The opinion
Case 5:21-cv-01292-JWH-SP Document 20 Filed 04/25/22 Page 1 of 15 Page ID #:135
1 RICHARD T. EGGER, Bar No. 162581
richard.egger@bbklaw.com
2 AVI W. RUTSCHMAN, Bar No. 298922
Avi.Rutschman@bbklaw.com
3 BEST BEST & KRIEGER LLP
2855 E. Guasti Road
4 Suite 400
Ontario, California 91761
5 Telephone: (909) 989-8584
Facsimile: (909) 944-1441
6 Attorneys for Defendant
CITY OF PALM SPRINGS
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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11
MICHELE GHERSI, Case No. 5:21-CV-01292-JWH (SPx)
12 Judge: Hon. John W. Holcomb
Plaintiff,
13 PROTECTIVE ORDER
v.
14 [Stipulation for Protective Order filed
CITY OF PALM SPRINGS, herewith]
15 CHRISTIAN GRANADOS, SHELBY
JILES, and DOES 1-10, inclusive, Trial Date: Not Set
16 Action Filed: September 1, 2021
Defendants.
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1 PLAINTIFF MICHELE GHERSI (“Plaintiff”) and DEFENDANTS
2 CHRISTIAN GRANADOS and SHELBY JILES (“Defendants”) hereby stipulate as
3 follows:
4 A. PURPOSES AND LIMITATIONS
5 Discovery in this action is likely to involve production of confidential,
6 proprietary, or private information for which special protection from public
7 disclosure and from use for any purpose other than prosecuting this litigation may be
8 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter
9 the following Stipulated Protective Order. The parties acknowledge that this Order
10 does not confer blanket protections on all disclosures or responses to discovery and
11 that the protection it affords from public disclosure and use extends only to the
12 limited information or items that are entitled to confidential treatment under the
13 applicable legal principles. The parties further acknowledge, as set forth in Section
14 11(c), below, that this Stipulated Protective Order does not entitle them to file
15 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures
16 that must be followed and the standards that will be applied when a party seeks
17 permission from the court to file material under seal.
18 B. GOOD CAUSE STATEMENT
19 Plaintiff and Defendants may produce certain documents in this case that
20 contain personal medical, employment or financial information. Such information
21 may implicate the privacy interests of the parties and are properly protected through
22 a Fed. R. Civ. P. 26(c) protective order. Seattle Times Co. v. Rhinehart, 467 U.S. 20,
23 35 n.21 (1984) (“Rule 26(c) includes among its express purposes the protection of a
24 ‘party or person from annoyance, embarrassment, oppression or undue burden or
25 expense.’ Although the Rule contains no specific reference to privacy or to other
26 rights or interests that may be implicated, such matters are implicit in the broad
27 purpose and language of the Rule.”); Soto v. City of Concord, 162 F.R.D. 603, 617
28 (N.D. Cal. 1995) (a party’s privacy rights are to be protected through a “carefully
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1 crafted protective order.”).
2 Plaintiff alleges that Defendants subjected him to excessive force. Plaintiff
3 has indicated a desire to obtain Defendants’ personnel files through the course of
4 discovery. Defendants submits that good cause exists to enter the proposed
5 protective order to balance the defendant’s concerns that the documents consisting
6 of police personnel files and private information concerning the parties to this
7 litigation, as well as individuals who are not parties to this litigation, may be
8 privileged or otherwise protected from disclosure under state or federal statutes, court
9 rules, case decisions, or common law.
10 Accordingly, to expedite the flow of information, to facilitate the prompt
11 resolution of disputes over confidentiality of discovery materials, to adequately
12 protect information the parties are entitled to keep confidential, to ensure that the
13 parties are permitted reasonable necessary uses of such material in preparation for
14 and in the conduct of trial, to address their handling at the end of the litigation, and
15 serve the ends of justice, a protective order for such information is justified in this
16 matter. It is the intent of the parties that information will not be designated as
17 confidential for tactical reasons and that nothing be so designated without a good
18 faith belief that it has been maintained in a confidential, non-public manner, and there
19 is good cause why it should not be part of the public record of this case.
20 Subject to the approval of this Court, the parties hereby stipulate to the
21 following provisions of the Protective Order (“Order”):
22 1. DEFINITIONS
23 a. Action: this pending federal lawsuit entitled Michele
24 Ghersi v. City of Palm Springs, Christian Granados, Shelby Jiles, et al, case number
25 5:21-cv-01292-JWH.
26 b. Challenging Party: a Party or Non-Party that challenges the
27 designation of information or items under this Order.
28 c. “CONFIDENTIAL” Information or Items: information
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1 (regardless of how it is generated, stored or maintained) or tangible things that qualify
2 for protection under Federal Rule of Civil Procedure 26(c), and as specified above in
3 the Good Cause Statement.
4 d. Counsel: Outside Counsel of Record and House Counsel
5 (as well as their support staff).
6 e. Designating Party: a Party or Non-Party that designates
7 information of items that it produces in disclosures or in responses to discovery as
8 “CONFIDENTIAL.”
9 f. Disclosure or Discovery Material: all items or information,
10 regardless of the medium or manner in which it is generated, stored, or maintained
11 (including among other things, testimony, transcripts, and tangible things), that are
12 produced or generated in disclosures or responses to discovery in this matter.
13 g. Expert: a person with specialized knowledge or experience
14 in a matter pertinent to the litigation who has been retained by a Party or its counsel
15 to serve as an expert witness or as a consultant in this Action.
16 h. House Counsel: attorneys who are employees of a party to
17 this Action. House Counsel does not include Outside Counsel of Record or any other
18 outside counsel.
19 i. Non-Party: any natural person, partnership, corporation,
20 association, o other legal entity not named as a Party to this action.
21 j. Outside Counsel of Record: attorneys who are not
22 employees of a party to this Action but are retained to represent or advise a party to
23 this Action and have appeared in this Action on behalf of that party or are affiliated
24 with a law firm which has appeared on behalf of that party, and includes support staff.
25 k. Party: any party to this Action, including all of its officers,
26 directors, employees, consultants, retained experts, and Outside Counsel of Record
27 (and their support staffs).
28 ///
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1 l. Producing Party: a Party or Non-Party that produces
2 Disclosure or Discovery Material in this Action.
3 m. Professional Vendors: persons or entities that provide
4 litigation support services (e.g., photocopying, videotaping, translating, preparing
5 exhibits o demonstrations, and organizing, storing, or retrieving data in any form or
6 medium) and their employees and subcontractors.
7 n. Protected Material: any Disclosure or Discovery Material
8 that is designated as “CONFIDENTIAL.”
9 o. Receiving Party: a Party that receives Disclosure or
10 Discovery Material from a Producing Party.
11 2. SCOPE
12 The protections conferred by this Stipulation and Order cover not only
13 Protected Material (as defined above), but also (1) any information copied or
14 extracted from Protected Material; (2) all copies, excerpts, summaries, or
15 compilations of Protected Material; and (3) any testimony, conversations, or
16 presentations by Parties or their Counsel that might reveal Protected Material. Any
17 use of Protected Material at trial shall be governed by the orders of the trial judge.
18 This Order does not govern the use of Protected Material at trial.
19 3. DURATION
20 Even after final disposition of this litigation, the confidentiality obligations
21 imposed by this Order shall remain in effect until a Designating Party agrees
22 otherwise in writing or a court order otherwise directs. Final disposition shall be
23 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
24 or without prejudice; and (2) final judgment herein after the completion and
25 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
26 including the time limits for filing any motions or applications for extension of time
27 pursuant to applicable law.
28 However, once a case proceeds to trial, information that was designated as
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1 CONFIDENTIAL or maintained pursuant to this Order that is introduced as an
2 exhibit at trial becomes public and will be presumptively available to all members of
3 the public, including the press, unless compelling reasons supported by specific
4 factual findings to proceed otherwise are made to the trial judge in advance of the
5 trial. See Kamakana, supra, 447 F.3d at 1180-81 (distinguishing “good cause”
6 showing for sealing documents produced in discovery from “compelling reasons”
7 standard when merits-related documents are part of court record). Accordingly, the
8 terms of this Order do not extend beyond the commencement of the trial as to the
9 Protected Material used or introduced as an exhibit at trial.
10 4. DESIGNATING PROTECTED MATERIAL
11 a. Exercise of Restraint and Care in Designating Material for
12 Protection: Each Party or Non-Party that designates information or items for
13 protection under this Order must take care to limit any such designation to specific
14 material that qualifies under the appropriate standards. The Designating Party must
15 designate for protection only those parts of material, documents, items, or oral or
16 written communications that qualify so that other portions of the material,
17 documents, items, or communications for which protection is not warranted are not
18 swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized
19 designations are prohibited. Designations that are shown to be clearly unjustified or
20 that have been made for an improper purpose (e.g., to unnecessarily encumber the
21 case development process or to impose unnecessary expenses and burdens on other
22 parties) may expose the Designating Party to sanctions. If it comes to a Designating
23 Party’s attention that information or items that it designated for protection do not
24 qualify for protection, that Designating Party must promptly notify all other Parties
25 that it is withdrawing the inapplicable designation.
26 b. Manner and Timing of Designations. Except as otherwise
27 provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as
28 otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for
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1 protection under this Order must be clearly so designated before the material is
2 disclosed or produced.
3 Designation in conformity with this Order requires:
4 (a) for information in documentary form (e.g., paper or electronic documents,
5 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
6 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
7 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
8 portion or portions of the material on a page qualifies for protection, the Producing
9 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
10 markings in the margins).
11 A Party or Non-Party that makes original documents available for inspection
12 need not designate them for protection until after the inspecting Party has indicated
13 which documents it would like copied and produced. During the inspection and
14 before the designation, all of the material made available for inspection shall be
15 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
16 it wants copied and produced, the Producing Party must determine which documents,
17 or portions thereof, qualify for protection under this Order. Then, before producing
18 the specified documents, the Producing Party must affix the “CONFIDENTIAL
19 legend” to each page that contains Protected Material. If only a portion or portions
20 of the material on a page qualifies for protection, the Producing Party also must
21 clearly identify the protected portion(s) (e.g., by making appropriate markings in the
22 margins).
23 (b) for testimony given in depositions that the Designating Party must
24 identify with specificity the Disclosure or Discovery Material on the record, before
25 the close of the deposition all protected testimony.
26 (c) for information produced in some form other than documentary and for
27 any other tangible items, that the Producing Party affix in a prominent place on the
28 exterior of the container or containers in which the information is stored the legend
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1 “CONFIDENTIAL.” If only a portion or portions of the information warrants
2 protection, the Producing Party, to the extent practicable, shall identify the protected
3 portion(s).
4 c. Inadvertent Failures to Designate. If timely corrected, an
5 inadvertent failure to designate qualified information or items does not, standing
6 alone, waive the Designating Party’s right to secure protection under this Order for
7 such material. Upon timely correction of a designation, the Receiving Party must
8 make reasonable efforts to assure that the material is treated in accordance with the
9 provisions of this Order.
10 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS
11 a. Timing of Challenges. Any Party or Non-Party may
12 challenge a designation of confidentiality at any time that is consistent with the
13 Court’s Scheduling Order.
14 b. Meet and Confer. The Challenging Party shall initiate the
15 dispute resolution process under Local Rule 37.1 et seq.
16 c. The burden of persuasion in any such challenge proceeding
17 shall be on the Designating Party. Frivolous challenges, and those made for an
18 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
19 other parties) may expose the Challenging Party to sanctions. Unless the Designating
20 Party has waived or withdrawn the confidentiality designation, all parties shall
21 continue to afford the material in question the level of protection to which it is entitled
22 under the Producing Party’s designation until the Court rules on the challenge.
23 6. ACCESS TO AND USE OF PROTECTED MATERIAL
24 a. Basic Principles. A Receiving Party may use Protected
25 Material that is disclosed or produced by another Party or by a Non-Party in
26 connection with this Action only for prosecuting, defending, or attempting to settle
27 this Action. Such Protected Material may be disclosed only to the categories of
28 persons and under the conditions described in this Order. When the Action has been
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1 terminated, a Receiving Party must comply with the provisions of section 13 below
2 (FINAL DISPOSITION).
3 Protected Material must be stored and maintained by a Receiving Party at a
4 location and in a secure manner that ensures that access is limited to the persons
5 authorized under this Order.
6 b. Disclosure of “CONFIDENTIAL” Information or Items.
7 Unless otherwise ordered by the court or permitted in writing by the Designating
8 Party, a Receiving Party may disclose any information or item designated
9 “CONFIDENTIAL” only to:
10 (1) the Receiving Party’s Outside Counsel of Record in
11 this Action, as well as employees, including investigators, of said Outside Counsel
12 of Record to whom it is reasonably necessary to disclose the information for this
13 Action;
14 (2) the officers, directors, and employees (including
15 House Counsel) of the Receiving Party to whom disclosure is reasonably necessary
16 for this Action;
17 (3) Experts (as defined in this Order) of the Receiving
18 Party to whom disclosure is reasonably necessary for this Action and who have
19 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
20 (4) the court and its personnel;
21 (5) court reporters and their staff;
22 (6) professional jury or trial consultants, mock jurors,
23 and Professional Vendors to whom disclosure is reasonably necessary for this Action
24 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
25 A);
26 (7) the author or recipient of a document containing the
27 information or a custodian or other person who otherwise possessed or knew the
28 information;
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1 (8) during their depositions, witnesses ,and attorneys for
2 witnesses, in the Action to whom disclosure is reasonably necessary provided: (1)
3 the deposing party requests that the witness sign the form attached as Exhibit 1
4 hereto; and (2) they will not be permitted to keep any confidential information unless
5 they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
6 otherwise agreed by the Designating Party or ordered by the court. Pages of
7 transcribed deposition testimony or exhibits to depositions that reveal Protected
8 Material may be separately bound by the court reporter and may not be disclosed to
9 anyone except as permitted under this Stipulated Protective Order; and
10 (9) any mediator or settlement officer, and their
11 supporting personnel, mutually agreed upon by any of the parties engaged in
12 settlement discussions.
13 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED
14 PRODUCED IN OTHER LITIGATION
15 If a Party is served with a subpoena or a court order issued in other litigation
16 that compels disclosure of any information or items designated in this Action as
17 “CONFIDENTIAL,” that Party must:
18 a. promptly notify in writing the Designating Party. Such
19 notification shall include a copy of the subpoena or court order;
20 b. promptly notify in writing the party who caused the
21 subpoena or order to issue in the other litigation that some or all of the material
22 covered by the subpoena or order is subject to this Protective Order. Such notification
23 shall include a copy of this Stipulated Protective Order; and
24 c. cooperate with respect to all reasonable procedures sought
25 to be pursued by the Designating Party whose Protected Material may be affected.
26 If the Designating Party timely seeks a protective order, the Party served with
27 the subpoena or court order shall not produce any information designated in this
28 action as “CONFIDENTIAL” before a determination by the court from which the
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1 subpoena or order issued, unless the Party has obtained the Designating Party’s
2 permission. The Designating Party shall bear the burden and expense of seeking
3 protection in that court of its confidential material and nothing in these provisions
4 should be construed as authorizing or encouraging a Receiving Party in this Action
5 to disobey a lawful directive from another court.
6 8. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
7 BE PRODUCED IN THIS LITIGATION
8 a. The terms of this Order are applicable to information
9 produced by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
10 information produced by Non-Parties in connection with this litigation is protected
11 by the remedies and relief provided by this Order. Nothing in these provisions should
12 be construed as prohibiting a Non-Party from seeking additional protections.
13 b. In the event that a Party is required, by a valid discovery
14 request, to produce a Non-Party’s confidential information in its possession, and the
15 Party is subject to an agreement with the Non-Party not to produce the Non-Party’s
16 confidential information, then the Party shall:
17 (1) promptly notify in writing the Requesting Party and
18 the Non-Party that some or all of the information requested is subject to a
19 confidentiality agreement with a Non-Party;
20 (2) promptly provide the Non-Party with a copy of the
21 Stipulated Protective Order in this Action, the relevant discovery request(s), and a
22 reasonably specific description of the information requested; and
23 (3) make the information requested available for
24 inspection by the Non-Party, if requested.
25 (4) If the Non-Party fails to seek a protective order from
26 this court within 14 days of receiving the notice and accompanying information, the
27 Receiving Party may produce the Non-Party’s confidential information responsive to
28 the discovery request. If the Non-Party timely seeks a protective order, the Receiving
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1 Party shall not produce any information in its possession or control that is subject to
2 the confidentiality agreement with the Non-Party before a determination by the court.
3 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
4 of seeking protection in this court of its Protected Material.
5 9. UNAUTHORIZED DISCLOSURE OF PROTECTED
6 MATERIAL
7 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
8 Protected Material to any person or in any circumstance not authorized under this
9 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
10 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
11 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
12 persons to whom unauthorized disclosures were made of all the term of this Order,
13 and (d) request such person or persons to execute the “Acknowledgment and
14 Agreement to Be Bound” that is attached hereto as Exhibit A.
15 10. INADVERTENT PRODUCTION OF PRIVILEGED OR
16 OTHERWISE PROTECTED MATERIAL
17 When a Producing Party gives notice to Receiving Parties that certain
18 inadvertently produced material is subject to a claim of privilege or other protection,
19 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
20 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
21 may be established in an e-discovery order that provides for production without prior
22 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
23 parties reach an agreement on the effect of disclosure of a communication or
24 information covered by the attorney-client privilege or work product protection, the
25 parties may incorporate their agreement in the stipulated protective order submitted
26 to the court.
27 11. MISCELLANEOUS
28 a. Right to Further Relief. Nothing in this Order abridges the
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1 right of any person to seek its modification by the Court in the future.
2 b. Right to Assert Other Objections. By stipulating to the
3 entry of this Protective Order no Party waives any right it otherwise would have to
4 object to disclosing or producing any information or item on any ground not
5 addressed in this Stipulated Protective Order. Similarly, no Party waives any right to
6 object on any ground to use in evidence of any of the material covered by this
7 Protective Order.
8 c. Filing Protected Material. A Party that seeks to file under
9 seal any Protected Material must comply with Civil Local Rule 79-5. Protected
10 Material may only be filed under seal pursuant to a court order authorizing the sealing
11 of the specific Protected Material at issue. If a Party's request to file Protected
12 Material under seal is denied by the court, then the Receiving Party may file the
13 information in the public record unless otherwise instructed by the Court.
14 12. FINAL DISPOSITION
15 After the final disposition of this Action, as defined in paragraph 3, within 60
16 days of a written request by the Designating Party, each Receiving Party must return
17 all Protected Material to the Producing Party or destroy such material. As used in this
18 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
19 summaries, and any other format reproducing or capturing any of the Protected
20 Material. Whether the Protected Material is returned or destroyed, the Receiving
21 Party must submit a written certification to the Producing Party (and, if not the same
22 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
23 (by category, where appropriate) all the Protected Material that was returned or
24 destroyed and (2)affirms that the Receiving Party has not retained any copies,
25 abstracts, compilations, summaries or any other format reproducing or capturing any
26 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
27 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
28 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
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1 reports, attorney work product, and consultant and expert work product, even if such
2 materials contain Protected Material. Any such archival copies that contain or
3 constitute Protected Material remain subject to this Protective Order as set forth in
4 Section 3 (DURATION).
5 Any violation of this Order may be punished by any and all appropriate
6 measures including, without limitation, contempt proceedings and/or monetary
7 sanctions.
8
9 IT IS SO ORDERED.
10
DATED: April 25, 2022
11 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 penalty
5 of perjury that I have read in its entirety and understand the Stipulated Protective
6 Order that was issued by the United States District Court for the Central District of
7 California on in the case of Michele Ghersi v. City of Palm Springs, case number
8 5:21-cv-01292-JWH. 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 I
11 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.
14 I further agree to submit to the jurisdiction of the United States District Court
15 for the Central District of California for the purpose of enforcing the terms of this
16 Stipulated Protective Order, even if such enforcement proceedings occur after
17 termination of this action. I hereby appoint ______________________[print or type
18 full name] of _________________________________ [print or type full address
19 and telephone number] as my California agent for service of process in connection
20 with this action or any proceedings related to enforcement of this Stipulated
21 Protective Order.
22 Date:
23 City and State where sworn and signed:
24 Printed name:
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