The opinion
11 James R. Touchstone, SBN 184584
jrt@jones-mayer.com
22 Denise L. Rocawich, SBN 232792
dlr@jones-mayer.com
33 JONES MAYER
3777 North Harbor Boulevard
44 Fullerton, CA 92835
Telephone: (714) 446-1400
55 Facsimile: (714) 446-1448
66 Attorneys for Defendants
CITY OF FULLERTON, RENE VALDES, JAIME ARROYO, GHARRETT
77 WILTSE, TRAVIS KOWALEC, MATTHEW LEVIN, SGT. DIAZ, CPL.
MURPHY, CPL. CAZARES
88
SKAPIK LAW GROUP
99 Mark J. Skapik (SBN 164957)
Geralyn L. Skapik (SBN 145055)
1100 Blair J. Berkley (SBN 222293)
Matthew T. Falkenstein (SBN 333302)
1111 5861 Pine Avenue, Suite A-1
Chino Hills, California 91709
1122 Telephone: (909) 398-4404
Facsimile: (909) 398-1883
1133
Attorneys for Plaintiff JUAN PAGAN
1144
1155 UNITED STATES DISTRICT COURT
1166 CENTRAL DISTRICT OF CALIFORNIA
1177 SOUTHERN DIVISION
1188 JUAN PAGAN JR., an individual, Case No: 8:cv-23-02492 HDV-KES
Judge: Hon. Hernan D. Vera
1199 Plaintiff,
2200 vs.
STIPULATED PROTECTIVE
2211 ORDER
2222 CITY OF FULLERTON, RENE
VALDES, an individual, JAIME
2233 ARROYO, an individual,
GHARRETT WILTSE, an individual,
2244 TRAVIS KOWALEC, an individual,
MATTHEW LEVIN, an individual,
2255 SGT. DIAZ, an individual, CPL.
MURPHY, an individual, CPL.
2266 CAZARES, an individual and DOES
1 through 10, inclusive,
2277
Defendants.
11 1. A. PURPOSES AND LIMITATIONS
22 Discovery in this action is likely to involve production of confidential,
33 proprietary, or private information for which special protection from public
44 disclosure and from use for any purpose other than prosecuting this litigation may
55 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
66 enter the following Stipulated Protective Order. The parties acknowledge that this
77 Order does not confer blanket protections on all disclosures or responses to
88 discovery and that the protection it affords from public disclosure and use extends
99 only to the limited information or items that are entitled to confidential treatment
1100 under the applicable legal principles. The parties further acknowledge, as set forth
1111 in Section 12.3, below, that this Stipulated Protective Order does not entitle them
1122 to file confidential information under seal; Civil Local Rule 79-5 sets forth the
1133 procedures that must be followed and the standards that will be applied when a
1144 party seeks permission from the court to file material under seal.
1155
1166 B. GOOD CAUSE STATEMENT
1177 The Parties represent that pre-trial discovery in this case is likely to include
1188 the production of information and/or documents that are confidential and/or
1199 privileged including the production of peace officer personnel file information
2200 and/or documents which the Parties agree includes: (1) Personal data, including
2211 marital status, family members, educational and employment history, home
2222 addresses, or similar information; (2) Medical history; (3) Election of employee
2233 benefits; (4) Employee advancement, appraisal, or discipline; and (5) Complaints,
2244 or investigations of complaints, concerning an event or transaction in which a
2255 peace officer participated, or which a peace officer perceived, and pertaining to the
2266 manner in which the peace officer performed his or her duties including compelled
2277 statements by peace officers unless specifically denoted as “not confidential”
pursuant to Penal Code section 832.7. Defendants contend that such information is
11 privileged as official information. Sanchez v. City of Santa Ana, 936 F.2d 1027,
22 1033 (9th Cir. Cal. 1990); see also Kerr v. United States Dist. Ct. for N.D. Cal.,
33 511 F.2d 192, 198 (9th Cir.1975), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d
44 725 (1976). Further, discovery may require the production of certain Fullerton
55 Police Department Policies and Procedures not available to the public and the
66 public disclosure of which could comprise officer safety, raise security issues,
77 and/or impede investigations. Peace officer personnel file information and/or
88 documents and security-sensitive policies and procedures are hereinafter referred
99 to as "Confidential Information".
1100 Defendants contend that that public disclosure of such material poses a
1111 substantial risk of embarrassment, oppression and/or physical harm to peace
1122 officers whose Confidential Information is disclosed. The Parties further agree that
1133 the risk of harm to peace officers is greater than with other government employees
1144 due to the nature of their profession. Finally, the Defendants contend that the
1155 benefit of public disclosure of Confidential Information is minimal while the
1166 potential disadvantages are great.
1177 Accordingly, good cause exists for entry of this Protective Order to facilitate
1188 pre-trial disclosure while assuring the safety of these sensitive disclosures. See
1199 Fed. R. Civ. Proc. 26(c).
2200
2211 2. DEFINITIONS
2222 2.1 Action: This pending federal law suit.
2233 2.2 Challenging Party: A Party or Non-Party that challenges the
2244 designation of information or items under this Order.
2255 2.3 “CONFIDENTIAL” Information or Items: Information (regardless of
2266 how it is generated, stored or maintained) or tangible things that qualify for
2277 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
the Good Cause Statement.
11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
22 their support staff).
33 2.5 Designating Party: A Party or Non-Party that designates information
44 or items that it produces in disclosures or in responses to discovery as
55 “CONFIDENTIAL.”
66 2.6 Disclosure or Discovery Material: All items or information, regardless
77 of the medium or manner in which it is generated, stored, or maintained (including,
88 among other things, testimony, transcripts, and tangible things), that are produced
99 or generated in disclosures or responses to discovery in this matter.
1100 2.7 Expert: A person with specialized knowledge or experience in a
1111 matter pertinent to the litigation who has been retained by a Party or its counsel to
1122 serve as an expert witness or as a consultant in this Action.
1133 2.8 House Counsel: Attorneys who are employees of a party to this
1144 Action. House Counsel does not include Outside Counsel of Record or any other
1155 outside counsel.
1166 2.9 Non-Party: Any natural person, partnership, corporation, association,
1177 or other legal entity not named as a Party to this action.
1188 2.10 Outside Counsel of Record: Attorneys who are not employees of a
1199 party to this Action but are retained to represent or advise a party to this Action
2200 and have appeared in this Action on behalf of that party or are affiliated with a law
2211 firm which has appeared on behalf of that party, and includes support staff.
2222 2.11 Party: Any party to this Action, including all of its officers, directors,
2233 employees, consultants, retained experts, and Outside Counsel of Record (and their
2244 support staffs).
2255 2.12 Producing Party: A Party or Non-Party that produces Disclosure or
2266 Discovery Material in this Action.
2277 2.13 Professional Vendors: Persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
11 demonstrations, and organizing, storing, or retrieving data in any form or medium)
22 and their employees and subcontractors.
33 2.14 Protected Material: Any Disclosure or Discovery Material that is
44 designated as “CONFIDENTIAL.”
55 2.15 Receiving Party: A Party that receives Disclosure or Discovery
66 Material from a Producing Party.
77
88 3. SCOPE
99 The protections conferred by this Stipulation and Order cover not only
1100 Protected Material (as defined above), but also (1) any information copied or
1111 extracted from Protected Material; (2) all copies, excerpts, summaries, or
1122 compilations of Protected Material; and (3) any testimony, conversations, or
1133 presentations by Parties or their Counsel that might reveal Protected Material. Any
1144 use of Protected Material at trial shall be governed by the orders of the trial judge.
1155 This Order does not govern the use of Protected Material at trial.
1166
1177 4. DURATION
1188 Even after final disposition of this litigation, the confidentiality obligations
1199 imposed by this Order shall remain in effect until a Designating Party agrees
2200 otherwise in writing or a court order otherwise directs. Final disposition shall be
2211 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
2222 with or without prejudice; and (2) final judgment herein after the completion and
2233 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
2244 including the time limits for filing any motions or applications for extension of
2255 time pursuant to applicable law.
2266
2277
11 5. DESIGNATING PROTECTED MATERIAL
22 5.1 Exercise of Restraint and Care in Designating Material for Protection.
33 Each Party or Non-Party that designates information or items for protection
44 under this Order must take care to limit any such designation to specific material
55 that qualifies under the appropriate standards. The Designating Party must
66 designate for protection only those parts of material, documents, items, or oral or
77 written communications that qualify so that other portions of the material,
88 documents, items, or communications for which protection is not warranted are not
99 swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or
1100 routinized designations are prohibited. Designations that are shown to be clearly
1111 unjustified or that have been made for an improper purpose (e.g., to unnecessarily
1122 encumber the case development process or to impose unnecessary expenses and
1133 burdens on other parties) may expose the Designating Party to sanctions. If it
1144 comes to a Designating Party’s attention that information or items that it
1155 designated for protection do not qualify for protection, that Designating Party must
1166 promptly notify all other Parties that it is withdrawing the inapplicable designation.
1177 5.2 Manner and Timing of Designations.
1188 Except as otherwise provided in this Order (see, e.g., second paragraph of
1199 section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or
2200 Discovery Material that qualifies for protection under this Order must be clearly so
2211 designated before the material is disclosed or produced. Designation in conformity
2222 with this Order requires: (a) for information in documentary form (e.g., paper or
2233 electronic documents, but excluding transcripts of depositions or other pretrial or
2244 trial proceedings), that the Producing Party affix at a minimum, the legend
2255 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
2266 contains protected material. If only a portion or portions of the material on a page
2277 qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins). A Party
11 or Non-Party that makes original documents available for inspection need not
22 designate them for protection until after the inspecting Party has indicated which
33 documents it would like copied and produced. During the inspection and before the
44 designation, all of the material made available for inspection shall be deemed
55 “CONFIDENTIAL.” After the inspecting Party has identified the documents it
66 wants copied and produced, the Producing Party must determine which documents,
77 or portions thereof, qualify for protection under this Order. Then, before producing
88 the specified documents, the Producing Party must affix the “CONFIDENTIAL
99 legend” to each page that contains Protected Material. If only a portion or portions
1100 of the material on a page qualifies for protection, the Producing Party also must
1111 clearly identify the protected portion(s) (e.g., by making appropriate markings in
1122 the margins). (b) for testimony given in depositions that the Designating Party
1133 identify the Disclosure or Discovery Material on the record, before the close of the
1144 deposition all protected testimony. (c) for information produced in some form
1155 other than documentary and for any other tangible items, that the Producing Party
1166 affix in a prominent place on the exterior of the container or containers in which
1177 the information is stored the legend “CONFIDENTIAL.” If only a portion or
1188 portions of the information warrants protection, the Producing Party, to the extent
1199 practicable, shall identify the protected portion(s).
2200 5.3 Inadvertent Failures to Designate.
2211 If timely corrected, an inadvertent failure to designate qualified information
2222 or items does not, standing alone, waive the Designating Party’s right to secure
2233 protection under this Order for such material. Upon timely correction of a
2244 designation, the Receiving Party must make reasonable efforts to assure that the
2255 material is treated in accordance with the provisions of this Order.
2266
2277
11 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
22 6.1 Timing of Challenges.
33 Any Party or Non-Party may challenge a designation of confidentiality at
44 any time that is consistent with the Court’s Scheduling Order.
55 6.2 Meet and Confer.
66 The Challenging Party shall initiate the dispute resolution process under
77 Local Rule 37.1 et seq. or follow the procedures for informal, telephonic
88 discovery hearings on the Court's website.
99 6.3 The burden of persuasion in any such challenge proceeding shall be
1100 on the Designating Party. Frivolous challenges, and those made for an improper
1111 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
1122 parties) may expose the Challenging Party to sanctions. Unless the Designating
1133 Party has waived or withdrawn the confidentiality designation, all parties shall
1144 continue to afford the material in question the level of protection to which it is
1155 entitled under the Producing Party’s designation until the Court rules on the
1166 challenge.
1177
1188 7. ACCESS TO AND USE OF PROTECTED MATERIAL
1199 7.1 Basic Principles.
2200 A Receiving Party may use Protected Material that is disclosed or produced
2211 by another Party or by a Non-Party in connection with this Action only for
2222 prosecuting, defending, or attempting to settle this Action. Such Protected Material
2233 may be disclosed only to the categories of persons and under the conditions
2244 described in this Order. When the Action has been terminated, a Receiving Party
2255 must comply with the provisions of section 13 below (FINAL DISPOSITION).
2266 Protected Material must be stored and maintained by a Receiving Party at a
2277 location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
11 7.2 Disclosure of “CONFIDENTIAL” Information or Items.
22 Unless otherwise ordered by the court or permitted in writing by the
33 Designating Party, a Receiving Party may disclose any information or item
44 designated “CONFIDENTIAL” only to:
55 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
66 well as employees of said Outside Counsel of Record to whom it is reasonably
77 necessary to disclose the information for this Action;
88 (b) the officers, directors, and employees (including House Counsel)
99 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
1100 (c) Experts (as defined in this Order) of the Receiving Party to whom
1111 disclosure is reasonably necessary for this Action and who have signed the
1122 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
1133 (d) the court and its personnel;
1144 (e) court reporters and their staff;
1155 (f) professional jury or trial consultants, mock jurors, and Professional
1166 Vendors to whom disclosure is reasonably necessary for this Action and who have
1177 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
1188 (g) the author or recipient of a document containing the information or
1199 a custodian or other person who otherwise possessed or knew the information;
2200 (h) during their depositions, witnesses ,and attorneys for witnesses, in
2211 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
2222 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
2233 they will not be permitted to keep any confidential information unless they sign the
2244 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
2255 agreed by the Designating Party or ordered by the court. Pages of transcribed
2266 deposition testimony or exhibits to depositions that reveal Protected Material may
2277 be separately bound by the court reporter and may not be disclosed to anyone
except as permitted under this Stipulated Protective Order; and
11 (i) any mediator or settlement officer, and their supporting personnel,
22 mutually agreed upon by any of the parties engaged in settlement discussions.
33
44 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
55 PRODUCED IN OTHER LITIGATION
66 If a Party is served with a subpoena or a court order issued in other litigation
77 that compels disclosure of any information or items designated in this Action as
88 “CONFIDENTIAL,” that Party must:
99 (a) promptly notify in writing the Designating Party. Such notification shall
1100 include a copy of the subpoena or court order;
1111 (b) promptly notify in writing the party who caused the subpoena or order to
1122 issue in the other litigation that some or all of the material covered by the subpoena
1133 or order is subject to this Protective Order. Such notification shall include a copy
1144 of this Stipulated Protective Order; and
1155 (c) cooperate with respect to all reasonable procedures sought to be pursued
1166 by the Designating Party whose Protected Material may be affected. If the
1177 Designating Party timely seeks a protective order, the Party served with the
1188 subpoena or court order shall not produce any information designated in this action
1199 as “CONFIDENTIAL” before a determination by the court from which the
2200 subpoena or order issued, unless the Party has obtained the Designating Party’s
2211 permission. The Designating Party shall bear the burden and expense of seeking
2222 protection in that court of its confidential material and nothing in these provisions
2233 should be construed as authorizing or encouraging a Receiving Party in this Action
2244 to disobey a lawful directive from another court.
2255
2266 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
2277 PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-
11 Party in this Action and designated as “CONFIDENTIAL.” Such information
22 produced by Non-Parties in connection with this litigation is protected by the
33 remedies and relief provided by this Order. Nothing in these provisions should be
44 construed as prohibiting a Non-Party from seeking additional protections.
55 (b) In the event that a Party is required, by a valid discovery request, to
66 produce a Non-Party’s confidential information in its possession, and the Party is
77 subject to an agreement with the Non-Party not to produce the Non-Party’s
88 confidential information, then the Party shall:
99 (1) promptly notify in writing the Requesting Party and the Non-
1100 Party that some or all of the information requested is subject to a confidentiality
1111 agreement with a Non-Party;
1122 (2) promptly provide the Non-Party with a copy of the Stipulated
1133 Protective Order in this Action, the relevant discovery request(s), and a reasonably
1144 specific description of the information requested; and
1155 (3) make the information requested available for inspection by the
1166 Non-Party, if requested.
1177 (c) If the Non-Party fails to seek a protective order from this court within
1188 14 days of receiving the notice and accompanying information, the Receiving
1199 Party may produce the Non-Party’s confidential information responsive to the
2200 discovery request. If the Non-Party timely seeks a protective order, the Receiving
2211 Party shall not produce any information in its possession or control that is subject
2222 to the confidentiality agreement with the Non-Party before a determination by the
2233 court. Absent a court order to the contrary, the Non-Party shall bear the burden
2244 and expense of seeking protection in this court of its Protected Material.
2255
2266 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
2277 If a Receiving Party learns that, by inadvertence or otherwise, it has
disclosed Protected Material to any person or in any circumstance not authorized
11 under this Stipulated Protective Order, the Receiving Party must immediately (a)
22 notify in writing the Designating Party of the unauthorized disclosures, (b) use its
33 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
44 the person or persons to whom unauthorized disclosures were made of all the terms
55 of this Order, and (d) request such person or persons to execute the
66 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
77 A.
88
99 11. INADVERTENT PRODUCTION OF PRIVILEGED OR
1100 OTHERWISE PROTECTED MATERIAL
1111 When a Producing Party gives notice to Receiving Parties that certain
1122 inadvertently produced material is subject to a claim of privilege or other
1133 protection, the obligations of the Receiving Parties are those set forth in Federal
1144 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
1155 whatever procedure may be established in an e-discovery order that provides for
1166 production without prior privilege review. Pursuant to Federal Rule of Evidence
1177 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
1188 of a communication or information covered by the attorney-client privilege or
1199 work product protection, the parties may incorporate their agreement in the
2200 stipulated protective order submitted to the court.
2211
2222 12. MISCELLANEOUS
2233 12.1 Right to Further Relief.
2244 Nothing in this Order abridges the right of any person to seek its
2255 modification by the Court in the future.
2266 12.2 Right to Assert Other Objections.
2277 By stipulating to the entry of this Protective Order no Party waives any right
it otherwise would have to object to disclosing or producing any information or
11 item on any ground not addressed in this Stipulated Protective Order. Similarly, no
22 Party waives any right to object on any ground to use in evidence of any of the
33 material covered by this Protective Order.
44 12.3 Filing Protected Material.
55 A Party that seeks to file under seal any Protected Material must comply
66 with Civil Local Rule 79-5. Protected Material may only be filed under seal
77 pursuant to a court order authorizing the sealing of the specific Protected Material
88 at issue. If a Party's request to file Protected Material under seal is denied by the
99 court, then the Receiving Party may file the information in the public record
1100 unless otherwise instructed by the court.
1111
1122 13. FINAL DISPOSITION
1133 After the final disposition of this Action, as defined in paragraph 4, within
1144 60 days of a written request by the Designating Party, each Receiving Party must
1155 return all Protected Material to the Producing Party or destroy such material. As
1166 used in this subdivision, “all Protected Material” includes all copies, abstracts,
1177 compilations, summaries, and any other format reproducing or capturing any of the
1188 Protected Material. Whether the Protected Material is returned or destroyed, the
1199 Receiving Party must submit a written certification to the Producing Party (and, if
2200 not the same person or entity, to the Designating Party) by the 60 day deadline that
2211 (1) identifies (by category, where appropriate) all the Protected Material that was
2222 returned or destroyed and (2)affirms that the Receiving Party has not retained any
2233 copies, abstracts, compilations, summaries or any other format reproducing or
2244 capturing any of the Protected Material. Notwithstanding this provision, Counsel
2255 are entitled to retain an archival copy of all pleadings, motion papers, trial,
2266 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
2277 and trial exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such archival
11 copies that contain or constitute Protected Material remain subject to this
22 Protective Order as set forth in Section 4 (DURATION).
33
44 14. Any violation of this Order may be punished by any and all appropriate
55 measures including, without limitation, contempt proceedings and/or monetary
66 sanctions.
77
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD
88
99
1100
1111 DATED: March 29, 2024 /s/ Denise Lynch Rocawich
JAMES R. TOUCHSTONE
1122 DENISE LYNCH ROCAWICH
1133 Attorneys for City of Fullerton, Rene
Valdes, Jaime Arroyo, Gharrett Wiltse,
1144 Travis Kowalec, Matthew Levin, Sgt. Diaz,
1155 Cpl. Murphy, and Cpl. Cazares
1166
DATED: March 29, 2024 /s/ Matthew T. Falkenstein
1177
MARK J. SKAPIK
1188 GERALYN L. SKAPIK
BLAIR J. BERKLEY
1199 MATTHEW T. FALKENSTEIN
Attorneys for Plaintiff Juan Pagan
2200
.
2211
2222
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
2233
2244
2255
DATED: April 1, 2024 _________________________________
2266 HONORABLE KAREN E. SCOTT
United States Magistrate Judge
2277
11 EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
22
33
I, [print or type full name], of
44
[print or type full address], declare under penalty of perjury that I
55
have read in its entirety and understand the Stipulated Protective Order that was
66
issue by the United States District Court for the Central District of California on
77
____________ [Date] in the case of Juan Pagan v. City of Fullerton et al., Case
88
No. CV 23-02492 HDV-KES. I agree to comply with and to be bound by all the
99
terms of this Stipulated Protective Order and I understand and acknowledge that
1100
failure to so comply could expose me to sanctions and punishment in the nature of
1111
contempt. I solemnly promise that I will not disclose in any manner any
1122
information or item that is subject to this Stipulated Protective Order to any person
1133
or entity except in strict compliance with the provisions of this Order.
1144
I further agree to submit to the jurisdiction of the United States District
1155
Court for the Central District of California for the purpose of enforcing the terms
1166
of this Stipulated Protective Order, even if such enforcement proceedings occur
1177
after termination of this action. I hereby appoint [print
1188
or type full name] of [print or type full address and
1199
telephone number] as my California agent for service of process in connection with
2200
this action or any proceedings related to enforcement of this Stipulated Protective
2211
Order.
2222
Date:
2233
City and State where sworn and signed:
2244
Printed Name:
2255
Signature:
2266
2277