Maria Del Carmen Flores v. City of Santa Monica

Case|2:23-cv-00043-SB-PD Document 20 Filed 03/17/23 Pagelof22 Page ID #:658

1 || Douglas Sloan, Esq., (State Bar No. 194996)

City Attorney

2 □□□□□□□□□□□□□□□□□□□□□□□□□□ gov

Catherine M. Kelly, Esq. (State Bar No. 213563)

3 || Chief Deputy City Attorney

cathy kelly @santamonica gov

4 || 1685 Main Street, Room 31

Santa Monica, California 90401

5 || Telephone: G1) 458-8336

Facsimile: (310) 451-5862

Mildred K. O'Linn (State Bar No. 159055)

7 missy.olinn@manningkass.com

Kayleigh Andersen (State Bar No. 306442)

□ □□ kayleigh.andersen@mannin ISAS. com

Carol Rohr (State Bar No. 90012)

9||_ carol. ron @manningkass.com

MANNING & KASS

10 |} ELLROD, RAMIREZ, TRESTER LLP

801 S. Figueroa St, 15th Floor

by 11 || Los Angeles, California 90017-3012

a Telephone: GB) 624-6900

12||Facsimile: (213) 624-6999

3 13 Attorneys for Defendants, CITY OF SANTA MONICA, STEVEN HOLLOWELL,

B nf CARLOS MADRID, MAURICE COCHEE, and CHIEF RAMON BATISTA

See 14

2 ae UNITED STATES DISTRICT COURT

me) 15

3 □□ CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

o

16

17

MARIA DEL CARMEN FLORES, an Case No. 2:23-cv-00043-SB-PD

18 |] individual,

[District Judge, Stanley Blumenfeld, Jr.;

19 Plaintiff, agistrate Judge, Patricia Donahue]

20 v. STIPULATED PROTECTIVE

ORDER RE CONFIDENTIAL

21 || CITY OF SANTA MONICA, a DOCUMENTS

municipality; STEVEN HOLLOWELL,

22 individually and in his official capacity;

CARLOS MADRID, individually and

23 || in his official capacity: MAURICE

COCHEE, individua y and in his

24 || official capacity; CHIEF RAMON

BATISTA, individually and in his

25 || official capacity,

26 Defendants

27

28 || ///

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STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

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1 | TO THE HONORABLE COURT:

2 By and through their counsel of record in this action, plaintiff MARIA DEL

3 || CARMEN FLORES, an individual, ("Plaintiff") and defendants CITY OF SANTA

4|| MONICA, STEVEN HOLLOWELL, CARLOS MADRID, MAURICE COCHEE,

5 ||and CHIEF RAMON BATISTA (hereinafter "Defendants") — the parties — hereby

6 ||stipulate for the purpose of jointly requesting that the honorable Court enter a

7 || protective order re confidential documents in this matter [and pursuant to Fed. R. Civ.

8 || P. 5.2, 7, and 26, as well as U.S. Dist. Ct., S.D. Cal., Local Rules 7-1 and 52-4.1; and

9 || any applicable Orders of the Court] — as follows:

10]} 1. A.PURPOSES AND LIMITATIONS

□□ 11 Discovery in this action is likely to involve production of confidential,

12|| proprietary, or private information for which special protection from public

SF 13 || disclosure and from use for any purpose other than prosecuting this litigation may be

Z 14 || warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter

ee 15 || the following Stipulated Protective Order. The parties acknowledge that this Order

a 16 || does not confer blanket protections on all disclosures or responses to discovery and

| —17]||that the protection it affords from public disclosure and use extends only to the

18 || limited information or items that are entitled to confidential treatment under the

19 || applicable legal principles.

20 The parties further acknowledge, as set forth below, that this Stipulation and

21 || Order creates no entitlement to file confidential information under seal, except to the

22 || extent specified herein; Central District Local Rules 79-5.1 and 79-5.2 set(s) forth the

23 || procedures that must be followed and reflects the standards that will be applied when

24 ||a party seeks permission from the court to file material under seal.

25 Nothing in this Stipulation or associated Order shall be construed so as to

26 require or mandate that any Party disclose or produce privileged information or

27 ||records that could be designated as Confidential Documents/Protected Material

28 || hereunder.

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1 B. GOOD CAUSE STATEMENT

2 Defendants contend that there is good cause and a particularized need for a

3 || protective order to preserve the interests of confidentiality and privacy in peace officer

4 |/personnel file records and associated investigative or confidential records for the

5 || following reasons.

6 First, Defendants contend that peace officers have a federal privilege of privacy

7 ||in their personnel file records: a reasonable expectation of privacy therein that is

8 || underscored, specified, and arguably heightened by the Pitchess protective procedure

9 || of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 1027, 1033-1034

10 || (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 14665, *2-3, 12-

□□ 11 || 13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law applies to privilege based

12 ||discovery disputes involving federal claims,” the “state privilege law which is

SF 13 ||consistent with its federal equivalent significantly assists in applying [federal]

Z 14 || privilege law to discovery disputes”); Soto v. City of Concord, 162 F.R.D. 603, 613

ee 15 ||n. 4, 616 (N.D. Cal. 1995) (peace officers have constitutionally-based “privacy rights

a 16 || [that] are not inconsequential” in their police personnel records); cf. Cal. Penal Code

3

FR! 17]18§ 832.7, 832.8; Cal. Evid. Code §§ 1040-1047. Defendants further contend that

18 || uncontrolled disclosure of such personnel file information can threaten the safety of

19 ||non-party witnesses, officers, and their families/associates.

20 Second, Defendants contend that municipalities and law enforcement agencies

21|)have federal deliberative-executive process privilege, federal official information

22 || privilege, federal law enforcement privilege, and federal attorney-client privilege

23 || (and/or attorney work product protection) interests in the personnel files of their peace

24 || officers — particularly as to those portions of peace officer personnel files that contain

25 || critical self-analysis, internal deliberation/decision-making or evaluation/analysis, or

26 || communications for the purposes of obtaining or rendering legal advice or analysis —

27 || potentially including but not limited to evaluative/analytical portions of Internal

28 || Affairs type records or reports, evaluative/analytical portions of supervisory records

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1 || or reports, and/or reports prepared at the direction of counsel, or for the purpose of

2 || obtaining or rendering legal advice. See Sanchez, 936 F.2d at 1033-1034; Maricopa

3 || Audubon Soc’y v. United States Forest Serv., 108 F.3d 1089, 1092-1095 (9th Cir.

4 || 1997); Soto, 162 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654,

5 || 668-671 (N.D. Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-177 (D. D.C. 1998);

6 || Hamstreet v. Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co.

7\|v. United States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants

8 || further contend that such personnel file records are restricted from disclosure by the

9 || public entity’s custodian of records pursuant to applicable California law and that

10 || uncontrolled release is likely to result in needless intrusion of officer privacy;

Fs 11 ||impairment in the collection of third-party witness information and statements

12 || and related legitimate law enforcement investigations/interests; and a chilling of

Ze 13 |;open and honest discussion regarding and/or investigation into alleged

2 14 || misconduct that can erode a public entity’s ability to identify and/or implement

ee 15 || any remedial measures that may be required.

a 16 Third, Defendants contend that, since peace officers do not have the same rights

4! —17|las other private citizens to avoid giving compelled statements, it is contrary to the

18 || fundamental principles of fairness to permit uncontrolled release of officers’

19 || compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 822,

20 || 828-830 (1985); cf. U.S. Const., amend V.

21 Accordingly, Defendants contend that, without a protective order preventing

22 |)such, production of confidential records in the case can and will likely substantially

23 ||impair and harm defendant public entity’s interests in candid self-critical analysis,

24 || frank internal deliberations, obtaining candid information from witnesses, preserving

25 ||the safety of witnesses, preserving the safety of peace officers and peace officers’

26 families and associates, protecting the privacy officers of peace officers, and

27 ||preventing pending investigations from being detrimentally undermined by

28 || publication of private, sensitive, or confidential information — as can and often does

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1 || result in litigation.

2 Plaintiff agrees that there is Good Cause for a Protective Order so as to preserve

3 || the respective interests of the parties without the need to further burden the Court with

4 |/such issues. Specifically, the parties jointly contend that, absent this Stipulation and

5 |/its associated Protective Order, the parties' respective privilege interests may be

6 || impaired or harmed, and that this Stipulation and its associated Protective Order may

7 || avoid such harm by permitting the parties to facilitate discovery with reduced risk that

8 || privileged and/or sensitive/confidential information will become matters of public

9 || record.

10 The parties jointly contend that there is typically a particularized need for

«| 11 ||protection as to any medical or psychotherapeutic records and autopsy photographs,

12 || because of the privacy interests at stake therein. Because of these sensitive interests,

se 13 □□□ Court Order should address these documents rather than a private agreement

g 14 || between the parties.

ie 15 The parties therefore stipulate that there is Good Cause for, and hereby jointly

2 □□ request that the honorable Court issue/enter, a Protective Order re confidential

3

1! —17||documents consistent with the terms and provisions of this Stipulation. However,

18 || the entry of a Protective Order by the Court pursuant to this Stipulation shall not be

19 || construed as any ruling by the Court on the aforementioned legal statements or

20 || privilege claims in this section (§ 1), nor shall this section be construed as part of any

21 || such Court Order.

22 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

23 The parties further acknowledge, as set forth in Section 12.3, below, that this

24 || Stipulated Protective Order does not entitle them to file confidential information

25 |) under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and

26 || the standards that will be applied when a party seeks permission from the court to

27 || 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. See 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 require

6 || good cause showing), and a specific showing of good cause or compelling reasons

7 || with proper evidentiary support and legal justification, must be made with respect to

8 || Protected Material that a party seeks to file under seal. The parties’ mere designation

9 ||}of Disclosure or Discovery Material as CONFIDENTIAL does not—without the

10 ||submission of competent evidence by declaration, establishing that the material

□□ 11 ||sought to be filed under seal qualifies as confidential, privileged, or otherwise

, 12 || protectable—constitute good cause.

SF 13 Further, if a party requests sealing related to a dispositive motion or trial, then

Z 14 || compelling reasons, not only good cause, for the sealing must be shown, and the

ie | 15||relief sought shall be narrowly tailored to serve the specific interest to be protected.

16 || See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each

2! 17]| item or type of information, document, or thing sought to be filed or introduced under

18 ||seal in connection with a dispositive motion or trial, the party seeking protection

19||must articulate compelling reasons, supported by specific facts and legal

20 || justification, for the requested sealing order. Again, competent evidence supporting

21 || the application to file documents under seal must be provided by declaration.

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

23 entirety will not be filed under seal if the confidential portions can be redacted. If

24 || documents can be redacted, then a redacted version for public viewing, omitting only

25 || the confidential, privileged, or otherwise protectable portions of the document, shall

26 || be filed. Any application that seeks to file documents under seal in their entirety

27 || should include an explanation of why redaction is not feasible.

28

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1 }/2. DEFINITIONS

2 2.1 Action: this pending federal law suit].

3 2.2 Challenging Party: a Party or Non-Party that challenges

41! the designation of information or items under this Order.

5 2.3 “CONFIDENTIAL” Information or Items: information (regardless of

6llhow it is generated, stored or maintained) or tangible things that qualify for

7 protection under Federal Rule of Civil Procedure 26(c), and as specified above in the

8 | Good Cause Statement.

9 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

10) their support staff).

3 I 2.5 Designating Party: a Party or Non-Party that designates information or

2 12 items that it produces in disclosures or in responses to discovery as

SR 13 | “CONFIDENTIAL.”

zZ 14 2.6 Disclosure or Discovery Material: all items or information, regardless

se 13 || of the medium or manner in which it is generated, stored, or maintained (including,

x 16 among other things, testimony, transcripts, and tangible things), that are produced or

mr AT generated in disclosures or responses to discovery in this matter.

18 2.7 Expert: a person with specialized knowledge or experience in a matter

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

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

21 2.8 House Counsel: attorneys who are employees of a party to this Action.

22 |! House Counsel does not include Outside Counsel of Record or any other outside

23 |! counsel.

24 2.9 Non-Party: any natural person, partnership, corporation, association, or

25 |! other legal entity not named as a Party to this action.

26 2.10 Outside Counsel of Record: attorneys who are not employees ofa party

271! to this Action but are retained to represent or advise a party to this Action and have

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

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1 || has appeared on behalf of that party, and includes support staff.

2 2.11 Party: any party to this Action, including all of its officers, directors,

3 || employees, consultants, retained experts, and Outside Counsel of Record (and their

4 || support staffs).

5 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

6 || Discovery Material in this Action.

7 2.13 Professional Vendors: persons or entities that provide litigation

8 || support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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

10 || and their employees and subcontractors.

□□ 11 2.14 Protected Material: any Disclosure or Discovery Material that is

12 || designated as “CONFIDENTIAL.”

SF 13 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

Z 14 || from a Producing Party.

ie | 15|]3. SCOPE

2 16 The protections conferred by this Stipulation and Order cover not only

S 17 || Protected Material (as defined above), but also (1) any information copied or

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

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

20 || presentations by Parties or their Counsel that might reveal Protected Material.

21 However, the protections conferred by this Stipulation and its associated Order

22 ||do not cover the following information: (a) any information that is in the public

23 ||domain at the time of disclosure to a Receiving Party or becomes part of the public

24 || domain after its disclosure to a Receiving Party as a result of publication not involving

25 || a violation of this Order, including becoming part of the public record through trial or

26 || otherwise; and (b) any information known to the Receiving Party prior to the

27 || disclosure or obtained by the Receiving Party after the disclosure from a source who

28 || obtained the information lawfully and under no obligation of confidentiality to the

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1 || Designating Party.

2 Except to the extent specified herein (if any), any use of Protected Material at

3 trial shall not be governed by this Order, but may be governed by a separate

4 || agreement or order.

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

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

7\4. DURATION

8 FINAL DISPOSITION of the action is defined as the conclusion of any

9 || appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal

10 || has run. Except as set forth below, the terms of this protective order apply through

□□ 11 || FINAL DISPOSITION of the action. The parties may stipulate that the they will be

12 || contractually bound by the terms of this agreement beyond FINAL DISPOSITION,

se 13 || but will have to file a separate action for enforcement of the agreement once all

g 14 || proceedings in this case are complete.

ie 15 Once a case proceeds to trial, information that was designated as

2 16 || CONFIDENTIAL or maintained pursuant to this protective order used or introduced

3

1! 17|}/as an exhibit at trial becomes public and will be presumptively available to all

18 || members of the public, including the press, unless compelling reasons supported by

19 || specific factual findings to proceed otherwise are made to the trial judge in advance

20 ||of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

21 || showing for sealing documents produced in discovery from “compelling reasons”

22 ||standard when merits-related documents are part of court record). Accordingly, for

23 |/such materials, the terms of this protective order do not extend beyond the

24 || commencement of the trial.

25 ||5. DESIGNATING PROTECTED MATERIAL

26 5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

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

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

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

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

4 || or communications for which protection is not warranted are not swept unjustifiably

5 || within the ambit of this Order.

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

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

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

9 ||] unnecessary expenses and burdens on other parties) may expose the Designating

10 || Party to sanctions.

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

12 || designated for protection do not qualify for protection, that Designating Party must

SF 13 || promptly notify all other Parties that it is withdrawing the inapplicable designation.

Z 14 5.2 Manner and Timing of Designations. Except as otherwise provided in

ie | 15||this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

2 16 || stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

3 17 || under this Order must be clearly so designated before the material is disclosed or

18 || produced.

19 Designation in conformity with this Order requires:

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

21 |)documents, but excluding transcripts of depositions or other pretrial or trial

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

23 || “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend’), to each page that

24 || contains protected material. If only a portion or portions of the material on a page

25 || qualifies for protection, the Producing Party also must clearly identify the protected

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

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

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

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

2 ||before the designation, all of the material made available for inspection shall be

3||deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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

5 || documents, or portions thereof, qualify for protection under this Order. Then, before

6||/producing the specified documents, the Producing Party must affix the

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 (b) for testimony given in deposition or in other pretrial or trial proceedings,

12 || that the Party or non-party offering or sponsoring the testimony identify on the record,

SF 13 ||before the close of the deposition, hearing, or other proceeding, all protected

Z 14||testimony, and further specify any portions of the testimony that qualify as

ie | 15||“CONFIDENTIAL.” When it is impractical to identify separately each portion of

2 16 || testimony that is entitled to protection, and when it appears that substantial portions

3

! —17]lof the testimony may qualify for protection, the Producing Party may invoke on the

18 || record (before the deposition or proceeding is concluded) a right to have up to twenty

19 || (20) days to identify the specific portions of the testimony as “CONFIDENTIAL.”

20||Only those portions of the testimony that are appropriately designated as

21 ||“CONFIDENTIAL” for protection within the 20 days shall be covered by the

22 || provisions of this Stipulation and its associated Protective Order.

23 The court reporter must affix to each such transcript page containing

24 |Protected Material the legend “CONFIDENTIAL,” as instructed by the Producing

25 |Party.

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

27 |pny other tangible items, that the Producing Party affix in a prominent place on the

28 |pxterior of the container or containers in which the information is stored the legend

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1 |SCONFIDENTIAL.” 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 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

□□ CHALLENGING CONFIDENTIALITY DESIGNATIONS

8 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

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

10 || Scheduling Order.

□□ 11 6.2. Meet and Confer. The Challenging Party shall initiate the dispute

12 || resolution process under Local Rule 37.1 et seq.

SF 13 6.3. The burden of persuasion in any such challenge proceeding shall be on

Z 14 || the Designating Party. Frivolous challenges, and those made for an improper purpose

ie 15 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may

16 || expose the Challenging Party to sanctions. Unless the Designating Party has waived

□□ —17]|or withdrawn the confidentiality designation, all parties shall continue to afford the

18 || material in question the level of protection to which it is entitled under the Producing

19 || Party’s designation until the Court rules on the challenge.

20||7. ACCESS TO AND USE OF PROTECTED MATERIAL

21 7.1 Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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

26 || Receiving Party must comply with the provisions of section 13 below (FINAL

27 || DISPOSITION).

28

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

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

3 || authorized under this Order.

4 7.2. Disclosure _of “CONFIDENTIAL” Information or Items. Unless

5 || otherwise ordered by the court or permitted in writing by the Designating Party, a

6||/Receiving Party may disclose any information or item designated

7 ||“CONFIDENTIAL” only to:

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

9 ||as employees of said Outside Counsel of Record to whom it is reasonably necessary

10 || to disclose the information for this Action;

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

, 12 || Receiving Party to whom disclosure is reasonably necessary for this Action;

SF 13 (c) Experts (as defined in this Order) of the Receiving Party to whom

Z 14|| disclosure is reasonably necessary for this Action and who have signed the

ie 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A);

16 (d) the court and its personnel;

= 17 (e) court reporters and their staff;

18 (f) professional jury or trial consultants, mock jurors, and Professional

19 || Vendors to whom disclosure is reasonably necessary for this Action and who have

20 || signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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

22 || custodian or other person who otherwise possessed or knew the information;

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

24 || Action to whom disclosure is reasonably necessary provided: (1) the deposing party

25 || requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will

26||not be permitted to keep any confidential information unless they sign the

27 ||““Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

28 ||agreed by the Designating Party or ordered by the court. Pages of transcribed

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1 || deposition testimony or exhibits to depositions that reveal Protected Material may

2 || be separately bound by the court reporter and may not be disclosed to anyone except

3 permitted under this Stipulated Protective Order; and

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

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

6 7.3. Notice of Confidentiality. Prior to producing or disclosing Protected

7 || Material/Confidential Documents to persons to whom this Stipulation and its Order

8 || permits disclosure or production (see section 8.2, supra), a Receiving Party shall

9 || provide a copy of this Stipulation and Order to such persons so as to put such persons

10 ||on notice as to the restrictions imposed upon them herein: except that, for court

□□ 11 ||reporters, Professional Vendors, and for witnesses being provided with Protected

12 || Material during a deposition, it shall be sufficient notice for Counsel for the Receiving

sf 13 || Party to give the witness a verbal admonition (on the record, for witnesses) regarding

g 14 || the provisions of this Stipulation and its Order and such provisions’ applicability to

ie 15 specified Protected Material at issue.

2 16 7.4. Reservation of Rights. Nothing in this Stipulation and Order shall be

S 17 || construed so as to require any Producing Party to designate any records or materials

18 ||}as “CONFIDENTIAL.” Nothing in this Stipulation and Order shall be construed so

19 ||as to prevent the admission of Protected Material into evidence at the trial of this

20 || action, or in any appellate proceedings for this action, solely on the basis that such

21|)Disclosure or Discovery Material has been designated as _ Protected

22 || Material/Confidential Documents. Notwithstanding the foregoing, nothing in this

23 || Stipulation and Order shall be construed as a waiver of any privileges or of any rights

24 |/to object to the use or admission into evidence of any Protected Material in any

25 || proceeding; nor shall anything herein be construed as a concession that any privileges

26 || asserted or objections made are valid or applicable. Nothing in this Stipulation and

27 ||Order shall be construed so as to prevent the Designating Party (or its Counsel or

28 || custodian of records) from having access to and using Protected Material designated

4872-8 185-6839.1 14

STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

Case f:23-cv-00043-SB-PD Document 20 Filed 03/17/23 Page 15o0f22 Page !ID#:672

1 || by that Party in the manner in which such persons or entities would typically use such

2 || materials in the normal course of their duties or profession — except that the waiver of

3 || confidentiality provisions shall apply (see section 6.4(c), supra).

4 7.5. Requirement to File Confidential Documents Under Seal. Confidential

5 || Documents may be submitted in all law and motion proceedings before the Court if

6 || done so under seal pursuant to Federal Rules of Civil Procedure 5.2 and 26 and/or

7 || United States District Court, Central District of California Local Rules 79-5.1 and 79-

8||5.2 (as applicable) and pursuant to the provisions of this Stipulation and any

9 || associated Order. If any Receiving Party attaches any Confidential Documents to any

10 || pleading, motion, or other paper to be filed, lodged, or otherwise submitted to the

□□ 11 Court, such Confidential Document(s) shall be filed/lodged under seal pursuant to

12 Federal Rules of Civil Procedure 5.2 and 26 and/or United States District Court,

se 13 || Central District of California Local Rules 79-5.1 and 79-5.2 to the extent applicable.

g 14 However, this paragraph (| 7.5) shall not be construed so as to prevent a

ee 15 || Designating Party or counsel from submitting, filing, lodging, or publishing any

a 16||document it has previously designated as a Confidential Document without

—17]}compliance with this paragraph’s requirement to do so under seal (i.e., a producing-

18 || disclosing party or counsel may submit or publish its own Confidential Documents

19 || without being in violation of the terms of this Stipulation and its Protective Order).

20 Furthermore, a Receiving Party shall be exempted from the requirements of

21 ||this paragraph as to any specifically identified Confidential Document(s) where —

22 || prior to the submission or publication of the Confidential Document(s) at issue — the

23 || Designating Party of such specifically identified Confidential Document(s) has

24 || waived/withdrawn the protections of this Stipulation and its Order (pursuant to

25 || paragraph 6.4, supra).

26 A Receiving Party shall also be exempt from the sealing requirements of this

27 || paragraph (4 7.5) where the Confidential Documents/Protected Material at issue is/are

28 || not documents, records, or information regarding or incorporating:

4872-8 185-6839.1 1 5

STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

Case #?:23-cv-00043-SB-PD Document 20 Filed 03/17/23 Page 16 of22 Page ID#:673

l (1) private, personal information contained in peace officer personnel files

2 ||(such as social security numbers, driver’s license numbers or comparable personal

3 || government identification numbers, residential addresses, compensation or pension

4 || or personal property information, credit card numbers or credit information, dates of

5 || birth, tax records and information, information related to the identity of an officer’s

6 ||family members or co-residents, and comparable personal information about the

7 || officer or his family);

8 (2) any internal affairs or comparable investigation by any law enforcement

9 || agency into alleged officer misconduct; and/or

10 (3) | the medical records or records of psychiatric or psychological treatment

«| 11 any peace officer or party to this action.

12 Nothing in this paragraph shall be construed to bind the Court or its authorized

SF 13 || staff so as to limit or prevent the publication of any Confidential Documents to the

Z 14 || jury or factfinder, at the time of trial of this matter, where the Court has deemed such

ie | 15||Confidential Documents to be admissible into evidence.

2 16/8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

3

17|/IN OTHER LITIGATION

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

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

20 || “CONFIDENTIAL,” that Party must:

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

22 || include a copy of the subpoena or court order;

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

24 || to issue in the other litigation that some or all of the material covered by the subpoena

25 || or order is subject to this Protective Order. Such notification shall include a copy of

26 || this Stipulated Protective Order; and

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

28 || by the Designating Party whose Protected Material may be affected.

4872-8 185-6839.1 1 6

STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

Case #?:23-cv-00043-SB-PD Document 20 Filed 03/17/23 Page of22 Page ID#:674

l If the Designating Party timely seeks a protective order, the Party served

2 || with the subpoena or court order shall not produce any information designated in this

3 |]action as “CONFIDENTIAL” before a determination by the court from which the

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

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

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

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

8 || to disobey a lawful directive from another court.

91/9. A NON-PARTY’S — PROTECTED MATERIAL SOUGHT

10||TO | BEPRODUCED IN THIS LITIGATION

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

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

SF 13 || produced by Non-Parties in connection with this litigation is protected by the

Z 14 || remedies and relief provided by this Order. Nothing in these provisions should be

ie | 15 || construed as prohibiting a Non-Party from seeking additional protections.

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

2! —17|| produce a Non-Party’s confidential information in its possession, and the Party is

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

19 || confidential information, then the Party shall:

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

21 || that some or all of the information requested is subject to a confidentiality agreement

22 || with a Non-Party;

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

24 || Protective Order in this Action, the relevant discovery request(s), and a reasonably

25 || specific description of the information requested; and

26 (3) make the information requested available for inspection by the

27 || Non-Party, if requested.

28

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STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

Case #?:23-cv-00043-SB-PD Document 20 Filed 03/17/23 Page 18o0f22 Page ID#:675

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

2 || 14 days of receiving the notice and accompanying information, the Receiving Party

3 || may produce the Non-Party’s confidential information responsive to the discovery

4 || request. If the Non-Party timely seeks a protective order, the Receiving Party shall

5 ||not produce any information in its possession or contro] that is subject to the

6 || confidentiality agreement with the Non-Party before a determination by the court.

7 || Absent a court order to the contrary, the Non-Party shall bear the burden and expense

8 || of seeking protection in this court of its Protected Material.

9}}10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

□□ 11 || Protected Material to any person or in any circumstance not authorized under this

12 || Stipulated Protective Order, the Receiving Party must immediately (a) notify in

SF 13 || writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

Z 14 || to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

ie 15 persons to whom unauthorized disclosures were made of all the terms of this Order,

16 ||and (d) request such person or persons to execute the “Acknowledgment and

1! —17]| Agreement to Be Bound” that is attached hereto as Exhibit A.

18}}11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

19 || PROTECTED MATERIAL

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

21 |) inadvertently produced material is subject to a claim of privilege or other protection,

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

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

24 || may be established in an e-discovery order that provides for production without prior

25 || privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

26 || parties reach an agreement on the effect of disclosure of a communication or

27 || information covered by the attorney-client privilege or work product protection, the

28 || parties may incorporate their agreement in the stipulated protective order submitted

4872-8 185-6839.1 18

STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

Case #?:23-cv-00043-SB-PD Document 20 Filed 03/17/23 Page 19o0f22 Page ID #:676

1 || to the court.

2|/12. MISCELLANEOUS

3 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

4 || person to seek its modification by the Court in the future.

5 12.2 Right to Assert Other Objections. By stipulating to the entry of this

6 || Protective Order no Party waives any right it otherwise would have to object to

7 || disclosing or producing any information or item on any ground not addressed in this

8 || Stipulated Protective Order. Similarly, no Party waives any right to object on any

9 || ground to use in evidence of any of the material covered by this Protective Order.

10 12.3 Filing Protected Material. A Party that seeks to file under seal any

□□ 11 || Protected Material must comply with Civil Local Rule 79-5. Protected Material may

, 12 || only be filed under seal pursuant to a court order authorizing the sealing of the

SF 13 || specific Protected Material at issue. If a Party's request to file Protected Material

Z 14 || under seal is denied by the court, then the Receiving Party may file the information

ie | the public record unless otherwise instructed by the court.

2| 16|[13. FINAL DISPOSITION

3

RI 17 Unless otherwise ordered or agreed in writing by the Producing Party, within

18 || thirty (30) days after the final termination of this action (defined as the dismissal or

19 || entry of judgment by the above named court, or if an appeal is filed, the disposition

20 || of the appeal), upon written request by the Producing Party, each Receiving Party

21 |) must return all Protected Material to the Producing Party — whether retained by the

22 || Receiving Party or its Counsel, Experts, Professional Vendors, agents, or any non-

23 || party to whom the Receiving Party produced or shared such records or information.

24 As used in this subdivision, “all Protected Material” includes all copies,

25 || abstracts, compilations, summaries or any other form of reproducing or capturing any

26 ||of the Protected Material, regardless of the medium (hardcopy, electronic, or

27 || otherwise) in which such Protected Material is stored or retained.

28 In the alternative, at the discretion of the Receiving Party, the Receiving Party

4872-8 185-6839.1 19

STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

Case ?:23-cv-00043-SB-PD Document 20 Filed 03/17/23 Page 20 of 22 Page ID #:677

1 || may destroy some or all of the Protected Material instead of returning it — unless such

2 || Protected Material is an original, in which case, the Receiving Party must obtain the

3 || Producing Party’s written consent before destroying such original Protected Material.

4 Whether the Protected Material is returned or destroyed, the Receiving Party

5 || must submit a written certification to the Producing Party (and, if not the same person

6 ||or entity, to the Designating Party) within thirty (30) days of the aforementioned

7 || written request by the Designating Party that specifically identifies (by category,

8 || where appropriate) all the Protected Material that was returned or destroyed and that

9 || affirms that the Receiving Party has not retained any copies, abstracts, compilations,

10 || summaries or other forms of reproducing or capturing any of the Protected material

□□ 11 || (in any medium, including but not limited to any hardcopy, electronic or digital copy,

12 || or otherwise).

sf 13 Notwithstanding this provision, Counsel are entitled to retain an archival copy

g 14 || of all pleadings, motion papers, transcripts, legal memoranda filed with the court in

ie | 15|| this action, as well as any correspondence or attorney work product prepared by

2 16 || Counsel for the Receiving Party, even if such materials contain Protected Material;

S 17 || however, any such archival copies that contain or constitute Protected Material

18 ||remain subject to this Protective Order as set forth in Section 4 (DURATION),

19 ||above. This court shall retain jurisdiction in the event that a Designating Party elects

20 || to seek court sanctions for violation of this Stipulation and its Order.

21 Any violation of this Order may be punished by any and all appropriate

22 |)/measures including, without limitation, contempt proceedings and/or monetary

23 || sanctions.

24 | ///

25 □ ///

26 || ///

27 || ///

28 || ///

4872-8 185-6839.1 20

STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

Case #?:23-cv-00043-SB-PD Document 20 Filed 03/17/23 Page 21 0f22 Page ID#:678

l IT IS SO STIPULATED.

3 || DATED: March 16, 2023 THE LAW OFFICES OF CHRISTIAN

CONTRERAS

6 By: _ /s/ Christian Contreras

7 Christian Contreras

Attorneys for Plaintiff,

8 MARIA DEL CARMEN FLORES

10|}| DATED: March 16, 2023 MANNING & KASS

ELLROD, RAMIREZ, TRESTER LLP

ok 12

< fe

Ke □ I3 By: /s/ Kayleigh A. Andersen

Se 14 Mildred K. O'Linn

2g: 15 Kayleigh A. Andersen

5 s Attorneys for Defendants,

16 CITY OF SANTA MONICA, STEVEN

iB 7 HOLLOWELL, CARLOS MADRID,

MAURICE COCHEE, and CHIEF

18 RAMON BATISTA

19

20

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

22

3 DATED: March 17, 2023

24

25

0 Fahey Lona

HON. PATRICIA DONAHUE

27 || United States Magistrate Judge

28

4872-8 185-6839.1 9 1

STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

Case ?:23-cv-00043-SB-PD Document 20 Filed 03/17/23 Page 22 of 22 Page ID #:679

1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, [print or type full

4 name], of [print or type full address], declare

5 || under 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 on [date] inthe caseof Maria Del Carmen

8 || Flores v. City of Santa Monica, et al., Case No. 2:23-cv-00043-SB-PD. I agree to

9 || comply with and to be bound by all the terms of this Stipulated Protective Order and

10 || I understand and acknowledge that failure to so comply could expose me to sanctions

□□ 11 ||and punishment in the nature of contempt. I solemnly promise that I will not disclose

12 ||in any manner any information or item that 1s subject to this Stipulated Protective

SF 13 || Order to any person or entity except in strict compliance with the provisions of this

Z 14 |] Order.

ee 15 I further agree to submit to the jurisdiction of the United States District Court

a 16 || for the Central District of California for the purpose of enforcing the terms of this

! —17]|Stipulated Protective Order, even if such enforcement proceedings occur after

18 || termination of this action. I hereby appoint [print

19 || or type full name] of [print or type

20 || full address and telephone number] as my California agent for service of process

21 |/in connection with this action or any proceedings related to enforcement of this

22 || Stipulated Protective Order.

23 || Date:

24 || City and State where sworn and signed:

25 || Printed name:

26 || Signature:

27

28

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STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS