The opinion
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1 MICHAEL N. FEUER, City Attorney SBN 111529x DISCOVERY MATTER
SCOTT MARCUS, Chief Assistant City Attorney SBN 184980
2 CORY M. BRENTE, Senior Assistant City Attorney SBN 115453
3 GEOFFREY PLOWDEN, Deputy City Attorney SBN 146602
200 No. Main Street, 6th Floor City Hall East
4 Los Angeles, California 90012
5 Email: geoffrey.plowden@lacity.org
Phone: (213) 978-7038
6 Attorneys for Defendants MICHEL MOORE, et al.
7
8 UNITED STATES DISTRICT COURT
9
FOR THE CENTRAL DISTRICT OF CALIFORNIA
10
11 R. WHITE, Case No. 21-cv-06964MCS (MAAx)
Judge Mark C. Scarsi
12 Plaintiff,
vs. U.S. Magistrate Maria A. Audero
13
MICHEL REY MOORE, et al., DEFENDANTS’ AMENDED
14
[XPXRXOXPXOXSXEDX] PROTECTIVE
Defendants.
15 ORDER; [XPXRXOXPXOXSEXDX] ORDER
16 1. PURPOSES AND LIMITATIONS
17 Discovery in this action is likely to involve the production of confidential,
18 proprietary, or private information for which special protection from public disclosure
19 and from use for any purpose other than prosecuting this litigation may be warranted.
20 Accordingly, the parties hereby stipulate to and petition the Court to enter the following
21 Stipulated Protective Order. The parties acknowledge that this Order does not confer
22 blanket protections on all disclosures or responses to discovery and that the protection it
23 affords from public disclosure and use extends only to the limited information or items
24 that are entitled to confidential treatment under the applicable legal principles. The
25 parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated
26 Protective Order does not entitle them to file confidential information under seal; Local
27 Civil Rule 79-5 sets forth the procedures that must be followed and the standards that
28 will be applied when a party seeks permission from the court to file material under seal.
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1 2. GOOD CAUSE STATEMENT
2 This action is likely to involve Los Angeles Police Department reports, personnel
3 records of officers and government officials, medical records of plaintiff and body
4 camera videos for which special protection from public disclosure may be warranted and
5 which may be privileged or otherwise protected from disclosure under state or federal
6 statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow
7 of information, to facilitate the prompt resolution of disputes over confidentiality of
8 discovery materials, to adequately protect information the parties are entitled to keep
9 confidential, to ensure that the parties are permitted reasonable necessary uses of such
10 material in preparation for and in the conduct of trial, to address their handling at the end
11 of the litigation, and serve the ends of justice, a protective order for such information is
12 justified in this matter. It is the intent of the parties that information will not be
13 designated as confidential for tactical reasons and that nothing be so designated without
14 a good faith belief that it has been maintained in a confidential, non-public manner, and
15 there is good cause why it should not be part of the public record of this case.
16
17 3. DEFINITIONS
18 3.1 Action: R. White, v. Michel Rey Moore, et al., Case No. 2:21-CV-06964MCS
19 (MAAx)
20 3.2 Challenging Party: a Party or Non-Party that challenges the designation of
21 information or items under this Order.
22 3.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is
23 generated, stored or maintained) or tangible things that qualify for protection
24 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
25 Cause Statement.
26 3.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
27 support staff).
28 3.5 Designating Party: a Party or Non-Party that designates information or items
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1 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2 3.6 Disclosure or Discovery Material: all items or information, regardless of the
3 medium or manner in which it is generated, stored, or maintained (including,
4 among other things, testimony, transcripts, and tangible things), that are produced
5 or generated in disclosures or responses to discovery in this matter.
6 3.7 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
8 as an expert witness or as a consultant in this Action.
9 3.8 In-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
11 counsel.
12 3.9 Non-Party: any natural person, partnership, corporation, association or other
13 legal entity not named as a Party to this action.
14 3.10 Outside Counsel of Record: attorneys who are not employees of a party to
15 this Action but are retained to represent or advise a party to this Action and have
16 appeared in this Action on behalf of that party or are affiliated with a law firm that
17 has appeared on behalf of that party, and includes support staff.
18 3.11 Party: any party to this Action, including all of its officers, directors,
19 employees, consultants, retained experts, and Outside Counsel of Record (and
20 their support staffs).
21 3.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
22 Material in this Action.
23 3.13 Professional Vendors: persons or entities that provide litigation support
24 services (e.g., photocopying, videotaping, translating, preparing exhibits or
25 demonstrations, and organizing, storing, or retrieving data in any form or medium)
26 and their employees and subcontractors.
27 3.14 Protected Material: any Disclosure or Discovery Material that is designated
28 as “CONFIDENTIAL.”
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1 3.15 Receiving Party: a Party that receives Disclosure or Discovery Material from
2 a Producing Party.
3
4 4. SCOPE
5 The protections conferred by this Stipulation and Order cover not only Protected
6 Material (as defined above), but also (1) any information copied or extracted from
7 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
8 Material; and (3) any testimony, conversations, or presentations by Parties or their
9 Counsel that might reveal Protected Material.
10 Any use of Protected Material at trial shall be governed by the orders of the trial
11 judge. This Order does not govern the use of Protected Material at trial.
12 5. DURATION
13 Once a case proceeds to trial, information that was designated as
14 CONFIDENTIAL or maintained pursuant to this protective order used or introduced as
15 an exhibit at trial becomes public and will be presumptively available to all members of
16 the public, including the press, unless compelling reasons supported by specific factual
17 findings to proceed otherwise are made to the trial judge in advance of the trial. See
18 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing
19 documents produced in discovery from “compelling reasons” standard when merits-
20 related documents are part of court record). Accordingly, the terms of this protective
21 order do not extend beyond the commencement of the trial.
22
23 6. DESIGNATING PROTECTED MATERIAL
24 6.1 Exercise of Restraint and Care in Designating Material for Protection.
25 Each Party or Non-Party that designates information or items for protection
26 under this Order must take care to limit any such designation to specific
27 material that qualifies under the appropriate standards. The Designating Party
28 must designate for protection only those parts of material, documents, items or
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1 oral or written communications that qualify so that other portions of the material,
2 documents, items or communications for which protection is not warranted are not
3 swept unjustifiably within the ambit of this Order.
4 Mass, indiscriminate or routinized designations are prohibited. Designations
5 that are shown to be clearly unjustified or that have been made for an improper
6 purpose (e.g., to unnecessarily encumber the case development process or to
7 impose unnecessary expenses and burdens on other parties) may expose the
8 Designating Party to sanctions.
9 If it comes to a Designating Party’s attention that information or items that
10 it designated for protection do not qualify for protection, that Designating Party
11 must promptly notify all other Parties that it is withdrawing the inapplicable
12 designation.
13 6.2 Manner and Timing of Designations.
14 Except as otherwise provided in this Order (see, e.g., second paragraph of
15 section 6.2(a) below), or as otherwise stipulated or ordered, Disclosure or
16 Discovery Material that qualifies for protection under this Order must be clearly
17 so designated before the material is disclosed or produced.
18 Designation in conformity with this Order requires:
19 (a) for information in documentary form (e.g., paper or electronic
20 documents, but excluding transcripts of depositions or other pretrial or trial
21 proceedings), that the Producing Party affix at a minimum, the legend
22 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page
23 that contains protected material. If only a portion of the material on a page
24 qualifies for protection, the Producing Party also must clearly identify the
25 protected portion(s) (e.g., by making appropriate markings in the margins).
26 A Party or Non-Party that makes original documents available for
27 inspection need not designate them for protection until after the inspecting
28 Party has indicated which documents it would like copied and produced.
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1 During the inspection and before the designation, all of the material made
2 available for inspection shall be deemed “CONFIDENTIAL.” After the
3 inspecting Party has identified the documents it wants copied and produced,
4 the Producing Party must determine which documents, or portions thereof,
5 qualify for protection under this Order. Then, before producing the
6 specified documents, the Producing Party must affix the “CONFIDENTIAL
7 legend” to each page that contains Protected Material. If only a portion of
8 the material on a page qualifies for protection, the Producing Party also
9 must clearly identify the protected portion(s) (e.g., by making appropriate
10 markings in the margins).
11 (b) for testimony given in depositions that the Designating Party identifies
12 the Disclosure or Discovery Material on the record, before the close of the
13 deposition all protected testimony.
14 (c) for information produced in some form other than documentary and for
15 any other tangible items, that the Producing Party affix in a prominent place
16 on the exterior of the container or containers in which the information is
17 stored the legend “CONFIDENTIAL.” If only a portion or portions of the
18 information warrants protection, the Producing Party, to the extent
19 practicable, shall identify the protected portion(s).
20 6.3 Inadvertent Failures to Designate.
21 If timely corrected, an inadvertent failure to designate qualified information
22 or items does not, standing alone, waive the Designating Party’s right to
23 secure protection under this Order for such material. Upon timely correction
24 of a designation, the Receiving Party must make reasonable efforts to assure
25 that the material is treated in accordance with the provisions of this Order.
26
27
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1 7. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2 7.1 Timing of Challenges.
3 Any Party or Non-Party may challenge a designation of confidentiality at
4 any time that is consistent with the Court’s Scheduling Order.
5 7.2 Meet and Confer.
6 The Challenging Party shall initiate the dispute resolution process under
7 Local Rule 37.1 et seq., and with Section 4 of Judge Audero’s Procedures
8 (“Mandatory Telephonic Conference for Discovery Disputes”)
9 7.3 Burden of Persuasion:
10 The burden of persuasion in any such challenge proceeding shall be on the
11 Designating Party. Frivolous challenges, and those made for an improper purpose
12 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
13 expose the Challenging Party to sanctions. Unless the Designating Party has
14 waived or withdrawn the confidentiality designation, all parties shall continue to
15 afford the material in question the level of protection to which it is entitled under
16 the Producing Party’s designation until the Court rules on the challenge.
17
18 8. ACCESS TO AND USE OF PROTECTED MATERIAL
19 8.1 Basic Principles.
20 A Receiving Party may use Protected Material that is disclosed or produced
21 by another Party or by a Non-Party in connection with this Action only for
22 prosecuting, defending or attempting to settle this Action. Such Protected Material
23 may be disclosed only to the categories of persons and under the conditions
24 described in this Order. When the Action has been terminated, a Receiving Party
25 must comply with the provisions of section 14 below.
26 Protected Material must be stored and maintained by a Receiving Party at a
27 location and in a secure manner that ensures that access is limited to the persons
28 authorized under this Order.
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1 8.2 Disclosure of “CONFIDENTIAL” Information or Items.
2 Unless otherwise ordered by the court or permitted in writing by the
3 Designating Party, a Receiving Party may disclose any information or item
4 designated “CONFIDENTIAL” only to:
5 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
6 employees of said Outside Counsel of Record to whom it is reasonably necessary
7 to disclose the information for this Action;
8 (b) the Receiving party, including its officers, directors, and employees (including
9 In-House Counsel) to whom disclosure is reasonably necessary for this Action;
10 (c) Experts of the Receiving Party to whom disclosure is reasonably necessary for
11 this Action and who have signed the “Acknowledgment and Agreement to Be
12 Bound” (Exhibit A);
13 (d) the court and its personnel;
14 (e) court reporters and their staff;
15 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to
16 whom disclosure is reasonably necessary for this Action and who have signed the
17 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
18 (g) the author or recipient of a document containing the information or a custodian
19 or other person who otherwise possessed or knew the information;
20 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action
21 to whom disclosure is reasonably necessary provided: (1) the deposing party
22 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they
23 will not be permitted to keep any confidential information unless they sign the
24 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
25 agreed by the Designating Party or ordered by the court. Pages of transcribed
26 deposition testimony or exhibits to depositions that reveal Protected Material may
27 be separately bound by the court reporter and may not be disclosed to anyone
28 except as permitted under this Stipulated Protective Order; and
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1 (i) any mediator or settlement officer, and their supporting personnel, mutually
2 agreed upon by any of the parties engaged in settlement discussions.
3
4 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
5 IN OTHER LITIGATION
6 If a Party is served with a subpoena or a court order issued in other litigation that
7 compels disclosure of any information or items designated in this Action as
8 “CONFIDENTIAL,” that Party must:
9 (a) promptly notify in writing the Designating Party. Such notification shall
10 include a copy of the subpoena or court order;
11 (b) promptly notify in writing the party who caused the subpoena or order to issue
12 in the other litigation that some or all of the material covered by the
13 subpoena or order is subject to this Protective Order. Such notification shall
14 include a copy of this Stipulated Protective Order; and
15 (c) cooperate with respect to all reasonable procedures sought to be pursued by the
16 Designating Party whose Protected Material may be affected.
17 If the Designating Party timely seeks a protective order, the Party served with the
18 subpoena or court order shall not produce any information designated in this action as
19 “CONFIDENTIAL” before a determination by the court from which the subpoena or
20 order issued, unless the Party has obtained the Designating Party’s permission. The
21 Designating Party shall bear the burden and expense of seeking protection in that court
22 of its confidential material and nothing in these provisions should be construed as
23 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
24 from another court.
25 ///
26 ///
27 ///
28 ///
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1 10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
2 PRODUCED IN THIS LITIGATION
3 10.1 Application.
4 The terms of this Order are applicable to information produced by a Non-
5 Party in this Action and designated as “CONFIDENTIAL.” Such information
6 produced by Non-Parties in connection with this litigation is protected by the
7 remedies and relief provided by this Order. Nothing in these provisions should be
8 construed as prohibiting a Non-Party from seeking additional protections.
9 10.2 Notification.
10 (In the event that a Party is required, by a valid discovery request, to
11 produce a Non-Party’s confidential information in its possession, and the Party is
12 subject to an agreement with the Non-Party not to produce the Non-Party’s
13 confidential information, then the Party shall:
14 (a) Promptly notify in writing the Requesting Party and the Non-
15 Party that some or all of the information requested is subject to a
16 confidentiality agreement with a Non-Party;
17 (b) Promptly provide the Non-Party with a copy of the Stipulated
18 Protective Order in this Action, the relevant discovery request(s), and a
19 reasonably specific description of the information requested; and
20 (c) Make the information requested available for inspection by the
21 Non-Party, if requested.
22 10.3 Conditions of Production.
23 If the Non-Party fails to seek a protective order from this court within 14
24 days of receiving the notice and accompanying information, the Receiving Party
25 may produce the Non-Party’s confidential information responsive to the discovery
26 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
27 not produce any information in its possession or control that is subject to the
28 confidentiality agreement with the Non-Party before a determination by the court.
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1 Absent a court order to the contrary, the Non-Party shall bear the burden and
2 expense of seeking protection in this court of its Protected Material.
3
4 11. 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 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
9 all 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 such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
12 (Exhibit A).
13
14 12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
15 PROTECTED MATERIAL
16 When a Producing Party gives notice to Receiving Parties that certain
17 inadvertently produced material is subject to a claim of privilege or other protection, the
18 obligations of the Receiving Parties are those set forth in Federal Rule of Civil
19 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
20 may be established in an e-discovery order that provides for production without prior
21 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
22 parties reach an agreement on the effect of disclosure of a communication or information
23 covered by the attorney-client privilege or work product protection, the parties may
24 incorporate their agreement in the stipulated protective order submitted to the court.
25
26 13. MISCELLANEOUS
27 13.1 Right to Further Relief.
28 Nothing in this Order abridges the right of any person to seek its
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1 modification by the Court in the future.
2 13.2 Right to Assert Other Objections.
3 By stipulating to the entry of this Protective Order, no Party waives any
4 right it otherwise would have to object to disclosing or producing any information
5 or item on any ground not addressed in this Stipulated Protective Order. Similarly,
6 no Party waives any right to object on any ground to use in evidence of any of the
7 material covered by this Protective Order.
8 13.3 Filing Protected Material.
9 A Party that seeks to file under seal any Protected Material must comply
10 with Local Civil Rule 79-5. Protected Material may only be filed under seal
11 pursuant to a court order authorizing the sealing of the specific Protected Material
12 at issue. If a Party’s request to file Protected Material under seal is denied by the
13 court, then the Receiving Party may file the information in the public record
14 unless otherwise instructed by the court.
15
16 14. FINAL DISPOSITION
17 After the final disposition of this Action, within 60 days of a written request by
18 the Designating Party, each Receiving Party must return all Protected Material to the
19 Producing Party or destroy such material. As used in this subdivision, “all Protected
20 Material” includes all copies, abstracts, compilations, summaries, and any other format
21 reproducing or capturing any of the Protected Material. Whether the Protected Material
22 is returned or destroyed, the Receiving Party must submit a written certification to the
23 Producing Party (and, if not the same person or entity, to the Designating Party) by the
24 60 day deadline that (1) identifies (by category, where appropriate) all the Protected
25 Material that was returned or destroyed and (2) affirms that the Receiving Party has not
26 retained any copies, abstracts, compilations, summaries or any other format reproducing
27 or capturing any of the Protected Material. Notwithstanding this provision, Counsel are
28 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
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1 hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,
2 expert reports, attorney work product, and consultant and expert work product, even if
3 such materials contain Protected Material. Any such archival copies that contain or
4 constitute Protected Material remain subject to this Protective Order as set forth in
5 Section 5.
6
7 15. VIOLATION
8 Any violation of this Order may be punished by appropriate measures including,
9 without limitation, contempt proceedings and/or monetary sanctions.
10
11 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
12
DATED: January 27, 2022 MICHAEL N. FEUER, City Attorney
13
SCOTT MARCUS, Senior Asst. City Attorney
14 CORY M. BRENTE, Senior Asst. City Atty.
15
By: /S/ - Geoffrey Plowden .
16 GEOFFREY PLOWDEN, Deputy City Atty.
Attorneys for Defendant Michel Rey Moore, et al.
17
18 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
19
February 18, 2022
20 DATED: _______________________
21
22 _____________________________________
23 HON. MARIA A. AUDERO
United States Magistrate Judge
24
25
26
27
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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 penalty of perjury
5 that I have read in its entirety and understand the Stipulated Protective Order that
6 was issued by the United States District Court for the Central District of California
7 on [______________] in the case of R. White v. Michel Rey Moore, et al. (Case No.
8 CV21-06964 MCS(MAA). I agree to comply with and to be bound by all the terms of
9 this Stipulated Protective Order and I understand and acknowledge that failure to so
10 comply could expose me to sanctions and punishment in the nature of contempt.
11 I solemnly promise that I will not disclose in any manner any information or item
12 that is subject to this Stipulated Protective Order to any person or entity except in
13 strict compliance with the provisions of this Order. I further agree to submit to the
14 jurisdiction of the United States District Court for the Central District of California for
15 enforcing the terms of this Stipulated Protective Order, even if such enforcement
16 proceedings occur after termination of this action. I hereby appoint
17 __________________________ [print or type full name] of
18 _______________________________________ [print or type full address and
19 telephone number] as my California agent for service of process in connection with
20 this action or any proceedings related to enforcement of this Stipulated Protective
21 Order.
22
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25 Printed name: _______________________________
26 Signature: __________________________________
27
28
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