peace officers have constitutionally-based “privacy rights 13 [that] are not inconsequential” in their police personnel records
How later courts described this case
- peace officers have constitutionally-based “privacy rights 13 [that] are not inconsequential” in their police personnel records
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 DIONDRA WILLIAMS as G.A.L for Case No. 2:20-CV-09042 VAP (ASx)
“S.M.”, SOLEMULI AFAESE as Consol. w/ 2:20-CV-09350 VAP (ASx)
12 G.A.L. for “A.M.”, & IRENE Consol. w/ 5:20-CV-02252 VAP (ASx)
13 Plaintiffs. [Hon. Dist. Judge Virginia A. Phillips
Mag. Judge Alka Sagar]
14 v.
[DISCOVERY MATTER]
15 PASADENA P.D. OFC. EDWIN
DUMAGUINDIN, OFC. C. ROSA PROTECTIVE ORDER
16 DUMAGUINDIN, CITY OF
PASADENA, & CHIEF JOHN PEREZ,
17 individually and in their official
capacities and DOES 1-10 inclusive, Complaint Filed: 11/26/19
18 Trial Date: Not Yet Set
Defendants.
19 ARCHIE BARRY, individually and as
successor-in-interest for Decedent,
20 Anthony McClain
21 Plaintiff.
22 v.
23 CITY OF PASADENA, OFFICER
EDWIN DUMAGUINDIN, and DOES
24 1 through 10, inclusive,
25 Defendants.
26 BAM, a minor, by and through his
guardian ad litem Kimberly Jenkins,
27 individually and as successor in interest
to ANTHONY GUYDALE McCLAIN,
1
Plaintiffs.
2
v.
3
CITY OF PASADENA, PASADENA
4 POLICE DEPARTMENT, CHIEF OF
POLICE JOHN PEREZ, OFFICERS
5 EDWIN DUMAGUINDIN, and DOES
1-10,
6
Defendants.
7
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10 1. A. PURPOSES AND LIMITATIONS.
11 Discovery in this action are likely to involve production of confidential,
12 proprietary, or private information for which special protection frompublicdisclosure
13 and from use for any purpose other than prosecuting or defending this litigation may
14 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
15 enter the following Stipulated Protective Order.
16 The parties acknowledge that this Order does not confer blanket protections on
17 all disclosures or responses to discovery and that the protection it affords from public
18 disclosure and use extends only to the limited information or items that are entitled to
19 confidential treatment under the applicable legal principles.
20 The parties further acknowledge, as set forth below, that this Stipulated
21 Protective Order creates no entitlement to file confidential information under seal,
22 except to the extent specified herein; Central District Local Rules 79-5.1 and 79-5
23 set(s) forth theprocedures that must be followed and the standards that will be applied
24 when a party seeks permission from the court to file material under seal.
25 Nothing in this Stipulation or associated Order shall be construed so as to
26 require or mandate that any Party disclose or produce privileged information or
27 records that could be designated as Confidential Documents/Protected Material
1
2 B. GOOD CAUSE STATEMENT.
3 Contentions re Harm from Disclosure of Confidential Materials.
4 This action is likely to involve law enforcement investigative files, other law
5 enforcement agency records, peace officer personnel records and medical records for
6 whichspecialprotectionfrompublicdisclosure,includingdisclosureorreleasetoany
7 news media, member of the press, website, or any other public forum (except as
8 permitted under section 12 regarding filings with the court in this action and under
9 seal) and from use for any purpose other than prosecution of this action is warranted.
10 Such confidential and proprietary materials and information consist of, among other
11 things, materials relating to the investigation of an incident involving decedent and
12 officers of the Pasadena Police Department, peace officer personnel files, medical
13 records including information implicating privacy rights of third parties, and
14 informationotherwisegenerallyunavailabletothepublic,orwhichmaybeprivileged
15 orotherwiseprotected fromdisclosureunder state orfederal statutes,court rules,case
16 decisions, or common law. Accordingly, to expedite the flow of information, to
17 facilitatethepromptresolutionofdisputesoverconfidentialityofdiscoverymaterials,
18 to adequately protect information the parties are entitled to keep confidential, to
19 ensure that the parties are permitted reasonable necessary uses of such material in
20 preparation for and in the conduct of trial, to address their handling at the end of the
21 litigation, and serve the ends of justice, a protective order for such information is
22 justified in this matter. It is the intent of the parties that information will not be
23 designated as confidential for tactical reasons and that nothing be so designated
24 without a good faith belief that it has been maintained in a confidential, non-public
25 manner, and there is good cause why it should not be part of the public record of this
26 case.
27 Defendants contend that there is good cause and a particularized need for a
1 personnel file records and associated investigative or confidential records for the
2 following reasons.
3 Defendants contend that peace officers have a federal privilege of privacy in
4 their personnel file records: a reasonable expectation of privacy therein that is
5 underscored, specified, and arguably heightened by the Pitchess protective procedure
6 of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 1027, 1033-1034
7 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 14665, *2-3, 12-
8 13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law applies to privilege based
9 discovery disputes involving federal claims,” the “state privilege law which is
10 consistent with its federal equivalent significantly assists in applying [federal]
11 privilege law to discovery disputes”); Soto v. City of Concord, 162 F.R.D. 603, 613
12 n. 4, 616 (N.D. Cal. 1995) (peace officers have constitutionally-based “privacy rights
13 [that] are not inconsequential” in their police personnel records); cf. Cal. Penal Code
14 §§ 832.7, 832.8; Cal. Evid. Code §§ 1040-1047. Defendants further contend that
15 uncontrolled disclosure of such personnel file information can threaten the safety of
16 non-party witnesses, officers, and their families/associates.
17 Second, defendants contend that municipalities and law enforcement agencies
18 have federal deliberative-executive process privilege, federal official information
19 privilege, federal law enforcement privilege, and federal attorney-client privilege
20 (and/orattorneyworkproductprotection)interestsinthepersonnelfilesoftheirpeace
21 officers – particularlyas to those portions of peace officer personnel files that contain
22 critical self-analysis, internal deliberation/decision-making or evaluation/analysis, or
23 communications for the purposes of obtaining or rendering legal advice or analysis –
24 potentially including but not limited to evaluative/analytical portions of Internal
25 Affairs type records or reports, evaluative/analytical portions of supervisory records
26 or reports, and/or reports prepared at the direction of counsel, or for the purpose of
27 obtaining or rendering legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa
1 1997); Soto, 162 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654,
2 668-671 (N.D. Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998);
3 Hamstreet v. Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co.
4 v. United States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants
5 further contend that such personnel file records are restricted from disclosure by the
6 public entity’s custodian of records pursuant to applicable California law and that
7 uncontrolled release is likely to result in needless intrusion of officer privacy;
8 impairment in the collection of third-party witness information and statements and
9 related legitimate lawenforcement investigations/interests; and achilling of open and
10 honest discussion regarding and/or investigation into alleged misconduct that can
11 erode a public entity’s ability to identify and/or implement any remedial measures
12 that may be required.
13 Third,defendantscontendthat,sincepeaceofficersdonothavethesame rights
14 as other private citizens to avoid giving compelled statements, it is contrary to the
15 fundamental principles of fairness to permit uncontrolled release of officers’
16 compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 822,
17 828-830 (1985); cf. U.S. Const., amend V.
18 Accordingly, defendants contend that, without a protective order preventing
19 such, production of confidential records in the case can and will likely substantially
20 impair and harm defendant public entity’s interests in candid self-critical analysis,
21 frank internal deliberations, obtaining candid information from witnesses, preserving
22 the safety of witnesses, preserving the safety of peace officers and peace officers’
23 families and associates, protecting the privacy officers of peace officers, and
24 preventing pending investigations from being detrimentally undermined by
25 publication of private, sensitive, or confidential information – as can and often does
26 result in litigation.
27 Plaintiffs do not agree with and do not stipulate to Defendants’ contentions
1 parties’ disagreement, or bind them, concerning the legal statements and claimed
2 privileges set forth above. However, plaintiffs agree that there is Good Cause for a
3 Protective Order so as to preserve the respective interests of the parties while
4 streamlining the process of resolving any disagreements.
5 The parties jointly contend that there is typically a particularized need for
6 protection as to any medical or psychotherapeutic records and autopsy photographs,
7 because of the privacy interests at stake therein. Because of these sensitive interests,
8 a Court Order should address these documents rather than a private agreement
9 between the parties.
10 The parties therefore stipulate that there is Good Cause for, and hereby jointly
11 request that the honorable Court issue/enter, a Protective Order re confidential
12 documents consistent with the terms and provisions of this Stipulation. However, the
13 entry of a Protective Order by the Court pursuant to this Stipulation shall not be
14 construed as any ruling by the Court on the aforementioned legal statements or
15 privilege claims in this section (§ 1), nor shall this section be construed as part of any
16 such Court Order.
17
18 2. DEFINITIONS.
19 2.1 Action: this pending federal law suit and other consolidated or related
20 actions.
21 2.2 Challenging Party: a Party or Non-Party that challenges the
22 designation of information or items under this Order.
23 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
24 how it is generated, stored or maintained) or tangible things that qualify for protection
25 under standards developed under Federal Rule of Civil Procedure 26(c) and/or
26 applicable federal privileges. This material includes, but is not limited to, medical
27 records,psychotherapeuticrecords,and autopsyphotographs; aswell as peace officer
1 and theassociatedcase law; and othersimilar confidentialrecordsdesignated assuch.
2 2.4 Counsel(withoutqualifier):OutsideCounselandHouseCounsel(aswell
3 as their support staffs).
4 2.5 DesignatingParty:aPartyorNon-PartypublicentityemployerofaParty
5 that designates information or items that it produces in disclosures or in responses to
6 discovery as “CONFIDENTIAL.”
7 2.6 Disclosure or Discovery Material: all items or information, regardless
8 of the medium or manner in which it is generated, stored, or maintained (including,
9 among other things, testimony, transcripts, or tangible things), that are produced – or
10 generated in disclosures or responses to discovery – by any Party in this matter.
11 2.7 Expert: a person with specialized knowledge or experience in a matter
12 pertinent to the litigation who has been retained bya Partyor its counsel to serve as an
13 expert witness or as a consultant in this Action and who is not a past or a current
14 employee of a Party and who, at the time of retention, is not anticipated to become an
15 employee of a Party or a competitor of a Party’s; as well as any person retained,
16 designated, or disclosed by a Party as an expert pursuant to Federal Rule of Civil
17 Procedure 26(a)(2) or other applicable discovery Rules or statutes.
18 2.8 House Counsel: attorneys who are employees of a Party (as well as their
19 support staffs).
20 2.9 Non-Party: any natural person, partnership, corporation, association, or
21 other legal entity not named as a Party to this action.
22 2.10 OutsideCounsel:attorneyswhoarenotemployeesofaPartybutwho are
23 retained to represent or advise a Party in this action (as well as their support staffs).
24 2.11 Party: any Party to this Action, including all of its officers, directors,
25 employees, agents, consultants, retained experts, house counsel, and outside counsel
26 (and/or their support staffs).
27 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
1 noticed or subpoenaed by another Party; additionally, for the limited purpose of
2 designating testimony subject to this Stipulation and Order pursuant to section 6.2(b)
3 (infra), a “Producing Party” shall also be construed to include a Party that is attending
4 and/or participating in a non-party deposition noticed/subpoenaed by another Party.
5 2.13 Professional Vendors: persons or entities that provide litigation support
6 services (e.g., photocopying, videotaping, translating, preparing exhibits or
7 demonstrations,andorganizing,storing,orretrievingdatainanyformormedium)and
8 their employees and subcontractors.
9 2.14 Protected Material: any Disclosure or Discovery Material that is
10 designated as “CONFIDENTIAL” under the provisions of this Stipulation and
11 Protective Order. (The term “Confidential Document” shall be synonymous with the
12 term “Protected Material” for the purposes of this Stipulation and any associated
13 Protective Order.)
14 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
15 fromaProducingParty,includingaPartythathasnoticedorsubpoenaedandistaking
16 a deposition or comparable testimony.
17
18 3. SCOPE.
19 TheprotectionsconferredbythisStipulationandOrdercovernotonlyProtected
20 Material (as defined above), but also (1) any information copied or extracted from
21 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
22 Material; and (3) any testimony, conversations, or presentations by Parties or their
23 Counsel that might reveal Protected Material. However, the protections conferred by
24 this Stipulation and its associated Order do not cover the following information: (a)
25 any information that is in the public domain at the time of disclosure to a Receiving
26 Party or becomes part of the public domain after its disclosure to a Receiving Party
27 as a result of publication not involving a violation of this Order, including becoming
1 the Receiving Party prior to the disclosure or obtained by the Receiving Party after
2 the disclosure from a source who obtained the information lawfully and under no
3 obligation of confidentiality to the Designating Party.
4 AnyuseofProtectedMaterialattrialshallbegovernedbytheOrdersofthetrial
5 judge: This Order does not govern the use of Protected Material at trial.
6
7 4. DURATION.
8 Even after final disposition of this litigation, the confidentiality obligations
9 imposedbythisOrdershallremainineffectuntilaDesignatingPartyagreesotherwise
10 in writing or a court order otherwise directs.
11 Finaldispositionshallbedeemedtobethelaterof(1)dismissalof allclaimsand
12 defenses in this Action, with or without prejudice; and (2) final judgment herein after
13 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews
14 of this Action, including the time limits for filing any motions or applications for
15 extension of time pursuant to applicable law.
16
17 5. DESIGNATING PROTECTED MATERIAL.
18 5.1 Exercise of Restraint and Care in Designating Material for Protection.
19 Each Party or Non-Party that designates information or items for protection
20 under this Order must take care to limit any such designation to specific material that
21 qualifies under the appropriate standards. A Designating Party must take care to
22 designate for protection only those parts of material, documents, items, or oral or
23 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 Mass, indiscriminate, or routinized designations are prohibited. Designations
27 thatareshowntobeclearlyunjustifiedorthathavebeenmadeforanimproperpurpose
1 unnecessaryexpensesandburdensonotherparties) mayexposethe DesignatingParty
2 to sanctions.
3 If it comes to a Party’s attention that information or items that it designated for
4 protection do not qualify for protection at all, or do not qualify for the level of
5 protection asserted, that Party must promptly notify all other parties that it is
6 withdrawing the mistaken designation.
7 5.2 Manner and Timing of Designations. Except as otherwise provided in
8 this Order, or as otherwise stipulated or ordered, material that qualifies for protection
9 under this Order must be clearly so designated before the material is disclosed or
10 produced.
11 Designation in conformity with this Order requires:
12 (a) for information in documentary form (apart from transcripts of
13 depositions or other pretrial or trial proceedings, and regardless of whether produced
14 in hardcopy or electronic form), that the Producing Party affix the legend
15 “CONFIDENTIAL” to eachpage that contains Protected Material. If onlya portionor
16 portions of the material on a page qualifies for protection, the Producing Party also
17 must clearlyidentifytheprotected portion(s) (e.g.,bymaking appropriate markings in
18 the margins) and must specify, for each portion that it is “CONFIDENTIAL.” The
19 placement of such “CONFIDENTIAL” stamp on such page(s) shall not obstruct the
20 substance of the page’s (or pages’) text or content.
21 A Party or Non-Party that makes original documents or materials available for
22 inspection need not designate them for protection until after the inspecting Party has
23 indicated which documents it would like copied and produced. During the inspection
24 and before the designation, all of the material made available for inspection shall be
25 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
26 it wants copied and produced, the Producing Party must determine which documents,
27 orportionsthereof,qualifyforprotectionunderthis Order.Then,beforeproducingthe
1 to each page that contains Protected Material. If only a portion or portions of the
2 material on a page qualifies for protection, the Producing Party also must clearly
3 identifytheprotectedportion(s)(e.g.,bymakingappropriatemarkingsinthemargins).
4 (b) for testimony given in depositions or in other pretrial proceedings, that
5 the Party or non-party offering or sponsoring the testimony identify on the record,
6 before the close of the deposition, hearing, or other proceeding, all protected
7 testimony, and further specify any portions of the testimony that qualify as
8 “CONFIDENTIAL.” When it is impractical to identify separately each portion of
9 testimonythat is entitled to protection, and when it appears that substantial portions of
10 the testimony may qualify for protection, the Producing Party may invoke on the
11 record (before the deposition or proceeding is concluded) a right to have up to twenty
12 (20) days to identify the specific portions of the testimony as “CONFIDENTIAL.”
13 Only those portions of the testimony that are appropriately designated as
14 “CONFIDENTIAL” for protection within the 20 days shall be covered by the
15 provisions of this Stipulation and its associated Protective Order.
16 The court reporter must affix to each such transcript page containing Protected
17 Material the legend “CONFIDENTIAL,” as instructed by the Producing Party.
18 (c) for information produced in some form other than documentary and for any
19 other tangible items (including but not limited to information produced on disc or
20 electronic data storage device), that the Producing Party affix in a prominent place on
21 theexteriorofthe containeror containersinwhichtheinformationisstoredthelegend
22 “CONFIDENTIAL.” If only a portions of the information or item warrant protection,
23 the Producing Party, to the extent practicable, shall identify the protected portions,
24 specifying the material as “CONFIDENTIAL.”
25 5.3 Inadvertent Failures to Designate. If timely corrected (preferably though
26 not necessarily, within 30 days of production or disclosure of such material), an
27 inadvertent failure to designate qualified information or items as "CONFIDENTIAL"
1 this Order for such material.
2 Ifmaterialisappropriatelydesignatedas“CONFIDENTIAL”afterthematerial
3 was initially produced, the Receiving Party, on timely notification of the designation,
4 must make reasonable efforts to assure that the material is treated in accordance with
5 this Stipulation and its associated Order.
6 5.4 Alteration of Confidentiality Stamp Prohibited. A Receiving Party shall
7 not alter, edit, or modify any Protected Material so as to conceal, obscure, or remove
8 a “CONFIDENTIAL” stamp or legend thereon; nor shall a Receiving Party take any
9 other action so as to make it appear that Protected Material is not subject to the terms
10 and provisions of this Stipulation and its associated Order. However, nothing in this
11 section shall be construed so as to prevent a Receiving Party from challenging a
12 confidentiality designation subject to the provisions of section 6, infra.
13
14 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS.
15 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
16 designation of confidentiality at any time that is consistent with the Court’s
17 Scheduling Order. Unless a prompt challenge to a Designating Party’s confidentiality
18 designation is necessary to avoid foreseeable substantial unfairness, unnecessary
19 economic burdens, or a later significant disruption or delay of the litigation, a Party
20 does not waive its right to challenge a confidentiality designation by electing not to
21 mount a challenge promptly after the original designation is disclosed.
22 6.2 Meet and Confer. Prior to challenging a confidentiality designation, a
23 Challenging Party shall initiate a dispute resolution process by providing written
24 notice of each specific designation it is challenging, and describing the basis (and
25 supporting authority or argument) for each challenge. To avoid ambiguity as to
26 whether a challenge has been made, the written notice must recite that the challenge
27 to confidentiality is being made in accordance with this specific paragraph of the
1 good faith and must begin the process by conferring directly (in voice to voice
2 dialogue, either in person, telephonically, or by other comparable means, but not by
3 correspondence) within 14 days of the date of service of notice.
4 Inconferring,theChallengingPartymustexplainthespecificbasisforitsbelief
5 that the confidentiality designation was not proper and must give the Designating
6 Party an opportunity to review the designated material, to reconsider the
7 circumstances, and, if no change in designation is offered, to explain the basis for the
8 chosen designation. A Challenging Party may proceed to the next stage of the
9 challenge process only if it has engaged in this meet and confer process first or
10 establishesthattheDesignatingPartyisunwillingtoparticipateinthemeetandconfer
11 process in a timely manner.
12
13 6.3 Judicial Intervention. If the Parties cannot resolve a confidentiality
14 challenge without court intervention, the Challenging Party shall file and serve a
15 motion to remove confidentiality (under the applicable rules for filing and service of
16 discovery motions) within 14 days of the parties agreeing that the meet and confer
17 process will not resolve their dispute, or by the first day of trial of this matter,
18 whichever date is earlier – unless the parties agree in writing to a longer time.
19 The parties must strictly comply with Central District Local Rules 37-1 and 37-
20 2 (including the joint stipulation re discovery dispute requirement) in any motion
21 associated with this Protective Order.
22 Each such motion must be accompanied by a competent declaration affirming
23 that the movant has complied with the meet and confer requirements imposed in the
24 precedingparagraph. Inaddition,theChallengingPartymayfileamotionchallenging
25 a confidentiality designation at any time if there is good cause for doing so, including
26 a challenge to the designation of a deposition transcript or any portions thereof. Any
27 motion brought pursuant to this provision must be accompanied by a competent
1 requirements imposed by the preceding paragraph.
2 The burden of persuasion in any such challenge proceeding shall be on the
3 Designating Party, regardless of whether the Designating Party is the moving party or
4 whether such Party sought or opposes judicial intervention. Frivolous challenges, and
5 those made for an improper purpose (e.g., to harass or impose unnecessary expenses
6 and burdens on other parties) may expose the Challenging Party to sanctions. Unless
7 the Designating Party has waived the confidentiality designation by failing to oppose
8 a motion to remove confidentiality as described above, all parties shall continue to
9 afford the material in question the level of protection to which it is entitled under the
10 Producing Party’s designation until the Court rules on the challenge.
11 6.4. Withdrawal of “CONFIDENTIAL” Designation. At its discretion, a
12 DesignatingPartymayremoveProtectedMaterial/ConfidentialDocumentsfromsome
13 or all of the protections and provisions of this Stipulation and its associated Order at
14 any time by any of the following methods:
15 (a) Express Written Withdrawal. A Designating Party may withdraw a
16 “CONFIDENTIAL” designation made to any specified Protected Material
17 /Confidential Documents fromsome or all of theprotections of this Stipulation and its
18 associated Order by an express withdrawal in a writing signed by such Party (or such
19 Party’s Counsel, but not including staff of such Counsel) that specifies and itemizes
20 the Disclosure or Discovery Material previously designated as Protected
21 Material/Confidential Documents that shall no longer be subject to all or some of the
22 provisions of this Stipulation and Order. Such express withdrawal shall be effective
23 when transmitted or served upon the Receiving Party. If a Designating Party is
24 withdrawing Protected Material from only some of the provisions/ protections of this
25 Stipulation and Order, such Party must state which specific provisions are no longer
26 to be enforced as to the specified material for which confidentiality protection
27 hereunder is withdrawn: otherwise, such withdrawal shall be construed as a
1 and Order;
2 (b) Express Withdrawal on the Record. A Designating Party may withdraw
3 a “CONFIDENTIAL” designation made to any specified Protected
4 Material/Confidential Documents from all of the provisions/protections of this
5 StipulationanditsassociatedOrderbyverballyconsentingincourtproceedingsonthe
6 record to such withdrawal – provided that such withdrawal specifies the Disclosure or
7 Discovery Material previously designated as Protected Material/ Confidential
8 Documents that shall no longer be subject to any of the provisions of this Stipulation
9 and Order. A Designating Party is not permitted to withdraw Protected Material from
10 only some of the protections/provisions of this Stipulation and Order by this method;
11 (c) Implicit Withdrawal by Publication or Failure to Oppose Challenge. A
12 Designating Party shall be construed to have withdrawn a “CONFIDENTIAL”
13 designation made to any specified Protected Material/Confidential Documents from
14 alloftheprovisions/protectionsofthisStipulationandOrderbyeither(1)makingsuch
15 Protected Material/Confidential Records part of the public record – including but not
16 limited to attaching such as exhibits to any filing with the court without moving, prior
17 to such filing, for the court to seal such records; or (2) failing to timely oppose a
18 Challenging Party’s motion to remove a “CONFIDENTIAL” designation to specified
19 Protected Material/Confidential Documents. Nothing in this Stipulation and Order
20 shall be construed so as to require any Party to file Protected Material/Confidential
21 Documents under seal, unless expressly specified herein.
22
23 7. ACCESS TO AND USE OF PROTECTED MATERIAL.
24 7.1 Basic Principles. A Receiving Party may use Protected Material that is
25 disclosed or produced by another Party or by a Non-Party in connection with this
26 Actiononlyforpreparing,prosecuting,defending,orattemptingtosettlethislitigation
27 – up to and including final disposition of the above-entitled action – and not for any
1 Such Protected Material may be disclosed only to the categories of persons and under
2 the conditions described in this Order. When the Action has been terminated, a
3 Receiving Party must comply with the provisions of section 13 below (FINAL
4 DISPOSITION).
5 Protected Material must be stored and maintained by a Receiving Party at a
6 location and in a secure manner that ensures that access is limited to the persons
7 authorized under this Order.
8 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
9 otherwise ordered by the Court or permitted in writing by the Designating Party, a
10 ReceivingPartymaydiscloseanyinformationoritemdesignated“CONFIDENTIAL”
11 only to:
12 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
13 as employees of such Counsel to whom it is reasonably necessary to disclose the
14 information for this Action;
15 (b) the officers, directors, and employees (including House Counsel) of the
16 Receiving Party to whom disclosure is reasonably necessary for this Action – each of
17 whom, by accepting receipt of such Protected Material, thereby agree to be bound by
18 this Stipulation and Order;
19 (c) Experts (as defined in this Order) of the Receiving Party to whom
20 disclosureisreasonablynecessaryforthisAction–eachofwhom,byacceptingreceipt
21 of such Protected material, thereby agree to be bound by this Stipulation and Order.
22 (d) court reporters, their staffs, and Professional Vendors to whom
23 disclosure is reasonably necessary for this litigation – each of whom, by accepting
24 receipt of such Protected Material, thereby agree to be bound by this Stipulation and
25 Order;
26 (e) professional jury or trial consultants, mock jurors, and Professional
27 Vendors to whom disclosure is reasonably necessary for this Action and who have
1 (f) the author or custodian of a document containing the information that
2 constitutesProtectedMaterial,oracustodianorotherpersonwhootherwisepossessed
3 or knew the information;
4 (g) during their depositions, witnesses in the action to whom disclosure is
5 reasonably necessary – each of whom, by accepting receipt of such Protected
6 Material, thereby agree to be bound by this Stipulation and Order. Pages of
7 transcribed deposition testimony or exhibits to depositions that reveal Protected
8 Material must have a confidential designation affixed by the court reporter to such
9 pages containing Protected Material and such may not be disclosed to anyone except
10 as permitted under this Stipulation and its Protective Order.
11 (h) the author or custodian of a document containing the information that
12 constitutes Protected Material, or other person who otherwise possessed or knew the
13 information.
14 7.3. Notice of Confidentiality. Prior to producing or disclosing Protected
15 Material/Confidential Documents to persons to whom this Stipulation and its Order
16 permits disclosure or production (see section 8.2, supra), a Receiving Party shall
17 provide a copy of this Stipulation and Order to such persons so as to put such persons
18 on notice as to the restrictions imposed upon them herein: except that, for court
19 reporters, Professional Vendors, and for witnesses being provided with Protected
20 Materialduringadeposition,itshallbesufficientnoticeforCounselfortheReceiving
21 Party to give the witness a verbal admonition (on the record, for witnesses) regarding
22 the provisions of this Stipulation and its Order and such provisions’ applicability to
23 specified Protected Material at issue.
24 7.4. Reservation of Rights. Nothing in this Stipulation and Order shall be
25 construed so as to require any Producing Party to designate any records or materials
26 as “CONFIDENTIAL.” Nothing in this Stipulation and Order shall be construed so
27 as to prevent the admission of Protected Material into evidence at the trial of this
1 Disclosure or Discovery Material has been designated as Protected
2 Material/Confidential Documents. Notwithstanding the foregoing, nothing in this
3 Stipulation and Order shall be construed as a waiver of any privileges or of any rights
4 to object to the use or admission into evidence of any Protected Material in any
5 proceeding; nor shallanything herein be construed as a concession that anyprivileges
6 asserted or objections made are valid or applicable. Nothing in this Stipulation and
7 Order shall be construed so as to prevent the Designating Party (or its Counsel or
8 custodian of records) from having access to and using Protected Material designated
9 bythat Partyin the manner in which such persons or entities would typicallyuse such
10 materials in the normal course of their duties or profession – except that the waiver of
11 confidentiality provisions shall apply (see section 6.4(c), supra).
12 7.5. Requirement to File Confidential Documents Under Seal. Confidential
13 Documents may be submitted in all law and motion proceedings before the Court if
14 done so under seal pursuant to Federal Rules of Civil Procedure 5.2 and 26 and/or
15 UnitedStates DistrictCourt,Central District ofCaliforniaLocalRules79-5.1 and 79-
16 5.2 (as applicable) and pursuant to the provisions of this Stipulation and any
17 associatedOrder. IfanyReceivingPartyattachesanyConfidentialDocumentstoany
18 pleading, motion, or other paper to be filed, lodged, or otherwise submitted to the
19 Court, such Confidential Document(s) shall be filed/lodged under seal pursuant to
20 Federal Rules of Civil Procedure 5.2 and 26 and/or United States District Court,
21 Central District of California Local Rules 79-5.1 and 79-5.2 to the extent applicable.
22 However, this paragraph (¶ 7.5) shall not be construed so as to prevent a
23 Designating Party or counsel from submitting, filing, lodging, or publishing any
24 document it has previously designated as a Confidential Document without
25 compliance with this paragraph’s requirement to do so under seal (i.e., a producing-
26 disclosing party or counsel may submit or publish its own Confidential Documents
27 without being in violation of the terms of this Stipulation and its Protective Order).
1 this paragraph as to any specifically identified Confidential Document(s) where –
2 prior to the submission or publication of the Confidential Document(s) at issue – the
3 Designating Party of such specifically identified Confidential Document(s) has
4 waived/withdrawn the protections of this Stipulation and its Order (pursuant to
5 paragraph 6.4, supra).
6 A Receiving Party shall also be exempt from the sealing requirements of this
7 paragraph(¶7.5)wheretheConfidentialDocuments/ProtectedMaterialatissueis/are
8 not documents, records, or information regarding or incorporating:
9 (1) private, personal information contained in peace officer personnel files
10 (such as social security numbers, driver’s license numbers or comparable personal
11 government identification numbers, residential addresses, compensation or pension
12 or personal property information, credit card numbers or credit information, dates of
13 birth, tax records and information, information related to the identity of an officer’s
14 family members or co-residents, and comparable personal information about the
15 officer or his family);
16 (2) any internal affairs or comparable investigation by any law enforcement
17 agency into alleged officer misconduct; and/or
18 (3) the medical records or records of psychiatric or psychological treatment
19 of any peace officer or party to this action.
20 Nothing in this paragraph shall be construed to bind the Court or its authorized
21 staff so as to limit or prevent the publication of any Confidential Documents to the
22 jury or factfinder, at the time of trial of this matter, where the Court has deemed such
23 Confidential Documents to be admissible into evidence.
24 Nothing in this Stipulation or in any associated Order shall be construed as any
25 entitlement for the parties to file any documents or materials under seal; nor shall the
26 parties’ Stipulation or this Order be construed as any exemption from any of the
27 requirements of Central District Local Rule 79-5. The parties are required to comply
1 for filing material under seal, that material may be filed in the public record unless
2 otherwise instructed by the Court.
3
4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
5 OTHER LITIGATION
6 If a Party is served with a subpoena or a court order issued in other litigation
7 that compels disclosure of any information or items designated in this Action as
8 “CONFIDENTIAL,” that Party must:
9 (a) promptly notify in writing the Designating Party, preferably (though not
10 necessarily) by facsimile or electronic mail. Such notification shall include a copy of
11 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
17 by all sides in any such situation, while adhering to the terms of this Stipulated Order.
18 If the Designating Party timely seeks a protective order, the Party served with
19 thesubpoenaorcourtordershallnotproduceanyinformationdesignatedinthisaction
20 as “CONFIDENTIAL” before a determination by the court from which the subpoena
21 or order issued, unless the Party has obtained the Designating Party’s permission. The
22 DesignatingPartyshallbeartheburdenandexpenseofseekingprotectioninthatcourt
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
25 directive from another court.
26 The purpose of this section is to ensure that the affected Partyhasa meaningful
27 opportunity to preserve its confidentiality interests in the court from which the
1
2 9.ANON-PARTY’SPROTECTEDMATERIALSOUGHTTOBEPRODUCEDIN
3 THIS LITIGATION
4 (a) Thetermsofthis Orderareapplicabletoinformationproducedbya Non-
5 Party in this Action and designated as “CONFIDENTIAL.” Such information
6 producedbyNon-Partiesinconnectionwiththislitigationisprotectedbytheremedies
7 and relief provided by this Order. Nothing in these provisions should be construed as
8 prohibiting a Non-Party from seeking additional protections.
9 (b) In the event that a Party is required, by a valid discovery request, to
10 produce a Non-Party’s confidential information in its possession, and the Party is
11 subject to an agreement with the Non-Party not to produce the Non-Party’s
12 confidential information, then the Party shall:
13 (1) promptlynotify in writing the Requesting Party and the Non-Party
14 that some or all of the information requested is subject to a confidentiality agreement
15 with a Non-Party;
16 (2) promptly provide the Non-Party with a copy of the Stipulated
17 Protective Order in this Action, the relevant discovery request(s), and a reasonably
18 specific description of the information requested; and
19 (3) make the information requested available for inspection by the
20 Non-Party, if requested.
21 (c) If the Non-Party fails to seek a protective order from this court within 14
22 days of receiving the notice and accompanying information, the Receiving Party may
23 produce the Non-Party’s confidential information responsive to the discovery request.
24 If theNon-Partytimelyseeks aprotective order,theReceivingPartyshallnot produce
25 any information in its possession or control that is subject to the confidentiality
26 agreement with the Non-Party before a determination by the court. Absent a court
27 order to the contrary, the Non-Party shall bear the burden and expense of seeking
1
2 10. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
3 PROTECTED MATERIAL.
4 When a Producing Party gives notice to Receiving Parties that certain
5 inadvertently produced material is subject to a claim of privilege or other protection,
6 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
7 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
8 may be established in an e-discovery order that provides for production without prior
9 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
10 parties reach an agreement on the effect of disclosure of a communication or
11 information covered by the attorney-client privilege or work product protection, the
12 parties may incorporate their agreement in the stipulated protective order submitted to
13 the court.
14
15 11. PUBLICATION OF PROTECTED MATERIAL PROHIBITED.
16 11.1. Filing of Protected Material.
17 Without advance written permission from the all Parties, or a court order
18 secured after appropriate notice to all interested persons, a Party may not file in the
19 public record in this action any Protected Material. A Party that seeks to file under
20 seal any Protected Material must comply with Local Civil Rule 79-5. Protected
21 Material may only be filed under seal pursuant to a court order authorizing the sealing
22 ofthespecificProtectedMaterialatissue. IfaParty’srequesttofileProtectedMaterial
23 under seal is denied by the court, then the Party may file the information in the public
24 record unless otherwise instructed by the court.
25 11.2. Public Dissemination of Protected Material.
26 APartyshallnotpublish,release,post,ordisseminate ProtectedMaterialtoany
27 persons except those specifically delineated and authorized by this Stipulation and its
1 disseminate Protected Material/Confidential Documents to any news media, member
2 of the press, website, or public forum(except as permitted under section 7.5 regarding
3 filings with the court in this action and under seal).
4
5 12. MISCELLANEOUS.
6 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
7 person to seek its modification by the Court in the future.
8 12.2 Right to Assert Other Objections. By stipulating to the entry of this
9 Protective Order no Party waives any right it otherwise would have to object to
10 disclosing or producing any information or item on any ground not addressed in this
11 Stipulated Protective Order. Similarly, no Party waives any right to object on any
12 ground to use in evidence of any of the material covered by this Protective Order.
13 12.3 This Stipulation may be signed in counterpart and a facsimile or
14 electronic signature shall be valid as an original signature.
15
16 13. FINAL DISPOSITION.
17 Unless otherwise ordered or agreed in writing by the Producing Party, within
18 ninety (90) days after the final termination of this action (defined as the dismissal or
19 entry of judgment by the above named court, or if an appeal is filed, the disposition
20 of the appeal), upon written request by the Producing Party, each Receiving Party
21 must return all Protected Material to the Producing Party – whether retained by the
22 Receiving Party or its Counsel, Experts, Professional Vendors, agents, or any non-
23 party to whom the Receiving Party produced or shared such records or information.
24 As used in this subdivision, “all Protected Material” includes all copies,
25 abstracts, compilations, summaries or anyother formof reproducing or capturing any
26 of the Protected Material, regardless of the medium (hardcopy, electronic, or
27 otherwise) in which such Protected Material is stored or retained.
1 maydestroysome or all of the Protected Material instead of returning it – unless such
2 Protected Material is an original, in which case, the Receiving Party must obtain the
3 Producing Party’s written consent before destroying such originalProtected Material.
4 Whether the Protected Material is returned or destroyed, the Receiving Party
5 must submit a written certification to the Producing Party(and,if not thesame person
6 or entity, to the Designating Party) within ninety (90) days of the aforementioned
7 written request by the Designating Party that specifically identifies (by category,
8 where appropriate) all the Protected Material that was returned or destroyed and that
9 affirms that the Receiving Party has not retained any copies, abstracts, compilations,
10 summaries or other forms of reproducing or capturing any of the Protected material
11 (in any medium, including but not limited to any hardcopy, electronic or digital copy,
12 or otherwise).
13 Notwithstanding this provision, Counsel are entitled to retain an archival copy
14 of all pleadings, motion papers, transcripts, legal memoranda filed with the court in
15 this action, as well as any correspondence or attorney work product prepared by
16 Counsel for the Receiving Party, even if such materials contain Protected Material;
17 however,anysucharchivalcopiesthatcontainorconstituteProtectedMaterialremain
18 subject to this Protective Order as set forth in Section 4 (DURATION), above. This
19 court shall retain jurisdiction in the event that a Designating Party elects to seek court
20 sanctions for violation of this Stipulation and its Order.
21
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
22
23
DATED: May 17, 2021
24
25
/s/ Caree Harper___________________
26 Caree Harper
Attorneys for Plaintiffs Williams, as
27 G.A.L. for “SM”, AFAESA, as G.A.L. for
“AM,” and IRENE BAILEY
1 DATED: May 17, 2021
2
3 /s/ Hang Le _____________________________
Dale K. Galipo
4 John Burton
Attorneys for Plaintiff BAM, by and
5 through his guardian ad litem Kimberly
Jenkins
6
7 DATED: May 17, 2021
8
9 /s/ Michael S. Carrillo ___________________
Luis A. Carrillo
10 Michael S. Carrillo
Attorneys for Plaintiff Archie Barry
11
12
13 DATED: May 17, 2021
14
15 /s/ Garros Chan_ __________________
Eugene P. Ramirez
16 Mildred K. O’Linn
Angela M. Powell
17 Garros Chan
Attorneys for Defendants City of
18 Pasadena. Chief John Perez, Officer Edwin
Dumaguindin, and Officer C. Rosa
19
20
21 FOR GOOD CAUSE SHOWN, IT IS SOORDERED.
22
23 DATED: May 18, 2021
24
25 ___/_ _s _/_ S__a_g_a_r_______________________
Honorable Alka Sagar
26 United States MagistrateJudge
27
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, ___________________________________________ [print or type full name], of
4 ___________________ [print or type full address], declare under penalty of perjury
5 that I have read in its entirety and understand the Stipulated Protective Order that
6 was issued by the United States District Court for the Central District of California
7 on [date] in the case of Diondra Williams, et al. v. Dumaguindin, et al. (case no.
8 2:20-cv-09042-VAP-AS). I agree to comply with and to be bound by all terms of
9 this Stipulated Protective Order and I understand and acknowledge that failure to so
10 comply could expose me to sanctions and punishment in the nature of contempt. I
11 solemnly promise that I will not disclose in any manner any information or item that
12 is subject to this Stipulated Protective Order to any person or entity except in strict
13 compliance with the provisions of this Order. I further agree to submit to the
14 jurisdiction of the United States District Court for the Central District of California
15 for the purpose of enforcing the terms of this Stipulated Protective Order, even if
16 such enforcement proceedings occur after termination of this action. I hereby
17 appoint ___________________ [print or type full name] of
18 ________________________________ [print or type full address and telephone
19 number] as my California agent for service of process in connection with this action
20 or any proceedings related to enforcement of this Stipulated Protective Order.
21 Date: ________________________________________________
22 City and State where sworn and signed: _________________________________
23
24 Printed name: ______________________________________
25
26 Signature: _________________________________________
27