Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 1 of 17 Page ID #:138

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 CASE NO. 5:22-cv-01448-SSS (SPx) 12 CARRIE LYNN WEBB, individually and as successor-in-interest to Keith Roy Assigned for All Purposes to: 13 Webb Hon. Judge Sunshine Suzanne Sykes

Courtroom 2, Magistrate Sheri Pym 14 Plaintiff,

15 vs.

PROTECTIVE ORDER RE

16 CONFIDENTIAL DOCUMENTS

COUNTY OF SAN BERNARDINO;

17 SHERIFF JOHN MCMAHON,

UNDERSHERIFF SHANNON DICUS,

18 CAPTAIN JEFF ROSE, LIBERTY

HEALTHCARE OF CALIFORNIA

Complaint filed: 08/17/22 19 INCORPORATED, a California corporation; and DOES 1-40, 20 Defendant. 21

22 PURSUANT TO THE STIPULATION OF THE PARTIES (“Stipulation for 23 Entry of Protective Order re Confidential Documents”), and pursuant to the Court’s 24 inherent and statutory authority, including but not limited to the Court’s authority 25 under the applicable Federal Rules of Civil Procedure and the United States District 26 Court, Central District of California Local Rules; after due consideration of all of 27

28 1 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 2 of 17 Page ID #:139

1 the relevant pleadings, papers, and records in this action; and upon such other 2 evidence or argument as was presented to the Court; Good Cause appearing therefor, 3 and in furtherance of the interests of justice, IT IS HEREBY ORDERED that: 4 5 1. A. PURPOSES AND LIMITATIONS 6 Discovery in this action is likely to involve production of confidential, 7 proprietary, or private information for which special protection from public disclosure 8 and from use for any purpose other than prosecuting this litigation may be warranted. 9 Accordingly, the parties hereby stipulate to and petition the Court to enter the 10 following Stipulated Protective Order. The parties acknowledge that this Order does 11 not confer blanket protections on all disclosures or responses to discovery and that 12 the protection it affords from public disclosure and use extends only to the limited 13 information or items that are entitled to confidential treatment under the applicable 14 legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 15 that this Stipulated Protective Order does not entitle them to file confidential 16 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 17 followed and the standards that will be applied when a party seeks permission from 18 the court to file material under seal. 19 B. GOOD CAUSE STATEMENT 20 1.1. Contentions Regarding Harm from Disclosure of Confidential Materials. 21 Defendants contend that there is good cause and a particularized need for a 22 protective order to preserve the interests of confidentiality and privacy in peace officer 23 personnel file records and associated investigative or confidential records for the 24 following reasons. This action is likely to involve confidential peace officer personnel 25 file documents, medical records, as well as personal identifying information of third- 26 party witnesses (i.e. addresses, telephone numbers, etc.), for which special protection 27 from public disclosure and from use for any purpose other than prosecution of this 28 2 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 3 of 17 Page ID #:140

1 action is warranted. Such confidential and proprietary materials and information 2 consist of, among other things, personnel file information, otherwise generally 3 unavailable to the public, or which may be privileged or otherwise protected from 4 disclosure under state or federal statutes, court rules, case decisions, or common law. 5 First, Defendants contend that peace officers have a federal privilege of privacy 6 in their personnel file records: a reasonable expectation of privacy therein that is 7 underscored, specified, and arguably heightened by the Pitchess protective procedure 8 of California law. See Sanchez v. Santa Ana Police Dept., 936 F.2d 1027, 1033-1034 9 (9th Cir. 1990); Hallon v. City of Stockton, 2012 U.S. Dist. LEXIS 14665, *2-3, 12- 10 13 (E.D. Cal. 2012) (concluding that “while “[f]ederal law applies to privilege-based 11 discovery disputes involving federal claims,” the “state privilege law which is 12 consistent with its federal equivalent significantly assists in applying [federal] 13 privilege law to discovery disputes”); Soto v. City of Concord, 162 F.R.D. 603, 613 14 n. 4, 616 (N.D. Cal. 1995) (peace officers have constitutionally-based “privacy rights 15 [that] are not inconsequential” in their police personnel records); cf. Cal. Penal Code 16 §§ 832.7, 832.8; Cal. Evid. Code §§ 1040-1047. Defendants further contend that 17 uncontrolled disclosure of such personnel file information can threaten the safety of 18 non-party witnesses, officers, and their families/associates. 19 Second, Defendants contend that municipalities and law enforcement agencies 20 have federal deliberative-executive process privilege, federal official information 21 privilege, federal law enforcement privilege, and federal attorney-client privilege 22 (and/or attorney work product protection) interests in the personnel files of their peace 23 officers – particularly as to those portions of peace officer personnel files that contain 24 critical self-analysis, internal deliberation/decision-making or evaluation/analysis, or 25 communications for the purposes of obtaining or rendering legal advice or analysis – 26 potentially including but not limited to evaluative/analytical portions of Internal 27 Affairs type records or reports, evaluative/analytical portions of supervisory records 28 3 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 4 of 17 Page ID #:141

1 or reports, and/or reports prepared at the direction of counsel, or for the purpose of 2 obtaining or rendering legal advice. See Sanchez, 936 F.2d at 1033-34; Maricopa 3 Audubon Soc’y v. United States Forest Serv., 108 F.3d 1089, 1092-95 (9th Cir. 1997); 4 Soto, 162 F.R.D. at 613, 613 n. 4; Kelly v. City of San Jose, 114 F.R.D. 654, 668-71 5 (N.D. Cal. 1987); Tuite v. Henry, 181 F.R.D. 175, 176-77 (D. D.C. 1998); Hamstreet 6 v. Duncan, 2007 U.S. Dist. LEXIS 89702 (D. Or. 2007); Admiral Ins. Co. v. United 7 States Dist. Ct., 881 F.2d 1486, 1492, 1495 (9th Cir. 1988). Defendants further 8 contend that such personnel file records are restricted from disclosure by the public 9 entity’s custodian of records pursuant to applicable California law and that 10 uncontrolled release is likely to result in needless intrusion of officer privacy; 11 impairment in the collection of third-party witness information and statements 12 and related legitimate law enforcement investigations/interests; and a chilling of 13 open and honest discussion regarding and/or investigation into alleged 14 misconduct that can erode a public entity’s ability to identify and/or implement 15 any remedial measures that may be required. 16 Third, Defendants contend that, since peace officers do not have the same rights 17 as other private citizens to avoid giving compelled statements, it is contrary to the 18 fundamental principles of fairness to permit uncontrolled release of officers’ 19 compelled statements. See generally Lybarger v. City of Los Angeles, 40 Cal.3d 822, 20 828-830 (1985); cf. U.S. Const., amend V. Accordingly, Defendants contend that, 21 without a protective order preventing such, production of confidential records in the 22 case can and will likely substantially impair and harm defendant public entity’s 23 interests in candid self-critical analysis, frank internal deliberations, obtaining candid 24 information from witnesses, preserving the safety of witnesses, preserving the safety 25 of peace officers and peace officers’ families and associates, protecting the privacy 26 officers of peace officers, and preventing pending investigations from being 27 28 4 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 5 of 17 Page ID #:142

1 detrimentally undermined by publication of private, sensitive, or confidential 2 information – as can and often does result in litigation. 3 1.2. Plaintiff does not agree with and does not stipulate to Defendants’ 4 contentions herein above, and nothing in this Stipulation or its associated Order shall 5 resolve the parties’ disagreement, or bind them, concerning the legal statements and 6 claimed privileges set forth above. However, plaintiff agrees that there is Good Cause 7 for a Protective Order so as to preserve the respective interests of the parties without 8 the need to further burden the Court with such issues. Specifically, the parties jointly 9 contend that, absent this Stipulation and its associated Protective Order, the parties' 10 respective privilege interests may be impaired or harmed, and that this Stipulation and 11 its associated Protective Order may avoid such harm by permitting the parties to 12 facilitate discovery with reduced risk that privileged and/or sensitive/confidential 13 information will become matters of public record. 14 1.3. The parties jointly contend that there is typically a particularized need 15 for protection as to any medical or psychotherapeutic records and autopsy 16 photographs, because of the privacy interests at stake therein. Because of these 17 sensitive interests, a Court Order should address these documents rather than a private 18 agreement between the parties. 19 1.4. The parties therefore stipulate that there is Good Cause for, and hereby 20 jointly request that the honorable Court enter, a Protective Order re confidential 21 documents consistent with the terms and provisions of this Stipulation. However, the 22 entry of a Protective Order by the Court pursuant to this Stipulation shall not be 23 construed as any ruling by the Court on the aforementioned legal statements or 24 privilege claims in this section (Section 1), nor shall this section be construed as part 25 of any such Court Order. 26 1.5 Accordingly, to expedite the flow of information, to facilitate the prompt 27 resolution of disputes over confidentiality of discovery materials, to adequately 28 5 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 6 of 17 Page ID #:143

1 protect information the parties are entitled to keep confidential, to ensure that the 2 parties are permitted reasonable necessary uses of such material in preparation for and 3 in the conduct of trial, to address their handling at the end of the litigation, and serve 4 the ends of justice, a protective order for such information is justified in this matter. 5 It is the intent of the parties that information will not be designated as confidential for 6 tactical reasons and that nothing be so designated without a good faith belief that it 7 has been maintained in a confidential, non-public manner, and there is good cause 8 why it should not be part of the public record of this case. 9 2. DEFINITIONS 10 2.1 Action: This pending federal lawsuit Case Number 5:22-cv-01448. 11 2.2 Party: any party to this action, including all of its officers, directors, 12 employees, agents, consultants, retained experts, house counsel and outside counsel 13 (and/or the support staff thereof). 14 2.3 Challenging Party: a Party or Non-Party that challenges the designation 15 of information or items under this Order. 16 2.4 “CONFIDENTIAL” Information or Items: information (regardless of 17 the medium or how generated, stored, or maintained) or tangible things that qualify 18 for protection under standards developed under Federal Rule of Civil Procedure 26(c) 19 and/or applicable federal privileges. This material includes, but is not limited to, 20 medical records, psychotherapeutic records, and autopsy photographs; as well as 21 peace officer personnel records as defined by California Penal Code sections 832.8, 22 832.5, 832.7 and the associated case law; and other similar confidential records 23 designated as such. 24 2.5 Counsel (without qualifier): Outside Counsel and House Counsel (as 25 well as their support staffs). 26 27 28 6 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 7 of 17 Page ID #:144

1 2.6 Designating Party: a Party or non-party public entity employer of a Party 2 that designates information or items that it produces in disclosures or in responses to 3 discovery as “CONFIDENTIAL.” 4 2.7 Disclosure or Discovery Material: all items or information, regardless 5 of the medium or manner generated, stored or maintained (including, among other 6 things, testimony, transcripts, or tangible things) that are produced – or generated in 7 disclosures or responses to discovery – by any Party in this matter. 8 2.8 Expert: a person with specialized knowledge or experience in a matter 9 pertinent to the litigation who has been retained by a Party or its counsel to serve as 10 an expert witness or as a consultant in this Action. 11 2.9 House Counsel: attorneys who are employees of a Party (as well as their 12 support staffs). 13 2.10 Non-Party: any natural person, partnership, corporation, association, or 14 other legal entity not named as a Party to this action. 15 2.11 Outside Counsel: attorneys who are not employees of a Party but who 16 are retained to represent or advise a Party in this action (as well as their support staff). 17 2.12 Party: any party to this Action, including all of its officers, directors, 18 employees, consultants, retained experts, and Outside Counsel (and their support 19 staffs). 20 2.13 Producing Party: a Party or non-party that produces Disclosure or 21 Discovery Material in this action, including a Party that is defending a deposition 22 noticed or subpoenaed by another Party; additionally, for the limited purpose of 23 designating testimony subject to this Stipulation and Order pursuant to section 6.2(b) 24 (infra), a “Producing Party” shall also be construed to include a Party that is attending 25 and/or participating in a non-party deposition noticed/subpoenaed by another Party. 26 2.14 Professional Vendors: persons or entities that provide litigation support 27 services (e.g., photocopying; videotaping; translating; preparing exhibits or 28 7 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 8 of 17 Page ID #:145

1 demonstrations; and/or organizing, storing, retrieving data in any form or medium; 2 etc.); and their employees and subcontractors. 3 2.15 Protected Material: any Disclosure or Discovery Material that is 4 designated as “CONFIDENTIAL” under the provisions of this Stipulation and 5 Protective Order. (The term “Confidential Document” shall be synonymous with the 6 term “Protected Material” for the purposes of this Stipulation and any associated 7 Protective Order.) 8 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material 9 from a Producing Party, including a Party that has noticed or subpoenaed and is taking 10 a deposition or comparable testimony. 11 3. SCOPE 12 The protections conferred by this Stipulation and Order cover not only 13 Protected Material (as defined above), but also (1) any information copied or extracted 14 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 15 Protected Material; and (3) any testimony, conversations, or presentations by Parties 16 or their Counsel that might reveal Protected Material. Any use of Protected Material 17 at trial shall be governed by the orders of the trial judge. This Order does not govern 18 the use of Protected Material at trial. 19 4. DURATION 20 Even after final disposition of this litigation, the confidentiality obligations 21 imposed by this Order shall remain in effect until a Designating Party agrees 22 otherwise in writing or a court order otherwise directs. Final disposition shall be 23 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 24 or without prejudice; and (2) final judgment herein after the completion and 25 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 26 including the time limits for filing any motions or applications for extension of time 27 pursuant to applicable law. 28 8 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 9 of 17 Page ID #:146

1 5. DESIGNATING PROTECTED MATERIAL 2 5.1 Exercise of Restraint and Care in Designating Material for Protection. 3 Each Party or Non-Party that designates information or items for protection 4 under this Order must take care to limit any such designation to specific material that 5 qualifies under the appropriate standards. The Designating Party must designate for 6 protection only those parts of material, documents, items, or oral or written 7 communications that qualify so that other portions of the material, documents, items, 8 or communications for which protection is not warranted are not swept unjustifiably 9 within the ambit of this Order. Mass, indiscriminate, or routinized designations are 10 prohibited. Designations that are shown to be clearly unjustified or that have been 11 made for an improper purpose (e.g., to unnecessarily encumber the case development 12 process or to impose unnecessary expenses and burdens on other parties) may expose 13 the Designating Party to sanctions. If it comes to a Designating Party’s attention that 14 information or items that it designated for protection do not qualify for protection, 15 that Designating Party must promptly notify all other Parties that it is withdrawing 16 the inapplicable designation. 17 5.2 Manner and Timing of Designations. Except as otherwise provided in 18 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 19 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 20 under this Order must be clearly so designated before the material is disclosed or 21 produced. Designation in conformity with this Order requires: 22 (a) for information in documentary form (e.g., paper or electronic documents, 23 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 24 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 25 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 26 portion or portions of the material on a page qualifies for protection, the Producing 27 28 9 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 10 of 17 Page ID #:147

1 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 2 markings in the margins). 3 A Party or Non-Party that makes original documents available for inspection 4 need not designate them for protection until after the inspecting Party has indicated 5 which documents it would like copied and produced. During the inspection and before 6 the designation, all of the material made available for inspection shall be deemed 7 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 8 copied and produced, the Producing Party must determine which documents, or 9 portions thereof, qualify for protection under this Order. Then, before producing the 10 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” 11 to each page that contains Protected Material. If only a portion or portions of the 12 material on a page qualifies for protection, the Producing Party also must clearly 13 identify the protected portion(s) (e.g., by making appropriate markings in the 14 margins). 15 (b) for testimony given in depositions that the Designating Party identify the 16 Disclosure or Discovery Material on the record, before the close of the deposition all 17 protected testimony. 18 (c) for information produced in some form other than documentary and for any 19 other tangible items, that the Producing Party affix in a prominent place on the exterior 20 of the container or containers in which the information is stored the legend 21 “CONFIDENTIAL.” If only a portion or portions of the information warrants 22 protection, the Producing Party, to the extent practicable, shall identify the protected 23 portion(s). 24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 25 failure to designate qualified information or items does not, standing alone, waive the 26 Designating Party’s right to secure protection under this Order for such material. 27 Upon timely correction of a designation, the Receiving Party must make reasonable 28 10 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 11 of 17 Page ID #:148

1 efforts to assure that the material is treated in accordance with the provisions of this 2 Order. 3 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 4 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 5 designation of confidentiality at any time that is consistent with the Court’s 6 Scheduling Order. 7 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 8 resolution process under Local Rule 37.1 et seq. 9 6.3 The burden of persuasion in any such challenge proceeding shall be on 10 the Designating Party. Frivolous challenges, and those made for an improper purpose 11 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 12 expose the Challenging Party to sanctions. Unless the Designating Party has waived 13 or withdrawn the confidentiality designation, all parties shall continue to afford the 14 material in question the level of protection to which it is entitled under the Producing 15 Party’s designation until the Court rules on the challenge. 16 7. ACCESS TO AND USE OF PROTECTED MATERIAL 17 7.1 Basic Principles. A Receiving Party may use Protected Material that is 18 disclosed or produced by another Party or by a Non-Party in connection with this 19 Action only for prosecuting, defending, or attempting to settle this Action. Such 20 Protected Material may be disclosed only to the categories of persons and under the 21 conditions described in this Order. When the Action has been terminated, a Receiving 22 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 23 Protected Material must be stored and maintained by a Receiving Party at a 24 location and in a secure manner that ensures that access is limited to the persons 25 authorized under this Order. 26 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 27 otherwise ordered by the court or permitted in writing by the Designating Party, a 28 11 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 12 of 17 Page ID #:149

1 Receiving Party may disclose any information or item designated 2 “CONFIDENTIAL” only to: 3 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 4 employees of said Outside Counsel of Record to whom it is reasonably necessary to 5 disclose the information for this Action; 6 (b) the officers, directors, and employees (including House Counsel) of the 7 Receiving Party to whom disclosure is reasonably necessary for this Action; 8 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure 9 is reasonably necessary for this Action and who have signed the “Acknowledgment 10 and Agreement to Be Bound” (Exhibit A); 11 (d) the court and its personnel; 12 (e) court reporters and their staff; 13 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 14 to whom disclosure is reasonably necessary for this Action and who have signed the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 16 (g) the author or recipient of a document containing the information or a 17 custodian or other person who otherwise possessed or knew the information; 18 (h) during their depositions, witnesses, and attorneys for witnesses, in the 19 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 20 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 21 not be permitted to keep any confidential information unless they sign the 22 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 23 agreed by the Designating Party or ordered by the court. Pages of transcribed 24 deposition testimony or exhibits to depositions that reveal Protected Material may be 25 separately bound by the court reporter and may not be disclosed to anyone except as 26 permitted under this Stipulated Protective Order; and 27 28 12 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 13 of 17 Page ID #:150

1 (i) any mediator or settlement officer, and their supporting personnel, mutually 2 agreed upon by any of the parties engaged in settlement discussions. 3 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 4 PRODUCED IN OTHER LITIGATION 5 If a Party is served with a subpoena or a court order issued in other litigation 6 that compels disclosure of any information or items designated in this Action as 7 “CONFIDENTIAL,” that Party must: 8 (a) promptly notify in writing the Designating Party. Such notification shall 9 include a copy of the subpoena or court order; 10 (b) promptly notify in writing the party who caused the subpoena or order to 11 issue in the other litigation that some or all of the material covered by the subpoena 12 or order is subject to this Protective Order. Such notification shall include a copy of 13 this Stipulated Protective Order; and 14 (c) cooperate with respect to all reasonable procedures sought to be pursued by 15 the Designating Party whose Protected Material may be affected. 16 If the Designating Party timely seeks a protective order, the Party served with 17 the subpoena or court order shall not produce any information designated in this action 18 as “CONFIDENTIAL” before a determination by the court from which the subpoena 19 or order issued, unless the Party has obtained the Designating Party’s permission. The 20 Designating Party shall bear the burden and expense of seeking protection in that court 21 of its confidential material and nothing in these provisions should be construed as 22 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 23 directive from another court. 24 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 25 PRODUCED IN THIS LITIGATION 26 (a) The terms of this Order are applicable to information produced by a Non- 27 Party in this Action and designated as “CONFIDENTIAL.” Such information 28 13 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 14 of 17 Page ID #:151

1 produced by Non-Parties in connection with this litigation is protected by the 2 remedies and relief provided by this Order. Nothing in these provisions should be 3 construed as prohibiting a Non-Party from seeking additional protections. 4 (b) In the event that a Party is required, by a valid discovery request, to produce 5 a Non-Party’s confidential information in its possession, and the Party is subject to an 6 agreement with the Non-Party not to produce the Non-Party’s confidential 7 information, then the Party shall: 8 (1) promptly notify in writing the Requesting Party and the Non-Party 9 that some or all of the information requested is subject to a confidentiality agreement 10 with a Non-Party; 11 (2) promptly provide the Non-Party with a copy of the Stipulated 12 Protective Order in this Action, the relevant discovery request(s), and a reasonably 13 specific description of the information requested; and 14 (3) make the information requested available for inspection by the Non 15 Party, if requested. 16 (c) If the Non-Party fails to seek a protective order from this court within 14 17 days of receiving the notice and accompanying information, the Receiving Party may 18 produce the Non-Party’s confidential information responsive to the discovery request. 19 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce 20 any information in its possession or control that is subject to the confidentiality 21 agreement with the Non-Party before a determination by the court. Absent a court 22 order to the contrary, the Non-Party shall bear the burden and expense of seeking 23 protection in this court of its Protected Material. 24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 26 Protected Material to any person or in any circumstance not authorized under this 27 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 28 14 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 15 of 17 Page ID #:152

1 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 2 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 3 persons to whom unauthorized disclosures were made of all the terms of this Order, 4 and (d) request such person or persons to execute the “Acknowledgment and 5 Agreement to Be Bound” that is attached hereto as Exhibit A. 6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 7 PROTECTED MATERIAL 8 When a Producing Party gives notice to Receiving Parties that certain 9 inadvertently produced material is subject to a claim of privilege or other protection, 10 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 11 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 12 may be established in an e-discovery order that provides for production without prior 13 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 14 parties reach an agreement on the effect of disclosure of a communication or 15 information covered by the attorney-client privilege or work product protection, the 16 parties may incorporate their agreement in the stipulated protective order submitted 17 to the court. 18 12. MISCELLANEOUS 19 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 20 person to seek its modification by the Court in the future. 21 12.2 Right to Assert Other Objections. By stipulating to the entry of this 22 Protective Order no Party waives any right it otherwise would have to object to 23 disclosing or producing any information or item on any ground not addressed in this 24 Stipulated Protective Order. Similarly, no Party waives any right to object on any 25 ground to use in evidence of any of the material covered by this Protective Order. 26 12.3 Filing Protected Material. A Party that seeks to file under seal any 27 28 15 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 16 of 17 Page ID #:153

1 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 2 only be filed under seal pursuant to a court order authorizing the sealing of the specific 3 Protected Material at issue. If a Party's request to file Protected Material under seal is 4 denied by the court, then the Receiving Party may file the information in the public 5 record unless otherwise instructed by the court. 6 13. FINAL DISPOSITION 7 After the final disposition of this Action, as defined in paragraph 4, within 60 8 days of a written request by the Designating Party, each Receiving Party must return 9 all Protected Material to the Producing Party or destroy such material. As used in this 10 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 11 summaries, and any other format reproducing or capturing any of the Protected 12 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 13 must submit a written certification to the Producing Party (and, if not the same person 14 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 15 category, where appropriate) all the Protected Material that was returned or destroyed 16 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 17 compilations, summaries or any other format reproducing or capturing any of the 18 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 19 archival copy of all pleadings, motion papers, trial, deposition, and hearing 20 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 21 reports, attorney work product, and consultant and expert work product, even if such 22 materials contain Protected Material. Any such archival copies that contain or 23 constitute Protected Material remain subject to this Protective Order as set forth in 24 Section 4 (DURATION). 25 // 26 // 27 28 16 [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS Case 5:22-cv-01448-SSS-SP Document 28 Filed 12/01/22 Page 17 of 17 Page ID #:154

1 14. Any violation of this Order may be punished by any and all appropriate 2 measures including, without limitation, contempt proceedings and/or monetary 3 sanctions. 4

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6 DATED: December 1, 2022 7 Honorable Sheri Pym, United States Magistrate Judge 8

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