Jing Xu v. City of Los Angeles

1

HYDEE FELDSTEIN SOTO, City Attorney- SBN 106866

2 DENISE C. MILLS, Chief Deputy City Attorney-SBN 191992

SCOTT MARCUS, Chief Asst. City Attorney-SBN 184980

3 CORY M. BRENTE, Assistant City Attorney-SBN 115453

SHANT TASLAKIAN, Deputy City Attorney-SBN 272485

4 200 North Main Street, 6th Floor, City Hall East DISCOVERY

Los Angeles, California 90012

5 Phone No.: (213) 978-8722; Fax No.: 213) 978-8785

Email: Shant.Taslakian@lacity.org

6

Attorneys for Defendants,

7 CITY OF LOS ANGELES, JOSE HERNANDEZ AND ERIC WATTS

8

9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA

11

JING XU, CASE NO. 2:23CV01575-FLA(SP)

12

Hon. Fernando L. Aenlle-Rocha, Crtrm 6B,

13 Plaintiff, First Street Federal Courthouse

14 v. Hon. Sheri Pym, Magistrate Judge, Crtrm. 3,

3rd Floor, George E. Brown, Jr. U.S.

15 Courthouse, Riverside, CA 92501

City of Los Angeles,

16 Los Angeles Police Department,

E Watts, #43716, John Doe STIPULATED PROTECTIVE

17 J. Velazquez, #42422, John Doe ORDER

Hernandez, #43215, John Doe

18 Maldonado, #43223, John Doe

Lt. Sanchez, #25339, John Doe

19

Defendants.

20

21

22 1. A. PURPOSES AND LIMITATIONS

23 Discovery in this action is likely to involve production of confidential, proprietary,

24 or private information for which special protection from public disclosure and from use

25 for any purpose other than prosecuting this litigation may be warranted. Accordingly,

26 the parties hereby stipulate to and petition the Court to enter the following Stipulated

27 Protective Order. The parties acknowledge that this Order does not confer blanket

28 protections on all disclosures or responses to discovery and that the protection it affords

1 from public disclosure and use extends only to the limited information or items that are

2 entitled to confidential treatment under the applicable legal principles. The parties

3 further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective

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

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

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

7 B. GOOD CAUSE STATEMENT

8 This action involves the City of Los Angeles and members of the Los Angeles Police

9 Department. Plaintiff is seeking materials and information that Defendants the City of

10 Los Angeles et al. (“City”) maintain as confidential (“Information”), such as personnel

11 files of the police officers involved in this incident, Internal Affairs materials and

12 information, video recordings, audio recordings, photographs and other administrative

13 materials and information currently in the possession of the City and which the City

14 believes need special protection from public disclosure and from use for any purpose

15 other than prosecuting this litigation. Plaintiff is also seeking official information

16 contained in the personnel files of the police officers involved in the subject incident,

17 which the City maintains as strictly confidential and which the City believes need special

18 protection from public disclosure and from use for any purpose other than prosecuting

19 this litigation.

20 The City asserts that the confidentiality of the Information sought by Plaintiff is

21 recognized by California law, as evidenced inter alia by California Evidence Code

22 sections 1043 and 1046; Penal Code sections 832.5, 832.7 and 832.8; Government Code

23 section 6254; pursuant to the doctrine of self-critical analysis; and individual rights to

24 privacy. The City has not publicly released the Information which may be produced in

25 this matter, except pursuant to a separate protective order or a court order, if at all. This

26 Information is of the type that has been used to initiate disciplinary action against Los

27 Angeles Police Department (“LAPD”) officers, and has been used as evidence in

28 disciplinary proceedings, where the officers’ conduct was considered to be contrary to

1 LAPD policy. Plaintiff does not concur with the City’s assertions regarding the objections

2 and privileged described in this paragraph but acknowledges the need for confidentiality

3 of certain records and joins in the stipulation for a protective order without waiving any

4 objections or response to any particular objections.

5 The City contends that absent a protective order delineating the responsibilities of

6 nondisclosure on the part of the parties hereto, there is a specific risk of unnecessary and

7 undue disclosure by one or more of the many attorneys, secretaries, law clerks, paralegals

8 and expert witnesses involved in this case, as well as the corollary risk of embarrassment,

9 harassment and professional and legal harm on the part of the LAPD officers referenced

10 in the Information.

11 The City also contends that the unfettered disclosure of the Information, absent a

12 protective order, would allow the media to share this Information with potential jurors in

13 the area, impacting the rights of the City herein to receive a fair trial.

14 Accordingly, to expedite the flow of Information, to facilitate the prompt resolution

15 of disputes over confidentiality of this Information, to adequately protect the Information

16 the parties are entitled to keep confidential, to ensure that the parties are permitted

17 reasonable necessary uses of such Information in preparation for and in the conduct of

18 trial, to address their handling at the end of the litigation, and serve the ends of justice, a

19 protective order for such Information is justified in this matter. It is the intent of the

20 parties that Information will not be designated as confidential for tactical reasons and that

21 nothing be so designated without a good faith belief that it has been maintained in a

22 confidential, non-public manner, and there is good cause why it should not be part of the

23 public record of this case.

24 2. DEFINITIONS

25 2.1 Action: This pending United States District Court, Central District of

26 California Court action entitled, Jing Xu, v. City of Los Angeles, et al., case number 23-

27 CV-01575.

28 2.2 Challenging Party: a Party or Non-Party that challenges the designation

1 of information or items under this Order.

2 2.3 “CONFIDENTIAL” Information or Items: information (regardless of

3 how it is generated, stored or maintained) or tangible things that qualify for protection

4 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

5 Statement.

6 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

7 support staff).

8 2.5 Designating Party: a Party or Non-Party that designates information or

9 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”

10 2.6 Disclosure or Discovery Material: all items or information, regardless of

11 the medium or manner in which it is generated, stored, or maintained (including, among

12 other things, testimony, transcripts, and tangible things), that are produced or generated

13 in disclosures or responses to discovery in this matter.

14 2.7 Expert: a person with specialized knowledge or experience in a matter

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

16 expert witness or as a consultant in this Action.

17 2.8 Final Disposition: when this Action has been fully and completely

18 terminated by way of settlement, dismissal, trial, appeal and/or remand to state court.

19 2.9 House Counsel: attorneys who are employees of a party to this Action.

20 House Counsel does not include Outside Counsel of Record or any other outside counsel.

21 2.10 Non-Party: any natural person, partnership, corporation, association, or

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

23 2.11 Outside Counsel of Record: attorneys who are not employees of a party

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

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

26 appeared on behalf of that party, and includes support staff.

27 2.12 Party: any party to this Action, including all of its officers, directors,

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

1 support staffs).

2 2.13 Producing Party: a Party or Non-Party that produces Disclosure or

3 Discovery Material in this Action.

4 2.14 Professional Vendors: persons or entities that provide litigation support

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

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

7 their employees and subcontractors.

8 2.15 Protected Material: any Disclosure or Discovery Material that is

9 designated as “CONFIDENTIAL.”

10 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material

11 from a Producing Party.

12 3. SCOPE

13 The protections conferred by this Stipulation and Order cover not only Protected

14 Material (as defined above), but also (1) any information copied or extracted from

15 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

16 Material; and (3) any testimony, conversations, or presentations by Parties or their

17 Counsel that might reveal Protected Material.

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

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

20 4. DURATION

21 Once a case proceeds to trial, all of the information that was designated as

22 confidential or maintained pursuant to this protective order becomes public and will be

23 presumptively available to all members of the public, including the press, unless

24 compelling reasons supported by specific factual findings to proceed otherwise are made

25 to the trial judge in advance of the trial. See Kamakana v. City and County of Honolulu,

26 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing

27 documents produced in discovery from “compelling reasons” standard when merits-

28 related documents are part of court record). Accordingly, the terms of this protective order

1 do not extend beyond the commencement of the trial.

2 Even after final disposition of this Action, the confidentiality obligation imposed by

3 this Order will remain in effect as to all Protected Material that was not introduced or not

4 admitted into evidence at trial, until a Designating Party agrees otherwise in writing or a

5 court order otherwise directs. Final disposition will be deemed to be the later of (1)

6 dismissal of all claims and defenses in this Action, with or without prejudice; and (2)

7 final judgment herein after the completion and exhaustion of all appeals, rehearings,

8 remands, trials, or reviews of this Action, including the time limits for filing any motions

9 or applications for extension of time pursuant to applicable law.

10 5. DESIGNATING PROTECTED MATERIAL

11 5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

13 Order must take care to limit any such designation to specific material that qualifies under

14 the appropriate standards. The Designating Party must designate for protection only those

15 parts of material, documents, items, or oral or written communications that qualify so that

16 other portions of the material, documents, items, or communications for which protection

17 is not warranted are not swept unjustifiably within the ambit of this Order.

18 Mass, indiscriminate, or routinized designations are prohibited. Designations that

19 are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

20 to unnecessarily encumber the case development process or to impose unnecessary

21 expenses and burdens on other parties) may expose the Designating Party to sanctions.

22 If it comes to a Designating Party’s attention that information or items that it designated

23 for protection do not qualify for protection, that Designating Party must promptly notify

24 all other Parties that it is withdrawing the inapplicable designation.

25 5.2 Manner and Timing of Designations. Except as otherwise provided in

26 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated

27 or ordered, Disclosure or Discovery Material that qualifies for protection under this Order

28 must be clearly so designated before the material is disclosed or produced.

1 Designation in conformity with this Order requires:

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

3 documents, but excluding transcripts of depositions or other pretrial or trial proceedings),

4 that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter

5 “CONFIDENTIAL legend”), to each page that contains protected material. If only a

6 portion or portions of the material on a page qualifies for protection, the Producing Party

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

8 in the margins).

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

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

11 documents it would like copied and produced. During the inspection and before the

12 designation, all of the material made available for inspection shall be deemed

13 “CONFIDENTIAL.” After the inspecting Party has identified the

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

15 identify the Disclosure or Discovery Material on the record, before the close of the

16 deposition all protected testimony.

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

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

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

20 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection,

21 the Producing Party, to the extent practicable, shall identify the protected portion(s).

22 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

26 assure that the material is treated in accordance with the provisions of this Order.

27 //

28

1 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

2 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

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

4 Order.

5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

6 resolution process under Local Rule 37.1 et seq.

7 6.3 The burden of persuasion in any such challenge proceeding shall be on

8 the Designating Party. Frivolous challenges, and those made for an improper purpose

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

10 the Challenging Party to sanctions. Unless the Designating Party has waived or

11 withdrawn the confidentiality designation, all parties shall continue to afford the material

12 in question the level of protection to which it is entitled under the Producing Party’s

13 designation until the Court rules on the challenge.

14 7. ACCESS TO AND USE OF PROTECTED MATERIAL

15 7.1 Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

19 described in this Order. When the Action has been terminated, a Receiving Party must

20 comply with the provisions of section 13 below (FINAL DISPOSITION).

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

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

23 authorized under this Order.

24 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

26 Receiving Party may disclose any information or item designated “CONFIDENTIAL”

27 only to:

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

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

2 disclose the information for this Action;

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

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

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

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

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

8 (d) the court and its personnel;

9 (e) court reporters and their staff;

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

11 Vendors to whom disclosure is reasonably necessary for this Action and who have signed

12 the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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

14 custodian or other person who otherwise possessed or knew the information;

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

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

17 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not

18 be permitted to keep any confidential information unless they sign the “Acknowledgment

19 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

20 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

21 depositions that reveal Protected Material may be separately bound by the court reporter

22 and may not be disclosed to anyone except as permitted under this Stipulated Protective

23 Order; and

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

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

26 //

27 //

28

1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

2 IN OTHER LITIGATION

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

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

5 “CONFIDENTIAL,” that Party must:

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

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

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

9 issue in the other litigation that some or all of the material covered by the subpoena or

10 order is subject to this Protective Order. Such notification shall include a copy of this

11 Stipulated Protective Order; and

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

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

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

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

16 as “CONFIDENTIAL” before a determination by the court from which the subpoena or

17 order issued, unless the Party has obtained the Designating Party’s permission. The

18 Designating Party shall bear the burden and expense of seeking protection in that court

19 of its confidential material and nothing in these provisions should be construed as

20 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive

21 from another court.

22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

23 PRODUCED IN THIS LITIGATION

24 (a) The terms of this Order are applicable to information produced by a Non-

25 Party in this Action and designated as “CONFIDENTIAL.” Such information produced

26 by Non-Parties in connection with this litigation is protected by the remedies and relief

27 provided by this Order. Nothing in these provisions should be construed as prohibiting a

28 Non-Party from seeking additional protections.

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

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

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

4 confidential information, then the Party shall:

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

6 that some or all of the information requested is subject to a confidentiality agreement with

7 a Non-Party;

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

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

10 description of the information requested; and

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

12 Party, if requested.

13 (c) If the Non-Party fails to seek a protective order from this court within 14

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

15 produce the Non-Party’s confidential information responsive to the discovery request. If

16 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

17 information in its possession or control that is subject to the confidentiality agreement

18 with the Non-Party before a determination by the court. Absent a court order to the

19 contrary, the Non-Party shall bear the burden and expense of seeking protection in this

20 court of its Protected Material.

21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

24 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

25 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all

26 unauthorized copies of the Protected Material, (c) inform the person or persons to whom

27 unauthorized disclosures were made of all the terms of this Order, and (d) request such

28 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is

1 attached hereto as Exhibit A.

2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

3 PROTECTED MATERIAL

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

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

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

7 26(b)(5)(B). This provision is not intended to modify whatever procedure may be

8 established in an e-discovery order that provides for production without prior privilege

9 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach

10 an agreement on the effect of disclosure of a communication or information covered by

11 the attorney-client privilege or work product protection, the parties may incorporate their

12 agreement in the stipulated protective order submitted to the court.

13 12. MISCELLANEOUS

14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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

16 12.2 Right to Assert Other Objections. By stipulating to the entry of this

17 Protective Order no Party waives any right it otherwise would have to object to disclosing

18 or producing any information or item on any ground not addressed in this Stipulated

19 Protective Order. Similarly, no Party waives any right to object on any ground to use in

20 evidence of any of the material covered by this Protective Order.

21 12.3 Filing Protected Material. A Party that seeks to file under seal any

22 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only

23 be filed under seal pursuant to a court order authorizing the sealing of the specific

24 Protected Material at issue. If a Party's request to file Protected Material under seal is

25 denied by the court, then the Receiving Party may file the information in the public record

26 unless otherwise instructed by the court.

27 //

28

1 13. FINAL DISPOSITION

2 After the final disposition of this Action, as defined in paragraphs 2.8 and 4, within

3 60 days of a written request by the Designating Party, each Receiving Party must return

4 all Protected Material to the Producing Party or destroy such material. As used in this

5 subdivision, “all Protected Material” includes all copies, abstracts, compilations,

6 summaries, and any other format reproducing or capturing any of the Protected Material.

7 Whether the Protected Material is returned or destroyed, the Receiving Party must submit

8 a written certification to the Producing Party (and, if not the same person or entity, to the

9 Designating Party) by the 60 day deadline that (1) identifies (by category, where

10 appropriate) all the Protected Material that was returned or destroyed and (2) affirms that

11 the Receiving Party has not retained any copies, abstracts, compilations, summaries or any

12 other format reproducing or capturing any of the Protected Material. Notwithstanding this

13 provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers,

14 trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition

15 and trial exhibits, expert reports, attorney work product, and consultant and expert work

16 product, even if such materials contain Protected Material. Any such archival copies that

17 contain or constitute Protected Material remain subject to this Protective Order as set forth

18 in Section 4 (DURATION).

19 14. Any violation of this Order may be punished by any and all appropriate

20 measures including, without limitation, contempt proceedings and/or monetary

21 sanctions.

22 //

23 //

24 //

25

26

27

28

1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2

3 DATED 12.15.2023

4

5 ____/s/________________________

6 JING XU, Plaintiff in Pro Se

7

8

9 DATED: December 19, 2023

10

11 ____/s/___________________________

SHANT TASLAKIAN

12

Attorney for Defendants

13

14

15

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

16

17

DATED: December 20, 2023

18

19

20

_____________________________________

21

HONORABLE SHERI PYM

22 United States Magistrate Judge

23

24

25

26

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28

1 EXHIBIT A

2

3 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

4

5 I, _____________________________ [print or type full name], of _________________

6 [print or type full address], declare under penalty of perjury that I have read in its entirety

7 and understand the Stipulated Protective Order that was issued by the United States

8 District Court for the Central District of California on [date] in the case of ___________

9 [insert formal name of the case and the number and initials assigned to it by the court]. I

10 agree to comply with and to be bound by all the terms of this Stipulated Protective Order

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

12 and punishment in the nature of contempt. I solemnly promise that I will not disclose in

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

14 any person or entity except in strict compliance with the provisions of this Order. I further

15 agree to submit to the jurisdiction of the United States District Court for the Central

16 District of California for the purpose of enforcing the terms of this Stipulated Protective

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

18 hereby appoint __________________________ [print or type full name] of

19 _______________________________________ [print or type full address and telephone

20 number] as my California agent for service of process in connection with this action or

21 any proceedings related to enforcement of this Stipulated Protective Order.

22

23 Date: ______________________________________

24 City and State where sworn and signed: _________________________________

25 Printed name: _______________________________

26 Signature: _________________________________

27

28