Opinion

Molesky v. Carrillo

Court
District Court, E.D. California
Filed
Jul 12, 2023
Cited by
0 cases
Authority
More cited than 18.4%

distinguishing 20 “good cause” showing for sealing documents produced in discovery from “compelling reasons” 21 standard when merits-related documents are part of court record

How later courts described this case

  • distinguishing 20 “good cause” showing for sealing documents produced in discovery from “compelling reasons” 21 standard when merits-related documents are part of court record

Written by the judges who cited it.

The opinion

1 NICHOLAS J. STREET, ESQ. – SBN 249156

ZIMMER & MELTON, LLP

2 11601 Bolthouse Drive, Suite 100

Bakersfield, CA 93311

3 Tel: (661) 463-6700 / Fax: (661) 501-4221

Email: nstreet@zimmermelton.com

4

Attorneys for Defendants, Stallion Springs Police FILING FEE EXEMPT

5 Department Officer Oscar Carrillo, Stallion [GOV. CODE § 6103]

Springs Police Department Officer James

6 Barnard, and Stallion Springs Police Department

Sergeant Mike Bonsness

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

* * *

11

LISA MOLESKY, as Guardian ad Litem for CASE NO. 1:22-CV-01567-ADA-CBD

12 J.M., a minor, Complaint filed: 12/02/2022

Trial Date: None

13

Plaintiffs,

14

vs. STIPULATED PROTECTIVE ORDER

15

STALLION SPRINGS POLICE

16 DEPARTMENT OFFICER OSCAR

CARRILLO (No. 117); STALLION

17 SPRINGS POLICE DEPARTMENT

OFFICER JAMES BARNARD (No. 111);

18 STALLION SPRINGS POLICE

DEPARTMENT SERGEANT MIKE

19 BONSNESS (No. 108); AND DOES 1 TO

15,

20

21 Defendants.

22

23

1. A. PURPOSES AND LIMITATIONS

24

Discovery in this action is likely to involve production of confidential or private

25

information for which special protection from public disclosure and from use for any

26

purpose other than prosecuting this litigation may be warranted. Accordingly, the parties

27

hereby stipulate to and petition the Court to enter the following Stipulated Protective Order.

1 The parties acknowledge that this Order does not confer blanket protections on all

2 disclosures or responses to discovery and that the protection it affords from public disclosure

3 and use extends only to the limited information or items that are entitled to confidential

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

5 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file

6 confidential information under seal; Civil Local Rule 141 sets forth the procedures that must

7 be followed and the standards that will be applied when a party seeks permission from the

8 court to file material under seal.

9 B. GOOD CAUSE STATEMENT

10 This action is likely to involve confidential and private statements made by third-party

11 minors to law enforcement, as well as information otherwise generally unavailable to the

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

13 federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the

14 flow of information, to facilitate the prompt resolution of disputes over confidentiality of

15 discovery materials, to adequately protect information the parties are entitled to keep

16 confidential and private, to ensure that the parties are permitted reasonable necessary uses of

17 such material in preparation for and in the conduct of trial, to address their handling at the

18 end of the litigation, and serve the ends of justice, a protective order for such information is

19 justified in this matter. It is the intent of the parties that information will not be designated as

20 confidential for tactical reasons and that nothing be so designated without a good faith belief

21 that it has been maintained in a confidential, non-public manner, and there is good cause why

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

23 2. DEFINITIONS

24 2.1 Action: Eastern District of California; Case No.: 1:22-CV-01567-ADA-CBD.

25 2.2 Challenging Party: a Party or Non-Party that challenges the designation of

26 information or items under this Order.

27 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is

1 Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement.

2 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

3 support staff).

4 2.5 Designating Party: a Party or Non-Party that designates information or items

5 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”

6 2.6 Disclosure or Discovery Material: all items or information, regardless of the

7 medium or manner in which it is generated, stored, or maintained (including, among other

8 things, testimony, transcripts, and tangible things), that are produced or generated in

9 disclosures or responses to discovery in this matter.

10 2.7 Expert: a person with specialized knowledge or experience in a matter

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

12 witness or as a consultant in this Action.

13 2.8 House Counsel: attorneys who are employees of a party to this Action. House

14 Counsel does not include Outside Counsel of Record or any other outside counsel.

15 2.9 Non-Party: any natural person, partnership, corporation, association, or other

16 legal entity not named as a Party to this action.

17 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this

18 Action but are retained to represent or advise a party to this Action and have appeared in this

19 Action on behalf of that party or are affiliated with a law firm which has appeared on behalf

20 of that party, and includes support staff.

21 2.11 Party: any party to this Action, including all of its officers, directors,

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

23 staff).

24 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery

25 Material in this Action.

26 2.13 Professional Vendors: persons or entities that provide litigation support

27 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations,

1 subcontractors.

2 2.14 Protected Material: any Disclosure or Discovery Material that is designated as

3 “CONFIDENTIAL” or “ATTORNEYS EYES ONLY.”

4 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a

5 Producing Party.

6 3. SCOPE

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

8 Material (as defined above), but also: (1) any information copied or extracted from Protected

9 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3)

10 any testimony, conversations, or presentations by Parties or their Counsel that might reveal

11 Protected Material.

12 Any use of Protected Material at trial shall be governed by the orders of the trial

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

14 4. DURATION

15 Once a case proceeds to trial, all of the information that was designated as confidential or

16 maintained pursuant to this protective order becomes public and will be presumptively available to

17 all members of the public, including the press, unless compelling reasons supported by specific

18 factual findings to proceed otherwise are made to the trial judge in advance of the trial. See

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

20 “good cause” showing for sealing documents produced in discovery from “compelling reasons”

21 standard when merits-related documents are part of court record). Accordingly, the terms of this

22 protective order do not extend beyond the commencement of the trial.

23 5. DESIGNATING PROTECTED MATERIAL

24 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each

25 Party or Non-Party that designates information or items for protection under this Order must

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

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

1 portions of the material, documents, items, or communications for which protection is not

2 warranted are not swept unjustifiably within the ambit of this Order.

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

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

5 unnecessarily encumber the case development process or to impose unnecessary expenses

6 and burdens on other parties) may expose the Designating Party to sanctions.

7 In this case, the parties anticipate that the only documents that will be marked and

8 designated as “CONFIDENTIAL-ATTORNEY EYES ONLY” will be the videos (and/or

9 statements or reports) that include and/or identify certain minor witnesses. To the extent that

10 other documents contain confidential or private information, it is anticipated that those

11 documents will be marked and designated as “CONFIDENTIAL,” and subject to the broader

12 disclosure limitations.

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

14 designated for protection do not qualify for protection, that Designating Party must promptly

15 notify all other Parties that it is withdrawing the inapplicable designation.

16 5.2 Manner and Timing of Designations. Except as otherwise provided in this

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

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

19 be clearly so designated before the material is disclosed or produced.

20 Designation in conformity with this Order requires:

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

22 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

23 Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL

24 legend”), to each page that contains protected material. If only a portion or portions of the

25 material on a page qualifies for protection, the Producing Party also must clearly identify the

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

27 ///

1 A Party or Non-Party that makes original documents available for inspection need not

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

3 it would like copied and produced. During the inspection and before the designation, all of

4 the material made available for inspection shall be deemed “CONFIDENTIAL.” After the

5 inspecting Party has identified the documents it wants copied and produced, the Producing

6 Party must determine which documents, or portions thereof, qualify for protection under this

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

8 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a portion

9 or portions of the material on a page qualifies for protection, the Producing Party also must

10 clearly identify the protected portion(s) (e.g., by making appropriate markings in the

11 margins).

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

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

14 protected testimony.

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

16 other tangible items, that the Producing Party affix in a prominent place on the exterior of the

17 container or containers in which the information is stored the legend “CONFIDENTIAL.” If

18 only a portion or portions of the information warrants protection, the Producing Party, to the

19 extent practicable, shall identify the protected portion(s).

20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

21 designate qualified information or items does not, standing alone, waive the Designating

22 Party’s right to secure protection under this Order for such material. Upon timely correction

23 of a designation, the Receiving Party must make reasonable efforts to assure that the material

24 is treated in accordance with the provisions of this Order.

25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of

27 confidentiality at any time that is consistent with the Court’s Scheduling Order.

1 6.2 Meet and Confer. The Challenging Party shall initiate an informal dispute

2 resolution process first to try to resolve the dispute informally.

3 6.3 The burden of persuasion in any such challenge proceeding shall be on the

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

5 harass or impose unnecessary expenses and burdens on other parties) may expose the

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

7 confidentiality designation, all parties shall continue to afford the material in question the

8 level of protection to which it is entitled under the Producing Party’s designation until the

9 Court rules on the challenge.

10 7. ACCESS TO AND USE OF PROTECTED MATERIAL

11 7.1 Basic Principles. A Receiving Party may use Protected Material that is

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

13 only for prosecuting, defending, or attempting to settle this Action. Such Protected Material

14 may be disclosed only to the categories of persons and under the conditions described in this

15 Order. When the Action has been terminated, a Receiving Party must comply with the

16 provisions of section 13 below (FINAL DISPOSITION).

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

18 and in a secure manner that ensures that access is limited to the persons authorized under this

19 Order.

20 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

21 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

22 disclose any information or item designated “CONFIDENTIAL” only to:

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

24 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose

25 the information for this Action;

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

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

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

2 Agreement to Be Bound” (Exhibit A);

3 (d) the court and its personnel;

4 (e) court reporters and their staff;

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

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

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

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

9 or other person who otherwise possessed or knew the information;

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

11 to whom disclosure is reasonably necessary provided: (1) the deposing party requests that the

12 witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted to keep

13 any confidential information unless they sign the “Acknowledgment and Agreement to Be

14 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the

15 court. Pages of transcribed deposition testimony or exhibits to depositions that reveal

16 Protected Material may be separately bound by the court reporter and may not be disclosed

17 to anyone except as permitted under this Stipulated Protective Order; and

18 (i) any mediator or settlement officer, and their supporting personnel, mutually

19 agreed upon by any of the parties engaged in settlement discussions.

20 7.3 Disclosure of “CONFIDENTIAL-ATTORNEYS EYES ONLY” Information

21 or Items. Unless otherwise ordered by the court or permitted in writing by the Designating

22 Party, a Receiving Party may disclose any information or item designated

23 “CONFIDENTIAL-ATTOREYS EYES ONLY” only to:

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

25 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose

26 the information for this Action.

27 ///

1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

2 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” or “CONFIDENTIAL-ATTORNEYS EYES ONLY,” that Party must:

6 (a) promptly notify in writing the Designating Party. Such notification shall include a

7 copy of the subpoena or court order;

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

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

10 subject to this Protective Order. Such notification shall include a copy of this Stipulated

11 Protective Order; and,

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

13 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” or “CONFIDENTIAL-ATTORNEYS EYES ONLY” before a

17 determination by the court from which the subpoena or order issued, unless the Party has

18 obtained the Designating Party’s permission. The Designating Party shall bear the burden

19 and expense of seeking protection in that court of its confidential material and nothing in

20 these provisions should be construed as authorizing or encouraging a Receiving Party in this

21 Action to disobey a lawful directive from another court.

22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN

23 THIS LITIGATION

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

25 in this Action and designated as “CONFIDENTIAL.” Such information produced by Non-

26 Parties in connection with this litigation is protected by the remedies and relief provided by

27 this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from

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

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

3 agreement with the Non-Party not to produce the Non-Party’s confidential information, then

4 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 a Non-

7 Party;

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

9 Order in this Action, the relevant discovery request(s), and a reasonably specific description

10 of the information requested; and,

11 ///

12 (3) make the information requested available for inspection by the Non-

13 Party, if requested.

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

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

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

17 timely seeks a protective order, the Receiving Party shall not produce any information in its

18 possession or control that is subject to the confidentiality agreement with the Non-Party

19 before a determination by the court. Absent a court order to the contrary, the Non-Party shall

20 bear the burden and expense of seeking protection in this court of its Protected Material.

21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

23 Protected Material to any person or in any circumstance not authorized under this Stipulated

24 Protective Order, the Receiving Party must immediately: (a) notify in writing the

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

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

27 unauthorized disclosures were made of all the terms of this Order, and (d) request such

1 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 inadvertently

5 produced material is subject to a claim of privilege or other protection, the obligations of the

6 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

7 provision is not intended to modify whatever procedure may be established in an e-discovery

8 order that provides for production without prior privilege review. Pursuant to Federal Rule of

9 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

10 of a communication or information covered by the attorney-client privilege or work product

11 protection, the parties may incorporate their agreement in the stipulated protective order

12 submitted to the court.

13 12. MISCELLANEOUS

14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person

15 to seek its modification by the Court in the future.

16 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective

17 Order no Party waives any right it otherwise would have to object to disclosing or producing

18 any information or item on any ground not addressed in this Stipulated Protective Order.

19 Similarly, no Party waives any right to object on any ground to use in evidence of any of the

20 material covered by this Protective Order.

21 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected

22 Material must comply with Civil Local Rule 141. Protected Material may only be filed

23 under seal pursuant to a court order authorizing the sealing of the specific Protected Material

24 at issue. If a Party's request to file Protected Material under seal is denied by the court, then

25 the Receiving Party may file the information in the public record unless otherwise instructed

26 by the court.

27 ///

1 13. FINAL DISPOSITION

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

3 a written request by the Designating Party, each Receiving Party must return all Protected

4 Material to the Producing Party or destroy such material. As used in this subdivision, “all

5 Protected Material” includes all copies, abstracts, compilations, summaries, and any other

6 format reproducing or capturing any of the Protected Material. Whether the Protected

7 Material is returned or destroyed, the Receiving Party must submit a written certification to

8 the Producing Party (and, if not the same person or entity, to the Designating Party) by the

9 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material

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

11 copies, abstracts, compilations, summaries or any other format reproducing or capturing any

12 of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

13 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

14 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

15 product, and consultant and expert work product, even if such materials contain Protected

16 Material. Any such archival copies that contain or constitute Protected Material remain

17 subject to this Protective Order as set forth in Section 4 (DURATION).

18 14. Any violation of this Order may be punished by any and all appropriate measures

19 including, without limitation, contempt proceedings and/or monetary sanctions.

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1 |} ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2

3 || DATED: July 12, 2023 LAW OFFICE OF ERIN DARLING

4

5 By /s/ Erin Darling

ERIN DARLING, ESQ.

6 Attorneys for Plaintiff, LISA MOLESKY,

7 as Guardian ad Litem for J.M., a minor

8

9 DATED: July 12, 2023 ZIMMER & MELTON, LLP

10

By /s/ Nicholas J. Street

11 NICHOLAS J. STREET, ESQ.

2 Attorneys for Defendants,

STALLION SPRINGS POLICE

13 DEPARTMENT OFFICERS OSCAR

CARRILLO AND JAMES BARNARD;

AND, STALLION SPRINGS POLICE

15 DEPARTMENT SERGEANT MIKE

BONSNESS

16

17

IT IS SO ORDERED.

de Mw DR —

Dated: _ July 12, 2023

19 UNITED STATES MAGISTRATE JUDGE

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13

STIPTTT ATED PROTECTIVE ORDER: ORDER

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

5 I have read in its entirety and understand the Stipulated Protective Order that was issued by

6 the United States District Court for the Eastern District of California on [date] in the case of

7 LISA MOLESKY, as Guardian ad Litem for J.M., a minor versus STALLION SPRINGS

8 POLICE DEPARTMENT OFFICER OSCAR CARRILLO (No. 117); STALLION

9 SPRINGS POLICE DEPARTMENT OFFICER JAMES BARNARD (No. 111); STALLION

10 SPRINGS POLICE DEPARTMENT SERGEANT MIKE BONSNESS (No. 108); Eastern

11 District of California; Case No.: 1:22-CV-01567-ADA-CBD. I agree to comply with and to

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

13 acknowledge that failure to so comply could expose me to sanctions and punishment in the

14 nature of contempt. I solemnly promise that I will not disclose in any manner any

15 information or item that is subject to this Stipulated Protective Order to any person or entity

16 except in strict compliance with the provisions of this Order.

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

18 Eastern District of California for the purpose of enforcing the terms of this Stipulated

19 Protective Order, even if such enforcement proceedings occur after termination of this

20 action. I hereby appoint __________________________________________________[print

21 or type full name] of _____________________________________________ [print or type

22 full address and telephone number] as my California agent for service of process in

23 connection with this action or any proceedings related to enforcement of this Stipulated

24 Protective Order.

25 Date:

26 City and State where sworn and signed: _________________________________________

27 Printed name: ____________________________________

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