1 || XAVIER BECERRA, State Bar No. 118517 Attorney General of California PORTER scoTT 2 | JoNS. ALLIN, State Bar No. 155069 A PROFESSIONAL CORPORATION Supervising Deputy Attorney General Carl L. Fessenden, SBN 161494 3 ROBERT M. PERKINS, Ill, State Bar No. 309192 Megan E. Nevin, SBN 304122 Deputy Attomey General 350 University Ave., Suite 200 4} 13001 Street, Suite 125 YANG ss P.O. Box 944255 Sacramento, California 95825 5 Sacramento, CA 94244-2550 TEL: 916.929.1481 Telephone: (916) 210-6144 FAX: 916.927.3706 6 Fax: (916) 324-5205 Attorneys for Defendant Richard Garcia E-mail: Robert.Perkins @doj.ca.gov 7 | Attorneys for Defendants John M. Luebberke, City Attorney Chris Rodriguez and Harvey Casillas State Bar No. 164893 8 Jamil Ghannam, Deputy City Attorney Glenn Katon (SBN 281841) State Bar No. 300730 9 | KATON.LAW 425 N. El Dorado Street, 2nd Floor 385 Grand Avenue, Suite 200 Stockton, CA 95202 10 || Oakland, CA 94610 Telephone: (209) 937-8333 gkaton @katon.law Facsimile: (209) 937-8898 11 | Phone: 510-463-3350 Attorneys for Defendants Fax: 510-463-3349 Attorneys for Michael Rodriguez, Kathryn 12 Abdallah, Robert Molthen and Robert Michael T. Risher (SBN 191627) Wong 13 || Law Office of Michael T. Risher 2081 Center St. #154 14 | Berkeley CA 94702 michael @risherlaw.com 15 | Phone: (510) 689-1657 Fax: (510) 225-0941 16 Attorneys for Plaintiff Corey Hughes 17 18 IN THE UNITED STATES DISTRICT COURT 19 FOR THE EASTERN DISTRICT OF CALIFORNIA 20 SACRAMENTO DIVISION 21 22 COREY HUGHES, No. 2:18-cv-03188-JAM-DB 23 Plaintiff, | STIPULATED PROTECTIVE ORDER 24 v. 25 26 || CITY OF STOCKTON, et al., 27 Defendants. 28 {02106119.DOCX}

1 IT IS STIPULATED BY THE PARTIES AND ORDERED BY THE COURT AS

FOLLOWS:

2 In the course of this litigation, the parties have propounded written discovery requests 3 seeking information that implicates certain privacy interests that will be adversely affected if 4 these documents and other materials are disclosed to the general public. The parties stipulate that 5 there is good cause for the court to issue an order to protect a party or person from annoyance, 6 embarrassment, or oppression under Federal Rule of Civil Procedure 26(c) and Eastern District 7 Local Rule 141.1(c) for the following reasons. 8 Plaintiff maintains that an order is necessary prohibiting the parties from using the 9 following categories of information for any purpose other than that which is necessary to litigate 10 this matter: 11 1. All medical records obtained by the parties and designated as private, whether produced 12 by the parties or obtained from third parties, shall not be used outside of this litigation or made 13 public except in filings with the Court. There is good cause to protect this particular information 14 under Rule 26(c) and Local Rule 141.1(c)(2) because of the “inherently private” nature of 15 medical records. Fischer v. City of Portland, No. CV 02-1728, 2003 WL 23537981, at *4 (D. Or. 16 Aug. 22, 2003) (Plaintiff “has made a prima facie showing that her medical and psychological 17 records deserve some level of pretrial protection from unlimited public disclosure. By their very 18 nature, records of medical and psychological treatment are inherently private, if not wholly 19 privileged.”); see, e.g, Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 20 (9th Cir. 2002) (“[C]ourts have consistently granted protective orders that prevent disclosure of 21 … medical … records….”); Johnson v. Fed. Bureau of Prisons, No. 16CV3919AMDCLP, 2017 22 WL 5197143, at *2 (E.D.N.Y. Nov. 9, 2017) (“[F]ederal courts routinely 23 issue protective orders to ensure the confidentiality of medical records. That is so even in 24 proceedings such as this, where the plaintiff has put his medical condition at issue.”); Thomas v. 25 Douglas, No. CV148013FMOAGRX, 2015 WL 13763646, at *2 (C.D. Cal. Sept. 17, 26 2015) (“[M]edical records are precisely the type of documents that are routinely entitled to 27 protection under protective orders”); Allstate Ins. Co. v. Levesque, 263 F.R.D. 663, 670 (M.D. 28 1 Fla. 2010); Boyd v. City & Cty. of San Francisco, No. C-04-5459 MMC(JCS), 2006 WL 2 1390423, at *6 (N.D. Cal. May 18, 2006); Flaherty v. Seroussi, 209 F.R.D. 300, 304 (N.D.N.Y. 3 2002). 4 2. All criminal-history information regarding plaintiff designated as private, whether 5 produced by the parties or obtained from third parties, shall not be used outside of this litigation 6 or made public except in filings with the Court. There is good cause to protect this particular 7 information under Rule 26(c) and Local Rule 141.1(c)(2) because of the interest, recognized 8 under both State and federal law, in protecting this information from public scrutiny. See U.S. 9 Dep't of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 780 (1989) (The 10 “privacy interest in maintaining the practical obscurity of rap-sheet information will always be 11 high.”); Cal. Penal Code §§ 11105 et seq., 13300 et seq. (protecting the confidentiality of 12 summary criminal-history information). 13 Defendants maintain that an order is necessary prohibiting the parties from using the 14 following categories of information for any purpose other than that which is necessary to litigate 15 this matter: 16 Defendants, who are peace officers employed by the Stockton Police Department, the San 17 Joaquin County Sheriff’s Office, and the California Department of Corrections and 18 Rehabilitation’s Fugitive Apprehension Task Force, anticipate that Plaintiffs’ discovery requests 19 will necessarily include portions of personnel records for the peace officers involved in the arrest 20 of Plaintiff, training records for these officers, disciplinary records and other materials related to 21 Defendants’ job performance, records of citizen complaints, and confidential training materials 22 for use-of-force policies and arrest techniques. Defendants maintain that personnel records are 23 treated as confidential under California State Law. See Cal. Penal Code § 832.7(a); Cal. Evid. 24 Code §§ 1040. A protective order is necessary for personnel records because these records 25 contain private information concerning a peace officer’s personal data, including, in some cases, 26 the officer’s family members, home addresses, medical history, employee benefits, and appraisal 27 of the officer’s performance or discipline. Disclosure of that information is considered a violation 28 of the officer’s privacy under state law. See Cal. Penal Code § 832.8. Records of complaints 1 against officers are also considered records of personal information under California’s 2 Information Practices Act. See Cal. Civil Code § 1798, et. seq. Defendants maintain that an 3 order is necessary prohibiting the parties from using the above categories of information for any 4 purpose other than that which is necessary to litigate this matter. Because litigation is conducted 5 in public, these materials could be reviewed and obtained by any member of the general public, 6 which, in turn, could jeopardize the safety of the officer or any member of the officer’s family. 7 Accordingly, as peace officers who participated in the arrest of plaintiff, this material should not 8 be disclosed to the general public. Secondly, a protective order is necessary to protect training 9 materials, use-of-force policies and arrest and apprehension policies. These materials are kept 10 confidential for reasons related to peace officer safety so that fleeing felons and arrestees do not 11 learn how officers are trained to use force and how officers conduct covert surveillance. 12 Divulgement of these materials to the general public on the court’s docket would undermine 13 legitimate law enforcement efforts to conduct safe use-of-force techniques to initiate arrests and 14 apprehend fleeing felons. This material would also likely be protected under the official 15 information privilege as articulated in Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987); 16 however, the parties agree and stipulate that a narrowly drawn protective order, restricting 17 disclosure of these materials to the attorneys for the parties, is the appropriate procedure for 18 disclosing these categories of information. Under Kelly, such a protective order, rather than a 19 private agreement, is necessary to adequately protect these interests, while allowing the parties 20 the opportunity to engage in discovery of information proportional to the claims and defenses in 21 this matter. 22 CONDITIONS FOR DISCLOSURE 23 1. The provisions of this Protective Order apply to the personal information and security 24 information designated by the parties as either “PRIVATE” or “CONFIDENTIAL – 25 ATTORNEYS’ EYES ONLY”. 26 a. The designation of “PRIVATE” is intended to encompass documents or materials of any 27 kind of nature that the parties, in good faith, believe to be comprised of information that would 28 not ordinarily be disclosed or disseminated to third parties for any purpose other than that which 1 is necessary to conduct this litigation. Materials designated as PRIVATE includes Plaintiff’s 2 medical records and criminal history information, and, while these materials will be exchanged by 3 the parties during discovery, the parties agree that materials designated as PRIVATE will not be 4 used for any purpose other than that which is necessary to litigate this matter, including providing 5 these materials to expert witnesses retained in the course of this matter, or providing them to 6 percipient witnesses. Nothing in this order prohibits the parties from filing materials designated 7 as PRIVATE with the Court or requires or justifies the sealing of any materials. See Local Rule 8 141.1(e). 9 b. Any party may also designate their discovery materials and information provided in 10 this litigation as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” when Defendants have a 11 good faith belief that such materials and information are particularly sensitive and therefore 12 require the utmost level of protection. This designation will only be used when the material, if 13 shared, could jeopardize the safety and security of the San Joaquin County Sheriff’s Office, the 14 Stockton Police Department, and the California Department of Corrections and Rehabilitation’s 15 Fugitive Apprehension Team, and their employees. 16 2. The designation of information or materials for purposes of this Protective Order shall 17 be made in the following manner by the party or nonparty seeking protection: 18 a. In the case of documents, exhibits, or briefs filed with the court or other 19 materials, excluding depositions or other pretrial and trial testimony, the designating party shall 20 clearly designate the document as either “PRIVATE” or “CONFIDENTIAL — ATTORNEYS 21 EYES ONLY” to the first page and each page containing any information or material 22 necessitating that designation. If the document in question was produced in native format, the 23 designating party shall designate the document by physically labeling the outside of any media 24 storing the electronic documents. 25 b. In the case of depositions or other pretrial testimony: by a statement on the 26 record, by counsel, during such deposition or other pretrial proceeding that the entire transcript or 27 a portion thereof shall be designated hereunder. The parties may modify this procedure for any 28 1 particular deposition or proceeding through agreement on the record at such deposition or 2 proceeding or otherwise by written stipulation. 3 c. The designation shall be made (i) at the time such materials are disclosed; or 4 (ii) as soon thereafter as Defendants or CDCR becomes aware of the inadvertent production 5 without a “Confidential” designation. 6 3. Information or materials designated as “CONFIDENTIAL – ATTORNEYS’ EYES 7 ONLY” under this Protective Order, or copies or extracts and compilations from, may be 8 disclosed, described, characterized, or communicated in any way only to the following persons: 9 a. Counsel for record for Plaintiffs in this action; 10 b. The attorney(s) of record for Defendants; 11 c. Paralegal, stenographic, clerical and secretarial personnel regularly employed 12 by counsel for Plaintiff, and Defendants who are necessary to aid counsel for Plaintiff and 13 Defendants in the litigation of this matter; 14 d. Court personnel and stenographic reporters engaged in such proceedings are 15 incidental to the preparation for the trial in this action; and 16 e. Experts retained by counsel. 17 4. None of the material designated as “CONFIDENTIAL – ATTORNEYS’ EYES 18 ONLY” shall be shown to, discussed with, or disclosed in any other manner to Plaintiff, any other 19 inmate or former inmate, any parolee or former parolee, or any other person who is not a current 20 or former employee of the San Joaquin County Sheriff’s Office, the Stockton Police Department, 21 or the California Department of Corrections and Rehabilitation, including any percipient witness, 22 unless a written waiver expressly authorizing such disclosure has been obtained from counsel for 23 the agency that maintains possession and control over the original confidential material. 24 5. No person who has access to any CONFIDENTIAL—ATTORNEYS’ EYES ONLY 25 material as set forth above shall copy any portion of the material, except as necessary to provide a 26 copy of the material to any other authorized individual listed in paragraph 3, or to submit copies 27 to the Court under seal in connection with this matter. Any copies made for such purpose will be 28 subject to this order. A copy of this order must be provided to any individual authorized to access 1 the confidential material before providing that individual with access to the material, including 2 experts or consultants retained by counsel. Counsel for the parties shall maintain a record of all 3 persons to whom access to the confidential material has been provided. The Court and counsel 4 for Defendants may request a copy of such record at any time to determine compliance with the 5 Court’s order. 6 6. Counsel for Plaintiff will meet and confer with counsel for the agency that designated 7 material Attorneys’ Eyes Only before addressing such material in open court. If the parties 8 cannot reach agreement they shall, to the extent practicable, raise the issue with the court by 9 motion in advance or, if necessary, seek leave to address the matter with the Court in camera. 10 7. At the conclusion of the proceedings in this case, including any period for appeal or 11 collateral review, or upon other termination of this litigation, counsel for Plaintiffs shall destroy 12 all confidential materials and all copies of such material in counsel’s possession or return such 13 materials to counsel for Defendants. When Plaintiff’s counsel returns or destroys the confidential 14 material, they shall provide Defendants’ counsel with a declaration stating that all confidential 15 material has been returned or destroyed 16 8. Nothing in this protective order is intended to prevent officials or employees of the State 17 of California, or other authorized government officials, from having access to material to which 18 they would have access in the normal course of their official duties. 19 9. If a party believes that a producing party’s designation of information as “PRIVATE” 20 or “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” is not warranted, the party shall first 21 make a good faith effort to resolve such a dispute with opposing party. In the event that the 22 parties cannot resolve such a dispute, either party may challenge that designation by making an 23 application to the Court in accordance with the Magistrate Judge’s Standing Orders, the Local 24 Rules of the United States District Court for the Eastern District of California, and the Federal 25 Rules of Civil Procedure. 26 10. The provisions of this protective order are without prejudice to the right of any party: 27 (a) To apply to the Court for a further protective order relating to any confidential 28 material or relating to discovery in this litigation; 1 (b) To apply to the Court for an order removing the confidential material 2 designation from any documents; 3 (c) To object to a discovery request. 4 11. Any violation of this order may result in sanctions by this Court, including contempt, 5 and may be punishable by state or federal law. 6 12. This order affects the rights and duties of a party only with respect to records and 7 information that the party obtained through formal or informal discovery as part of this litigation, 8 not to records or information that the party possessed before this litigation or obtained 9 independently from this litigation. 10 13. The provisions of this order shall remain in effect until further order of this Court. 11 The Court will provide all parties with an opportunity to be heard should the Court find 12 modification of this order necessary. 13 IT IS SO STIPULATED. 14 November 7, 2019 15 /S/XAVIER BECERRA (authorized 10.22.19) /s/ Megan E. Nevin 16 Attorney General of California Megan E. Nevin 17 SJO uN p eS r. v A isL inL gIN D eputy Attorney General Attorney for Defendant Richard Garcia

18 /s/ Robert M. Perkins, III (authorized 10.22.19) /s/ Jamil R. Ghannam (authorized 10.22.19) ROBERT M. PERKINS, III Jamil R. Ghannam 19 Deputy Attorney General Attorney for Defendants Michael Rodriguez, Attorney for Defendants Casillas and Rodriguez Kathryn Abdallah, Robert Molthen and 20 Robert Wong /s/ Glenn Katon (authorized 10.22.19) 21 Glenn Katon Attorney for Plaintiff Corey Hughes 22 23 ORDER 24 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 25 IT IS FURTHER ORDERED THAT: 26 1. Requests to seal documents shall be made by motion before the same judge who will 27 decide the matter related to that request to seal. 28 2. The designation of documents (including transcripts of testimony) as confidential 1 pursuant to this order does not automatically entitle the parties to file such a document with the 2 court under seal. Parties are advised that any request to seal documents in this district is governed 3 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 4 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 5 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 6 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 7 the requested duration, the identity, by name or category, of persons to be permitted access to the 8 document, and all relevant information.” L.R. 141(b). 9 3. A request to seal material must normally meet the high threshold of showing that 10 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially 11 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 12 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); 13 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 14 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of 15 certain documents, at any court hearing or trial – such determinations will only be made by the 16 court at the hearing or trial, or upon an appropriate motion. 17 5. With respect to motions regarding any disputes concerning this protective order which 18 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local 19 Rule 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex 20 parte basis or on shortened time. 21 6. The parties may not modify the terms of this Protective Order without the court’s 22 approval. If the parties agree to a potential modification, they shall submit a stipulation and 23 proposed order for the court’s consideration. 24 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement 25 of the terms of this Protective Order after the action is terminated. 26 //// 27 //// 28 //// 1 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 2 hereby DISAPPROVED. 3 DATED: November 8, 2019 /s/ DEBORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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