Timothy Espinoza v. Santa Ana Police Department

1 HUMBERTO GUIZAR-STATE BAR NO. 125769

GUIZAR, HENDERSON & CARRAZCO, L.L.P.

2 3500 West Beverly Boulevard

Montebello, CA 90640

3 Tel: (323) 725-1151

Fax: (323) 597-0101

4 hguizar@ghclegal.com

5 Attorneys for Plaintiff Timothy Espinoza

6

JILL WILLIAMS-STATE BAR NO. 221793

7 EDWARD S. WELLS-STATE BAR NO. 321696

CARPENTER, ROTHANS & DUMONT

8 500 South Grand Avenue, 19th Floor

Los Angeles, California 90071

9 (213) 228-0400

(213) 228-0401 (Fax)

10 jwilliams@crdlaw.com ; ewells@crdlaw.com

11 Attorneys for Defendants Detective E. Solorio, Detective N. Lopez,

Officer G. Beaumarchais, Officer E. Martinez,

12 Detective D. Fernandez, Detective M. Lemmon, Detective D. Thai,

and Detective A. Garcia

13

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

15

16 TIMOTHY ESPINOZA, Case No. SACV 19-1277-JLS (AGR)

17 Plaintiffs,

18 vs. STIPULATED PROTECTIVE ORDER

19 SANTA ANA POLICE

DEPARTMENT, et al.,

20

Defendants.

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I. 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

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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1 discovery and that the protection it affords from public disclosure and use extends

2 only to the limited information or items that are entitled to confidential treatment

3 under the applicable legal principles. The parties further acknowledge, as set forth

4 in Section XIII(C), below, that this Stipulated Protective Order does not entitle

5 them to file confidential information under seal; Civil Local Rule 79-5 sets forth

6 the procedures that must be followed and the standards that will be applied when a

7 party seeks permission from the Court to file material under seal.

8 II. GOOD CAUSE STATEMENT

9 This lawsuit arises out of the officer-involved shooting of plaintiff Timothy

10 Espinoza on September 28, 2017. Following the shooting, the Orange County

11 District Attorney’s (“OCDA”) office conducted an investigation into the shooting.

12 The OCDA’s investigative report concerning the shooting contains numerous

13 police reports, witness statements, reports of evidence analysis prepared by the

14 Orange County Crime Lab, and numerous audio recordings, among other items

15 (collectively, “OCDA Report”). Similarly, the Santa Ana Police Department

16 (“SAPD”) also investigated the shooting. The SAPD’s investigative report

17 concerning the shooting contains numerous police reports, photographs, witness

18 statements, and audio recordings, among other items (collectively, “SAPD

19 Report”). Special protection of these documents from public disclosure and from

20 use for any purpose other than the prosecution, defense, and attempted settlement

21 of this action is warranted. Public disclosures of such confidential and proprietary

22 materials and information, information otherwise generally unavailable to the

23 public, or which may be privileged or otherwise protected from disclosure under

24 state or federal statutes, court rules, case decisions, or common law, would erode

25 the effectiveness of internal investigations, violate officer privacy, degrade the

26 trust of officers in the SAPD, and degrade officer morale. Accordingly, to

27 expedite the flow of information, to facilitate the prompt resolution of disputes

28 over confidentiality of discovery materials, to adequately protect information the

1 parties are entitled to keep confidential, to ensure that the parties are permitted

2 reasonable necessary uses of such material in preparation for and in the conduct of

3 trial, to address their handling at the end of the litigation, and serve the ends of

4 justice, a protective order for such information is justified in this matter. It is the

5 intent of the parties that information will not be designated as confidential for

6 tactical reasons and that nothing be so designated without a good faith belief that it

7 has been maintained in a confidential, non-public manner, and there is good cause

8 why it should not be part of the public record of this case.

9 III. DEFINITIONS

10 A. Action: This pending federal lawsuit

11 B. Challenging Party: A Party or Non-Party that challenges the

12 designation of information or items under this Order.

13 C. “CONFIDENTIAL” Information or Items: Information (regardless of

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

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

16 the Good Cause Statement.

17 D. Counsel: Outside Counsel of Record and House Counsel (as well as

18 their support staff).

19 E. Designating Party: A Party or Non-Party that designates information

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

21 “CONFIDENTIAL.”

22 F. Disclosure or Discovery Material: All items or information,

23 regardless of the medium or manner in which it is generated, stored, or maintained

24 (including, among other things, testimony, transcripts, and tangible things), that are

25 produced or generated in disclosures or responses to discovery in this matter.

26 G. Expert: A person with specialized knowledge or experience in a

27 matter pertinent to the litigation who has been retained by a Party or its counsel to

28 serve as an expert witness or as a consultant in this Action.

1 H. House Counsel: Attorneys who are employees of a party to this

2 Action. House Counsel does not include Outside Counsel of Record or any other

3 outside counsel.

4 I. Non-Party: Any natural person, partnership, corporation, association,

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

6 J. Outside Counsel of Record: Attorneys who are not employees of a

7 party to this Action but are retained to represent or advise a party to this Action

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

9 firm which has appeared on behalf of that party, and includes support staff. To the

10 extent that plaintiff is pro se, plaintiff is considered Outside Counsel of Record.

11 K. Party: Any party to this Action, including all of its officers, directors,

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

13 support staffs).

14 L. Producing Party: A Party or Non-Party that produces Disclosure or

15 Discovery Material in this Action.

16 M. Professional Vendors: Persons or entities that provide litigation

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

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

19 and their employees and subcontractors.

20 N. Protected Material: Any Disclosure or Discovery Material that is

21 designated as “CONFIDENTIAL.”

22 O. Receiving Party: A Party that receives Disclosure or Discovery

23 Material from a Producing Party.

24 IV. SCOPE

25 A. The protections conferred by this Stipulation and Order cover not only

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

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

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

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

3 B. Any use of Protected Material at trial shall be governed by the orders

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

5 V. DURATION

6 Once a case proceeds to trial, all of the information that was designated as

7 confidential or maintained pursuant to this Protective Order becomes public and

8 will be presumptively available to all members of the public, including the press,

9 unless compelling reasons supported by specific factual findings to proceed

10 otherwise are made to the trial judge in advance of the trial. See Kamakana v. City

11 and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing

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

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

14 record). Accordingly, the terms of this Protective Order do not extend beyond the

15 commencement of the trial.

16 VI. DESIGNATING PROTECTED MATERIAL

17 A. Exercise of Restraint and Care in Designating Material for

18 Protection

19 1. Each Party or Non-Party that designates information or items for

20 protection under this Order must take care to limit any such designation to specific

21 material that qualifies under the appropriate standards. The Designating Party

22 must designate for protection only those parts of material, documents, items, or

23 oral or written communications that qualify so that other portions of the material,

24 documents, items, or communications for which protection is not warranted are not

25 swept unjustifiably within the ambit of this Order.

26 2. Mass, indiscriminate, or routinized designations are prohibited.

27 Designations that are shown to be clearly unjustified or that have been made for an

28 improper purpose (e.g., to unnecessarily encumber the case development process

1 or to impose unnecessary expenses and burdens on other parties) may expose the

2 Designating Party to sanctions.

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

4 that it designated for protection do not qualify for protection, that Designating

5 Party must promptly notify all other Parties that it is withdrawing the inapplicable

6 designation.

7 B. Manner and Timing of Designations

8 1. Except as otherwise provided in this Order (see, e.g., Section B(2)(b)

9 below), or as otherwise stipulated or ordered, Disclosure or Discovery Material

10 that qualifies for protection under this Order must be clearly so designated before

11 the material is disclosed or produced.

12 2. Designation in conformity with this Order requires the following:

13 a. For information in documentary form (e.g., paper or electronic

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

15 proceedings), that the Producing Party affix at a minimum, the legend

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

17 contains protected material. If only a portion or portions of the material on a page

18 qualifies for protection, the Producing Party also must clearly identify the

19 protected portion(s) (e.g., by making appropriate markings in the margins).

20 b. A Party or Non-Party that makes original documents available

21 for inspection need not designate them for protection until after the inspecting

22 Party has indicated which documents it would like copied and produced. During

23 the inspection and before the designation, all of the material made available for

24 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

25 identified the documents it wants copied and produced, the Producing Party must

26 determine which documents, or portions thereof, qualify for protection under this

27 Order. Then, before producing the specified documents, the Producing Party must

28 affix the “CONFIDENTIAL legend” to each page that contains Protected Material.

1 If only a portion or portions of the material on a page qualifies for protection, the

2 Producing Party also must clearly identify the protected portion(s) (e.g., by making

3 appropriate markings in the margins).

4 c. For testimony given in depositions, that the Designating Party

5 identify the Disclosure or Discovery Material on the record, before the close of the

6 deposition all protected testimony.

7 d. For information produced in form other than document and for

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

9 exterior of the container or containers in which the information is stored the legend

10 “CONFIDENTIAL.” If only a portion or portions of the information warrants

11 protection, the Producing Party, to the extent practicable, shall identify the

12 protected portion(s).

13 C. Inadvertent Failure to Designate

14 1. If timely corrected, an inadvertent failure to designate qualified

15 information or items does not, standing alone, waive the Designating Party’s right

16 to secure protection under this Order for such material. Upon timely correction of

17 a designation, the Receiving Party must make reasonable efforts to assure that the

18 material is treated in accordance with the provisions of this Order.

19 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS

20 A. Timing of Challenges

21 Any party or Non-Party may challenge a designation of confidentiality at

22 any time that is consistent with the Court’s Scheduling Order.

23 B. Meet and Confer

24 1. The Challenging Party shall initiate the dispute resolution process

25 under Local Rule 37.1 et seq.

26 C. Burden of Persuasion in a Challenge Proceeding

27 The burden of persuasion in any such challenge proceeding shall be on the

28 Designating Party. Frivolous challenges, and those made for an improper purpose

1 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may

2 expose the Challenging Party to sanctions. Unless the Designating Party has

3 waived or withdrawn the confidentiality designation, all parties shall continue to

4 afford the material in question the level of protection to which it is entitled under

5 the Producing Party’s designation until the Court rules on the challenge.

6 VIII. ACCESS TO AND USE OF PROTECTED MATERIAL

7 A. Basic Principles

8 1. A Receiving Party may use Protected Material that is disclosed or

9 produced by another Party or by a Non-Party in connection with this Action only

10 for prosecuting, defending, or attempting to settle this Action. Such Protected

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

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

13 Receiving Party must comply with the provisions of Section XIV below.

14 2. Protected Material must be stored and maintained by a Receiving

15 Party at a location and in a secure manner that ensures that access is limited to the

16 persons authorized under this Order.

17 B. Disclosure of “CONFIDENTIAL” Information or Items

18 1. Unless otherwise ordered by the Court or permitted in writing by the

19 Designating Party, a Receiving Party may disclose any information or item

20 designated “CONFIDENTIAL” only to:

21 a. The Receiving Party’s Outside Counsel of Record in this

22 Action, as well as employees of said Outside Counsel of Record to whom it is

23 reasonably necessary to disclose the information for this Action;

24 b. The officers, directors, and employees (including House

25 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for

26 this Action;

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1 c. Experts (as defined in this Order) of the Receiving Party to

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

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

4 d. The Court and its personnel;

5 e. Court reporters and their staff;

6 f. Professional jury or trial consultants, mock jurors, and

7 Professional Vendors to whom disclosure is reasonably necessary or this Action

8 and who have signed the “Acknowledgment and Agreement to be Bound” attached

9 as Exhibit A hereto;

10 g. The author or recipient of a document containing the

11 information or a custodian or other person who otherwise possessed or knew the

12 information;

13 h. During their depositions, witnesses, and attorneys for witnesses,

14 in the Action to whom disclosure is reasonably necessary provided: (i) the

15 deposing party requests that the witness sign the “Acknowledgment and

16 Agreement to Be Bound;” and (ii) they will not be permitted to keep any

17 confidential information unless they sign the “Acknowledgment and Agreement to

18 Be Bound,” unless otherwise agreed by the Designating Party or ordered by the

19 Court. Pages of transcribed deposition testimony or exhibits to depositions that

20 reveal Protected Material may be separately bound by the court reporter and may

21 not be disclosed to anyone except as permitted under this Stipulated Protective

22 Order; and

23 i. Any mediator or settlement officer, and their supporting

24 personnel, mutually agreed upon by any of the parties engaged in settlement

25 discussions.

26 IX. PROTECTED MATERIAL SUPOENAED OR ORDERED

27 PRODUCED IN OTHER LITIGATION

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1 A. If a Party is served with a subpoena or a court order issued in other litigation

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

3 “CONFIDENTIAL,” that Party must:

4 1. Promptly notify in writing the Designating Party. Such notification shall

5 include a copy of the subpoena or court order;

6 2. Promptly notify in writing the party who caused the subpoena or order to

7 issue in the other litigation that some or all of the material covered by the subpoena

8 or order is subject to this Protective Order. Such notification shall include a copy

9 of this Stipulated Protective Order; and

10 3. Cooperate with respect to all reasonable procedures sought to be pursued by

11 the Designating Party whose Protected Material may be affected.

12 B. If the Designating Party timely seeks a protective order, the Party served

13 with the subpoena or court order shall not produce any information designated in

14 this action as “CONFIDENTIAL” before a determination by the Court from which

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

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

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

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

19 to disobey a lawful directive from another court.

20 X. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

21 PRODUCED IN THIS LITIGATION

22 A. The terms of this Order are applicable to information produced by a

23 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

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

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

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

27 B. In the event that a Party is required, by a valid discovery request, to

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

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

2 confidential information, then the Party shall:

3 1. Promptly notify in writing the Requesting Party and the Non-

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

5 agreement with a Non-Party;

6 2. Promptly provide the Non-Party with a copy of the Stipulated

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

8 specific description of the information requested; and

9 3. Make the information requested available for inspection by the

10 Non-Party, if requested.

11 C. If the Non-Party fails to seek a protective order from this court within

12 14 days of receiving the notice and accompanying information, the Receiving

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

14 discovery request. If the Non-Party timely seeks a protective order, the Receiving

15 Party shall not produce any information in its possession or control that is subject

16 to the confidentiality agreement with the Non-Party before a determination by the

17 court. Absent a court order to the contrary, the Non-Party shall bear the burden

18 and expense of seeking protection in this court of its Protected Material.

19 XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

21 disclosed Protected Material to any person or in any circumstance not authorized

22 under this Stipulated Protective Order, the Receiving Party must immediately (1)

23 notify in writing the Designating Party of the unauthorized disclosures, (2) use its

24 best efforts to retrieve all unauthorized copies of the Protected Material, (3) inform

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

26 of this Order, and (4) request such person or persons to execute the

27 “Acknowledgment and Agreement to be Bound” that is attached hereto as Exhibit

28 A.

1 XII. INADVERTENT PRODUCTION OF PRIVILEGED OR

2 OTHERWISE 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

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

12 Stipulated Protective Order submitted to the Court.

13 XIII. MISCELLANEOUS

14 A. Right to Further Relief

15 Nothing in this Order abridges the right of any person to seek its

16 modification by the Court in the future.

17 B. Right to Assert Other Objections

18 By stipulating to the entry of this Protective Order, no Party waives any

19 right it otherwise would have to object to disclosing or producing any information

20 or item on any ground not addressed in this Stipulated Protective Order. Similarly,

21 no Party waives any right to object on any ground to use in evidence of any of the

22 material covered by this Protective Order.

23 C. Filing Protected Material

24 A Party that seeks to file under seal any Protected Material must comply

25 with Civil Local Rule 79-5. Protected Material may only be filed under seal

26 pursuant to a court order authorizing the sealing of the specific Protected Material

27 at issue. If a Party's request to file Protected Material under seal is denied by the

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1 Court, then the Receiving Party may file the information in the public record

2 unless otherwise instructed by the Court.

3

4 XIV. FINAL DISPOSITION

5 After the final disposition of this Action, as defined in Section V, within

6 sixty (60) days of a written request by the Designating Party, each Receiving Party

7 must return all Protected Material to the Producing Party or destroy such material.

8 As used in this subdivision, “all Protected Material” includes all copies, abstracts,

9 compilations, summaries, and any other format reproducing or capturing any of the

10 Protected Material. Whether the Protected Material is returned or destroyed, the

11 Receiving Party must submit a written certification to the Producing Party (and, if

12 not the same person or entity, to the Designating Party) by the 60 day deadline that

13 (1) identifies (by category, where appropriate) all the Protected Material that was

14 returned or destroyed and (2) affirms that the Receiving Party has not retained any

15 copies, abstracts, compilations, summaries or any other format reproducing or

16 capturing any of the Protected Material. Notwithstanding this provision, Counsel

17 are entitled to retain an archival copy of all pleadings, motion papers, trial,

18 deposition, and hearing transcripts, legal memoranda, correspondence, deposition

19 and trial exhibits, expert reports, attorney work product, and consultant and expert

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

21 archival copies that contain or constitute Protected Material remain subject to this

22 Protective Order as set forth in Section V.

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24 XV. REMEDIES FOR VIOLATION OF THIS ORDER

25 Any violation of this Order may be punished by any and all appropriate

26 measures including, without limitation, contempt proceedings and/or monetary

27 sanction

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1 || IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

3 Dated: August 12, 2020 /s/ Humberto Guizar

Humberto Guizar

4 Attorney for Plaintiff

Dated: May 4, 2020 /s/ Edward Wells

6 Jill Williams

7 Edward Wells

Attorneys for Defendants

9 I, Edward Wells, hereby attest that all other signatories listed, and on whose

10 behalf the filing is submitted, concur in the filing’s content and have authorized the

filing. ? 3) oe

11 □□ CELE Gp

1 2 eae

13 Edward Wells

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15 |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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17 || Dated: August 20.2020 Ce dX.

HONORABLE ALICIA G. ROSENBERG

18 United States Magistrate Judge

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dN

1 EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, [print or type full name], of

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[print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Stipulated Protective Order that

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was issued by the United States District Court for the Central District of California

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on [DATE] in the case of Timothy Espinoza v. Santa Ana Police

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Department, et al., case no. SACV 19-1277-JLS (AGR). I agree to comply with

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and to be bound by all the terms of this Stipulated Protective Order and I

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understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Stipulated

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Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District

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Court for the Central District of California for the purpose of enforcing the terms

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of this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action. I hereby appoint

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[print or type full name] of

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[print or type full address and telephone number]

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as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date:

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City and State where sworn and signed:

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Printed Name:

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Signature:

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