a party’s privacy rights are to be protected 21 through a “carefully crafted protective order.”
How later courts described this case
- a party’s privacy rights are to be protected 21 through a “carefully crafted protective order.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 M.H., a minor, by and through his ) Case No.: 20-cv-00242-JGB-KK
guardian ad litem Nakitta Yuong, )
12 ) [Proposed] PROTECTIVE ORDER
Plaintiff, )
13 )
vs. )
14 )
CITY OF SAN BERNARDINO, a )
15 California municipal entity; COUNTY )
OF SAN BERNARDINO; a California )
16 municipal entity; and DOES 1-50, )
inclusive, )
17 )
Defendants. )
18 )
)
19 )
)
20
21 IT IS HEREBY ORDERED, following stipulation of counsel, that the
22 following protective order shall govern certain documents designated as
23 confidential in this case:
24 A. PURPOSES AND LIMITATIONS
25 Discovery in this action is likely to involve production of confidential,
26 proprietary, or private information for which special protection from public
27 disclosure and from use for any purpose other than prosecuting this litigation may
28 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
1 enter the following Stipulated Protective Order. The parties acknowledge that this
2 Order does not confer blanket protections on all disclosures or responses to
3 discovery and that the protection it affords from public disclosure and use extends
4 only to the limited information or items that are entitled to confidential treatment
5 under the applicable legal principles. The parties further acknowledge, as set forth
6 in Section 12.3, below, that this Stipulated Protective Order does not entitle them
7 to file confidential information under seal; Civil Local Rule 79-5 sets forth the
8 procedures that must be followed and the standards that will be applied when a
9 party seeks permission from the court to file material under seal.
10 B. GOOD CAUSE STATEMENT
11 Plaintiff and defendant may produce certain documents in this case that
12 contain personal medical, employment or financial information. Such information
13 may implicate the privacy interests of the parties and are properly protected
14 through a Fed. R. Civ. P. 26(c) protective order. Seattle Times Co. v. Rhinehart,
15 467 U.S. 20, 35 n.21 (1984) (“Rule 26(c) includes among its express purposes the
16 protection of a ‘party or person from annoyance, embarrassment, oppression or
17 undue burden or expense.’ Although the Rule contains no specific reference to
18 privacy or to other rights or interests that may be implicated, such matters are
19 implicit in the broad purpose and language of the Rule.”); Soto v. City of Concord,
20 162 F.R.D. 603, 617 (N.D. Cal. 1995) (a party’s privacy rights are to be protected
21 through a “carefully crafted protective order.”).
22 On March 10, 2019, Sokhom Hon was shot by a San Bernardino Police
23 Department police officer. The San Bernardino Police Department conducted an
24 investigation into the shooting. The SBPD’s investigative report may contain
25 police reports, witness statements, reports of evidence analysis, records of
26 Decedent Hon, as well as information about individuals who are not parties to this
27 litigation, among other things. The defendant submits that good cause exists to
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1 documents consisting of police reports and private information concerning the
2 parties to this litigation, as well as individuals who are not parties to this litigation,
3 may be privileged or otherwise protected from disclosure under state or federal
4 statutes, court rules, case decisions, or common law.
5 Accordingly, to expedite the flow of information, to facilitate the prompt
6 resolution of disputes over confidentiality of discovery materials, to adequately
7 protect information the parties are entitled to keep confidential, to ensure that the
8 parties are permitted reasonable necessary uses of such material in preparation for
9 and in the conduct of trial, to address their handling at the end of the litigation, and
10 serve the ends of justice, a protective order for such information is justified in this
11 matter. It is the intent of the parties that information will not be designated as
12 confidential for tactical reasons and that nothing be so designated without a good
13 faith belief that it has been maintained in a confidential, non-public manner, and
14 there is good cause why it should not be part of the public record of this case.
15 1. DEFINITIONS
16 2.1 Action: this pending federal lawsuit entitled M.H. v. City of San
17 Bernardino, et al, case number 20-cv-00242-JCB-KK.
18 2.2 Challenging Party: a Party or Non-Party that challenges the
19 designation of information or items under this Order.
20 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
21 how it is generated, stored or maintained) or tangible things that qualify for
22 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
23 the Good Cause Statement.
24 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
25 their support staff).
26 2.5 Designating Party: a Party or Non-Party that designates information or
27 items that it produces in disclosures or in responses to discovery as
28 “CONFIDENTIAL.”
1 2.6 Disclosure or Discovery Material: all items or information, regardless
2 of the medium or manner in which it is generated, stored, or maintained (including,
3 among other things, testimony, transcripts, and tangible things), that are produced
4 or generated in disclosures or responses to discovery in this matter.
5 2.7 Expert: a person with specialized knowledge or experience in a matter
6 pertinent to the litigation who has been retained by a Party or its counsel to serve
7 as an expert witness or as a consultant in this Action.
8 2.8 House Counsel: attorneys who are employees of a party to this Action.
9 House Counsel does not include Outside Counsel of Record or any other outside
10 counsel.
11 2.9 Non-Party: any natural person, partnership, corporation, association, or
12 other legal entity not named as a Party to this action.
13 2.10 Outside Counsel of Record: attorneys who are not employees of a
14 party to this Action but are retained to represent or advise a party to this Action
15 and have appeared in this Action on behalf of that party or are affiliated with a law
16 firm which has appeared on behalf of that party, and includes support staff.
17 2.11 Party: any party to this Action, including all of its officers, directors,
18 employees, consultants, retained experts, and Outside Counsel of Record (and their
19 support staffs).
20 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
21 Discovery Material in this Action.
22 2.13 Professional Vendors: persons or entities that provide litigation
23 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
24 demonstrations, and organizing, storing, or retrieving data in any form or medium)
25 and their employees and subcontractors.
26 2.14 Protected Material: any Disclosure or Discovery Material that is
27 designated as “CONFIDENTIAL.”
28 2.15 Receiving Party: a Party that receives Disclosure or Discovery
1 Material from a Producing Party.
2 3. SCOPE
3 The protections conferred by this Stipulation and Order cover not only
4 Protected Material (as defined above), but also (1) any information copied or
5 extracted from Protected Material; (2) all copies, excerpts, summaries, or
6 compilations of Protected Material; and (3) any testimony, conversations, or
7 presentations by Parties or their Counsel that might reveal Protected Material.
8 Any use of Protected Material at trial shall be governed by the orders of the trial
9 judge. This Order does not govern the use of Protected Material at trial.
10 4. DURATION
11 Even after final disposition of this litigation, the confidentiality
12 obligations imposed by this Order shall remain in effect until a Designating Party
13 agrees otherwise in writing or a court order otherwise directs. Final disposition
14 shall be deemed to be the later of (1) dismissal of all claims and defenses in this
15 Action, with or without prejudice; and (2) final judgment herein after the
16 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of
17 this Action, including the time limits for filing any motions or applications for
18 extension of time pursuant to applicable law.
19 However, once a case proceeds to trial, information that was designated as
20 CONFIDENTIAL or maintained pursuant to this Order that is introduced as an
21 exhibit at trial becomes public and will be presumptively available to all members
22 of the public, including the press, unless compelling reasons supported by specific
23 factual findings to proceed otherwise are made to the trial judge in advance of the
24 trial. See Kamakana, supra, 447 F.3d at 1180-81 (distinguishing “good cause”
25 showing for sealing documents produced in discovery from “compelling reasons”
26 standard when merits-related documents are part of court record). Accordingly, the
27 terms of this Order do not extend beyond the commencement of the trial as to the
28 Protected Material used or introduced as an exhibit at trial.
1 5. DESIGNATING PROTECTED MATERIAL
2 5.1 Exercise of Restraint and Care in Designating Material for Protection:
3 Each Party or Non-Party that designates information or items for protection under
4 this Order must take care to limit any such designation to specific material that
5 qualifies under the appropriate standards. The Designating Party must designate
6 for protection only those parts of material, documents, items, or oral or written
7 communications that qualify so that other portions of the material, documents,
8 items, or communications for which protection is not warranted are not swept
9 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized
10 designations are prohibited. Designations that are shown to be clearly unjustified
11 or that have been made for an improper purpose (e.g., to unnecessarily encumber
12 the case development process or to impose unnecessary expenses and burdens on
13 other parties) may expose the Designating Party to sanctions. If it comes to a
14 Designating Party’s attention that information or items that it designated for
15 protection do not qualify for protection, that Designating Party must promptly
16 notify all other Parties that it is withdrawing the inapplicable designation.
17 5.2 Manner and Timing of Designations. Except as otherwise provided in
18 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
19 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
20 under this Order must be clearly so designated before the material is disclosed or
21 produced.
22 Designation in conformity with this Order requires:
23 (a) 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 (b) for testimony given in depositions that the Designating Party must
15 identify with specificity the Disclosure or Discovery Material on the record, before
16 the close of the deposition all protected testimony.
17 (c) for information produced in some form other than documentary and for
18 any other tangible items, that the Producing Party affix in a prominent place on the
19 exterior of the container or containers in which the information is stored the legend
20 “CONFIDENTIAL.” If only a portion or portions of the information warrants
21 protection, the Producing Party, to the extent practicable, shall identify the
22 protected portion(s).
23 5.3 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 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2 6.1 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 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
6 resolution process under Local Rule 37.1 et seq.
7 6.3 The burden of persuasion in any such challenge proceeding shall be on
8 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 7. ACCESS TO AND USE OF PROTECTED MATERIAL
16 7.1 Basic Principles. A Receiving Party may use Protected Material that is
17 disclosed or produced by another Party or by a Non-Party in connection with this
18 Action only for prosecuting, defending, or attempting to settle this Action. Such
19 Protected Material may be disclosed only to the categories of persons and under
20 the conditions described in this Order. When the Action has been terminated, a
21 Receiving Party must comply with the provisions of section 13 below (FINAL
22 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 7.2 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 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
3 as employees of said Outside Counsel of Record to whom it is reasonably
4 necessary to disclose the information for this Action;
5 (b) the officers, directors, and employees (including House Counsel) of
6 the Receiving Party to whom disclosure is reasonably necessary for this Action;
7 (c) Experts (as defined in this Order) of the Receiving Party to whom
8 disclosure is reasonably necessary for this Action and who have signed the
9 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
10 (d) the court and its personnel;
11 (e) court reporters and their staff;
12 (f) professional jury or trial consultants, mock jurors, and Professional
13 Vendors to whom disclosure is reasonably necessary for this Action and who have
14 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
15 (g) the author or recipient of a document containing the information or a
16 custodian or other person who otherwise possessed or knew the information;
17 (h) during their depositions, witnesses ,and attorneys for witnesses, in the
18 Action to whom disclosure is reasonably necessary provided: (1) the deposing
19 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
20 they will not be permitted to keep any confidential information unless they sign the
21 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
22 agreed by the Designating Party or ordered by the court. Pages of transcribed
23 deposition testimony or exhibits to depositions that reveal Protected Material may
24 be separately bound by the court reporter and may not be disclosed to anyone
25 except as permitted under this Stipulated Protective Order; and
26 (i) any mediator or settlement officer, and their supporting personnel,
27 mutually agreed upon by any of the parties engaged in settlement discussions.
28 ///
1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
2 IN OTHER LITIGATION
3 If a Party is served with a subpoena or a court order issued in other litigation
4 that compels disclosure of any information or items designated in this Action as
5 “CONFIDENTIAL,” that Party must:
6 (a) promptly notify in writing the Designating Party. Such notification shall
7 include a copy of the subpoena or court order;
8 (b) promptly notify in writing the party who caused the subpoena or order to
9 issue in the other litigation that some or all of the material covered by the subpoena
10 or order is subject to this Protective Order. Such notification shall include a copy
11 of this Stipulated Protective Order; and
12 (c) cooperate with respect to all reasonable procedures sought to be pursued
13 by the Designating Party whose Protected Material may be affected.
14 If the Designating Party timely seeks a protective order, the Party served with the
15 subpoena or court order shall not produce any information designated in this action
16 as “CONFIDENTIAL” before a determination by the court from which the
17 subpoena or order issued, unless the Party has obtained the Designating Party’s
18 permission. The Designating Party shall bear the burden and expense of seeking
19 protection in that court of its confidential material and nothing in these provisions
20 should be construed as authorizing or encouraging a Receiving Party in this Action
21 to disobey a lawful directive from another court.
22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
23 PRODUCED IN THIS LITIGATION
24 (a) The terms of this Order are applicable to information produced by a
25 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
26 produced by Non-Parties in connection with this litigation is protected by the
27 remedies and relief provided by this Order. Nothing in these provisions should be
28 construed as prohibiting a Non-Party from seeking additional protections.
1 (b) In the event that a Party is required, by a valid discovery request, to
2 produce a Non-Party’s confidential information in its possession, and the Party is
3 subject to an agreement with the Non-Party not to produce the Non-Party’s
4 confidential information, then the Party shall:
5 (1) promptly notify in writing the Requesting Party and the Non-Party
6 that some or all of the information requested is subject to a confidentiality
7 agreement with a Non-Party;
8 (2) promptly provide the Non-Party with a copy of the Stipulated
9 Protective Order in this Action, the relevant discovery request(s), and a reasonably
10 specific description of the information requested; and
11 (3) make the information requested available for inspection by the
12 Non-Party, if requested.
13 (c) If the Non-Party fails to seek a protective order from this court within 14
14 days of receiving the notice and accompanying information, the Receiving Party
15 may produce the Non-Party’s confidential information responsive to the discovery
16 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
17 not produce any information in its possession or control that is subject to the
18 confidentiality agreement with the Non-Party before a determination by the court.
19 Absent a court order to the contrary, the Non-Party shall bear the burden and
20 expense of seeking protection in this court of its Protected Material.
21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
22 If a Receiving Party learns that, by inadvertence or otherwise, it has
23 disclosed Protected Material to any person or in any circumstance not authorized
24 under this Stipulated Protective Order, the Receiving Party must immediately (a)
25 notify in writing the Designating Party of the unauthorized disclosures, (b) use its
26 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
27 the person or persons to whom unauthorized disclosures were made of all the terms
28 of this Order, and (d) request such person or persons to execute the
1 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
2 A.
3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
4 PROTECTED MATERIAL
5 When a Producing Party gives notice to Receiving Parties that certain
6 inadvertently produced material is subject to a claim of privilege or other
7 protection, the obligations of the Receiving Parties are those set forth in Federal
8 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
9 whatever procedure may be established in an e-discovery order that provides for
10 production without prior privilege review. Pursuant to Federal Rule of Evidence
11 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
12 of a communication or information covered by the attorney-client privilege or
13 work product protection, the parties may incorporate their agreement in the
14 stipulated protective order submitted to the court.
15 12. MISCELLANEOUS
16 12.1 Right to Further Relief. Nothing in this Order abridges the right of
17 any person to seek its modification by the Court in the future.
18 12.2 Right to Assert Other Objections. By stipulating to the entry of this
19 Protective Order no Party waives any right it otherwise would have to object to
20 disclosing or producing any information or item on any ground not addressed in
21 this Stipulated Protective Order. Similarly, no Party waives any right to object on
22 any ground to use in evidence of any of the material covered by this Protective
23 Order.
24 12.3 Filing Protected Material. A Party that seeks to file under seal any
25 Protected Material must comply with Civil Local Rule 79-5. Protected Material
26 may only be filed under seal pursuant to a court order authorizing the sealing of the
27 specific Protected Material at issue. If a Party's request to file Protected Material
28 under seal is denied by the court, then the Receiving Party may file the
1 information in the public record unless otherwise instructed by the court.
2 13. FINAL DISPOSITION
3 After the final disposition of this Action, as defined in paragraph 4, within
4 60 days of a written request by the Designating Party, each Receiving Party must
5 return all Protected Material to the Producing Party or destroy such material. As
6 used in this subdivision, “all Protected Material” includes all copies, abstracts,
7 compilations, summaries, and any other format reproducing or capturing any of the
8 Protected Material. Whether the Protected Material is returned or destroyed, the
9 Receiving Party must submit a written certification to the Producing Party (and, if
10 not the same person or entity, to the Designating Party) by the 60 day deadline that
11 (1) identifies (by category, where appropriate) all the Protected Material that was
12 returned or destroyed and (2)affirms that the Receiving Party has not retained any
13 copies, abstracts, compilations, summaries or any other format reproducing or
14 capturing any of the Protected Material. Notwithstanding this provision, Counsel
15 are entitled to retain an archival copy of all pleadings, motion papers, trial,
16 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
17 and trial exhibits, expert reports, attorney work product, and consultant and expert
18 work product, even if such materials contain Protected Material. Any such archival
19 copies that contain or constitute Protected Material remain subject to this
20 Protective Order as set forth in Section 4 (DURATION).
21 14. Any violation of this Order may be punished by any and all appropriate
22 measures including, without limitation, contempt proceedings and/or monetary
23 sanctions.
24 IT IS SO ORDERED.
25
26 DATED: May 4, 2020 ___________________________________
Honorable Kenly Kiya Kato
27
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
6
that I have read in its entirety and understand the Stipulated Protective Order that
7
was issued by the United States District Court for the Central District of California
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on __________ in the case of M.H. v. City of San Bernardino, et al, case number
9
20-cv-00242-JCB-KK. I agree to comply with and to be bound by all the terms of
10
this Stipulated Protective Order and I understand and acknowledge that failure to
11
so comply could expose me to sanctions and punishment in the nature of contempt.
12
I solemnly promise that I will not disclose in any manner any information or item
13
that is subject to this Stipulated Protective Order to any person or entity except in
14
strict compliance with the provisions of this Order.
15
I further agree to submit to the jurisdiction of the United States District Court for
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the Central District of California for the purpose of enforcing the terms of this
17
Stipulated Protective Order, even if such enforcement proceedings occur after
18
termination of this action. I hereby appoint __________________________ [print
19
or type full name] of _______________________________________ [print or
20
type full address and telephone number] as my California agent for service of
21
process in connection with this action or any proceedings related to enforcement of
22
this Stipulated Protective Order.
23
Date: ______________________________________
24
City and State where sworn and signed: _________________________________
25
Printed name: _______________________________
26
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