The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
AMENDED PROPOSED STIPULATED PROTECTIVE ORDER REGARDING INTERNAL AFFAIRS INVESTIGATION, SCENE PHOTOGRAPHS, AND AUTOPSY REPORTS AND PHOTOGRAPHS [FRCP 26(c)]
Complaint Filed: August 15, 2008 Trial Date: May 11, 2010
COMES NOW, defendants COUNTY OF FRESNO, and ERNEST SERRANO (sued herein as COUNTY OF FRESNO, CALIFORNIA, a political subdivision of the State of California; ERNEST SERRANO, an individual) hereinafter, "defendants," respectfully request this Court enter a Protective Order pursuant to FRCP 26(c). Plaintiff seeks the discovery of the Internal Affairs Investigation of defendant, ERNEST SERRANO, the autopsy report and autopsy photographs of decedent SERGIO AGUILAR, and the photographs taken at the scene of the officer involved shooting. A Protective Order is needed to protect the discovery of these documents (also refers to photographs) as they are privileged under Evidence Code § 1040, Government Code § 6254, et seq., the official information privilege, and Penal Code § 832.7.
Defendants believe that the Internal Affairs Investigation, the photographs taken at the officer involved shooting scene, autopsy reports, and autopsy photographs contain information that is: (a) confidential, sensitive, and potentially invasive of an individual's privacy interests; (b) not generally known; and (c) not revealed to the public or third parties and, if disclosed to third parties, would require such third parties to maintain the information in confidence; and (d) privileged. Pearson v. Miller (3rd Cir. 2000) 211 F.3d 57, 72.
IT IS HEREBY STIPULATED, by, among, and between the parties hereto, through their counsel of record that the documents described above may be designated as "Confidential" by the defendants and produced subject to the following Protective Order. Pursuant to FRCP 26(c)(1), the defendants hereby move this Court to limit the disclosure of this material by ordering the following: Upon receiving the Internal Affairs Investigation, the photographs taken at the officer involved shooting scene, autopsy report, and autopsy photographs, the Plaintiff and her respective counsel are to treat such material, including copies of such material, as confidential and are to make no further disclosure of such material, except as provided herein:
1. The disclosed documents shall be used solely in connection with the civil case of Alice Rosas Aguilar v. County of Fresno, et al., Case No. 1:08 CV 01202-AWI-GSA, (E.D. Cal.) and in the preparation and trial of the case, or related proceeding. Neither the Plaintiff nor her attorney(s) may disclose, make copies of, or reveal the contents of such materials for purposes other than for the preparation of this case.
2. The defendants are not waiving any objections to the admissibility of the documents or portions of the documents in future proceedings, including the trial in this matter.
3. A party producing the documents and materials described above may designate those materials by affixing a mark labeling them as "Confidential." If any confidential materials cannot be labeled with the aforementioned marking, those materials shall be placed in a sealed envelope or other container that is in turn marked "Confidential" in a manner agreed upon by the disclosing and requesting parties.
4. Documents or materials designated under this Protective Order as "Confidential" may only be disclosed to the following persons:
1 a) Brian E. Claypool, counsel for Plaintiff, ALICE ROSAS AGUILAR; b) Paralegal, clerical, and secretarial personnel regularly employed by counsel referred to in subpart (a) directly above, including stenographic deposition reporters or videographers retained in connection with this action; c) Vicki I. Sarmiento, counsel for ALICE ROSAS AGUILAR; d) Paralegal, clerical, and secretarial personnel regularly employed by counsel referred to in subpart (c) directly above, including stenographic deposition reporters or videographers retained in connection with this action; e) Court personnel including stenographic reporters or videographers engaged in proceedings as are necessarily incidental to the preparation for the trial of this civil action; f) Any expert, consultant, or investigator retained in connection with this action; g) The finder of fact at the time of trial, subject to the court's rulings on in limine motions and objections of counsel.
5. Prior to the disclosure of any confidential information to any person identified in paragraph 4, each such recipient of confidential information shall be provided with a copy of this Stipulated Protective Order, which he or she shall read. Upon reading this Stipulated Protective Order, such person shall acknowledge in writing that he or she has read this Stipulated Protective Order and shall abide by its terms. Such person must also consent to be subject to the jurisdiction of the United States District Court, Eastern District of California, with respect to any proceeding related to enforcement of this Protective Order, including without limitation, any proceeding for contempt. Provisions of this Protective Order, insofar as they restrict disclosure and use of the material, shall be in effect until further Order of this Court. Plaintiff shall be responsible for internally tracking the identities of those individuals to whom copies of documents marked "Confidential" are given.
6. All documents or materials designated as "Confidential" pursuant to this Protective Order, and all papers or documents containing information or materials designated as "Confidential," that are filed with the court for any purpose shall be filed and served under seal, with the following statement affixed to the document or other information:
"This envelope is sealed pursuant to Order of the Court and contains confidential information filed in this case by [name of party] and is not to be opened or the contents thereof to be displayed or revealed except by Order of the Court."
7. The designation of information as "Confidential," and the subsequent production thereof, is without prejudice to the right of any party to oppose the ...