peace officers have constitutionally-based “privacy rights 5 [that] are not inconsequential” in their police personnel records
How later courts described this case
- peace officers have constitutionally-based “privacy rights 5 [that] are not inconsequential” in their police personnel records
Written by the judges who cited it.
The opinion
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 1 of 18 Page ID #:367
1 Shannon L. Gustafson (SBN 228856)
sgustafson@lynberg.com
2 Anita K. Clarke (SBN 321015)
aclarke@lynberg.com
3 LYNBERG & WATKINS
A Professional Corporation
4 1100 W. Town & Country Road, Suite #1450
Orange, California 92868
5 (714) 937-1010 Telephone
(714) 937-1003 Facsimile
6
Attorneys for Defendant, COUNTY OF SAN BERNARDINO
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 JEANNE RODRIGUEZ, KAYLA CASE NO. 5:21-cv-01471-MEMF-SHK
12 FERRER and THE ESTATE OF Assigned for All Purposes to:
JIMMY RAY FERRER, by and through Hon. Maame Ewusi-Mensah Frimpong
13 it successor in interest. JEANNE Courtroom 8B, Magistrate Shashi H.
Kewalramani
14 RODRIGUEZ
[DISCOVERY MATTER]
15 Plaintiff,
STIPULATED PROTECTIVE
16 vs. ORDER
17 COUNTY OF SAN BERNARDINO, a
public entity, UNNAMED COUNTY Trial Date: TBD
18
DEPUTY SHERIFFS, individuals, and Complaint filed: April 19, 2022
19 DOES 1 through 50, Inclusive
20 Defendant.
21
22 TO THE HONORABLE COURT:
23 By and through their counsel of record in this action, Plaintiffs JEANNE
24 RODRIGUEZ, KAYLA FERRER and THE ESTATE OF JIMMY FERRER, by and
25 through it successor in interest, JEANNE RODRIGUEZ (“Plaintiffs”), and Defendant
26 COUNTY OF SAN BERNARDINO (“Defendant”), collectively “the parties” hereby
27 stipulate for the purpose of jointly requesting that the Honorable Court enter a
28
1
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 2 of 18 Page ID #:368
1 protective order re confidential documents in this matter (and pursuant to Fed. R. Civ.
2 P. Rules 5, 2, 7, and 26, as well as U.S. Dist. Ct. C.D. Cal. Local Rules 7-1 and 52-
3 4.1; and any applicable Orders of the Court) as follows:
4 1. 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 disclosure
7 and from use for any purpose other than prosecuting this litigation may be warranted.
8 Accordingly, the parties hereby stipulate to and petition the Court to enter the
9 following Protective Order. The parties acknowledge that this Order does not confer
10 blanket protections on all disclosures or responses to discovery and that the protection
11 it affords from the public disclosure and use extends only to the limited information
12 or items that are entitled to confidential treatment under the applicable legal
13 principles. The parties further acknowledge, as set forth in Section 12.3, below, that
14 this Stipulated Protective Order does not entitle them to file confidential information
15 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and
16 the standards that will be applied when a party seeks permission from the court to file
17 material under seal.
18 B. GOOD CAUSE STATEMENT
19 This action is likely to involve interests of confidentiality and privacy in peace
20 officer personnel file records and associated investigative or confidential records for
21 the following reasons.
22 First, Defendant contends that peace officers have a federal privilege of privacy
23 in their personnel file records: a reasonable expectation of privacy therein that is
24 underscored, specified, and arguably heightened by the Pitchess protective procedure
25 of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 1027, 1033-1034
26 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 14665, *2-3, 12-
27 13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law applies to privilege based
28
2
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 3 of 18 Page ID #:369
1 discovery disputes involving federal claims,” the “state privilege law which is
2 consistent with its federal equivalent significantly assists in applying [federal]
3 privilege law to discovery disputes”); Soto v. City of Concord, 162 F.R.D. 603, 613
4 n. 4, 616 (N.D. Cal. 1995) (peace officers have constitutionally-based “privacy rights
5 [that] are not inconsequential” in their police personnel records); cf. Cal. Penal Code
6 §§ 832.7, 832.8; Cal. Evid. Code §§ 1040-1047. Defendant further contends that
7 uncontrolled disclosure of such personnel file information can threaten the safety of
8 non-party witnesses, officers, and their families/associates.
9 Second, Defendant contend that municipalities and law enforcement agencies
10 have federal deliberative-executive process privilege, federal official information
11 privilege, federal law enforcement privilege, and federal attorney-client privilege
12 and/or attorney work product protection interests in the personnel files of their peace
13 officers – particularly as to those portions of peace officer personnel files that contain
14 critical self-analysis, internal deliberation/decision-making or evaluation/analysis, or
15 communications for the purposes of obtaining or rendering legal advice or analysis –
16 potentially including but not limited to evaluative/ analytical portions of Internal
17 Affairs type records or reports, evaluative/analytical portions of supervisory records
18 or reports, and/or reports prepared at the direction of counsel, or for the purpose of
19 obtaining or rendering legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa
20 Audubon Soc’y v. United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir.
21 1997); Soto v. City of Concord, 162 F.R.D. 603, 613 n. 4 (1995); Kelly v. City of San
22 Jose, 114 F.R.D. 654, 668-671 (N.D. Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-
23 177 (D. D.C. 1998); Hamstreet v. Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or.
24 2007); Admiral Ins. Co. v. United States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th
25 Cir. 1988). Defendant further contends that such personnel file records are restricted
26 from disclosure by the public entity’s custodian of records pursuant to applicable
27 California law and that uncontrolled release is likely to result in needless intrusion of
28
3
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 4 of 18 Page ID #:370
1 officer privacy; impairment in the collection of third-party witness information and
2 statements and related legitimate law enforcement investigations/ interests; and a
3 chilling of open and honest discussion regarding and/or investigation into alleged
4 misconduct that can erode a public entity’s ability to identify and/or implement any
5 remedial measures that may be required.
6 Third, Defendant contends that, since peace officers do not have the same rights
7 as other private citizens to avoid giving compelled statements, it is contrary to the
8 fundamental principles of fairness to permit uncontrolled release of officers’
9 compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 822,
10 828-830 (1985); cf. U.S. Const., Amend V.
11 Accordingly, Defendant contends that, without a protective order preventing
12 such, production of confidential records in the case can and will likely substantially
13 impair defendant public entity’s interests in candid self-critical analysis, frank internal
14 deliberations, obtaining candid information from witnesses, preserving the safety of
15 witnesses, preserving the safety of peace officers and peace officers’ families and
16 associates, protecting the privacy officers of peace officers, and preventing pending
17 investigations from being detrimentally undermined by publication of private,
18 sensitive, or confidential information – as can and often does result in litigation.
19 1.2. Plaintiffs do not agree with and does not stipulate to Defendant’s
20 contentions herein above, and nothing in this Stipulation or its associated Order shall
21 resolve the parties’ disagreement, or bind them, concerning the legal statements and
22 claimed privileges set forth above. However, Plaintiffs agree that there is Good Cause
23 for a Protective Order consistent with the terms and provisions of this Stipulation so
24 as to preserve the respective interests of the parties without the need to further burden
25 the Court with such issues.
26 1.3. The parties jointly contend that there is typically a particularized need
27 for protection as to any medical or psychotherapeutic records and autopsy
28
4
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 5 of 18 Page ID #:371
1 photographs, because of the privacy interests at stake therein. Because of these
2 sensitive interests, a Court Order should address these documents rather than a private
3 agreement between the parties.
4 1.4. The parties therefore stipulate that there is Good Cause for, and hereby
5 jointly request that the Honorable Court issue/enter, a Protective Order regarding
6 confidential documents consistent with the terms and provisions of this Stipulation.
7 However, the entry of a Protective Order by the Court pursuant to this Stipulation
8 shall not be construed as any ruling by the Court on the aforementioned legal
9 statements or privilege claims in this section (§ 1), nor shall this section be construed
10 as part of any such Court Order.
11 Accordingly, to expedite the flow of information, to facilitate the prompt
12 resolution of disputes over confidentiality of discovery materials, to adequately
13 protect information the parties are entitled to keep confidential, to ensure that the
14 parties are permitted reasonable necessary uses of such material in preparation for and
15 in the conduct of trial, to address their handling at the end of the litigation, and serve
16 the ends of justice, a protective order for such information is justified in this matter.
17 It is the intent of the parties that information will not be designated as confidential for
18 tactical reasons and that nothing be so designated without a good faith belief that it
19 has been maintained in a confidential, non-public manner, and there is good cause
20 why it should not be part of the public record of this case.
21 2. DEFINITIONS
22 2.1 Action: Refers to this pending federal law suit Case No. 5:21-cv-02065-
23 JWH-SHK.
24 2.2 Challenging Party: a Party or Non-Party that challenges the designation
25 of information or items under this Order.
26 2.3 "CONFIDENTIAL" Information or Items: information (regardless of how
27
28
5
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 6 of 18 Page ID #:372
1 it is generated, stored or maintained) or tangible things that qualify for protection
2 under Federal Rule of Civil Procedure 26(c), and as specified above in the
3 Good Cause Statement.
4 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
5 support staff).
6
2.5 Designating Party: a Party or Non-Party that designates information or
7
items that it produces in disclosures or in responses to discovery as
8
“CONFIDENTIAL”.
9
2.6 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
12
or generated in disclosures or responses to discovery in this matter.
13
2.7 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
2.8 House Counsel: attorneys who are employees of a party to this Action.
17
House Counsel does not include Outside Counsel of Record or any other outside
18
counsel.
19
2.9 Non-Party: any natural person, partnership, corporation, association, or
20
other legal entity not named as a Party to this action.
21
2.10 Outside Counsel of Record: attorneys who are not employees of a party
22
to this Action but are retained to represent or advise a party to this Action and have
23
appeared in this Action on behalf of that party or are affiliated with a law firm which
24
has appeared on behalf of that party, and includes support staff.
25
2.11 Party: any party to this Action, including all of its officers, directors,
26
employees, consultants, retained experts, and Outside Counsel of Record (and their
27
support staffs).
28
6
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 7 of 18 Page ID #:373
1 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
2 Discovery Material in this Action.
3 2.13 Professional Vendors: persons or entities that provide litigation support
4 services (e.g., photocopying, videotaping, translating, preparing exhibits or
5 demonstratives, and organizing, storing, or retrieving data in any form or medium)
6 and their employees and subcontractors.
7 2.14 Protected Material: any Disclosure or Discovery Material that is
8 designated as "CONFIDENTIAL."
9 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
10 from a Producing Party.
11 3. 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.
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 4. 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
27 time pursuant to applicable law.
28
7
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 8 of 18 Page ID #:374
1 5. DESIGNATING PROTECTED MATERIAL
2 5.1 Exercise of Restraint and Care in Designating Material for Protection.
3 Each Party or Non-Party that designates information or items for protection
4 under this Order must take care to limit any such designation to specific material
5 that qualifies under the appropriate standards. The Designating Party must designate
6 for protection only those parts of material, documents, items, or oral or written
7 communications that qualify so that other portions of the material, documents,
8 items, or communications for which protection is not warranted are not swept
9 unjustifiably within the ambit of this Order.
10 Mass, indiscriminate, or routinized designations are prohibited. Designations
11 that are shown to be clearly unjustified or that have been made for an improper
12 purpose (e.g., to unnecessarily encumber the case development process or to
13 impose unnecessary expenses and burdens on other parties) may expose the
14 Designating Party to sanctions.
15 If it comes to a Designating Party's attention that information or items
16 that it designated for protection do not qualify for protection, that Designating
17 Party must promptly notify all other Parties that it is withdrawing the inapplicable
18 designation.
19 5.2 Manner and Timing of Designations. Except as otherwise provided in this
20 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
21 or ordered, Disclosure or Discovery Material that qualifies for protection under this
22 Order must be clearly so designated before the material is disclosed or produced.
23 Designation in conformity with this Order requires:
24 (a) for information in documentary form (e.g., paper or electronic documents,
25 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
26 Producing Party affix at a minimum, the legend "CONFIDENTIAL" (hereinafter
27 "CONFIDENTIAL legend"), to each page that contains protected material. If only a
28
8
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 9 of 18 Page ID #:375
1 portion or portions of the material on a page qualifies for protection, the Producing
2 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
3 markings in the margins).
4 A Party or Non-Party that makes original documents available for inspection
5 need not designate them for protection until after the inspecting Party has indicated
6 which documents it would like copied and produced. During the inspection and before
7 the designation, all of the material made available for inspection shall be deemed
8 "CONFIDENTIAL." After the inspecting Party has identified the documents, it wants
9 copied and produced, the Producing Party must determine which documents, or
10 portions thereof, qualify for protection under this Order. Then, before producing the
11 specified documents, the Producing Party must affix the "CONFIDENTIAL legend"
12 to each page that contains Protected Material. If only a portion or portions of the
13 material on a page qualifies for protection, the Producing Party also must clearly
14 identify the protected portions) (e.g., by making appropriate markings in the margins).
15 (b) for testimony given in depositions that the Designating Party identify the
16 Disclosure or Discovery Material on the record, before the close of the deposition all
17 protected testimony.
18 (c) for information produced in some form other than documentary and for any
19 other tangible items, that the Producing Party affix in a prominent place on the exterior
20 of the container or containers in which the information is stored the legend
21 "CONFIDENTIAL." If only a portion or portions of the information warrants
22 protection, the Producing Party, to the extent practicable, shall identify the protected
23 portions).
24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
25 to designate qualified information or items does not, standing alone, waive the
26 Designating Party's right to secure protection under this Order for such material.
27 Upon timely correction of a designation, the Receiving Party must make reasonable
28
9
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 10 of 18 Page ID #:376
1 efforts to assure that the material is treated in accordance with the provisions of this
2 Order.
3 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
4 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation
5 of confidentiality at any time that is consistent with the Court's Scheduling Order.
6 6.2 Meet and Confer. The Challenging party shall initiate the dispute resolution
7 process under Local Rule 37.1 et. seq.
8 6.3 The burden of persuasion in any such challenge proceeding shall be on the
9 Designating Party. Frivolous challenges, and those made for an improper purpose
10 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
11 expose the Challenging Party to sanctions. Unless the Designating Party has waived
12 or withdrawn the confidentiality designation, all parties shall continue to afford the
13 material in question the level of protection to which it is entitled under the Producing
14 Party's designation until the Court rules on the challenge.
15 7. ACCESS TO AND USE OF PROTECTED MATERIAL
16 7.1 Basic Principles. A Receiving Party may use Protected Material that is
17 disclosed or produced by another Party or by a Non-Party in connection with this
18 Action only for prosecuting, defending, or attempting to settle this Action. Such
19 Protected Material may be disclosed only to the categories of persons and under the
20 conditions described in this Order. When the Action has been terminated, a
21 Receiving Party must comply with the provisions of section 13 below (FINAL
22 DISPOSITION).
23 Protected Material must be stored and maintained by a Receiving Party at a
24 location and in a secure manner that ensures that access is limited to the persons
25 authorized under this Order.
26 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless
27
28
10
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 11 of 18 Page ID #:377
1 otherwise ordered by the court or permitted in writing by the Designating Party, a
2 Receiving Party may disclose any information or item designated
3 "CONFIDENTIAL" only to:
4 (a) the Receiving Party's Outside Counsel of Record in this Action, as
5 well as employees of said Outside Counsel of Record to whom it is reasonably
6 necessary to disclose the information for this Action;
7 (b) the officers, directors, and employees (including House Counsel)
8 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
9 (c) Experts (as defined in this Order) of the Receiving Party to whom
10 disclosure is reasonably necessary for this Action and who have signed the
11 "Acknowledgment and Agreement to Be Bound" (Exhibit A);
12 (d) the court and its personnel;
13 (e) court reporters and their staff;
14 (f) professional jury or trial consultants, mock jurors, and Professional
15 Vendors to whom disclosure is reasonably necessary for this Action and who
16 have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
17 (g) the author or recipient of a document containing the information or a
18 custodian or other person who otherwise possessed or knew the information;
19 (h) during their depositions, witnesses, and attorneys for witnesses, in the
20 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
21 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they
22 will not be permitted to keep any confidential information unless they sign
23 the "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise
24 agreed by the Designating Party or ordered by the court. Pages of transcribed
25 deposition testimony or exhibits to depositions that reveal Protected Material may
26 be separately bound by the court reporter and may not be disclosed to anyone except
27 as permitted under this Stipulated Protective Order; and
28
11
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 12 of 18 Page ID #:378
1 (i) any mediator or settlement officer, and their supporting personnel,
2 mutually agreed upon by any of the parties engaged in settlement discussions.
3 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
4 PRODUCED IN OTHER LITIGATION
5 If a Party is served with a subpoena or a court order issued in other litigation
6 that compels disclosure of any information or items designated in this Action as
7 "CONFIDENTIAL," that Party must:
8 (a) promptly notify in writing the Designating Party. Such notification shall
9 include a copy of the subpoena or court order;
10 (b) promptly notify in writing the party who caused the subpoena or order to
11 issue in the other litigation that some or all of the material covered by the subpoena
12 or order is subject to this Protective Order. Such notification shall include a copy
13 of this Stipulated Protective Order; and
14 (c) cooperate with respect to all reasonable procedures sought to be pursued
15 by the Designating Party whose Protected Material may be affected.
16 If the Designating Party timely seeks a protective order, the Party served
17 with the subpoena or court order shall not produce any information designated in
18 this action as "CONFIDENTIAL" before a determination by the court from which
19 the subpoena or order issued, unless the Party has obtained the Designating Party's
20 permission. The Designating Party shall bear the burden and expense of seeking
21 protection in that court of its confidential material and nothing in these provisions
22 should be construed as authorizing or encouraging a Receiving Party in this Action
23 to disobey a lawful directive from another court.
24 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
25 PRODUCED IN THIS LITIGATION
26 (a) The terms of this Order are applicable to information produced by a Non-
27 Party in this Action and designated as "CONFIDENTIAL." Such information
28
12
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 13 of 18 Page ID #:379
1 produced by Non-Parties in connection with this litigation is protected by the
2 remedies and relief provided by this Order. Nothing in these provisions should be
3 construed as prohibiting a Non-Party from seeking additional protections.
4 (b) In the event that a Party is required, by a valid discovery request, to produce
5 a Non-Party's confidential information in its possession, and the Party is subject to an
6 agreement with the Non-Party not to produce the Non-Party's confidential
7 information, then the Party shall:
8 (1) promptly notify in writing the Requesting Party and the Non-Party
9 that some or all of the information requested is subject to a confidentiality agreement
10 With a Non- Party;
11 (2) promptly provide the Non-Party with a copy of the Stipulated
12 Protective Order in this Action, the relevant discovery request(s), and a
13 reasonably specific description of the information requested; and
14 (3) make the information requested available for inspection by the Non-
15 Party, if requested.
16 (c) If the Non-Party fails to seek a Protective Order from this court within 14
17 days of receiving the notice and accompanying information, the Receiving Party may
18 produce the Non-Party's confidential information responsive to the discovery request.
19 If the Non- Party timely seeks a protective order, the Receiving Party shall not
20 produce any information in its possession or control that is subject to the
21 confidentiality agreement with the Non-Party before a determination by the court.
22 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
23 of seeking protection in this court of its Protected Material.
24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
25 If a Receiving Party learns that, by inadvertence or otherwise, it has
26 disclosed Protected Material to any person or in any circumstance not authorized
27 under this Stipulated Protective Order, the Receiving Party must immediately (a)
28
13
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 14 of 18 Page ID #:380
1 notify in writing the Designating Party of the unauthorized disclosures, (b) use its best
2 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the
3 person or persons to whom unauthorized disclosures were made of all the terms of
4 this Order, and (d) request such person or persons to execute the "Acknowledgment
5 and Agreement to be Bound" that is attached hereto as Exhibit A.
6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
7 PROTECTED MATERIAL
8 When a Producing Party gives notice to Receiving Parties that certain
9 inadvertently produced material is subject to a claim of privilege or other protection,
10 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
11 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
12 may be established in an e-discovery order that provides for production without prior
13 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
14 parties reach an agreement on the effect of disclosure of a communication or
15 information covered by the attorney-client privilege or work product protection, the
16 parties may incorporate their agreement in the stipulated protective order submitted
17 to the court.
18 12. MISCELLANEOUS
19 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
20 person to seek its modification by the Court in the future.
21 12.2 Right to Assert Other Objections. By stipulating to the entry of this
22 Protective Order no Party waives any right it otherwise would have to object to
23 disclosing or producing any information or item on any ground not addressed in this
24 Stipulated Protective Order. Similarly, no Party waives any right to object on any
25 ground to use in evidence of any of the material covered by this Protective Order.
26 12.3 Filing Protected Material. A Party that seeks to file under seal any
27 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
28
14
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 15 of 18 Page ID #:381
1 only be filed under seal pursuant to a court order authorizing the sealing of the specific
2 Protected Material at issue. If a Party's request to file Protected Material under seal is
3 denied by the court, then the Receiving Party may file the information in the public
4 record unless otherwise instructed by the court.
5 13. FINAL DISPOSITION
6 After the final disposition of this Action, as defined in paragraph 4, within 60
7 days of a written request by the Designating Party, each Receiving Party must return
8 all Protected Material to the Producing Party or destroy such material. As used in this
9 subdivision, "all Protected Material" includes all copies, abstracts, compilations,
10 summaries, and any other format reproducing or capturing any of the Protected
11 Material. Whether the Protected Material is returned or destroyed, the Receiving Party
12 must submit a written certification to the Producing Party (and, if not the same person
13 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
14 category, where appropriate) all the Protected Material that was returned or destroyed
15 and (2) affirms that the Receiving Party has not retained any copies, abstracts,
16 compilations, summaries or any other format reproducing or capturing any of the
17 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
18 archival copy of all pleadings, motion papers, trial, deposition, and hearing
19 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
20 reports, attorney work product, and consultant and expert work product, even if such
21 materials contain Protected Material. Any such archival copies that contain or
22 constitute Protected Material remain subject to this Protective Order as set forth in
23 Section 4 (DURATION).
24 14. Any violation of this Order may be punished by any and all appropriate
25 measures including, without limitation, contempt proceedings and/or monetary
26 sanctions.
27
28
15
STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 16 of 18 Page ID #:382
1 IT IS SO STIPULATED THROUGH COUNSEL OF RECORD
2 DATED: March 3, 2023
3 LYNBERG & WATKINS
A Professional Corporation
4
5
/s/ Anita K. Clarke
6 SHANNON L. GUSTAFSON
ANITA K. CLARKE
7 Attorneys for Defendant, COUNTY
SAN BERNARDINO
8
9
10
DATED: March 3, 2023
11
12
ADAMSON AHDOOT, LLP
13
/s/ Federico C. Sayre
14
ALAN A. AHDOOT
CHRISTOPHER B. ADAMSON
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FEDERICO C. SAYRE
Attorneys for Plaintiffs JEANNE
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RODRIGUEZ, KAYLA FERRER and
THE ESTATE OF JIMMY RAY
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FERRER
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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21 DATED: March 8, 2023
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24 Shashi H. Kewalramani
United States District/Magistrate Judge
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STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 17 of 18 Page ID #:383
1 EXHIBIT A
2 ACKNWLEDGEMENT AND AGREEMENT OT BE BOUND
3 I, [print or type full name], of [print
4 or type full address], declare under penalty of perjury that I have read in its entirety
5 and understand the Stipulated Protective Order that was issued by the United
6 States District Court for the Central District of California on [date] in the
7 case of Kayla Ferrer, et al. v. County of San Bernardino, et al., 5:21-cv-
8 01471-MEMF-SHK. 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. I further agree to submit to the
14 jurisdiction of the United States District Court for the Central District of
15 California for the purpose of enforcing the terms of this Stipulated Protective
16 Order, even if such enforcement proceedings occur after termination of this
17 action. I hereby appoint [print or type full
18 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:
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25 Printed name:
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27 Signature:
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STIPULATED PROTECTIVE ORDER
Case 5:21-cv-01471-MEMF-SHK Document 48 Filed 03/08/23 Page 18 of 18 Page ID #:384
1 I CERTIFY THAT ALL PARTIES TO THIS DOCUMENT HAVE CONSENTED
2 TO ITS FILING AND TO THE LANGUAGE CONTAINED HEREIN AND
3 HAVE AUTHORIZED THE UNDERSIGNED TO AFFIX THEIR ELETRONIC
4 SIGNATURES.
5 DATED: March 3, 2023 LYNBERG & WATKINS
A Professional Corporation
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By: /s/ Anita K. Clarke
8 SHANNON L. GUSTAFSON
ANITA K. CLARKE
9 Attorneys for Defendant, COUNTY OF
SAN BERNARDINO
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STIPULATED PROTECTIVE ORDER