material in this Action. 24 4.13 Professional Vendors: persons or entities that provide litigation support 25 services (e.g., photocopying, videotaping, translating, preparing exhibits or 26 demonstrations, and organizing, storing, or retrieving data in any form or medium) 27 and their employees and subcontractors. 1 designated as “CONFIDENTIAL.” 2 4.15 Producing Party: a Party that makes a Disclosure or produces 3 Discovery Material to the Receiving Party. 4 4.15 Receiving Party: a Party that receives a Disclosure or Discovery 5 Material from a Producing Party. 6 V. SCOPE 7 The protections conferred by this Stipulation and Order cover not only 8 Protected Material (as defined above), but also (1) any information copied or 9 extracted from Protected Material; (2) all copies, excerpts, summaries, or 10 compilations of Protected Material; and (3) any testimony, conversations, or 11 presentations by Parties or their Counsel (as defined by Sections 4.8 and 4.10) that 12 might reveal Protected Material. 13 Any use of Protected Material at trial shall be governed by the orders of the 14 trial judge. This Order does not govern the use of Protected Material at trial. 15 VI. DURATION 16 The confidentiality obligations imposed by this Order shall remain in effect 17 until Final Disposition of this case. “Final Disposition” shall be deemed to be the 18 later of (1) dismissal of all claims and defenses in this Action, with or without 19 prejudice; and (2) final judgment herein after the completion and exhaustion of all 20 appeals, rehearings, remands, trials, or reviews of this Action, including the time 21 limits for filing any motions or applications for extension of time pursuant to 22 applicable law. 23 VII. DESIGNATING PROTECTED MATERIAL 24 7.1 Exercise of Restraint and Care in Designating Material for Protection. 25 Each Party or Non-Party that designates information or items for protection under 26 this Order must take care to limit any such designation to specific material that 27 qualifies under the appropriate standards. The Designating Party must designate for 1 communications that qualify so that other portions of the material, documents, items 2 or communications for which protection is not warranted are not swept unjustifiably 3 within the ambit of this Order. 4 Mass, indiscriminate, or routinized designations are prohibited. Designations 5 that are shown to be clearly unjustified or that have been made for an improper 6 purpose (e.g., to unnecessarily encumber the case development process or to impose 7 unnecessary expenses and burdens on other parties) may expose the Designating 8 Party to sanctions. 9 If it comes to a Designating Party’s attention that information or items that it 10 designated for protection do not qualify for protection, that Designating Party must 11 promptly notify all other Parties that it is withdrawing the inapplicable designation. 12 7.2 Manner and Timing of Designations. Except as otherwise provided in 13 this Order (see, e.g., second paragraph of section 7.2(a) below), or as otherwise 14 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 15 under this Order must be clearly so designated before the material is disclosed or 16 produced. 17 Designation in conformity with this Order requires: 18 (a) for information in documentary form (e.g., paper or electronic 19 documents, but excluding transcripts of depositions or other pretrial or trial 20 proceedings), that the Producing Party affix at a minimum, the legend 21 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 22 contains protected material. If only a portion of the material on a page qualifies for 23 protection, the Producing Party also must clearly identify the protected portion(s) 24 (e.g., by making appropriate markings in the margins). 25 A Party or Non-Party that makes original documents available for inspection 26 need not designate them for protection until after the inspecting Party has indicated 27 which documents it would like copied and produced. During the inspection and 1 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 2 documents it wants copied and produced, the Producing Party must determine which 3 documents, or portions thereof, qualify for protection under this Order. Then, 4 before producing the specified documents, the Producing Party must affix the 5 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 6 portion of the material on a page qualifies for protection, the Producing Party also 7 must clearly identify the protected portion(s) (e.g., by making appropriate markings 8 in the margins). 9 (b) for testimony given in depositions that the Designating Party identifies 10 the Disclosure or Discovery Material on the record, and before the close of the 11 deposition all protected testimony. 12 (c) for information produced in some form other than documentary and for 13 any other tangible items, that the Producing Party affix in a prominent place on the 14 exterior of the container or containers in which the information is stored the legend 15 “CONFIDENTIAL.” If only a portion or portions of the information warrants 16 protection, the Producing Party, to the extent practicable, shall identify the protected 17 portion(s). 18 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 19 failure to designate qualified information or items does not, standing alone, waive 20 the Designating Party’s right to secure protection under this Order for such material. 21 Upon timely correction of a designation, the Receiving Party must make reasonable 22 efforts to assure that the material is treated in accordance with the provisions of this 23 Order. 24 VIII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 25 8.1 Timing of Challenges. Any Party or Non-Party may challenge a 26 designation of confidentiality at any time that is consistent with the Court’s 27 Scheduling Order. 1 confer process outlined in Local Rule 37.1, et seq. 2 8.3 The burden of persuasion, in any such challenge proceeding, shall be 3 on the Designating Party. Frivolous challenges, and those made for an improper 4 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 5 parties) may expose the Challenging Party to sanctions. Unless the Designating 6 Party has waived or withdrawn the confidentiality designation, all parties shall 7 continue to afford the material in question the level of protection to which it is 8 entitled under the Producing Party’s designation until the Court rules on the 9 challenge. 10 IX. ACCESS TO AND USE OF PROTECTED MATERIAL 11 9.1 Basic Principles. A Receiving Party may use Protected Material that is 12 disclosed or produced by another Party or by a Non-Party in connection with this 13 Action only for prosecuting, defending or attempting to settle this Action. Such 14 Protected Material may be disclosed only to the categories of persons and under the 15 conditions described in this Order. When the Action has been terminated, a 16 Receiving Party must comply with the provisions of Section VI, infra. 17 Protected Material must be stored and maintained by a Receiving Party at a 18 location and in a secure manner that ensures that access is limited to the persons 19 authorized under this Order. 20 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 21 otherwise ordered by the Court or permitted in writing by the Designating Party, a 22 Receiving Party may disclose any information or item designated 23 “CONFIDENTIAL” only to: 24 (a) the Receiving Party’s General Counsel of Record in this Action, as well 25 as employees of said General Counsel of Record to whom it is reasonably necessary 26 to disclose the information for this Action; 27 (b) the officers, directors, and employees (including House Counsel) of the 1 (c) Experts (as defined in this Order) of the Receiving Party to whom 2 disclosure is reasonably necessary for this Action and who have signed the 3 “Acknowledgment and Agreement to Be Bound,” attached and hereafter referred to 4 as “Exhibit A.” 5 (d) the court and its personnel; 6 (e) court reporters and their staff; 7 (f) professional jury or trial consultants, mock jurors, and Professional 8 Vendors to whom disclosure is reasonably necessary for this Action and who have 9 signed Exhibit A. 10 (g) the author or recipient of a document containing the information or a 11 custodian or other person who otherwise possessed or knew the information; 12 (h) during their depositions, witnesses, and attorneys for witnesses, in the 13 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 14 requests that the witness sign Exhibit A; and (2) they will not be permitted to keep 15 any confidential information unless they sign Exhibit A, unless otherwise agreed by 16 the Designating Party or ordered by the Court. Pages of transcribed deposition 17 testimony or exhibits to depositions that reveal Protected Material may be separately 18 bound by the court reporter and may not be disclosed to anyone except as permitted 19 under this Order; and 20 (i) any mediator or settlement officer, and their supporting personnel, 21 mutually agreed upon by any of the parties engaged in settlement discussions. 22 X. PROTECTED MATERIAL SUBPOENAED OR ORDERED 23 PRODUCED IN OTHER LITIGATION 24 If a Party is served with a subpoena or a court order issued in other litigation 25 that compels disclosure of any information or items designated in this Action as 26 “CONFIDENTIAL,” that Party must: 27 (a) promptly notify in writing the Designating Party. Such notification 1 (b) promptly notify in writing the party who caused the subpoena or order 2 to issue in the other litigation that some or all of the material covered by the 3 subpoena or order is subject to this Order. Such notification shall include a copy of 4 this Order; and 5 (c) cooperate with respect to all reasonable procedures sought to be pursued 6 by the Designating Party whose Protected Material may be affected. 7 If the Designating Party timely seeks a protective order, the Party served with 8 the subpoena or court order shall not produce any information designated in this 9 action as “CONFIDENTIAL” before a determination by the Court from which the 10 subpoena or order issued, unless the Party has obtained the Designating Party’s 11 permission. The Designating Party shall bear the burden and expense of seeking 12 protection in that court of its confidential material and nothing in these provisions 13 should be construed as authorizing or encouraging a Receiving Party in this Action 14 to disobey a lawful directive from another court. 15 XI. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 16 PRODUCED IN THIS LITIGATION 17 (a) The terms of this Order are applicable to information produced by a 18 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 19 produced by Non-Parties in connection with this litigation is protected by the 20 remedies and relief provided by this Order. Nothing in these provisions should be 21 construed as prohibiting a Non-Party from seeking additional protections. 22 (b) In the event that a Party is required, by a valid discovery request, to 23 produce a Non-Party’s confidential information in its possession, and the Party is 24 subject to an agreement with the Non-Party not to produce the Non-Party’s 25 confidential information, then the Party shall: 26 (1) promptly notify in writing the Requesting Party and the Non-Party 27 that some or all of the information requested is subject to a confidentiality 1 (2) promptly provide the Non-Party with a copy of this Order in this 2 Action, the relevant discovery request(s), and a reasonably specific description of 3 the information requested; and 4 (3) make the information requested available for inspection by the Non5 Party, if requested. 6 (c) If the Non-Party fails to seek a protective order from this Court within 7 fourteen (14) days of receiving the notice and accompanying information, the 8 Receiving Party may produce the Non-Party’s confidential information responsive 9 to the discovery request. If the Non-Party timely seeks a protective order, the 10 Receiving Party shall not produce any information in its possession or control that is 11 subject to the confidentiality agreement with the Non-Party before a determination 12 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 XII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 16 Protected Material to any person or in any circumstance not authorized under this 17 Order, the Receiving Party must immediately (a) notify in writing the Designating 18 Party of the unauthorized disclosures; (b) use its best efforts to retrieve all 19 unauthorized copies of the Protected Material; (c) inform the person or persons to 20 whom unauthorized disclosures were made of all the terms of this Order; and (d) 21 request such person or persons to execute Exhibit A. 22 XIII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 23 PROTECTED MATERIAL 24 When a Producing Party gives notice to Receiving Parties that certain 25 inadvertently produced material is subject to a claim of privilege or other protection, 26 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 27 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 1 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 2 (e), insofar as the Parties reach an agreement on the effect of disclosure of a 3 communication or information covered by the attorney-client privilege or work 4 product protection, the Parties may incorporate their agreement in a subsequent 5 stipulation to the Court. 6 XIV. MISCELLANEOUS 7 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 8 person to seek its modification by the Court in the future. 9 14.2 Right to Assert Other Objections. By stipulating to the entry of this 10 Order, no Party waives any right it otherwise would have to object to disclosing or 11 producing any information or item on any ground not addressed in this Order. 12 Similarly, no Party waives any right to object on any ground to use in evidence of 13 any of the material covered by this Order. 14 14.3 Filing Protected Material. A Party that seeks to file under seal any 15 Protected Material must comply with Local Civil Rule 79-5. Protected Material 16 may only be filed under seal pursuant to a court order authorizing the sealing of the 17 specific Protected Material at issue. If a Party’s request to file Protected Material 18 under seal is denied by the Court, then the Receiving Party may file the information 19 in the public record unless otherwise instructed by the Court. 20 XV. FINAL DISPOSITION 21 After the final disposition of this Action, as defined in Section VI, supra, 22 within 60 days of a written request by the Designating Party, each Receiving Party 23 must return all Protected Material to the Producing Party or destroy such material. 24 As used in this subdivision, “all Protected Material” includes all copies, abstracts, 25 compilations, summaries, and any other format reproducing or capturing any of the 26 Protected Material. Whether the Protected Material is returned or destroyed, the 27 Receiving Party must submit a written certification to the Producing Party (and, if 1||(1) identifies (by category, where appropriate) all the Protected Material that was 2 ||returned or destroyed and (2) affirms that the Receiving Party has not retained any 3||copies, abstracts, compilations, summaries or any other format reproducing or 4 □□ capturing any of the Protected Material. Notwithstanding this provision, Counsel 5|/are entitled to retain an archival copy of all pleadings, motion papers, trial, 6 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition 7 || and trial exhibits, expert reports, attorney work product, and consultant and expert 8 || work product, even if such materials contain Protected Material. Any such archival 9 || copies that contain or constitute Protected Material remain subject to this Order as 10 || set forth in Section VI, supra. XVI. VIOLATION 12 Any violation of this Order may be punished by appropriate measures 13 || including, without limitation, contempt proceedings and/or monetary sanctions. 14 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. [15] 16) DATED: 5/5/21 [17] 18 Pi F WeBomalt 19 THIE HON. JOHN E. MCDERMOTT 20 ITED STATES MAGISTRATE JUDGE [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 5 penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Central 7 District of California in the case of Alvaro Carrillo Aguilera v. Officer E. Ramos, et 8 al.. Case No. 2:21-cv-01913-FMO (JEMx). I agree to comply with and to be bound 9 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 punishment 11 in the nature of contempt. I solemnly promise that I will not disclose in any manner 12 any information or item that is subject to this Stipulated Protective Order to any 13 person or entity except in strict compliance with the provisions of this Order. I 14 further agree to submit to the jurisdiction of the United States District Court for the 15 Central District of California for enforcing the terms of this Stipulated Protective 16 Order, even if such enforcement proceedings occur after termination of this action. [17] 18 Date: _________________________________ [19] 20 City and State where sworn and signed: _________________________________ [21] 22 Printed name: _________________________________ [23] 24 Signature: _________________________________