Jovanna Silva v. City of El Monte Police Department

Case 2:21-cv-00197-MCS-PD Document 78 Filed 02/08/22 Page 1 of 15 Page ID #:296

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10 UNITED STATES DISTRICT COURT

11 FOR THE CENTRAL DISTRICT OF CALIFORNIA

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JOVANNA SILVA, an individual, ) Case No.: 2:21-CV-00197-MCS-PD

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) Hon. Mark C. Scarsi

14 Plaintiff, ) Crtrm. 9C

)

15 vs. ) DISCOVERY MATTER

)

16 CITY OF EL MONTE POLICE ) STIPULATED PROTECTIVE

ORDER GOVERNING

17 DEARTMENT, a local law enforcement ) PRODUCTION OF

entity; POLICE CHIEF DAVID R. ) “CONFIDENTIAL”

18 REYNOSO, an individual; DETECTIVE ) INFORMATION

JACOB BURSE, an individual; )

19 SERGEANT MARK SNOOK, an )

[Discovery Document: Referred to the

individual; DETECTIVE RENE )

20 Hon. Patricia Donahue, Magistrate

FLORES, an individual; DETECTIVE ) Judge]

21 ANDREW AVILA, an individual; )

DETECTIVE ROGER SARDINA, an )

22 individual; DETECTIVE CLAYTON )

DURAN, an individual; CITY OF EL )

23 MONTE, a local California municipality; )

24 JACKSON CHOW, an individual; and )

DOES 1 through 50, Inclusive, )

25 )

Defendants. )

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Case 2:21-cv-00197-MCS-PD Document 78 Filed 02/08/22 Page 2 of 15 Page ID #:297

1 I. PURPOSE AND LIMITATIONS

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

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

4 for any purpose other than prosecuting this action may be warranted. Accordingly,

5 the parties hereby stipulate to and petition the Court to enter the following

6 [Proposed] Stipulated Protective Order (hereafter “this Order”). The parties

7 acknowledge that this Order does not confer blanket protections on all disclosures or

8 responses to discovery; and that the protection it affords from public disclosure and

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

10 treatment under the applicable legal principles.

11 II. GOOD CAUSE STATEMENT

12 This action is likely to involve confidential information pertaining to

13 personnel records and other materials subject to privacy protections for which

14 special protection from public disclosure and from use for any purpose other than

15 prosecution of this action is warranted. Limiting disclosure of these documents to

16 the context of this litigation as provided herein will, accordingly, further important

17 law enforcement objectives and interests, including the safety of personnel and the

18 public, as well as the privacy rights of plaintiff, the individual defendants, and third

19 party witnesses. Such confidential materials and information consists of, among

20 other things, materials entitled to privileges and/or protections under the following:

21 the United States Constitution, First Amendment; the California Constitution,

22 Article I, Section 1; California Penal Code §§ 832.5, 832.7, and 832.8; California

23 Evidence Code §§ 1040 and 1043, et seq.; the Privacy Act of 1974, 5 U.S.C. § 552a;

24 Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law

25 104-191, decisional law relating to such provisions; and information otherwise

26 generally unavailable to the public; or which may be privileged or otherwise

27 protected from disclosure under state or federal statutes, court rules, case decisions,

28 or common law. Defendants also contend that such confidential materials and

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1 information consists of materials entitled to the Official Information Privilege.

2 Confidential Information with respect to the Defendants may include but is

3 not limited to: personnel files; internal investigative files and documents; email and

4 written correspondence records; and policies and procedures that are kept from the

5 public in the ordinary course of business; as well as other items subject to the

6 Official Information Privilege and other privileges. Confidential Information with

7 respect to the Plaintiff may include but is not limited to: email and written

8 correspondence records; law enforcement records related to Plaintiff; and

9 psychological and medical notes, evaluations, reports, and treatment plans.

10 The parties reserve the right to challenge a designation of confidentiality

11 pursuant to the terms set forth under Paragraph 8 of this Order.

12 Accordingly, to expedite the flow of information; to facilitate the prompt

13 resolution of disputes over confidentiality of discovery materials; to adequately

14 protect information the parties are entitled to keep confidential; to ensure that the

15 parties are permitted to reasonably use such material in preparation for and in

16 conduct of trial; to address their handling at the end of the litigation; and serve the

17 ends of justice, a protective order for such information is justified in this matter. It

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

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

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

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

22 III. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

23 SEAL

24 The parties further acknowledge, as set forth in Section 14.3, below, that this

25 Order does not entitle them to file confidential information under seal; Local Civil

26 Rule 79-5 sets forth the procedures that must be followed and the standards that will

27 be applied when a party seeks permission from the court to file material under seal.

28 There is a strong presumption that the public has a right of access to judicial

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1 proceedings and records in civil cases. In connection with non-dispositive motions,

2 good cause must be shown to support a filing under seal. Kamakana v. City and

3 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors

4 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,

5 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

6 require good cause showing, and a specific showing of good cause or compelling

7 reasons with proper evidentiary support and legal justification, must be made with

8 respect to material that a party seeks to file under seal). The parties’ mere

9 designation of material as “CONFIDENTIAL” does not— without the submission

10 of competent evidence by declaration, establishing that the material sought to be

11 filed under seal qualifies as confidential, privileged, or otherwise protectable—

12 constitute good cause. Further, if a party requests sealing related to dispositive

13 motion or trial, then compelling reasons, not only good cause, for the sealing must

14 be shown, and the relief sought shall be narrowly tailored to serve the specific

15 interest to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79

16 (9th Cir. 2010).

17 Any document that is not confidential, privileged, or otherwise protectable in

18 its entirety will not be filed under seal if the confidential portions can be redacted.

19 If documents can be redacted, then a redacted version for public viewing, omitting

20 only the confidential, privileged, or otherwise protectable portions of the document,

21 shall be filed. Any application that seeks to file documents under seal in their

22 entirety should include an explanation of why redaction is not feasible.

23 IV. DEFINITIONS

24 4.1 Action: Jovanna Silva v. City of El Monte Police Department, et al.,

25 Case No. 2:21-CV-00197-MCS-PD.

26 4.2 Challenging Party: a Party or Non-Party that challenges the designation

27 of information or items under this Order.

28 4.3 “CONFIDENTIAL” Information or Items: Information (regardless of

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1 the medium or manner in which it is generated, stored, or maintained) or tangible

2 things that qualify for protection under Federal Rule of Civil Procedure 26(c), and

3 as specified above in the Good Cause Statement.

4 4.4 Counsel: General Counsel of Record and House Counsel (as well as

5 their support staff).

6 4.5 Designating Party: a Party or Non-Party that designated information or

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

8 “CONFIDENTIAL.”

9 4.6 Disclosure or Discovery Material: all items or information, regardless

10 of the medium or manner in which it is generated, stored, or maintained (including,

11 among other things, testimony, transcripts, and tangible things), that are produced or

12 generated in disclosures or responses to discovery in this matter.

13 4.7 Expert: a person with specialized knowledge or experience in a matter

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

15 an expert witness or as a consultant in this Action.

16 4.8 House Counsel: attorneys who are employees of a party to this Action.

17 House Counsel does not include General Counsel of Record or any other outside

18 Counsel.

19 4.9 Non-Party: any natural person, partnership, corporation, association or

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

21 4.10 General Counsel of Record: attorneys who are not employees of a

22 Party to this Action but are retained to represent or advise a Party to this Action and

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

24 that has appeared on behalf of that Party, as well as their support staff.

25 4.11 Party: any Party to this Action, including all of its officers, directors,

26 employees, consultants, retained experts, and General Counsel of Record (and their

27 support staffs).

28 4.12 Producing Party: a Party or Non-Party that makes a Disclosure or

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1 produces Discovery Material in this Action.

2 4.13 Professional Vendors: persons or entities that provide litigation support

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

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

5 and their employees and subcontractors.

6 4.14 Protected Material: any Disclosure or Discovery Material that is

7 designated as “CONFIDENTIAL.”

8 4.15 Receiving Party: a Party that receives a Disclosure or Discovery

9 Material from a Producing Party.

10 V. SCOPE

11 The protections conferred by this Stipulation and Order cover not only

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

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

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

15 presentations by Parties or their Counsel (as defined by Sections 4.8 and 4.10) that

16 might reveal Protected Material.

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

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

19 VI. DURATION

20 The confidentiality obligations imposed by this Order shall remain in effect

21 until Final Disposition of this case. “Final Disposition” shall be deemed to be the

22 later of (1) dismissal of all claims and defenses in this Action, with or without

23 prejudice; and (2) final judgment herein after the completion and exhaustion of all

24 appeals, rehearings, remands, trials, or reviews of this Action, including the time

25 limits for filing any motions or applications for extension of time pursuant to

26 applicable law.

27 VII. DESIGNATING PROTECTED MATERIAL

28 7.1 Exercise of Restraint and Care in Designating Material for Protection.

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1 Each Party or Non-Party that designates information or items for protection under

2 this Order must take care to limit any such designation to specific material that

3 qualifies under the appropriate standards. The Designating Party must designate for

4 protection only those parts of material, documents, items or oral or written

5 communications that qualify so that other portions of the material, documents, items

6 or communications for which protection is not warranted are not swept unjustifiably

7 within the ambit of this Order.

8 Mass, indiscriminate, or routinized designations are prohibited. Designations

9 that are shown to be clearly unjustified or that have been made for an improper

10 purpose (e.g., to unnecessarily encumber the case development process or to impose

11 unnecessary expenses and burdens on other parties) may expose the Designating

12 Party to sanctions.

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

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

16 7.2 Manner and Timing of Designations. Except as otherwise provided in

17 this Order (see, e.g., second paragraph of section 7.2(a) below), or as otherwise

18 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

19 under this Order must be clearly so designated before the material is disclosed or

20 produced.

21 Designation in conformity with this Order requires:

22 (a) for information in documentary form (e.g., paper or electronic

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

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

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

26 contains protected material. If only a portion of the material on a page qualifies for

27 protection, the Producing Party also must clearly identify the protected portion(s)

28 (e.g., by making appropriate markings in the margins).

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Case 2:21-cv-00197-MCS-PD Document 78 Filed 02/08/22 Page 8 of 15 Page ID #:303

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

2 need not designate them for protection until after the inspecting Party has indicated

3 which documents it would like copied and produced. During the inspection and

4 before the designation, all of the materials made available for inspection shall be

5 deemed “CONFIDENTIAL.” After the inspecting Party has identified the

6 documents it wants copied and produced, the Producing Party must determine which

7 documents, or portions thereof, qualify for protection under this Order. Then,

8 before producing the specified documents, the Producing Party must affix the

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

10 portion of the material on a page qualifies for protection, the Producing Party also

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

12 in the margins).

13 (b) for testimony given in depositions that the Designating Party identifies

14 the Disclosure or Discovery Material on the record, and before the close of the

15 deposition all protected testimony.

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

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

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

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

20 protection, the Producing Party, to the extent practicable, shall identify the protected

21 portion(s).

22 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

23 failure to designate qualified information or items does not, standing alone, waive

24 the Designating Party’s right to secure protection under this Order for such material.

25 Upon timely correction of a designation, the Receiving Party must make reasonable

26 efforts to assure that the material is treated in accordance with the provisions of this

27 Order.

28 VIII. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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1 8.1 Timing of Challenges. Any Party or Non-Party may challenge a

2 designation of confidentiality at any time that is consistent with the Court’s

3 Scheduling Order.

4 8.2 Meet and Confer. The Challenging Party shall initiate the meet and

5 confer process outlined in Local Rule 37.1, et seq.

6 8.3 The burden of persuasion, in any such challenge proceeding, shall be

7 on the Designating Party. Frivolous challenges, and those made for an improper

8 purpose (e.g., to harass or impose unnecessary expenses and burdens on other

9 parties) may expose the Challenging Party to sanctions. Unless the Designating

10 Party has waived or withdrawn the confidentiality designation, all parties shall

11 continue to afford the material in question the level of protection to which it is

12 entitled under the Producing Party’s designation until the Court rules on the

13 challenge.

14 IX. ACCESS TO AND USE OF PROTECTED MATERIAL

15 9.1 Basic Principles. A Receiving Party may use Protected Material that is

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

17 Action only for prosecuting, defending or attempting to settle this Action. Such

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

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

20 Receiving Party must comply with the provisions of Section VI, infra.

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

22 location and in a secure manner that ensures that access is limited to the persons

23 authorized under this Order.

24 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

25 otherwise ordered by the Court or permitted in writing by the Designating Party, a

26 Receiving Party may disclose any information or item designated

27 “CONFIDENTIAL” only to:

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

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1 as employees of said General Counsel of Record to whom it is reasonably necessary

2 to disclose the information for this Action;

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

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

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

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

7 “Acknowledgment and Agreement to Be Bound,” attached and hereafter referred to

8 as “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 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 Exhibit A; and (2) they will not be permitted to keep

19 any confidential information unless they sign Exhibit A, unless otherwise agreed by

20 the Designating Party or ordered by the Court. Pages of transcribed deposition

21 testimony or exhibits to depositions that reveal Protected Material may be separately

22 bound by the court reporter and may not be disclosed to anyone except as permitted

23 under this Order; and

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

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

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27 X. PROTECTED MATERIAL SUBPOENAED OR ORDERED

28 PRODUCED IN OTHER LITIGATION

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

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

3 “CONFIDENTIAL,” that Party must:

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

5 shall include a copy of the subpoena or court order;

6 (b) promptly notify in writing the party who caused the subpoena or order

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

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

9 this Order; and

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

11 by the Designating Party whose Protected Material may be affected.

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

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

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

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

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

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

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

19 to disobey a lawful directive from another court.

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

21 PRODUCED IN THIS LITIGATION

22 (a) The terms of this Order are applicable to information produced by a

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

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

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

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

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

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

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

2 confidential information, then the Party shall:

3 (1) promptly notify in writing the Requesting Party and the Non-Party

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

5 agreement with a Non-Party;

6 (2) promptly provide the Non-Party with a copy of this Order in this

7 Action, the relevant discovery request(s), and a reasonably specific description of

8 the information requested; and

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

10 Party, if requested.

11 (c) If the Non-Party fails to seek a protective order from this Court within

12 fourteen (14) days of receiving the notice and accompanying information, the

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

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

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

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

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

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

19 XII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

22 Order, the Receiving Party must immediately (a) notify in writing the Designating

23 Party of the unauthorized disclosures; (b) use its best efforts to retrieve all

24 unauthorized copies of the Protected Material; (c) inform the person or persons to

25 whom unauthorized disclosures were made of all the terms of this Order; and (d)

26 request such person or persons to execute Exhibit A.

27 XIII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

28 PROTECTED MATERIAL

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

2 inadvertently produced material is subject to a claim of privilege or other protection,

3 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

4 Procedure 26(b)(5)(B). This provision is not intended to modify whatever

5 procedure may be established in an e-discovery order that provides for production

6 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and

7 (e), insofar as the Parties reach an agreement on the effect of disclosure of a

8 communication or information covered by the attorney-client privilege or work

9 product protection, the Parties may incorporate their agreement in a subsequent

10 stipulation to the Court.

11 XIV. MISCELLANEOUS

12 14.1 Right to Further Relief. Nothing in this Order abridges the right of any

13 person to seek its modification by the Court in the future.

14 14.2 Right to Assert Other Objections. By stipulating to the entry of this

15 Order, no Party waives any right it otherwise would have to object to disclosing or

16 producing any information or item on any ground not addressed in this Order.

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

18 any of the material covered by this Order.

19 14.3 Filing Protected Material. A Party that seeks to file under seal any

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

21 may only be filed under seal pursuant to a court order authorizing the sealing of the

22 specific Protected Material at issue. If a Party’s request to file Protected Material

23 under seal is denied by the Court, then the Receiving Party may file the information

24 in the public record unless otherwise instructed by the Court.

25 XV. FINAL DISPOSITION

26 After the final disposition of this Action, as defined in Section VI, supra,

27 within 60 days of a written request by the Designating Party, each Receiving Party

28 must return all Protected Material to the Producing Party or destroy such material,

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1 || except those documents required to be maintained as part of the General . As used

2||in this subdivision, “all Protected Material” includes all copies, abstracts,

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

4 || Protected Material. Whether the Protected Material is returned or destroyed, the

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

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

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

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

9 ||copies, abstracts, compilations, summaries or any other format reproducing or

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

11 |jare entitled to retain an archival copy of all pleadings, motion papers, trial,

12 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition

13 || and trial exhibits, expert reports, attorney work product, and consultant and expert

14 || work product, even if such materials contain Protected Material. Any such archival

15 || copies that contain or constitute Protected Material remain subject to this Order as

16 || set forth in Section VI, supra.

17|| XVI. VIOLATION

18 Any violation of this Order may be punished by appropriate measures

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

20 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

21

97 || DATED: February 8, 2022

| Police Menaloe_

THE HON. PATRICIA DONAHUE

25 UNITED STATES MAGISTRATE JUDGE

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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

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

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

7 District of California in the case of Jovanna Silva v. City of El Monte Police

8 Department, et al., Case No. 2:21-CV-00197-MCS-PD. I agree to comply with and

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

10 acknowledge that failure to so comply could expose me to sanctions and punishment

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

12 any information or item that is subject to this Stipulated Protective Order to any

13 person or entity except in strict compliance with the provisions of this Order. I

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

15 Central District of California for enforcing the terms of this Stipulated Protective

16 Order, even if such enforcement proceedings occur after termination of this action.

17

18 Date: _________________________________

19

20 City and State where sworn and signed: _________________________________

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22 Printed name: _________________________________

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24 Signature: _________________________________

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