The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 MAC SHORTY, CASE NO. CV19-09355 DSF (KSx)
Hon. Dale S. Fisher, Ctrm. 7D, 7th Fl.
12 Plaintiff, Mag. Karen L. Stevenson, Ctrm. 580, 5th Fl.
13 v.
[PROPOSED] PROTECTIVE ORDER
14 LOS ANGELES POLICE
DEPARTMENT; LOS ANGELES
15 POLICE DEPARTMENT OFFICERS:
BURTON # 40021; AND OFFICER
16 SALCIDO #38208., and DOES 1-10,
17 Defendants.
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1. A. PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential,
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proprietary, or private information for which special protection from public disclosure
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and from use for any purpose other than prosecuting this litigation may be warranted.
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Accordingly, the parties hereby stipulate to and petition the Court to enter the following
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Stipulated Protective Order. The parties acknowledge that this Order does not confer
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blanket protections on all disclosures or responses to discovery and that the protection
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it affords from public disclosure and use extends only to the limited information or
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1 items that are entitled to confidential treatment under the applicable legal principles.
2 The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated
3 Protective Order does not entitle them to file confidential information under seal; Civil
4 Local Rule 79-5 sets forth the procedures that must be followed and the standards that
5 will be applied when a party seeks permission from the court to file material under seal.
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7 B. GOOD CAUSE STATEMENT
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This action involves the Los Angeles Police Department (“LAPD”), LAPD
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Officer Andre Burton and LAPD Officer Andy Salcido (“Defendants”). Plaintiffs are
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seeking materials and information that Defendant LAPD maintains as confidential,
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such as personnel files of the police officers involved in this incident, Internal Affairs
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materials and information, video recordings, audio recordings, information and other
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administrative materials and information currently in the possession of the LAPD and
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which Defendants believe need special protection from public disclosure and from use
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for any purpose other than prosecuting this litigation. Plaintiffs are also seeking
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official information contained in the personnel files of the police officers involved in
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the subject incident, which the LAPD maintains as strictly confidential and which
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Defendants believe need special protection from public disclosure and from use for any
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purpose other than prosecuting this litigation.
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Defendants assert that the confidentiality of the materials and information sought
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by Plaintiffs is recognized by California and federal law, as evidenced inter alia by
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California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for N.D. Cal.,
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511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). The LAPD has not
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publicly released the materials and information referenced above except under
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protective order or pursuant to a court order, if at all. These materials and information
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are of the type that have been used to initiate disciplinary action against LAPD officers,
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1 and has been used as evidence in disciplinary proceedings, where the officers’ conduct
2 was considered to be contrary to LAPD policy.
3 Defendants contend that absent a protective order delineating the responsibilities
4 of nondisclosure on the part of the parties hereto, there is a specific risk of unnecessary
5 and undue disclosure by one or more of the many attorneys, secretaries, law clerks,
6 paralegals and expert witnesses involved in this case, as well as the corollary risk of
7 embarrassment, harassment as well as professional, physical and legal harm on the
8 part of the LAPD officers referenced in the materials and information.
9 Defendants also contend that the unfettered disclosure of the materials and
10 information, absent a protective order, would allow the media to share this information
11 with potential jurors in the area, impacting the rights of the Defendants herein to
12 receive a fair trial.
13 Accordingly, to expedite the flow of information, to facilitate the prompt
14 resolution of disputes over confidentiality of discovery materials, to adequately protect
15 information the parties are entitled to keep confidential, to ensure that the parties are
16 permitted reasonable necessary uses of such material in preparation for and in the
17 conduct of trial, to address their handling at the end of the litigation, and serve the ends
18 of justice, a protective order for such information is justified in this matter. It is the
19 intent of the parties that information will not be designated as confidential for tactical
20 reasons and that nothing be so designated without a good faith belief that it has been
21 maintained in a confidential, non-public manner, and there is good cause why it should
22 not be part of the public record of this case.
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24 2. DEFINITIONS
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26 2.1 Action: this pending federal law suit.
27 2.2 Challenging Party: a Party or Non-Party that challenges the designation of
28 information or items under this Order.
1 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how
2 it is generated, stored or maintained) or tangible things that qualify for protection under
3 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
4 Statement. This also includes (1) any information copied or extracted from the
5 Confidential information; (2) all copies, excerpts, summaries or compilations of
6 Confidential information; and (3) any testimony, conversations, or presentations that
7 might reveal Confidential information.
8 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
9 support staff).
10 2.5 Designating Party: a Party or Non-Party that designates information or items
11 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
12 2.6 Disclosure or Discovery Material: all items or information, regardless of the
13 medium or manner in which it is generated, stored, or maintained (including, among
14 other things, testimony, transcripts, and tangible things), that are produced or generated
15 in disclosures or responses to discovery in this matter.
16 2.7 Expert: a person with specialized knowledge or experience in a matter
17 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
18 expert witness or as a consultant in this Action.
19 2.8 House Counsel: attorneys who are employees of a party to this Action.
20 House Counsel does not include Outside Counsel of Record or any other outside
21 counsel.
22 2.9 Non-Party: any natural person, partnership, corporation, association, or
23 other legal entity not named as a Party to this action.
24 2.10 Outside Counsel of Record: attorneys who are not employees of a party to
25 this Action but are retained to represent or advise a party to this Action and have
26 appeared in this Action on behalf of that party or are affiliated with a law firm which
27 has appeared on behalf of that party, and includes support staff.
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1 2.11 Party: any party to this Action, including all of its officers, directors,
2 employees, consultants, retained experts, and Outside Counsel of Record (and their
3 support staffs).
4 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
5 Discovery Material in this Action.
6 2.13 Professional Vendors: persons or entities that provide litigation support
7 services (e.g., photocopying, videotaping, translating, preparing exhibits or
8 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
9 their employees and subcontractors.
10 2.14 Protected Material: any Disclosure or Discovery Material that is designated
11 as “CONFIDENTIAL.”
12 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
13 from a Producing Party.
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15 3. SCOPE
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17 The protections conferred by this Stipulation and Order cover not only Protected
18 Material (as defined above), but also (1) any information copied or extracted from
19 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
20 Material; and (3) any testimony, conversations, or presentations by Parties or their
21 Counsel that might reveal Protected Material.
22 Any use of Protected Material at trial shall be governed by the orders of the trial
23 judge. This Order does not govern the use of Protected Material at trial.
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25 4. DURATION
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27 Even after final disposition of this litigation, the confidentiality obligations
28 imposed by this Order shall remain in effect until a Designating Party agrees otherwise
1 in writing or a court order otherwise directs. Final disposition shall be deemed to be the
2 later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;
3 and (2) final judgment herein after the completion and exhaustion of all appeals,
4 rehearings, remands, trials, or reviews of this Action, including the time limits for filing
5 any motions or applications for extension of time pursuant to applicable law.
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7 5. DESIGNATING PROTECTED MATERIAL
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9 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
10 Party or Non-Party that designates information or items for protection under this Order
11 must take care to limit any such designation to specific material that qualifies under the
12 appropriate standards. The Designating Party must designate for protection only those
13 parts of material, documents, items, or oral or written communications that qualify so
14 that other portions of the material, documents, items, or communications for which
15 protection is not warranted are not swept unjustifiably within the ambit of this Order.
16 Mass, indiscriminate, or routinized designations are prohibited. Designations that
17 are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,
18 to unnecessarily encumber the case development process or to impose unnecessary
19 expenses and burdens on other parties) may expose the Designating Party to sanctions.
20 If it comes to a Designating Party’s attention that information or items that it
21 designated for protection do not qualify for protection, that Designating Party must
22 promptly notify all other Parties that it is withdrawing the inapplicable designation.
23 5.2 Manner and Timing of Designations. Except as otherwise provided in this
24 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
25 ordered, Disclosure or Discovery Material that qualifies for protection under this Order
26 must be clearly so designated before the material is disclosed or produced.
27 Designation in conformity with this Order requires:
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1 (a) for information in documentary form (e.g., paper or electronic documents,
2 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
3 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
4 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
5 portion or portions of the material on a page qualifies for protection, the Producing Party
6 also must clearly identify the protected portion(s) (e.g., by making appropriate markings
7 in the margins).
8 A Party or Non-Party that makes original documents available for inspection
9 need not designate them for protection until after the inspecting Party has indicated
10 which documents it would like copied and produced. During the inspection and before
11 the designation, all of the material made available for inspection shall be deemed
12 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
13 copied and produced, the Producing Party must determine which documents, or
14 portions thereof, qualify for protection under this Order. Then, before producing the
15 specified documents, the Producing Party must affix the “CONFIDENTIAL legend”
16 to each page that contains Protected Material. If only a portion or portions of the
17 material on a page qualifies for protection, the Producing Party also must clearly
18 identify the protected portion(s) (e.g., by making appropriate markings in the margins).
19 (b) for testimony given in depositions that the Designating Party identify the
20 Disclosure or Discovery Material on the record, before the close of the deposition all
21 protected testimony.
22 (c) for information produced in some form other than documentary and for any
23 other tangible items, that the Producing Party affix in a prominent place on the exterior
24 of the container or containers in which the information is stored the legend
25 “CONFIDENTIAL.” If only a portion or portions of the information warrants
26 protection, the Producing Party, to the extent practicable, shall identify the protected
27 portion(s).
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1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
2 to designate qualified information or items does not, standing alone, waive the
3 Designating Party’s right to secure protection under this Order for such material. Upon
4 timely correction of a designation, the Receiving Party must make reasonable efforts to
5 assure that the material is treated in accordance with the provisions of this Order.
6 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
7 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation
8 of confidentiality at any time that is consistent with the Court’s Scheduling Order.
9 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
10 resolution process under Local Rule 37.1 et seq.
11 6.3 The burden of persuasion in any such challenge proceeding shall be on the
12 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
13 to harass or impose unnecessary expenses and burdens on other parties) may expose the
14 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
15 the confidentiality designation, all parties shall continue to afford the material in
16 question the level of protection to which it is entitled under the Producing Party’s
17 designation until the Court rules on the challenge.
18 7. ACCESS TO AND USE OF PROTECTED MATERIAL
19 7.1 Basic Principles. A Receiving Party may use Protected Material that is
20 disclosed or produced by another Party or by a Non-Party in connection with this Action
21 only for prosecuting, defending, or attempting to settle this Action. Such Protected
22 Material may be disclosed only to the categories of persons and under the conditions
23 described in this Order. When the Action has been terminated, a Receiving Party must
24 comply with the provisions of section 13 below (FINAL DISPOSITION).
25 Protected Material must be stored and maintained by a Receiving Party at a
26 location and in a secure manner that ensures that access is limited to the persons
27 authorized under this Order.
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1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
2 ordered by the court or permitted in writing by the Designating Party, a Receiving Party
3 may disclose any information or item designated “CONFIDENTIAL” only to:
4 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
5 employees of said Outside Counsel of Record to whom it is reasonably necessary to
6 disclose the information for this Action;
7 (b) the officers, directors, and employees (including House Counsel) of the
8 Receiving Party to whom disclosure is reasonably necessary for this Action;
9 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure
10 is reasonably necessary for this Action and who have signed the “Acknowledgment and
11 Agreement to Be Bound” (Exhibit A);
12 (d) the court and its personnel;
13 (e) court reporters and their staff;
14 (f) professional jury or trial consultants, mock jurors, and Professional Vendors
15 to whom disclosure is reasonably necessary for this Action and who have signed the
16 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
17 (g) the author or recipient of a document containing the information or a
18 custodian or other person who otherwise possessed or knew the information;
19 (h) during their depositions, witnesses ,and attorneys for witnesses, in the
20 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
21 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not
22 be permitted to keep any confidential information unless they sign the
23 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
24 by the Designating Party or ordered by the court. Pages of transcribed deposition
25 testimony or exhibits to depositions that reveal Protected Material may be separately
26 bound by the court reporter and may not be disclosed to anyone except as permitted
27 under this Stipulated Protective Order; and
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1 (i) any mediator or settlement officer, and their supporting personnel, mutually
2 agreed upon by any of the parties engaged in settlement discussions.
3
4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
5 OTHER LITIGATION
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7 If a Party is served with a subpoena or a court order issued in other litigation that
8 compels disclosure of any information or items designated in this Action as
9 “CONFIDENTIAL,” that Party must:
10 (a) promptly notify in writing the Designating Party. Such notification shall
11 include a copy of the subpoena or court order;
12 (b) promptly notify in writing the party who caused the subpoena or order to
13 issue in the other litigation that some or all of the material covered by the subpoena or
14 order is subject to this Protective Order. Such notification shall include a copy of this
15 Stipulated Protective Order; and
16 (c) cooperate with respect to all reasonable procedures sought to be pursued by
17 the Designating Party whose Protected Material may be affected.
18 If the Designating Party timely seeks a protective order, the Party served with the
19 subpoena or court order shall not produce any information designated in this action as
20 “CONFIDENTIAL” before a determination by the court from which the subpoena or
21 order issued, unless the Party has obtained the Designating Party’s permission. The
22 Designating Party shall bear the burden and expense of seeking protection in that court
23 of its confidential material and nothing in these provisions should be construed as
24 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
25 from another court.
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27 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
28 IN THIS LITIGATION
1 (a) The terms of this Order are applicable to information produced by a Non-
2 Party in this Action and designated as “CONFIDENTIAL.” Such information produced
3 by Non-Parties in connection with this litigation is protected by the remedies and relief
4 provided by this Order. Nothing in these provisions should be construed as prohibiting
5 a Non-Party from seeking additional protections.
6 (b) In the event that a Party is required, by a valid discovery request, to produce
7 a Non-Party’s confidential information in its possession, and the Party is subject to an
8 agreement with the Non-Party not to produce the Non-Party’s confidential information,
9 then the Party shall:
10 (1) promptly notify in writing the Requesting Party and the Non-Party that
11 some or all of the information requested is subject to a confidentiality agreement with a
12 Non-Party;
13 (2) promptly provide the Non-Party with a copy of the Stipulated Protective
14 Order in this Action, the relevant discovery request(s), and a reasonably specific
15 description of the information requested; and
16 (3) make the information requested available for inspection by the Non-
17 Party, if requested.
18 (c) If the Non-Party fails to seek a protective order from this court within 14 days
19 of receiving the notice and accompanying information, the Receiving Party may produce
20 the Non-Party’s confidential information responsive to the discovery request. If the
21 Non-Party timely seeks a protective order, the Receiving Party shall not produce any
22 information in its possession or control that is subject to the confidentiality agreement
23 with the Non-Party before a determination by the court. Absent a court order to the
24 contrary, the Non-Party shall bear the burden and expense of seeking protection in this
25 court of its Protected Material.
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27 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
2 Protected Material to any person or in any circumstance not authorized under this
3 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
4 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
5 all unauthorized copies of the Protected Material, (c) inform the person or persons to
6 whom unauthorized disclosures were made of all the terms of this Order, and (d) request
7 such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
8 that is attached hereto as Exhibit A.
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10 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
11 PROTECTED MATERIAL
12
13 When a Producing Party gives notice to Receiving Parties that certain
14 inadvertently produced material is subject to a claim of privilege or other protection, the
15 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure
16 26(b)(5)(B). This provision is not intended to modify whatever procedure may be
17 established in an e-discovery order that provides for production without prior privilege
18 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach
19 an agreement on the effect of disclosure of a communication or information covered by
20 the attorney-client privilege or work product protection, the parties may incorporate
21 their agreement in the stipulated protective order submitted to the court.
22
23 12. MISCELLANEOUS
24 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
25 person to seek its modification by the Court in the future.
26 12.2 Right to Assert Other Objections. By stipulating to the entry of this
27 Protective Order no Party waives any right it otherwise would have to object to
28 disclosing or producing any information or item on any ground not addressed in this
1 Stipulated Protective Order. Similarly, no Party waives any right to object on any ground
2 to use in evidence of any of the material covered by this Protective Order.
3 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected
4 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
5 under seal pursuant to a court order authorizing the sealing of the specific Protected
6 Material at issue. If a Party's request to file Protected Material under seal is denied by
7 the court, then the Receiving Party may file the information in the public record unless
8 otherwise instructed by the court.
9
10 13. FINAL DISPOSITION
11 After the final disposition of this Action, as defined in paragraph 4, within 60 days
12 of a written request by the Designating Party, each Receiving Party must return all
13 Protected Material to the Producing Party or destroy such material. As used in this
14 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
15 summaries, and any other format reproducing or capturing any of the Protected Material.
16 Whether the Protected Material is returned or destroyed, the Receiving Party must
17 submit a written certification to the Producing Party (and, if not the same person or
18 entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category,
19 where appropriate) all the Protected Material that was returned or destroyed and
20 (2)affirms that the Receiving Party has not retained any copies, abstracts, compilations,
21 summaries or any other format reproducing or capturing any of the Protected Material.
22 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
23 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
24 correspondence, deposition and trial exhibits, expert reports, attorney work product, and
25 consultant and expert work product, even if such materials contain Protected Material.
26 Any such archival copies that contain or constitute Protected Material remain subject to
27 this Protective Order as set forth in Section 4 (DURATION).
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14. Any violation of this Order may be punished by any and all appropriate measures
2 || including, without limitation, contempt proceedings and/or monetary sanctions.
3
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
5
6|| Dated: April 15, 2020 LAW OFFICES OF AKUDINOBI & IKONTE
7
8 By:/S/ Chu (oke O. Ikonte
CHIJOKE O. IKONTE, ESQ.
9 Attorney for Plaintiff Mac Shorty
10
1] || Dated: April 15, 2020 MICHAEL N. FEUER, City Attorney
KATHLEEN A. KENEALY, Chief Assist. City Attorney
12 SCOTT MARCUS. Chief Civil Litigation Branch
CORY M. BRENTE, Sr. Assist. City Attorney
LISA W. LEE, Deputy City Attorney
14 By: [Si Lua W. Lee
15 LISA W. LEE, Deputy City Attorney
Attorneys for Defendants LOS ANGELES POLICE
16 DEPARTMENT and ANDY G. SALCIDO
17
18 Dated: April 15, 2020 REILY & JEFFERY, INC
By: /Si Janine K.
19 JANINE TEHFERY FS
0 Attorneys for Defendant AN DRE BURTON
21
22 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
23
DATED: April 23, 2020
25
26 ALN Z s7K_
HONORABLE KAREN L. STEVENSON
38 UNITED STATES MAGISTRATE JUDGE
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [print or type full name], of _________________
5 [print or type full address], declare under penalty of perjury that I have read in its entirety
6 and understand the Stipulated Protective Order that was issued by the United States
7 District Court for the Central District of California on___________ [date] in the case of
8 MAC SHORTY V. LAPD, ET.AL, CASE NO. CV19-09355 DSF (KSx)
9 I agree to comply with and to be bound by all the terms of this Stipulated Protective
10 Order and I understand and acknowledge that failure to so comply could expose me to
11 sanctions and punishment in the nature of contempt. I solemnly promise that I will not
12 disclose in any manner any information or item that is subject to this Stipulated
13 Protective Order to any person or entity except in strict compliance with the provisions
14 of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court for the
16 Central District of California for the purpose of enforcing the terms of this Stipulated
17 Protective Order, even if such enforcement proceedings occur after termination of this
18 action. I hereby appoint __________________________ [print or type full name] of
19 _______________________________________ [print or type full address and
20 telephone number] as my California agent for service of process in connection with this
21 action or any proceedings related to enforcement of this Stipulated Protective Order.
22 Date: ______________________________________
23 City and State where sworn and signed: _________________________________
24 Printed name: _______________________________
25 Signature: __________________________________
26
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