The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 LISTON GRACE, an individual, CASE NO. CV21-03119-JWH (Ex)
Hon. John W. Holcomb, Ctrm. 2, George E. Brown
12
Mag. Charles F. Eick, Ctrm. 750, 7th Fl., Roybal
Plaintiff,
13
v. [PROPOSED]
14 STIPULATED PROTECTIVE
CITY OF LOS ANGELES, LOS ORDER OF THE PARTIES
15 ANGELES POLICE DEPARTMENT,
CHIEF MICHEL MOORE in his
16 official capacity, and DOES 1 TO 10, in
their official and personal capacities,
17
Defendant
18
19 1. A. PURPOSES AND LIMITATIONS
20 This is a civil action brought by Plaintiff, LISTON GRACE, against Defendants,
21 CITY OF LOS ANGELES and CHIEF MICHEL MOORE, in connection with an
22 incident that occurred on April 8, 2020. In his Complaint for Damages, Plaintiff
23 alleges the following causes of action: Violation of Civil Rights; Municipal Liability –
24 Unconstitutional Custom, Practice or Policy; Municipal Policy - Inadequate
25 Training/Policy of Inaction; Conspiracy to Violate Civil Rights and; Conspiracy to
26 Interfere with Civil Rights.
27 Plaintiff has served a Request to Produce Documents and other tangible items,
28 pursuant to F.R.C.P 34 wherein certain privileges apply, including but not limited to
1 the right to privacy for which special protection from public disclosure and from use
2 for any purpose other than prosecuting this litigation may be warranted. Likewise, the
3 City Defendants anticipate seeking information from Plaintiff, including documents, to
4 which the right to privacy applies such as medical records.
5 Accordingly, the parties hereby stipulate to and petition the Court to enter the
6 following Stipulated Protective Order. The parties acknowledge that this Order does
7 not confer blanket protections on all disclosures or responses to discovery and that the
8 protection it affords from public disclosure and use extends only to the limited
9 information or items that are entitled to confidential treatment under the applicable
10 legal principles. The parties further acknowledge, as set forth in Section 12.3, below,
11 that this Stipulated Protective Order does not entitle them to file confidential
12 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
13 followed and the standards that will be applied when a party seeks permission from the
14 court to file material under seal.
15 B. GOOD CAUSE STATEMENT
16 Defendants wish to disclose the related officer body worn video footage. Soto v.
17 City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). Plaintiff may wish to disclose
18 certain medical records which Plaintiff contends are subject to the right to privacy. See,
19 e.g., Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004) (quoting
20 Whalen v. Roe, 429 U.S. 589, 599 (1977); Domingo v. Brennan, 690 F. App’x 928,
21 930 (9th Cir. 2017). Defendants may also wish to disclose additional evidence to
22 which the right to privacy applies, as well as the official information privilege (Kerr v.
23 United States District Court for the Northern District of California, 511 F.2d 192, 198
24 (9th Cir. 1975), aff’d, 426 U.S. 394 (1976.))
25 2. DEFINITIONS
26 2.1 Action: This pending federal lawsuit.
27 2.2 Challenging Party: a Party or Non-Party that challenges the designation of
28 information or items under this Order.
1 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how
2 it is generated, stored or maintained) or tangible things that qualify for protection
3 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
4 Statement.
5 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
6 support staff).
7 2.5 Designating Party: a Party or Non-Party that designates information or
8 items that it produces in disclosures or in responses to discovery as
9 “CONFIDENTIAL.”
10 2.6 Disclosure or Discovery Material: all items or information, regardless of
11 the medium or manner in which it is generated, stored, or maintained (including,
12 among other things, testimony, transcripts, and tangible things), that are produced or
13 generated in disclosures or responses to discovery in this matter.
14 2.7 Expert: a person with specialized knowledge or experience in a matter
15 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
16 expert witness or as a consultant in this Action.
17 2.8 House Counsel: attorneys who are employees of a party to this Action.
18 House Counsel does not include Outside Counsel of Record or any other outside
19 counsel.
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 Outside Counsel of Record: attorneys who are not employees of a party to
23 this Action but are retained to represent or advise a party to this Action and have
24 appeared in this Action on behalf of that party or are affiliated with a law firm that has
25 appeared on behalf of that party, and includes support staff.
26 2.11 Party: any party to this Action, including all of its officers, directors,
27 employees, consultants, retained experts, and Outside Counsel of Record (and their
28 support staffs).
1 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
2 Discovery Material in this Action.
3 2.13 Professional Vendors: persons or entities that provide litigation support
4 services (e.g., photocopying, videotaping, translating, preparing exhibits or
5 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
6 their employees and subcontractors.
7 2.14 Protected Material: any Disclosure or Discovery Material that is
8 designated as “CONFIDENTIAL.”
9 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
10 from a Producing Party.
11 3. SCOPE
12 The protections conferred by this Stipulation and Order cover not only Protected
13 Material (as defined above), but also (1) any information copied or extracted from
14 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
15 Material; and (3) any testimony, conversations, or presentations by Parties or their
16 Counsel that might reveal Protected Material.
17 Any use of Protected Material at trial shall be governed by the orders of the trial
18 judge. This Order does not govern the use of Protected Material at trial.
19 4. DURATION
20 Even after final disposition of this litigation, the confidentiality obligations
21 imposed by this Order shall remain in effect until a Designating Party agrees
22 otherwise in writing or a court order otherwise directs. Final disposition shall be
23 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or
24 without prejudice; and (2) final judgment herein after the completion and exhaustion
25 of all appeals, rehearings, remands, trials, or reviews of this Action, including the time
26 limits for filing any motions or applications for extension of time pursuant to
27 applicable law. The parties acknowledge that a trial in this matter will be a public trial
28 and nothing in this Protective Order will preclude the introduction of Protected
1 Material as evidence at trial, notwithstanding any evidentiary rulings and/or orders
2 from the trial judge.
3 5. DESIGNATING PROTECTED MATERIAL
4 5.1 Exercise of Restraint and Care in Designating Material for Protection.
5 Each Party or Non-Party that designates information or items for protection under this
6 Order must take care to limit any such designation to specific material that qualifies
7 under the appropriate standards. The Designating Party must designate for protection
8 only those parts of material, documents, items or oral or written communications that
9 qualify so that other portions of the material, documents, items or communications for
10 which protection is not warranted are not swept unjustifiably within the ambit of this
11 Order.
12 Mass, indiscriminate or routinized designations are prohibited. Designations that
13 are shown to be clearly unjustified or that have been made for an improper purpose
14 (e.g., to unnecessarily encumber the case development process or to impose
15 unnecessary expenses and burdens on other parties) may expose the Designating Party
16 to sanctions.
17 If it comes to a Designating Party’s attention that information or items that it
18 designated for protection do not qualify for protection, that Designating Party must
19 promptly notify all other Parties that it is withdrawing the inapplicable designation.
20 5.2 Manner and Timing of Designations. Except as otherwise provided in this
21 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
22 or ordered, Disclosure or Discovery Material that qualifies for protection under this
23 Order must be clearly so designated before the material is disclosed or produced.
24 Designation in conformity with this Order requires:
25 (a) for information in documentary form (e.g., paper or electronic
26 documents, but excluding transcripts of depositions or other pretrial or trial
27 proceedings), that the Producing Party affix at a minimum, the legend
28 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
1 contains protected material. If only a portion of the material on a page qualifies for
2 protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,
3 by making appropriate markings in the margins).
4 A Party or Non-Party that makes original documents available for inspection
5 need not designate them for protection until after the inspecting Party has indicated
6 which documents it would like copied and produced. During the inspection and before
7 the designation, all of the material made available for inspection shall be deemed
8 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
9 copied and produced, the Producing Party must determine which documents, or
10 portions thereof, qualify for protection under this Order. Then, before producing the
11 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to
12 each page that contains Protected Material. If only a portion of the material on a page
13 qualifies for protection, the Producing Party also must clearly identify the protected
14 portion(s) (e.g., by making appropriate markings in the margins).
15 (b) for testimony given in depositions that the Designating Party identifies
16 the Disclosure or Discovery Material on the record, before the close of the deposition
17 all protected testimony.
18 (c) for information produced in some form other than documentary and
19 for any other tangible items, that the Producing Party affix in a prominent place on the
20 exterior of the container or containers in which the information is stored the legend
21 “CONFIDENTIAL.” If only a portion or portions of the information warrants
22 protection, the Producing Party, to the extent practicable, shall identify the protected
23 portion(s).
24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
25 failure to designate qualified information or items does not, standing alone, waive the
26 Designating Party’s right to secure protection under this Order for such material.
27 Upon timely correction of a designation, the Receiving Party must make reasonable
28 / / /
1 efforts to assure that the material is treated in accordance with the provisions of this
2 Order.
3 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
4 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
5 designation of confidentiality at any time that is consistent with the Court’s Scheduling
6 Order.
7 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
8 resolution process under Local Rule 37.1 et seq.
9 6.3 The burden of persuasion in any such challenge proceeding shall be on the
10 Designating Party. Frivolous challenges, and those made for an improper purpose
11 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
12 expose the Challenging Party to sanctions. Unless the Designating Party has waived
13 or withdrawn the confidentiality designation, all parties shall continue to afford the
14 material in question the level of protection to which it is entitled under the Producing
15 Party’s designation until the Court rules on the challenge.
16 7. ACCESS TO AND USE OF PROTECTED MATERIAL
17 7.1 Basic Principles. A Receiving Party may use Protected Material that is
18 disclosed or produced by another Party or by a Non-Party in connection with this
19 Action only for prosecuting, defending or attempting to settle this Action. Such
20 Protected Material may be disclosed only to the categories of persons and under the
21 conditions described in this Order. When the Action has been terminated, a Receiving
22 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
23 Protected Material must be stored and maintained by a Receiving Party at a location
24 and in a secure manner that ensures that access is limited to the persons authorized
25 under this Order.
26 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
27 ordered by the court or permitted in writing by the Designating Party, a Receiving
28 Party may disclose any information or item designated “CONFIDENTIAL” only to:
1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
2 well as employees of said Outside Counsel of Record to whom it is reasonably
3 necessary to disclose the information for this Action;
4 (b) the officers, directors, and employees (including House Counsel) of
5 the Receiving Party to whom disclosure is reasonably necessary for this Action;
6 (c) Experts (as defined in this Order) of the Receiving Party to whom
7 disclosure is reasonably necessary for this Action and who have signed the
8 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9 (d) the court and its personnel;
10 (e) court reporters and their staff;
11 (f) professional jury or trial consultants, mock jurors, and Professional
12 Vendors to whom disclosure is reasonably necessary for this Action and who have
13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
14 (g) the author or recipient of a document containing the information or a
15 custodian or other person who otherwise possessed or knew the information;
16 (h) during their depositions, witnesses, and attorneys for witnesses, in the
17 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
18 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
19 not be permitted to keep any confidential information unless they sign the
20 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
21 by the Designating Party or ordered by the court. Pages of transcribed deposition
22 testimony or exhibits to depositions that reveal Protected Material may be separately
23 bound by the court reporter and may not be disclosed to anyone except as permitted
24 under this Stipulated Protective Order; and
25 (i) any mediator or settlement officer, and their supporting personnel,
26 mutually agreed upon by any of the parties engaged in settlement discussions.
27 / / /
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 that
4 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
7 shall include a copy of the subpoena or court order;
8 (b) promptly notify in writing the party who caused the subpoena or order
9 to 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 of
11 this Stipulated Protective Order; and
12 (c) cooperate with respect to all reasonable procedures sought to be
13 pursued 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 as
16 “CONFIDENTIAL” before a determination by the court from which the subpoena or
17 order issued, unless the Party has obtained the Designating Party’s permission. The
18 Designating Party shall bear the burden and expense of seeking protection in that court
19 of its confidential material and nothing in these provisions should be construed as
20 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
21 directive from another court.
22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
23 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 remedies
27 and relief provided by this Order. Nothing in these provisions should be construed as
28 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 that
6 some or all of the information requested is subject to a confidentiality agreement with
7 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 Non-
12 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 not
17 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 expense
20 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 disclosed
23 Protected Material to any person or in any circumstance not authorized under this
24 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
25 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
26 all unauthorized copies of the Protected Material, (c) inform the person or persons to
27 whom unauthorized disclosures were made of all the terms of this Order, and (d)
28 request such person or persons to execute the “Acknowledgment and Agreement to Be
1 Bound” that is attached hereto as Exhibit A.
2 11. 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 12. MISCELLANEOUS
15 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
16 person to seek its modification by the Court in the future.
17 12.2 Right to Assert Other Objections. By stipulating to the entry of this
18 Protective Order, no Party waives any right it otherwise would have to object to
19 disclosing or producing any information or item on any ground not addressed in this
20 Stipulated Protective Order. Similarly, no Party waives any right to object on any
21 ground to use in evidence of any of the material covered by this Protective Order.
22 12.3 Filing Protected Material. A Party that seeks to file under seal any
23 Protected Material must comply with Local Civil Rule 79-5. Protected Material may
24 only be filed under seal pursuant to a court order authorizing the sealing of the specific
25 Protected Material at issue. If a Party’s request to file Protected Material under seal is
26 denied by the court, then the Receiving Party may file the information in the public
27 record unless otherwise instructed by the court.
28 / / /
1 13. FINAL DISPOSITION
2 After the final disposition of this Action, as defined in paragraph 4, within 60 days
3 of a written request by the Designating Party, each Receiving Party must return all
4 Protected Material to the Producing Party or destroy such material. As used in this
5 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
6 summaries, and any other format reproducing or capturing any of the Protected
7 Material. Whether the Protected Material is returned or destroyed, the Receiving Party
8 must submit a written certification to the Producing Party (and, if not the same person
9 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
10 category, where appropriate) all the Protected Material that was returned or destroyed
11 and (2) affirms that the Receiving Party has not retained any copies, abstracts,
12 compilations, summaries or any other format reproducing or capturing any of the
13 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
14 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
15 legal memoranda, correspondence, deposition and trial exhibits, expert reports,
16 attorney work product, and consultant and expert work product, even if such materials
17 contain Protected Material. Any such archival copies that contain or constitute
18 Protected Material remain subject to this Protective Order as set forth in Section 4
19 (DURATION).
20 / / /
21 / / /
22 / / /
23
24
25
26
27
28
14. VIOLATION
2 Any violation of this Order may be punished by appropriate measures including,
3 || without limitation, contempt proceedings and/or monetary sanctions.
ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.
5
Dated: LAW OFFICES OF ERIN DARLING
7 , ,
By: _/si Eytw DAYLLAg
8 ERIN DARLING, ESQ:
9 Attorney for Plaintiff, LISTON GRACE
10 || Dated: MICHAEL N. FEUER, City Attorney
KATHLEEN A. KENEALY, Chief Asst. City Atty.
1] SCOTT MARCUS, Senior Asst. City Atty.
CORY M. BRENTE, Senior Asst. City Atty.
12
13 By: _/s/ oO Inrckha PF, Bcphert
14 . , Deputy City Attorney
ditorneys [or Defendants, CITY OF LOS ANGELES and
15 CHIEF MICHEL MOORE
16
17 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
18
DATED: 9/23/21] /S/ CHARLES F. EICK
19 HON. CHARLES F. EICK
50 United States Magistrate Judge
21
22
23
24
25
26
27
28
13
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 that I
5 have read in its entirety and understand the Stipulated Protective Order that was issued
6 by the United States District Court for the Central District of California on
7 _____________________ in the case of Liston Grace v. City of Los Angeles; Los
8 Angeles Police Department, Chief Michel Moore in his official capacity, and DOES 1
9 to 10, in their official and personal capacities USDC Case No. 2:20-cv-03119-JWH
10 (Ex). I agree to comply with and to be bound by all the terms of this Stipulated
11 Protective Order and I understand and acknowledge that failure to so comply could
12 expose me to sanctions and punishment in the nature of contempt. I solemnly promise
13 that I will not disclose in any manner any information or item that is subject to this
14 Stipulated Protective Order to any person or entity except in strict compliance with the
15 provisions of this Order.
16 I further agree to submit to the jurisdiction of the United States District Court
17 for the Central District of California for enforcing the terms of this Stipulated
18 Protective Order, even if such enforcement proceedings occur after termination of this
19 action. I hereby appoint __________________________ [print or type full name] of
20 _______________________________________ [print or type full address and
21 telephone number] as my California agent for service of process in connection with
22 this action or any proceedings related to enforcement of this Stipulated Protective
23 Order.
24 Date: ______________________________________
25 City and State where sworn and signed: _________________________________
26 Printed name: _______________________________
27
28 Signature: __________________________________