Michelle Poulos v. City of Los Angeles

1 UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA

3

4

5

MICHELLE POULOS, JESSYCA Case No. CV-19-00496 MWF(AMFx)

6 TROKE, MELISSA SHEARER Hon. Michael W. Fitzgerald, Ctrm 5A

7 Plaintiffs, STIPULATED PROTECTIVE

ORDER1

8

v.

9

10 CITY OF LOS ANGELES;

MARCELLA WINN; DOES 1-10

11 INCLUSIVE

12

Defendants.

13

14

15

16 1. STIPULATED PROTECTIVE ORDER

17 A. PURPOSES AND LIMITATIONS

18 This is a Section 1983 action which stems from arrest, prosecution and

19 wrongful conviction of Plaintiff Michelle Poulos from Spring of 2001 through

20 October 2017. Discovery in this action is likely to involve production of

21 confidential, proprietary or private information for which special protection from

22 public disclosure and from use for any purpose other than prosecuting this

23 litigation may be warranted. Accordingly, the parties hereby stipulate to and

24 petition the Court to enter the following Stipulated Protective Order. The parties

25 acknowledge that this Order does not confer blanket protections on all

26 disclosures or responses to discovery and that the protection it affords from

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1 This Stipulated Protective Order is based substantially on the model protective

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1 public disclosure and use extends only to the limited information or items that are

2 entitled to confidential treatment under the applicable legal principles.

3 B. GOOD CAUSE STATEMENT

4 This action is likely to involve disclosure of police personnel

5 records, District Attorney files and other information for which special

6 protection from public disclosure and from use for any purpose other than

7 prosecution of this action may be warranted for portions of those records. Such

8 confidential materials and information consist of, among other things, prior police

9 misconduct complaints or other confidential information otherwise generally

10 unavailable to the public, or which may be privileged or otherwise protected from

11 disclosure under state or federal statutes, court rules, case decisions, or common

12 law. Accordingly, to expedite the flow of information, to facilitate the prompt

13 resolution of disputes over confidentiality of discovery materials, to adequately

14 protect information the parties are entitled tokeep confidential, to ensure that the

15 parties are permitted reasonable necessary uses of such material in preparation

16 for and in the conduct of trial, to address their handling at the end of the litigation,

17 and serve the ends of justice, a protective order for such information is justified in

18 this matter. It is the intent of the parties that information will not be designated

19 as confidential for tactical reasons and that nothing be so designated without a

20 good faith belief that it has been maintained in a confidential, non-public manner,

21 and there is good cause why it should not be part of the public record of this case.

22

C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

23

The parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information

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under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

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and the standards that will be applied when a party seeks permission from the court

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to file material under seal.

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1 There is a strong presumption that the public has a right of access to judicial

2 proceedings and records in civil cases. In connection with non-dispositive motions,

3 good cause must be shown to support a filing under seal. See Kamakana v. City

4 and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.

5 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony

6 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective

7 orders require good cause showing), and a specific showing of good cause or

8 compelling reasons with proper evidentiary support and legal justification, must be

9 made with respect to Protected Material that a party seeks to file under seal. The

10 parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL

11 does not—without the submission of competent evidence by declaration,

12 establishing that the material sought to be filed under seal qualifies as confidential,

13 privileged, or otherwise protectable—constitute good cause.

14 Further, if a party requests sealing related to a dispositive motion or trial,

15 then compelling reasons, not only good cause, for the sealing must be shown, and

16 the relief sought shall be narrowly tailored to serve the specific interest to be

17 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.

18 2010). For each item or type of information, document, or thing sought to be filed

19 or introduced under seal in connection with a dispositive motion or trial, the party

20 seeking protection must articulate compelling reasons, supported by specific facts

21 and legal justification, for the requested sealing order. Again, competent evidence

22 supporting the application to file documents under seal must be provided by

23 declaration.

24 Any document that is not confidential, privileged, or otherwise protectable in

25 its entirety will not be filed under seal if the confidential portions can be redacted.

26 If documents can be redacted, then a redacted version for public viewing, omitting

27 only the confidential, privileged, or otherwise protectable portions of the document,

28 shall be filed. Any application that seeks to file documents under seal in their

1 entirety should include an explanation of why redaction is not feasible.

2

3 2. DEFINITIONS

4 2.1 Action: this pending federal lawsuit.

5 2.2 Challenging Party:a Party or Non-Party that challenges the

6 designation of information or items under this Order.

7 2.3 “CONFIDENTIAL” Information or Items: information (regardless of

8 how it is generated, stored or maintained) or tangible things that qualify for

9 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

10 the Good Cause Statement.

11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

12 their support staff).

13 2.5 Designating Party: a Party or Non-Party that designates information or

14 items that it produces in disclosures or in responses to discovery as

15 “CONFIDENTIAL.”

16 2.6 Disclosure or Discovery Material: all items or information, regardless

17 of the medium or manner in which it is generated, stored, or maintained (including,

18 among other things, testimony, transcripts, and tangible things), that are produced

19 or generated in disclosures or responses to discovery in this matter.

20 2.7 Expert: a person with specialized knowledge or experience in a matter

21 pertinent to the litigation who has been retained by a Party or its counsel to serve as

22 an expert witness or as a consultant in this Action.

23 2.8 House Counsel: attorneys who are employees of a party to this Action.

24 House Counsel does not include Outside Counsel of Record or any other outside

25 counsel.

26 2.9 Non-Party: any natural person, partnership, corporation, association or

27 other legal entity not named as a Party to this action.

28 2.10 Outside Counsel of Record: attorneys who are not employees of a

1 party to this Action but are retained to represent or advise a party to this Action and

2 have appeared in this Action on behalf of that party or are affiliated with a law firm

3 that has appeared on behalf of that party, and includes support staff.

4 2.11 Party: any party to this Action, including all of its officers, directors,

5 employees, consultants, retained experts, and Outside Counsel of Record (and their

6 support staffs).

7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

8 Discovery Material in this Action.

9 2.13 Professional Vendors: persons or entities that provide litigation

10 support services (e.g., photocopying, videotaping, translating, preparing exhibits or

11 demonstrations, and organizing, storing, or retrieving data in any form or medium)

12 and their employees and subcontractors.

13 2.14 Protected Material: any Disclosure or Discovery Material, or portion

14 thereof,that is properly designated as “CONFIDENTIAL.”

15 2.15 Receiving Party: a Party that receives Disclosure or Discovery

16 Material from a Producing Party.

17

18 3. SCOPE

19 The protections conferred by this Stipulation and Order cover not only

20 Protected Material (as defined above), but also (1) any information copied or

21 extracted from Protected Material; (2) all copies, excerpts, summaries, or

22 compilations of Protected Material; and (3) any testimony, conversations, or

23 presentations by Parties or their Counsel that might reveal Protected Material.

24 Any use of Protected Material at trial shall be governed by the orders of the

25 trial judge. This Order does not govern the use of Protected Material at trial.

26

27 4. DURATION

28 Once a case proceeds to trial, information that wasdesignated as

1 CONFIDENTIAL or maintained pursuant to this protective order used or

2 introduced as an exhibit at trial becomes public and will be presumptively available

3 to all members of the public, including the press, unless compelling reasons

4 supported by specific factual findings to proceed otherwise are made to the trial

5 judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing

6 “good cause” showing for sealing documents produced in discovery from

7 “compelling reasons” standard when merits-related documents are part of court

8 record). Accordingly, the terms of this protective order do not extend beyond the

9 commencement of the trial.

10

11 5. DESIGNATING PROTECTED MATERIAL

12 5.1 Exercise of Restraint and Care in Designating Material for Protection.

13 Each Party or Non-Party that designates information or items for protection under

14 this Order must take care to limit any such designation to specific material that

15 qualifies under the appropriate standards. The Designating Party must designate for

16 protection only those parts of material, documents, items or oral or written

17 communications that qualify so that other portions of the material, documents,

18 items or communications for which protection is not warranted are not swept

19 unjustifiably within the ambit of this Order.

20 Mass, indiscriminate or routinized designations are prohibited. Designations

21 that are shown to be clearly unjustified or that have been made for an improper

22 purpose (e.g., to unnecessarily encumber the case development process or to

23 impose unnecessary expenses and burdens on other parties) may expose the

24 Designating Party to sanctions.

25 If it comes to a Designating Party’s attention that information or items that it

26 designated for protection do not qualify for protection, that Designating Party must

27 promptly notify all other Parties that it is withdrawing the inapplicable designation.

28 5.2 Manner and Timing of Designations. Except as otherwise provided in

1 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

2 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

3 under this Order must be clearly so designated before the material is disclosed or

4 produced.

5 Designation in conformity with this Order requires:

6 (a) for information in documentary form (e.g., paper or electronic

7 documents, but excluding transcripts of depositions or other pretrial or trial

8 proceedings), that the Producing Partyaffix at a minimum the legend

9 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

10 contains protected material. If only a portion of the material on a page qualifies for

11 protection, the Producing Party also must clearly identify the protected portion(s)

12 (e.g., by making appropriate markings in the margins).

13 A Party or Non-Party that makes original documents available for inspection

14 need not designate them for protection until after the inspecting Party has indicated

15 which documents it would like copied and produced. During the inspection and

16 before the designation, all of the material made available for inspection shall be

17 deemed “CONFIDENTIAL.” After the inspecting Party has identified the

18 documents it wants copied and produced, the Producing Party must determine

19 which documents, or portions thereof, qualify for protection under this Order.

20 Then, before producing the specified documents, the Producing Party must affix the

21 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a

22 portion of the material on a page qualifies for protection, the Producing Party also

23 must clearly identify the protected portion(s) (e.g., by making appropriate markings

24 in the margins).

25 (b) for testimony given in depositions that the Designating Party

26 identifies the Disclosure or Discovery Material on the record, before the close of

27 the deposition all protected testimony.

28 (c) for information produced in some form other than documentary and

1 for any other tangible items, that the Producing Party affix in a prominent place on

2 the exterior of the container or containers in which the information is stored the

3 legend “CONFIDENTIAL.” If only a portion or portions of the information

4 warrants protection, the Producing Party, to the extent practicable, shall identify the

5 protected portion(s).

6 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

7 failure to designate qualified information or items does not, standing alone, waive

8 the Designating Party’s right to secure protection under this Order for such

9 material. Upon timely correction of a designation, the Receiving Party must make

10 reasonable efforts to assure that the material is treated in accordance with the

11 provisions of this Order.

12

13 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

14 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

15 designation of confidentiality at any time that is consistent with the Court’s

16 Scheduling Order. The Challenging Party must serve written objection with

17 grounds for the objection on the Designating Party, including all assigned attorneys

18 and their assistants, via PDF and facsimile.

19 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

20 resolution process under Local Rule 37-1 et seq. The Designating Party will have

21 10 Court days following receipt of written objections to explain in writing the

22 reasons for the designation. If the Designating Party fails to respond to the written

23 objection within the allotted time, the designation is deemed withdrawn for any

24 document or other material identified in the written objection.

25 6.3 Joint Stipulation. If the Designating Party persists in designating the

26 document or other material in question as Confidential, the objecting party may

27 move the Court for an order removing or replacing the “Confidential” designation.

28 Any challenge submitted to the Court shall be via a joint stipulation pursuant to

1 Local Rule 37-2.

2 6.4 Burden of Persuasion. The burden of persuasion in any such challenge

3 proceeding shall be on the Designating Party. Frivolous challenges, and those made

4 for an improper purpose (e.g., to harass or impose unnecessary expenses and

5 burdens on other parties) may expose the Challenging Party to sanctions. Unless the

6 Designating Party has waived or withdrawn the confidentiality designation, all

7 parties shall continue to afford the material in question the level of protection to

8 which it is entitled under the Producing Party’s designation until the Court rules on

9 the challenge.

10

11 7. ACCESS TO AND USE OF PROTECTED MATERIAL

12 7.1 Basic Principles. A Receiving Party may use Protected Material that is

13 disclosed or produced by another Party or by a Non-Party in connection with this

14 Action only for prosecuting, defending or attempting to settle this Action. Such

15 Protected Material may be disclosed only to the categories of persons and under the

16 conditions described in this Order. When the Action has been terminated, a

17 Receiving Party must comply with the provisions of section 13 below (FINAL

18 DISPOSITION).

19 Protected Material must be stored and maintained by a Receiving Party at a

20 location and in a secure manner that ensures that access is limited to the persons

21 authorized under this Order.

22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

23 otherwise ordered by the court or permitted in writing by the Designating Party, a

24 Receiving Party may disclose any information or item designated

25 “CONFIDENTIAL” only to:

26 (a) the Receiving Party’s Outside Counsel of Record in this Action, as

27 well as employees of said Outside Counsel of Record to whom it is reasonably

28 necessary to disclose the information for this Action;

1 (b) the House Counsel of the Receiving Party to whom disclosure is

2 reasonably necessary for this Action;

3 (c) Experts (as defined in this Order) of the Receiving Party to whom

4 disclosure is reasonably necessary for this Action and who have signed the

5 “Acknowledgment and Agreement to Be Bound” (Exhibit A);

6 (d) the court and its personnel;

7 (e) court reporters and their staff;

8 (f) professional jury or trial consultants, mock jurors, and Professional

9 Vendors to whom disclosure is reasonably necessary for this Action and who have

10 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

11 (g) the author or recipient of a document containing the information or

12 a custodian or other person who otherwise possessed or knew the information;

13 (h) during their depositions, witnesses, and attorneys for witnesses, in

14 the Action to whom disclosure is reasonably necessary provided: (1) the deposing

15 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)

16 they will not be permitted to keep any confidential information unless they sign the

17 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

18 agreed by the Designating Party or ordered by the court. Pages of transcribed

19 deposition testimony or exhibits to depositions that reveal Protected Material may

20 be separately bound by the court reporter and may not be disclosed to anyone

21 except as permitted under this Stipulated Protective Order; and

22 (i) any mediator or settlement officer, and their supporting personnel,

23 mutually agreed upon by any of the parties engaged in settlement discussions.

24

25 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

26 IN OTHER LITIGATION

27 If a Party is served with a subpoena or a court order issued in other litigation

28 that compels disclosure of any information or items designated in this Action as

1 “CONFIDENTIAL,” that Party must:

2 (a) promptly notify in writing the Designating Party. Such

3 notification shall include a copy of the subpoena or court order;

4 (b) promptly notify in writing the party who caused the subpoena or

5 order to issue in the other litigation that some or all of the material covered by the

6 subpoena or order is subject to this Protective Order. Such notification shall include

7 a copy of this Stipulated Protective Order; and

8 (c) cooperate with respect to all reasonable procedures sought to be

9 pursued by the Designating Party whose Protected Material may be affected.

10 If the Designating Party timely seeks a protective order, the Party served with

11 the subpoena or court order shall not produce any information designated in this

12 action as “CONFIDENTIAL” before a determination by the court from which the

13 subpoena or order issued, unless the Party has obtained the Designating Party’s

14 permission. The Designating Party shall bear the burden and expense of seeking

15 protection in that court of its confidential material and nothing in these provisions

16 should be construed as authorizing or encouraging a Receiving Party in this Action

17 to disobey a lawful directive from another court.

18

19 9. A NON-PARTY’SPROTECTED MATERIAL SOUGHT TO BE

20 PRODUCED IN THIS LITIGATION

21 (a) The terms of this Order are applicable to information produced by a Non-

22 Party in this Action and designated as “CONFIDENTIAL.” Such information

23 produced by Non-Parties in connection with this litigation is protected by the

24 remedies and relief provided by this Order. Nothing in these provisions should be

25 construed as prohibiting a Non-Party from seeking additional protections.

26 (b) In the event that a Party is required, by a valid discovery request, to

27 produce a Non-Party’s confidential information in its possession, and the Party is

28 subject to an agreement with the Non-Party not to produce the Non-Party’s

1 confidential information, then the Party shall:

2 (1) promptly notify in writing the Requesting Party and the Non-Party

3 that some or all of the information requested is subject to a confidentiality

4 agreement with a Non-Party;

5 (2) promptly provide the Non-Party with a copy of the Stipulated

6 Protective Order in this Action, the relevant discovery request(s), and a

7 reasonably specific description of the information requested; and

8 (3) make the information requested available for inspection by the

9 Non-Party, if requested.

10 (c) If the Non-Party fails to seek a protective order from this court within 14

11 days of receiving the notice and accompanying information, the Receiving Party

12 may produce the Non-Party’s confidential information responsive to the discovery

13 request. If the Non-Party timely seeks a protective order, the Receiving Party shall

14 not produce any information in its possession or control that is subject to the

15 confidentiality agreement with the Non-Party before a determination by the court.

16 Absent a court order to the contrary, the Non-Party shall bear the burden and

17 expense of seeking protection in this court of its Protected Material.

18

19 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

20 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

21 Protected Material to any person or in any circumstance not authorized under this

22 Stipulated Protective Order, the Receiving Party must immediately (a) notify in

23 writing the Designating Party of the unauthorized disclosures, (b) use its best

24 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

25 person or persons to whom unauthorized disclosures were made of all the terms of

26 this Order, and (d) request such person or persons to execute the “Acknowledgment

27 and Agreement to Be Bound” that is attached hereto as Exhibit A.

28

1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

2 PROTECTED MATERIAL

3 When a Producing Party gives notice to Receiving Parties that certain

4 inadvertently produced material is subject to a claim of privilege or other

5 protection, the obligations of the Receiving Parties are those set forth in Federal

6 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

7 whatever procedure may be established in an e-discovery order that provides for

8 production without prior privilege review. Pursuant to Federal Rule of Evidence

9 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

10 of a communication or information covered by the attorney-client privilege or work

11 product protection, the parties may incorporate their agreement in the stipulated

12 protective order submitted to the court.

13

14 12. MISCELLANEOUS

15 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

16 person to seek its modification by the Court in the future.

17 12.2 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 12.3 Filing Protected Material. A Party that seeks to file under seal any

24 Protected Material must comply with Local Civil 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 12.4 Notification to Third Parties. In the event any Party seeks to file

2 Protected Material that was produced by a Non-Party pursuant to this Protective

3 Order, either before trial or for use during trial, that Party shall provide no less than

4 5 days’ notice to the producing Non-Party, to permit the Non-Party to seek a

5 Protective Order or other appropriate relief.

6

7 13. FINAL DISPOSITION

8 After the final disposition of this Action, as defined in paragraph 4,

9 within 60 days of a written request by the Designating Party, each Receiving

10 Party must return all Protected Material to the Producing Party or destroy

11 such material. As used in this subdivision, “all Protected Material” includes all

12 copies, abstracts, compilations, summaries, and any other format reproducing

13 or capturing any of the Protected Material. Whether the Protected Material is

14 returned or destroyed, the Receiving Party must submit a written certification

15 to the Producing Party (and, if not the same person or entity, to the

16 Designating Party) by the 60 day deadline that (1) identifies (by category,

17 where appropriate) all the Protected Material that was returned or destroyed

18 and (2) affirms that the Receiving Party has not retained any copies, abstracts,

19 compilations, summaries or any other format reproducing or capturing any of

20 the Protected Material. Notwithstanding this provision, Counsel are entitled to

21 retain an archival copy of all pleadings, motion papers, trial, deposition, and

22 hearing transcripts, legal memoranda, correspondence, deposition and trial

23 exhibits, expert reports, attorney work product, and consultant and expert

24 work product, even if such materials contain Protected Material. Any such

25 archival copies that contain or constitute Protected Material remain subject to

26 this Protective Order as set forth in Section 4 (DURATION).

27

28 14. VIOLATION

1 Any violation of this Order may be punished by appropriate measures

2 | including, without limitation, contempt proceedings and/or monetary

3 | sanctions.

A

5 | ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.

6

7 | DATED: March 11, 2020

8 | /S/ Deirdre O’ Connor

|§ ——

19 | Deirdre O’Connor

Attorney for Plaintiffs

11

12

DATED: March 11, 2020

13

/S/ Surekha Shepherd

14 | Surekha Shepherd

15 | Attorney for Defendants

16

DATED: March 11, 2020

18

/S/ James Jardin

19 | James Jardin, Esq.

29 | Attorney for Third Party,

COUNTY OF LOS ANGELES

21

22

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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24

DATED: 3/11/2020

25

26 Chay Mac f—— —

97 | ALEXANDER F. MacKINNON

3g United States Magistrate Judge

15