Gadsden v. Gehris et al, No. 3:2020cv02258 - Document 48 (S.D. Cal. 2022)
Court Description: ORDER Granting 47 Joint Motion for Entry Stipulated Protective Order. Signed by Magistrate Judge Daniel E. Butcher on 7/27/2022. (ave)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD EARL GADSDEN, 12 Plaintiff, 13 v. 14 15 16 17 SERGEANT JOHN GEHRIS, DEPUTY SHERIFF; DEPUTY MICHAEL MCGRATH, DEPUTY SHERIFF, Defendants. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 20-cv-02258-WQH-DEB ORDER GRANTING JOINT MOTION FOR ENTRY STIPULATED PROTECTIVE ORDER [DKT. NO. 47] 19 The Court recognizes that at least some of the documents and information 20 21 (“materials”) being sought through discovery in the above-captioned action private, 22 privileged or confidential information that is not generally available to the public and 23 normally kept confidential by the parties. The materials to be exchanged throughout the 24 course of the litigation between the parties may contain medical and mental health 25 records, law enforcement records, and other materials containing confidential sensitive 26 information maintained for law enforcement purposes. 27 /// 28 /// 1 The purpose of this Protective Order (“Protective Order” or “Order”) is to protect 2 the confidentiality of such materials as much as practical during the litigation. The 3 parties have agreed to be bound by the terms of this Order in this action. 4 Accordingly, to expedite the flow of information, to facilitate the prompt resolution 5 of disputes over confidentiality of discovery materials, to adequately protect information 6 the parties are entitled to keep confidential, to ensure that the parties are permitted 7 reasonable and necessary uses of such material in preparation for and in the conduct of 8 trial, to address their handling at the end of the litigation, and serve the ends of justice, a 9 protective order for such information is justified in this matter. It is the intent of the 10 parties that information will not be designated as confidential for tactical reasons and that 11 nothing be so designated without a good faith belief that it has been maintained in a 12 confidential, non-public manner, and there is good cause why it should not be part of the 13 public record of this case. THEREFORE: 14 15 DEFINITIONS 1. The term “confidential information” will mean and include information 16 contained or disclosed in any materials, including documents, portions of documents, 17 answers to interrogatories, responses to requests for admissions, trial testimony, 18 deposition testimony, and transcripts of trial testimony and depositions, including data, 19 summaries, and compilations derived therefrom that is deemed to be confidential 20 information by any party to which it belongs. 21 2. The term “materials” will include, but is not be limited to: documents; 22 correspondence; audio recordings; videos; memoranda; bulletins; blueprints; 23 specifications; customer lists or other material that identify customers or potential 24 customers; price lists or schedules or other matter identifying pricing; minutes; telegrams; 25 letters; statements; cancelled checks; contracts; invoices; drafts; books of account; 26 worksheets; notes of conversations; desk diaries; appointment books; expense accounts; 27 recordings; photographs; motion pictures; compilations from which information can be 28 obtained and translated into reasonably usable form through detection devices; sketches; -2- No. 20-cv-02258-WQH-DEB 1 drawings; notes (including laboratory notebooks and records); reports; instructions; 2 disclosures; other writings; models and prototypes and other physical objects. 3 4 GENERAL RULES 3. Each party to this litigation that produces or discloses any materials, answers 5 to interrogatories, responses to requests for admission, trial testimony, deposition 6 testimony, and transcripts of trial testimony and depositions, or information that the 7 producing party believes should be subject to this Protective Order may designate the 8 same as “CONFIDENTIAL.” Any party may designate information or materials as 9 “CONFIDENTIAL” only if, in the good faith belief of such party and its counsel, the 10 information or materials contain private, privileged or otherwise confidential information, 11 which is not generally available to the public. 12 13 14 4. Whenever a deposition taken on behalf of any party involves a disclosure of confidential information of any party: a. the deposition or portions of the deposition must be designated as containing 15 confidential information subject to the provisions of this Protective Order; 16 such designation must be made on the record whenever possible, but a party 17 may designate portions of depositions as containing confidential information 18 after transcription of the proceedings. A party will have until fourteen (14) 19 days after receipt of the deposition transcript to inform the other party or 20 parties to the action of the portions of the transcript to be designated 21 “CONFIDENTIAL.” 22 b. the disclosing party will have the right to exclude from attendance at the 23 deposition, during such time as the confidential information is to be 24 disclosed, any person other than the deponent, counsel (including their staff 25 and associates), the court reporter, and the person(s) agreed upon pursuant to 26 paragraph 7 below; and 27 28 c. the originals of the deposition transcripts and all copies of the deposition must bear the legend “CONFIDENTIAL,” as appropriate, and the original or -3- No. 20-cv-02258-WQH-DEB 1 any copy ultimately presented to a court for filing must not be filed unless it 2 can be accomplished under seal, identified as being subject to this Protective 3 Order, and protected from being opened except by order of this Court. 4 5. All confidential information designated as “CONFIDENTIAL” must not be 5 disclosed by the receiving party to anyone other than persons designated or authorized 6 pursuant to this Protective Order and must be handled in the manner set forth below and, 7 in any event, must not be used for any purpose other than in connection with this 8 litigation, unless and until such designation is removed either by agreement of the parties, 9 or by order of the Court. A party utilizing an independent expert must provide the 10 producing party with the name and curriculum vitae of the proposed independent expert. 11 In advance of providing any confidential information of the producing party to an 12 independent expert, the receiving party will obtain an executed copy of the form attached 13 hereto as Exhibit A from the independent expert. The receiving party agrees to promptly 14 produce a copy of the executed form attached hereto as Exhibit A to the producing party 15 upon written request. Any objection by the producing party to an independent expert 16 receiving confidential information must be made in writing within fourteen (14) days 17 following receipt of the identification of the proposed expert. Confidential information 18 may be disclosed to an independent expert if the fourteen (14) day period has passed and 19 no objection has been made. The approval of independent experts must not be 20 unreasonably withheld. 21 6. Information designated “CONFIDENTIAL” must be viewed only by 22 counsel of the receiving party, the receiving party, by independent experts (pursuant to 23 the terms of paragraphs 5 and 7), by court personnel, and by the additional individuals 24 listed below, provided each such individual has read this Protective Order in advance of 25 disclosure and has agreed in writing to be bound by its terms: 26 a. 27 28 Executives or management personnel who are required to participate in policy decisions with reference to this action; b. Technical personnel of the parties with whom counsel for the parties find it -4- No. 20-cv-02258-WQH-DEB 1 necessary to consult, in the discretion of such counsel, in preparation for trial 2 of this action; and 3 c. 4 5 Stenographic and clerical employees associated with the individuals identified above. 7. With respect to material designated “CONFIDENTIAL,” any person 6 indicated on the face of the document to be its originator, author or a recipient of a copy 7 of the document, may be shown the same. 8 8. All information that has been designated as “CONFIDENTIAL” by the 9 producing or designating party, and any and all reproductions of that information, must 10 be retained in the custody of the counsel for the receiving party except that independent 11 experts authorized to view such information under the terms of this Protective Order may 12 retain custody of copies such as are necessary for their participation in this litigation. 13 9. Before any materials produced in discovery, answers to interrogatories, 14 responses to requests for admissions, deposition transcripts, or other documents which 15 are designated as confidential information are filed with the Court for any purpose, the 16 party seeking to file such material must seek permission of the Court to file the material 17 under seal. The parties shall follow and abide by applicable law, including Civ. L.R. 18 79.2, ECF Administrative Policies and Procedures, Section II.j, and the chambers’ rules, 19 with respect to filing documents under seal. 20 10. Specifically, with respect to filing documents under seal. No party may file 21 any document under seal, except pursuant to a court order that authorizes the filing of the 22 document, or portion of the document, under seal. A sealing order will issue only upon a 23 showing that the information is privileged or protectable under the law. The party seeking 24 to file under seal must limit its sealing request to the specific portion of the document that 25 contains the confidential or privileged material.. 26 11. To file a document under seal, the parties must comply with the procedures 27 explained in Section 2.j of the Electronic Case Filing Administrative Policies and 28 Procedures Manual for the United States District Court for the Southern District of -5- No. 20-cv-02258-WQH-DEB 1 California and Civil Local Rule 79.2. In addition, a party must file a redacted version of 2 any document that it seeks to file under seal. The document must be titled to show that it 3 corresponds to an item filed under seal, e.g., “Redacted Copy of Sealed Declaration of 4 John Smith in Support of Motion for Summary Judgment.” The party should file the 5 redacted document(s) simultaneously with a joint motion or ex parte application 6 requesting that the confidential portions of the document(s) be filed under seal and setting 7 forth good cause for the request. 8 9 12. At any stage of the proceedings, any party may object to a designation of materials as confidential information. The objecting party must notify the designating 10 party, in writing, of the materials objected to and the ground(s) for the objection. 11 Thereafter, lead counsel (or attorneys with full authority to make decisions and bind the 12 client without later seeking approval from a supervising attorney) must promptly meet 13 and confer, pursuant to Local Rule 26.1.a. If the dispute is not resolved within seven (7) 14 days of receipt the objections, and after counsel have thoroughly and completely met and 15 conferred, the parties must place a joint call to the assigned magistrate judge’s chambers 16 to explain the dispute and the parties’ respective positions. The materials at issue must be 17 treated as confidential until the Court has ruled on the objection or the matter has been 18 otherwise resolved.. 19 13. All confidential information must be held in confidence by those inspecting 20 or receiving it, and must be used only for purposes of this action. Counsel for each party, 21 and each person receiving confidential information must take reasonable precautions to 22 prevent the unauthorized or inadvertent disclosure of such information. If confidential 23 information is disclosed to any person other than a person authorized by this Protective 24 Order, the party responsible for the unauthorized disclosure must immediately bring all 25 pertinent facts relating to the unauthorized disclosure to the attention of the other parties 26 and, without prejudice to any rights and remedies of the other parties, make every effort 27 to prevent further disclosure by the party and by the person(s) receiving the unauthorized 28 disclosure. -6- No. 20-cv-02258-WQH-DEB 1 14. No party will be responsible to another party for disclosure of confidential 2 information under this Protective Order if the information in question is not labeled or 3 otherwise identified as such in accordance with this Order. 4 15. Pursuant to Fed. R. Evid. 502(d), the inadvertent production of documents 5 and data pursuant to this Order shall not result in the waiver of an applicable privilege as 6 to those documents and data. Also, the inadvertent production of privileged or protected 7 documents or data under this Order shall not result in the waiver of the applicable 8 privilege as to those documents and data in any other Federal or State proceeding. Any 9 privileged material inadvertently disclosed shall be and remain the property of the 10 producing party. 11 If a party determines that it has produced a document or data to which it wishes to 12 assert a claim of privilege or protection, its counsel shall notify opposing counsel 13 promptly of its claim. As part of the notification, the party’s counsel shall identify, by 14 Bates number(s), the document(s) as to which the party is asserting a claim of privilege or 15 protection. 16 16. Nothing within this Order will prejudice the right of any party to object to 17 the production of any discovery material on the grounds that the material is protected 18 from disclosure on any ground, including privilege or as attorney work-product. 19 17. Nothing in this Order will bar counsel from rendering advice to their clients 20 with respect to this litigation and, in the course thereof, relying upon any information 21 designated as confidential information, provided that the contents of the information must 22 not be disclosed. 23 18. This Order will be without prejudice to the right of any party to oppose 24 production of any information for lack of relevance or any other ground other than the mere 25 presence of confidential information. The existence of this Order must not be used by 26 either party as a basis for discovery that is otherwise improper under the Federal Rules of 27 Civil Procedure or Federal Rules of Evidence. 28 /// -7- No. 20-cv-02258-WQH-DEB 1 2 19. Nothing within this Order will be construed to prevent disclosure of confidential information if such disclosure is required by law or by order of the Court. 3 20. Upon final termination of this action, including any and all appeals, counsel 4 for each party must, upon request of the producing party, return all confidential information 5 to the party that produced the information, including any copies, excerpts, and summaries 6 of that information, or must destroy same at the option of the receiving party, and must 7 purge all such information from all machine-readable media on which it resides. 8 Notwithstanding the foregoing, counsel for each party may retain all pleadings, briefs, 9 memoranda, motions, and other documents filed with the Court that refer to or incorporate 10 confidential information, and will continue to be bound by this Protective Order with 11 respect to all such retained information. Further, attorney work-product materials that 12 contain confidential information need not be destroyed, but, if they are not destroyed, the 13 person in possession of the attorney work product will continue to be bound by this Order 14 with respect to all such retained information. 15 21. The restrictions and obligations set forth within this Order will not apply to 16 any information that: (a) the parties agree should not be designated confidential 17 information; (b) the parties agree, or the Court rules, is already public knowledge; (c) the 18 parties agree, or the Court rules, has become public knowledge other than as a result of 19 disclosure by the receiving party, its employees, or its agents in violation of this Protective 20 Order. 21 22. The restrictions and obligations within this Order will not be deemed to 22 prohibit discussions of any confidential information with anyone if that person already has 23 or obtains legitimate possession of that information. 24 25 23. Transmission by email or some other currently utilized method of transmission is acceptable for all notification purposes within this Protective Order. 26 24. This Protective Order may be modified by agreement of the parties, subject to 27 approval by the Court. 28 /// -8- No. 20-cv-02258-WQH-DEB 1 2 25. The Court may modify the protective order sua sponte in the interests of justice or for public policy reasons. 3 4 5 IT IS SO ORDERED. Dated: July 27, 2022 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- No. 20-cv-02258-WQH-DEB 1 2 EXHIBIT A 3 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 4 I, _________________________ [full name], of ________________________ 5 ________________ [full address], declare under penalty of perjury that I have read in its 6 entirety and understand the Stipulated Protective Order that was issued by the United 7 States District Court for the Southern District of California in the case of Ronald Earl 8 Gadsden v. John Gehris, et al., USDC No. 20-cv-02258-WQH-DEB I agree to comply 9 with and to be bound by all the terms of this Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and punishment in 11 the nature of contempt. I solemnly promise that I will not disclose in any manner any 12 information or item that is subject to this Protective Order to any person or entity except 13 in strict compliance with the provisions of this Order. 14 I further agree that any information designated confidential pursuant thereto which 15 is delivered to me will be segregated and kept by me in a safe place, and will not be made 16 known to others except in accordance with the terms of said Order. I further understand 17 and agree that any summaries or other documents containing knowledge or information 18 obtained from confidential documents or information furnished to me shall also be treated 19 by me as confidential. I also agree to dispose of all such confidential documents and all 20 summaries or other documents containing knowledge or information obtained therefrom 21 in such manner as I may be instructed after completing my services. 22 I further agree to submit to the jurisdiction of the United States District Court for 23 the Southern District of California for the purpose of enforcing the terms of this 24 Stipulated Protective Order, even if such enforcement proceedings occur after 25 termination of this action. 26 Date: ______________________________________ 27 28 Printed name: _______________________________ - 10 - No. 20-cv-02258-WQH-DEB 1 2 Signature: __________________________________ DATED: July 27, 2022 CLAUDIA G. SILVA, Acting County Counsel 3 4 5 By: s/ ADAM C. PHILLIPS, Senior Deputy Attorney for Defendants E-mail: adam.phillips@sdcounty.ca.gov 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - No. 20-cv-02258-WQH-DEB
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