United States District Court, C.D. California
John
A. Kronstadt, Judge
PROTECTIVE ORDER REGARDING DISCLOSURE OF CONFIDENTIAL
INFORMATION
GAIL
J. STANDISH UNITED STATES MAGISTRATE JUDGE.
1.
A. BACKGROUND
Plaintiff
was arrested along with several other persons on November 26,
2014 during what has been referred to as the (Fergerson
Protests.) Plaintiff asserts various constitutional claims
against the Defendants.
BPURPOSES
AND LIMITATIONS
Discovery
is ongoing in this action. Plaintiff has sought the
production of confidential, proprietary or private
information for which special protection from public
disclosure and from use for any purpose other than
prosecuting this litigation may be warranted. Accordingly,
the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties
acknowledge that this Order does not confer blanket
protections on all disclosures or responses to discovery and
that the protection it affords from public disclosure and use
extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal
principles.
C.
GOOD CAUSE STATEMENT
Plaintiff
is seeking materials and information that Defendant City of
Los Angeles (“City”) maintains as confidential,
including but not limited to the overtime request of a named
Defendant, the Event Action Plan for the incident at issue
and the related Internal Affairs materials and information,
currently in the possession of the City and which the City
believes need special protection from public disclosure (due
to its confidential nature) and from use for any purpose
other than prosecuting this litigation. The City has agreed
to produce the related Internal Affairs investigation
provided the investigation is completed and deemed
‘closed' during the pendency of this action. It is
currently unknown to defense counsel when said investigation
will be completed and deemed ‘closed' by the
LAPD's Internal Affairs Group. In agreeing to produce the
related Internal Affairs investigation, Plaintiff will also
be permitted by the City to purchase duplicates of any
recorded statement taken by the LAPD in relation thereto. The
cost of each CD-Rom is $10.00. Payment must be made payable
to ‘LAPD.'
The
City asserts that the confidentiality of the materials and
information sought by Plaintiff is recognized by California
and federal law, as evidenced inter alia by
California Penal Code section 832.7 and Kerr v. United
States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th
Cir. 1975), affd, 426 U.S. 394 (1976). Furthermore, he City
has not publicly released the materials and information
referenced above except under protective order or pursuant to
court order, if at all. Therefore, the City contends that
absent a protective order delineating the responsibilities of
nondisclosure on the part of the parties hereto, there is a
specific risk of unnecessary and undue disclosure by one or
more of the many attorneys, secretaries, law clerks,
paralegals and expert witnesses involved in this case. Thus,
the City contends that unfettered disclosure of the materials
and information, absent a protective order, would impact the
rights of the City herein to receive a fair trial.
Accordingly,
to expedite the flow of information, to facilitate the prompt
resolution of disputes over confidentiality of discovery
materials, to adequately protect information the parties are
entitled to keep confidential, to ensure that the parties are
permitted reasonable necessary uses of such material in
preparation for and in the conduct of trial, to address their
handling at the end of the litigation, and serve the ends of
justice, a protective order for such information is justified
in this matter. It is the intent of the parties that
information will not be designated as confidential for
tactical reasons and that nothing be so designated without a
good faith belief that it has been maintained in a
confidential, non-public manner, and there is good cause why
it should not be part of the public record of this case.
D.
ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
SEAL
The
parties further acknowledge, as set forth in Section 12.3,
below, that this Stipulated Protective Order does not entitle
them to file confidential information under seal; Local Civil
Rule 79-5 sets forth the procedures that must be followed and
the standards that will be applied when a party seeks
permission from the court to file material under seal.
There
is a strong presumption that the public has a right of access
to judicial proceedings and records in civil cases. In
connection with non-dispositive motions, good cause must be
shown to support a filing under seal. See Kamakana v.
City and County of Honolulu, 447 F.3d 1172,
1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp.,
307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.
Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis.
1999) (even stipulated protective orders require good cause
showing), and a specific showing of good cause or compelling
reasons with proper evidentiary support and legal
justification, must be made with respect to Protected
Material that a party seeks to file under seal. The
parties' mere designation of Disclosure or Discovery
Material as CONFIDENTIAL does not-without the submission of
competent evidence by declaration, establishing that the
material sought to be filed under seal qualifies as
confidential, privileged, or otherwise protectable-constitute
good cause. Further, if a party requests sealing related to a
dispositive motion or trial, then compelling reasons, not
only good cause, for the sealing must be shown, and the
relief sought shall be narrowly tailored to serve the
specific interest to be protected. See Pintos v. Pacific
Creditors Ass'n., 605 F.3d 665, 677-79 (9th Cir.
2010). For each item or type of information, document, or
thing sought to be filed or introduced under seal in
connection with a dispositive motion or trial, the party
seeking protection must articulate compelling reasons,
supported by specific facts and legal justification, for the
requested sealing order. Again, competent evidence supporting
the application to file documents under seal must be provided
by declaration.
Any
document that is not confidential, privileged, or otherwise
protectable in its entirety will not be filed under seal if
the confidential portions can be redacted. If documents can
be redacted, then a redacted version for public viewing,
omitting only the confidential, privileged, or otherwise
protectable portions of the document, shall be filed. Any
application that seeks to file documents under seal in their
entirety should include an explanation of why redaction is
not feasible.
2.
DEFINITIONS
2.1
Action: this pending federal lawsuit.
2.2
Challenging Party: a Party or Non-Party that
challenges the designation of information or items under this
Order.
2.3
“CONFIDENTIAL” Information or Items:
information (regardless of how it is generated, stored or
maintained) or tangible things that qualify for protection
under Federal Rule of Civil Procedure 26(c), and as specified
above in the Good Cause Statement.
2.4
Counsel: Outside Counsel of Record and House Counsel
(as well as their support staff).
2.5
Designating Party: a Party or Non-Party that
designates information or items that it produces in
disclosures or in responses to discovery as
“CONFIDENTIAL.” 2.6 Disclosure or Discovery
Material: all items or information, regardless of the
medium or manner in which it is generated, stored, or
maintained (including, among other things, testimony,
transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this
matter.
2.7
Expert: a person with specialized knowledge or
experience in a matter pertinent to the litigation who has
been retained by a Party or its counsel to serve as an expert
witness or as a consultant in this Action.
2.8
House Counsel: attorneys who are employees of a
party to this Action. House Counsel does not include Outside
Counsel of Record or any other outside counsel.
2.9
Non-Party: any natural person, partnership,
corporation, association or other legal entity not named as a
Party to this action.
2.10
Outside Counsel of Record: attorneys who are not
employees of a party to this Action but are retained to
represent or advise a party to this Action and have appeared
in this Action on behalf of that party or are affiliated with
a law firm that has appeared on behalf of that party, and
includes support staff.
2.11
Party: any party to this Action, including all of
its officers, directors, employees, consultants, retained
experts, and Outside Counsel of Record (and their support
staffs).
2.12
Producing Party: a Party or Non-Party that produces
Disclosure or Discovery Material in this Action.
2.13
Professional Vendors: persons or entities that
provide litigation support services (e.g., photocopying,
videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data
in any form or medium) and their employees and
subcontractors.
2.14
Protected Material: any Disclosure or Discovery
Material that is designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives
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