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Fleuret v. County of Orange

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION


January 5, 2009

MATTHEW FLEURET, PLAINTIFF,
v.
COUNTY OF ORANGE, ORANGE COUNTY CENTRAL MEN'S JAIL, DEPUTY KOENIG, DEPUTY PADILLA, DEPUTY MI GARCIA, DEPUTY M. WOODRUFF, DEPUTY J. POPP, DEPUTY V. VALDEZ, DEPUTY J. HAND, DEPUTY C. FOSTER, DEPUTY D. GREGOR, DEPUTY C. KNAPP, DEPUTY E. SCHUBERT, DEPUTY R. TORRES, DEPUTY D. KURIMAY, DEPUTY A. PHILLIPS, DEPUTY B HAGERMAN, AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Hon. Andrew J. Guilford, Judge

PROTECTIVE ORDER [RE SECOND AMENDED STIPULATION RE PROTECTIVE ORDER]

Action Date: 07/12/2007 Trial Date: 03/03/2009

Pursuant to the Second Amended Stipulation Re Protective Order of the parties filed herewith, it is hereby ordered:

1. That the information contained in any of the documents or items produced by defendants County of Orange, Orange County Central Men's Jail [Orange County Sheriff's Department], and/or any and all individual defendants as it relates to the personnel files and/or any and all investigations carried out by the County of Orange and/or the Orange County Central Men's Jail [Orange County Sheriff's Department] into complaints made against the individual defendants, which are stamped "CONFIDENTIAL" and which are documents containing private and confidential information, should not be divulged by any party to this stipulation or by their attorneys, agents, and/or representatives acting on their behalf, including, but not limited to, any expert witness retained by any party or their attorney, to any third party who is not directly involved in the above-captioned action, without the written consent of defendants County of Orange, Orange County Central Men's Jail [Orange County Sheriff's Department], Deputy Koenig, Deputy Padilla, Deputy MI Garcia, Deputy M. Woodruff, Deputy J. Popp, Deputy V. Valdez, Deputy J. Hand, Deputy C. Foster, Deputy D. Gregor, Deputy C. Knapp, Deputy E. Schubert, Deputy R. Torres, Deputy D. Kurimay, Sergeant A. Phillips, and Deputy B. Hagerman, their attorneys, or further order of this Court, and then only for the purposes of trial preparation in the above-captioned action.

2. That "good cause" exists to grant this Protective Order pursuant to Federal Rule of Civil Procedure 26(c) in that the information, which is the subject of this Protective Order, is privileged. Federal common law "recognizes a qualified privilege for official information." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) citing Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir. 1975). Government personnel files "are considered official information [citations omitted]." Sanchez v. City of Santa Ana, 936 F.2d at 1033. The Sanchez Court stated, "to determine whether the information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages." Id. at 1033-1034.

The benefit of allowing the public to view confidential personnel files would be minimal while the disadvantages are numerous. For example, investigating officers would be less willing to provide harsh and honest criticism of other officers if that criticism is published and mistaken by the public as a conviction of guilt, such disclosure to the public of personnel files would have a chilling effect on internal investigations since criticism of otherwise exemplary officers could be misconstrued by the public. In Sanchez, the court noted that opening officer personnel files for a general search "would impact disciplinary procedures within the [police department]." Sanchez v. City of Santa Ana, 936 F.2d at 1034. Moreover, officers might have information from their personnel files used against them in seeking future employment; an officer's family might be endangered by the disclosure of information that could show the officer's personal information such as address and phone number; and such disclosure might subject the officers to embarrassment and unfair public ridicule by publishing psychological, medical, and performance evaluations.

In consideration of opposing counsel's need for the officers' personnel records, defendants have produced such documents for the limited purposes of this litigation; however, the public does not have the same interest in viewing these documents. Thus, "good cause" exists under Sanchez since the disadvantages of disclosing the personnel files to the public clearly outweigh any possible benefit. Therefore, these government personnel files, which are the subject of this Protective Order, are privileged and should not be disclosed for any reason other than the limited purpose of litigation in this case.

3. That no party to this action, their attorneys, experts, agents or representatives will make copies or other type of reproductions of any of the documents described above (or such other confidential documents) without stamping all such copies "CONFIDENTIAL" and keeping a log of all copies made, to whom they were disseminated, and when they were returned to the disseminating party. All such copies made must be maintained and protected pursuant to the same rules as the originally produced documents referenced in this Agreement. All such copied "CONFIDENTIAL" documents shall be stored and/or handled in a manner, which will prevent the unauthorized disclosure thereof.

4. That all of the documents described above (or such other confidential documents) produced by defendants County of Orange, Orange County Central Men's Jail [Orange County Sheriff's Department], Deputy Koenig, Deputy Padilla, Deputy MI Garcia, Deputy M. Woodruff, Deputy J. Popp, Deputy V. Valdez, Deputy J. Hand, Deputy C. Foster, Deputy D. Gregor, Deputy C. Knapp, Deputy E. Schubert, Deputy R. Torres, Deputy D. Kurimay, Sergeant A. Phillips, and Deputy

B. Hagerman, through their attorneys, and any copies, lists or summaries thereof, shall be returned to defendants immediately after the trial and/or other final resolution of the above-captioned action, unless same are introduced as evidence or exhibits at the time of trial subject to the terms of paragraph 6 or any other order of the Court at the time of trial which involves the disposition of documents submitted into evidence at trial.

5. That counsel for the respective parties will not produce and/or disclose any documents described above or the contents thereof to counsel for any other party herein (or the experts, consultants, agents, and/or representatives of any other party herein) who have not agreed in writing to be bound by the terms of this Protective Order or one which is substantially similar thereto. Any person (including experts, consultants, agents and/or representatives) that receives any documents marked "CONFIDENTIAL" that are the subject of this Order shall, before he/she may review the documents must sign an Agreement that expressly binds them to the terms of this Protective Order.

6. That counsel for the respective parties will not produce and/or disclose any documents described above or the contents thereof to any other counsel, claimant, person, or individual not connected with this case (or the experts, consultants, agents, and/or representatives of any such counsel, party, person or individual) without the written consent of counsel for the defendants.

7. That counsel for the respective parties will not reference, post, download, or in any other fashion publish any information from the aforementioned confidential documents on any websites, advertisements, promotional literature, or similar documents used for the purposes of promoting ones practice, without the express written consent of both defendants and counsel for the defendants.

8. Inasmuch as this Protective Order is being entered into in an effort to facilitate discovery in the instant action and the purpose of this Protective Order is, in part, to maintain the confidentiality of the information sought, counsel agree that there will be no release of any videotaped deposition footage to any other entity, counsel, person, claimant, or individual including, but not limited to, news organizations. It is the intent of the parties in entering into this Protective Order to maintain the confidentiality of the information subject hereto, and to allow for the disclosure of the information for the purposes of the instant lawsuit only.

9. That a copy of this Order shall be delivered by attorneys for plaintiff to each person, expert, agent, representative, or consultant who is permitted by any attorney for plaintiff to view, examine, peruse, or otherwise inspect the documents described above (or such other confidential documents) in connection with the above-captioned action, and each said person is bound by this Order.

IT IS SO ORDERED.

HON. ARTHUR NAKAZATO United States Magistrate Judge

20090105

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