Christopher Wilson v. Los Angeles Police Department

l

2 UNITED STATES DISTRICT COURT

3 CENTRAL DISTRICT OF CALIFORNIA

4

5 || CHRISTOPHER WILSON, CASE NO. LACV21-5617-VBF-SHK

an individual; Hon. Valerie B. Fairbank

6 Hon. Shashi H. Kewalramani

7 PLAINTIFF,

8 fPROPOSED} STIPULATED

9 ||LOS ANGELES POLICE DEPARTMENT, PROTECTIVE ORDER

10 et al

11 DEFENDANTS

12

13

14

15

16 ORDER ON STIPULATION

17 The Court, finding good cause, Orders as follows:

18 INTRODUCTION

19 1.1 PURPOSES AND LIMITATIONS

20 Discovery in this action is likely to involve production of confidential, proprietary,

21 private information for which special protection from public disclosure and from use

22 for any purpose other than prosecuting this litigation may be warranted. Accordingly,

23 |I the parties hereby stipulate to and petition the Court to enter the following Stipulated

24 |! Protective Order. The parties acknowledge that this Order does not confer blanket

25 protections on all disclosures or responses to discovery and that the protection it affords

26 || from public disclosure and use extends only to the limited information or items that are

27 entitled to confidential treatment under the applicable legal principles. The parties

28 || further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective

1 || Order does not entitle them to file confidential information under seal; Civil Local Rule

2 || 79-5 sets forth the procedures that must be followed and the standards that will be applied

3 || when a party seeks permission from the court to file material under seal.

4 1.2 GOOD CAUSE STATEMENT

5 This action involves the City of Los Angeles and members of the Los Angele

6 || Police Department. Plaintiff is seeking materials that Defendant the City of Los Angele

7 ||and Los Angeles Police Department (“City”) maintains as confidential, such as vide

g || recordings, audio recordings, and other administrative materials and informatio

g || currently in the possession of the City and which the City believes need special protectio

10 from public disclosure and from use for any purpose other than prosecuting this litigation.

1 The City asserts that the confidentiality of the materials sought by Plaintiff is

recognized by California and federal law, as evidenced inter alia by California Penal

3 Code section 832.7, Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198

14 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976), as well as the common law of California,

1s California statutes and certain privileges afforded under Federal common law, including

the “official information,” “deliberative process,” and the “law enforcement

investigatory privileges.” See Fed. R. Evid. 501; Cal. Const. Art. 1, §1; Cal. Evid. Code

"7 §§ 915, 954, 1012, 1040 and 1043 et seq.; Fed. R. Civ. P. 26(b), 33(b) and 34(b); Kerr

18 v. United States Dist. Ct., 511 F.2d 192, 198 (9th Cir. 1975); Dowling v. American

19 Hawaii Cruises, Inc., 971 F.2d 423, 425, n.1 (9th Cir. 1992); Martinez v. City of

20 |! srockton, 132 F.R.D. 677, 683 (ED. Cal. 1990); Kelly v. City of San Jose, 114 F.R.D.

21 || 653, 656-60 (N.D. Cal. 1987); Federal Trade Comm’n v. Warner Comm., Inc., 742 F.2d

22 11 1156, 1161 (9th Cir. 1984); Jones v. City of Indianapolis, 216 FRD 440, 443-444 (SD

23 2003). There is also an ongoing criminal investigation and case. As such, requested

24 || materials may be protected by the law enforcement investigatory privilege. See United

25 || States ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680, 687 (S.D.C. 1996); United

26 || States v. Winner, 641 F.2d 825, 831 (10% Cir. 1981); Friedman v. Bache Halsey Stuart

27 \| Shields, Inc., 738 F.2d 1336, 1341 (10 Cir. 1984). Discovery in this case may also

28

1 || violate third parties’ right to privacy. Johnson by Johnson v. Thompson, 971 F.2d 1487,

2 || 1497 (10 Cir. 1992); Stallworth vy. Brollini, 288 F.R.D. 439, 444 (N.D. CA. 2012).

3 The City also contends that the unfettered disclosure of the materials an

4 ||information, absent a protective order, would allow the media to share this informatio

5 || with potential jurors in the area, impacting the rights of the City herein to receive a fai

6 trial.

4 Accordingly, to expedite the flow of information, to facilitate the prompt resolutio

of disputes over confidentiality of discovery materials, to adequately protect informatio

9 the parties are entitled to keep confidential, to ensure that the parties are permitte

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

1 to address their handling at the end of the litigation, and serve the ends of justice,

protective order for such information is justified in this matter. It 1s the intent of th

parties that information will not be designated as confidential for tactical reasons and tha

IS nothing be so designated without a good faith belief that it has been maintained in

confidential, non-public manner, and there is good cause why it should not be part of th

public record of this case.

16 DEFINITIONS

2.1 Action: This pending federal law suit, Christopher Wilson v. Los Angeles

18 Police Department, et al., Case No. 2:21-cv-05617-VBF-SHK.

2.2 Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.

21 2.3. “CONFIDENTIAL” Information or Items: information (regardless of how

22 it is generated, stored or maintained) or tangible things that qualify for protection under

23 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

24 Statement.

25 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

26 support staff). “Counsel” would also include Plaintiff in pro se.

27 2.5 Designating Party: a Party or Non-Party that designates information or

28

1 ||items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”

2 2.6 Disclosure or Discovery Material: all items or information, regardless of

3 ||the medium or manner in which it is generated, stored, or maintained (including, among

4 || other things, testimony, transcripts, and tangible things), that are produced or generated

5 disclosures or responses to discovery 1n this matter.

6 2.7. Expert: a person with specialized knowledge or experience in a matter

7 || pertinent to the litigation who has been retained by a Party or its counsel to serve as an

8 expert witness or as a consultant in this Action.

9 2.8 House Counsel: attorneys who are employees of a party to this Action.

10 || House Counsel does not include Outside Counsel of Record or any other outside counsel.

11 2.9 Non-Party: any natural person, partnership, corporation, association, or

12 || other legal entity not named as a Party to this action.

13 2.10 Outside Counsel of Record: attorneys who are not employees of a party to

14 ||this Action but are retained to represent or advise a party to this Action and have

15 || appeared in this Action on behalf of that party or are affiliated with a law firm which has

16 appeared on behalf of that party, and includes support staff.

17 2.11 Party: any party to this Action, including all of its officers, directors,

18 |}employees, consultants, retained experts, and Outside Counsel of Record (and their

19 ||support staffs).

20 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

21 Discovery Material in this Action.

22 2.13 Professional Vendors: persons or entities that provide litigation support

23 ||services (e.g., photocopying, videotaping, translating, preparing exhibits or

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

25 ||their employees and subcontractors.

26 2.14 Protected Material: any Disclosure or Discovery Material that is designated

27 ||as “CONFIDENTIAL.”

28 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

1 || from a Producing Party.

2113. SCOPE

3 The protections conferred by this Stipulation and Order cover not only Protected

4 ||Material (as defined above), but also (1) any information copied or extracted from

5 ||Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

6 ||Material; and (3) any testimony, conversations, or presentations by Parties or their

7 ||Counsel that might reveal Protected Material.

8 Any use of Protected Material at trial will be governed by the orders of the trial

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

10 DURATION

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

12 |\confidential or maintained pursuant to this protective order becomes public and will be

13 ||presumptively available to all members of the public, including the press, unless

14 ||compelling reasons supported by specific factual findings to proceed otherwise are made

15 ||to the trial judge in advance of the trial. See Kamakana v. City and County of Honolulu,

16 ||447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for

17 ||sealing documents produced in discovery from “compelling reasons” standard when

18 ||merits-related documents are part of court record). Accordingly, the terms of this

19 || protective order do not extend beyond the commencement of the trial.

20 DESIGNATING PROTECTED MATERIAL

21 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each

22 \|Party or Non-Party that designates information or items for protection under this Order

23 must take care to limit any such designation to specific material that qualifies under the

24 appropriate standards. The Designating Party must designate for protection only those

25 parts of material, documents, items, or oral or written communications that qualify so

26 other portions of the material, documents, items, or communications for which

27 || protection is not warranted are not swept unjustifiably within the ambit of this Order.

28 Mass, indiscriminate, or routinized designations are prohibited. Designations that are

1 ||shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

2 |junnecessarily encumber the case development process or to impose unnecessary

3 || expenses and burdens on other parties) may expose the Designating Party to sanctions.

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

5 ||designated for protection do not qualify for protection, that Designating Party must

6 || promptly notify all other Parties that it is withdrawing the inapplicable designation.

7 5.2 Manner and Timing of Designations. Except as otherwise provided in this

8 || Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

9 ordered, Disclosure or Discovery Material that qualifies for protection under this Order

10 || must be clearly so designated before the material is disclosed or produced.

11 Designation in conformity with this Order requires:

12 (a) for information in documentary form (e.g., paper or electronic documents, but

13 ||excluding transcripts of depositions or other pretrial or trial proceedings), that the

14 ||Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter

15 “CONFIDENTIAL legend”), to each page that contains protected material. If only a

16 || portion or portions of the material on a page qualifies for protection, the Producing Party

17 || also must clearly identify the protected portion(s) (e.g., by making appropriate markings

18 || in the margins).

19 A Party or Non-Party that makes original documents available for inspection need

20 designate them for protection until after the inspecting Party has indicated which

21 ||documents it would like copied and produced. During the inspection and before the

22 |\designation, all of the material made available for inspection will be deemed

23 ||“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

24 || copied and produced, the Producing Party must determine which documents, or portions

25 ||thereof, qualify for protection under this Order. Then, before producing the specified

26 || documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

27 contains Protected Material. If only a portion or portions of the material on a page

28 || qualifies for protection, the Producing Party also must clearly identify the protected

1 || portion(s) (e.g., by making appropriate markings in the margins).

2 (b) for testimony given in depositions that the Designating Party identify the

3 Disclosure or Discovery Material on the record, before the close of the deposition all

4 protected testimony.

5. (c) for information produced in some form other than documentary and for any

6 || other tangible items, that the Producing Party affix in a prominent place on the exterior

7 the container or containers in which the information is stored the legend

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

9 || protection, the Producing Party, to the extent practicable, will identify the protected

10 || portion(s).

11 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

12 || failure to designate qualified information or items does not, standing alone, waive the

13 || Designating Party’s right to secure protection under this Order for such material. Upon

14 ||timely correction of a designation, the Receiving Party must make reasonable efforts to

15 |\assure that the material is treated in accordance with the provisions of this Order.

16 ||6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

17 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

18 || designation of confidentiality at any time that is consistent with the Court’s Scheduling

19 || Order.

20 6.2 Meetand Confer. The Challenging Party will initiate the dispute resolution

21 process (and, if necessary, file a discovery motion) under Local Rule 37.1 et seq.

22 6.3 The burden of persuasion in any such challenge proceeding will be on the

23 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

24 ||to harass or impose unnecessary expenses and burdens on other parties) may expose the

25 ||Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

26 ||the confidentiality designation, all parties will continue to afford the material in question

27 ||the level of protection to which it is entitled under the Producing Party’s designation

28 || until the Court rules on the challenge.

1||7. ACCESS TO AND USE OF PROTECTED MATERIAL

2 7.1 Basic Principles. A Receiving Party may use Protected Material that is

3 || disclosed or produced by another Party or by a Non-Party in connection with this Action

4 |jonly for prosecuting, defending, or attempting to settle this Action. Such Protected

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

6 || described in this Order. When the Action has been terminated, a Receiving Party must

7 ||comply with the provisions of section 13 below (FINAL DISPOSITION).

8 || Protected Material must be stored and maintained by a Receiving Party at a location and

9 a secure manner that ensures that access is limited to the persons authorized under this

10 || Order.

11 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

12 || ordered by the court or permitted in writing by the Designating Party, a Receiving Party

13 || may disclose any information or item designated “CONFIDENTIAL” only to:

14 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as

15 ||employees of said Outside Counsel of Record to whom it is reasonably necessary to

16 |} disclose the information for this Action;

17 (b) the officers, directors, and employees (including House Counsel) of the

18 || Receiving Party to whom disclosure is reasonably necessary for this Action;

19 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure

20 reasonably necessary for this Action and who have signed the “Acknowledgment and

21 || Agreement to Be Bound” (Exhibit A);

22 (d) the Court and its personnel;

23 (e) court reporters and their staff;

24 (f) professional jury or trial consultants, mock jurors, and Professional Vendors

25 ||to whom disclosure is reasonably necessary for this Action and who have signed the

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

27 (g) the author or recipient of a document containing the information or a custodian

28 || or other person who otherwise possessed or knew the information;

1 (h) during their depositions, witnesses ,and attorneys for witnesses, in the Action

2 ||to whom disclosure is reasonably necessary provided: (1) the deposing party requests

3 ||that the witness sign the form attached as Exhibit A hereto; and (2) they will not be

4 permitted to keep any confidential information unless they sign the “Acknowledgment

5 ||and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

6 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

7 || depositions that reveal Protected Material may be separately bound by the court reporter

8 ||and may not be disclosed to anyone except as permitted under this Stipulated Protective

9 || Order; and

10 |} (i) any mediator or settlement officer, and their supporting personnel, mutually

11 |;agreed upon by any of the parties engaged in settlement discussions.

12 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

13 || INOTHER LITIGATION

14 ||Ifa Party is served with a subpoena or a court order issued in other litigation that compels

15 || disclosure of any information or items designated in this Action as “CONFIDENTIAL,”

16 || that Party must:

17 (a) promptly notify in writing the Designating Party. Such notification will

18 |\include a copy of the subpoena or court order;

19 (b) promptly notify in writing the party who caused the subpoena or order to issue

20 the other litigation that some or all of the material covered by the subpoena or order

21 |\is subject to this Protective Order. Such notification will include a copy of this Stipulated

22 || Protective Order; and

23 (c) cooperate with respect to all reasonable procedures sought to be pursued by

24 ||the Designating Party whose Protected Material may be affected.

25 ||If the Designating Party timely seeks a protective order, the Party served with the

26 ||subpoena or court order will not produce any information designated in this action as

27 \|“CONFIDENTIAL” before a determination by the court from which the subpoena or

28 ||order issued, unless the Party has obtained the Designating Party’s permission. The

1 || Designating Party will bear the burden and expense of seeking protection in that court

2 its confidential material and nothing in these provisions should be construed as

3 || authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive

4 || from another court.

5119. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO □ BE

6 || PRODUCED IN THIS LITIGATION

7 (a) The terms of this Order are applicable to information produced by a Non-Party

8 ||in this Action and designated as “CONFIDENTIAL.” Such information produced by

9 ||Non-Parties in connection with this litigation is protected by the remedies and relief

10 || provided by this Order. Nothing in these provisions should be construed as prohibiting

11 |)a Non-Party from seeking additional protections.

12 (b) In the event that a Party is required, by a valid discovery request, to produce

13 ||a Non-Party’s confidential information in its possession, and the Party is subject to an

14 || agreement with the Non-Party not to produce the Non-Party’s confidential information,

15 || then the Party will:

16 (1) promptly notify in writing the Requesting Party and the Non-Party that some

17 || or all of the information requested is subject to a confidentiality agreement with a Non-

18 || Party;

19 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order

20 ||in this Action, the relevant discovery request(s), and a reasonably specific description of

21 || the information requested; and

22 (3) make the information requested available for inspection by the Non-Party, if

23 || requested.

24 (c) Ifthe Non-Party fails to seek a protective order from this court within 14 days

25 || of receiving the notice and accompanying information, the Receiving Party may produce

26 ||the Non-Party’s confidential information responsive to the discovery request. If the

27 ||Non-Party timely seeks a protective order, the Receiving Party will not produce any

28 ||information in its possession or control that is subject to the confidentiality agreement

1 || with the Non-Party before a determination by the court. Absent a court order to the

2 ||contrary, the Non-Party will bear the burden and expense of seeking protection in this

3 court of its Protected Material.

4 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

6 ||Protected Material to any person or in any circumstance not authorized under this

7 || Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

8 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

9 unauthorized copies of the Protected Material, (c) inform the person or persons to

10 || whom unauthorized disclosures were made of all the terms of this Order, and (d) request

11 person or persons to execute the “Acknowledgment and Agreement to Be Bound”

12 ||that is attached hereto as Exhibit A.

13 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

14 || PROTECTED MATERIAL

15 When a Producing Party gives notice to Receiving Parties that certain

16 ||inadvertently produced material is subject to a claim of privilege or other protection, the

17 || obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure

18 ||26(b)(5)(B). This provision is not intended to modify whatever procedure may be

19 ||established in an e-discovery order that provides for production without prior privilege

20 || review.

21 MISCELLANEOUS

22 12.1 Right to Further Relief. Nothing in this Order abridges the nght of any

23 ||person to seek its modification by the Court in the future.

24 12.2 Right to Assert Other Objections. By stipulating to the entry of this

25 ||Protective Order no Party waives any right it otherwise would have to object to

26 ||disclosing or producing any information or item on any ground not addressed in this

27 || Stipulated Protective Order. Similarly, no Party waives any right to object on any ground

28 ||to use in evidence of any of the material covered by this Protective Order.

1 12.3 Filing Protected Material. A Party that seeks to file under seal any

2 Protected Material must comply with Civil Local Rule 79-5. Protected Material may

3 || only be filed under seal pursuant to a court order authorizing the sealing of the specific

4 Protected Material at issue. If a Party's request to file Protected Material under seal is

5 ||denied by the court, then the Receiving Party may file the information in the public

6 ||record unless otherwise instructed by the court.

7 \|13. FINAL DISPOSITION

8 After the final disposition of this Action, as defined in paragraph 4, within 60 days

9 ||of a written request by the Designating Party, each Receiving Party must return all

10 || Protected Material to the Producing Party or destroy such material. As used in this

11 ||subdivision, “all Protected Material” includes all copies, abstracts, compilations,

12 ||summaries, and any other format reproducing or capturing any of the Protected Material.

13 || Whether the Protected Material is returned or destroyed, the Receiving Party must

14 ||submit a written certification to the Producing Party (and, if not the same person or

15 |/entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category,

16 || where appropriate) all the Protected Material that was returned or destroyed and (2)

17 || affirms that the Receiving Party has not retained any copies, abstracts, compilations,

18 ||/summaries or any other format reproducing or capturing any of the Protected Material.

19 || Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

20 || pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

21 correspondence, deposition and trial exhibits, expert reports, attorney work product, and

22 consultant and expert work product, even if such materials contain Protected Material.

23 || Any such archival copies that contain or constitute Protected Material remain subject to

24 ||this Protective Order as set forth in Section 4 (DURATION).

25 14. Any willful violation of this Order may be punished by civil or criminal

26 ||contempt proceedings, financial or evidentiary sanctions, reference to disciplinary

27 authorities, or other appropriate action at the discretion of the Court.

28

IS SO STIPULATED, THROUGH PLAINTIFF AND DEFENDANTS’

2 || COUNSEL OF RECORD.

3 loth

4 || Dated: November , 2021

5

6 Qn LA

□□

7 Christopher Wilson, Plaintiff

8

9

Dated: November __ 10th, 2021 MICHAEL N. FEUER, City Attorney

10 KATHLEEN A. KENEALY, Chief Deputy City Atty

SCOTT MARCUS, Senior Assistant City Attorney

CORY M. BRENTE, Senior Assistant City Attorney

12 VY. Bila

By: _ ee

13 JAMES V. BILEK, Deputy City Attorney

14 Attorneys for Defendants, CITY OF LOS ANGELES

1s and LOS ANGELES POLICE DEPARTMENT

16

7 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

18 11/12/2021 Wes <————

19 Hon. Shashi H. Kewalramani

United States Magistrate Judge

20

21

22

23

24

25

26

27

28

1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

4 I, _____________________________ [full name], of _____________________

5 __________________________________________ [full address], declare under

6 penalty of perjury that I have read in its entirety and understand the Stipulated

7 Protective Order that was issued by the United States District Court for the Central

8 District of California on _____________________ [date] in the case of Christopher

9 Wilson v. Los Angeles Police Department., Case No. LACV21-5617-VBF-SHK-cv-

10 00363-GW-DFM. I agree to comply with and to be bound by all the terms of this

11 Stipulated Protective Order and I understand and acknowledge that failure to so comply

12 could expose me to sanctions and punishment in the nature of contempt. I solemnly

13 promise that I will not disclose in any manner any information or item that is subject to

14 this Stipulated Protective Order to any person or entity except in strict compliance with

15 the provisions of this Order.

16 I further agree to submit to the jurisdiction of the United States District Court for

17 the Central District of California for the purpose of enforcing the terms of this

18 Stipulated Protective Order, even if such enforcement proceedings occur after

19 termination of this action.

20

21 Date: ______________________________________

22

23 City and State where signed: _________________________________

24

25 Printed name: _______________________________

26

27 Signature: __________________________________