1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MAC SHORTY, CASE NO. CV19-09355 DSF (KSx) Hon. Dale S. Fisher, Ctrm. 7D, 7th Fl. 12 Plaintiff, Mag. Karen L. Stevenson, Ctrm. 580, 5th Fl. 13 v. [PROPOSED] PROTECTIVE ORDER 14 LOS ANGELES POLICE

DEPARTMENT; LOS ANGELES

15 POLICE DEPARTMENT OFFICERS:

BURTON # 40021; AND OFFICER

16 SALCIDO #38208., and DOES 1-10, 17 Defendants. 18 19 1. A. PURPOSES AND LIMITATIONS 20 21 Discovery in this action is likely to involve production of confidential, 22 proprietary, or private information for which special protection from public disclosure 23 and from use for any purpose other than prosecuting this litigation may be warranted. 24 Accordingly, the parties hereby stipulate to and petition the Court to enter the following 25 Stipulated Protective Order. The parties acknowledge that this Order does not confer 26 blanket protections on all disclosures or responses to discovery and that the protection 27 it affords from public disclosure and use extends only to the limited information or 28 1 items that are entitled to confidential treatment under the applicable legal principles. 2 The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated 3 Protective Order does not entitle them to file confidential information under seal; Civil 4 Local Rule 79-5 sets forth the procedures that must be followed and the standards that 5 will be applied when a party seeks permission from the court to file material under seal. 6 7 B. GOOD CAUSE STATEMENT 8 This action involves the Los Angeles Police Department (“LAPD”), LAPD 9 Officer Andre Burton and LAPD Officer Andy Salcido (“Defendants”). Plaintiffs are 10 seeking materials and information that Defendant LAPD maintains as confidential, 11 such as personnel files of the police officers involved in this incident, Internal Affairs 12 materials and information, video recordings, audio recordings, information and other 13 administrative materials and information currently in the possession of the LAPD and 14 which Defendants believe need special protection from public disclosure and from use 15 for any purpose other than prosecuting this litigation. Plaintiffs are also seeking 16 official information contained in the personnel files of the police officers involved in 17 the subject incident, which the LAPD maintains as strictly confidential and which 18 Defendants believe need special protection from public disclosure and from use for any 19 purpose other than prosecuting this litigation. 20 Defendants assert that the confidentiality of the materials and information sought 21 by Plaintiffs is recognized by California and federal law, as evidenced inter alia by 22 California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for N.D. Cal., 23 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). The LAPD has not 24 publicly released the materials and information referenced above except under 25 protective order or pursuant to a court order, if at all. These materials and information 26 are of the type that have been used to initiate disciplinary action against LAPD officers, 27 28 1 and has been used as evidence in disciplinary proceedings, where the officers’ conduct 2 was considered to be contrary to LAPD policy. 3 Defendants contend that absent a protective order delineating the responsibilities 4 of nondisclosure on the part of the parties hereto, there is a specific risk of unnecessary 5 and undue disclosure by one or more of the many attorneys, secretaries, law clerks, 6 paralegals and expert witnesses involved in this case, as well as the corollary risk of 7 embarrassment, harassment as well as professional, physical and legal harm on the 8 part of the LAPD officers referenced in the materials and information. 9 Defendants also contend that the unfettered disclosure of the materials and 10 information, absent a protective order, would allow the media to share this information 11 with potential jurors in the area, impacting the rights of the Defendants herein to 12 receive a fair trial. 13 Accordingly, to expedite the flow of information, to facilitate the prompt 14 resolution of disputes over confidentiality of discovery materials, to adequately protect 15 information the parties are entitled to keep confidential, to ensure that the parties are 16 permitted reasonable necessary uses of such material in preparation for and in the 17 conduct of trial, to address their handling at the end of the litigation, and serve the ends 18 of justice, a protective order for such information is justified in this matter. It is the 19 intent of the parties that information will not be designated as confidential for tactical 20 reasons and that nothing be so designated without a good faith belief that it has been 21 maintained in a confidential, non-public manner, and there is good cause why it should 22 not be part of the public record of this case. 23 24 2. DEFINITIONS 25 26 2.1 Action: this pending federal law suit. 27 2.2 Challenging Party: a Party or Non-Party that challenges the designation of 28 information or items under this Order. 1 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how 2 it is generated, stored or maintained) or tangible things that qualify for protection under 3 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 4 Statement. This also includes (1) any information copied or extracted from the 5 Confidential information; (2) all copies, excerpts, summaries or compilations of 6 Confidential information; and (3) any testimony, conversations, or presentations that 7 might reveal Confidential information. 8 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 9 support staff). 10 2.5 Designating Party: a Party or Non-Party that designates information or items 11 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 12 2.6 Disclosure or Discovery Material: all items or information, regardless of the 13 medium or manner in which it is generated, stored, or maintained (including, among 14 other things, testimony, transcripts, and tangible things), that are produced or generated 15 in disclosures or responses to discovery in this matter. 16 2.7 Expert: a person with specialized knowledge or experience in a matter 17 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 18 expert witness or as a consultant in this Action. 19 2.8 House Counsel: attorneys who are employees of a party to this Action. 20 House Counsel does not include Outside Counsel of Record or any other outside 21 counsel. 22 2.9 Non-Party: any natural person, partnership, corporation, association, or 23 other legal entity not named as a Party to this action. 24 2.10 Outside Counsel of Record: attorneys who are not employees of a party to 25 this Action but are retained to represent or advise a party to this Action and have 26 appeared in this Action on behalf of that party or are affiliated with a law firm which 27 has appeared on behalf of that party, and includes support staff. 28 1 2.11 Party: any party to this Action, including all of its officers, directors, 2 employees, consultants, retained experts, and Outside Counsel of Record (and their 3 support staffs). 4 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 5 Discovery Material in this Action. 6 2.13 Professional Vendors: persons or entities that provide litigation support 7 services (e.g., photocopying, videotaping, translating, preparing exhibits or 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 9 their employees and subcontractors. 10 2.14 Protected Material: any Disclosure or Discovery Material that is designated 11 as “CONFIDENTIAL.” 12 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 13 from a Producing Party. 14 15 3. SCOPE 16 17 The protections conferred by this Stipulation and Order cover not only Protected 18 Material (as defined above), but also (1) any information copied or extracted from 19 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 20 Material; and (3) any testimony, conversations, or presentations by Parties or their 21 Counsel that might reveal Protected Material. 22 Any use of Protected Material at trial shall be governed by the orders of the trial 23 judge. This Order does not govern the use of Protected Material at trial. 24 25 4. DURATION 26 27 Even after final disposition of this litigation, the confidentiality obligations 28 imposed by this Order shall remain in effect until a Designating Party agrees otherwise 1 in writing or a court order otherwise directs. Final disposition shall be deemed to be the 2 later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; 3 and (2) final judgment herein after the completion and exhaustion of all appeals, 4 rehearings, remands, trials, or reviews of this Action, including the time limits for filing 5 any motions or applications for extension of time pursuant to applicable law. 6 7 5. DESIGNATING PROTECTED MATERIAL 8 9 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 10 Party or Non-Party that designates information or items for protection under this Order 11 must take care to limit any such designation to specific material that qualifies under the 12 appropriate standards. The Designating Party must designate for protection only those 13 parts of material, documents, items, or oral or written communications that qualify so 14 that other portions of the material, documents, items, or communications for which 15 protection is not warranted are not swept unjustifiably within the ambit of this Order. 16 Mass, indiscriminate, or routinized designations are prohibited. Designations that 17 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., 18 to unnecessarily encumber the case development process or to impose unnecessary 19 expenses and burdens on other parties) may expose the Designating Party to sanctions. 20 If it comes to a Designating Party’s attention that information or items that it 21 designated for protection do not qualify for protection, that Designating Party must 22 promptly notify all other Parties that it is withdrawing the inapplicable designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in this 24 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 25 ordered, Disclosure or Discovery Material that qualifies for protection under this Order 26 must be clearly so designated before the material is disclosed or produced. 27 Designation in conformity with this Order requires: 28 1 (a) for information in documentary form (e.g., paper or electronic documents, 2 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 3 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 4 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 5 portion or portions of the material on a page qualifies for protection, the Producing Party 6 also must clearly identify the protected portion(s) (e.g., by making appropriate markings 7 in the margins). 8 A Party or Non-Party that makes original documents available for inspection 9 need not designate them for protection until after the inspecting Party has indicated 10 which documents it would like copied and produced. During the inspection and before 11 the designation, all of the material made available for inspection shall be deemed 12 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 13 copied and produced, the Producing Party must determine which documents, or 14 portions thereof, qualify for protection under this Order. Then, before producing the 15 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” 16 to each page that contains Protected Material. If only a portion or portions of the 17 material on a page qualifies for protection, the Producing Party also must clearly 18 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 19 (b) for testimony given in depositions that the Designating Party identify the 20 Disclosure or Discovery Material on the record, before the close of the deposition all 21 protected testimony. 22 (c) for information produced in some form other than documentary and for any 23 other tangible items, that the Producing Party affix in a prominent place on the exterior 24 of the container or containers in which the information is stored the legend 25 “CONFIDENTIAL.” If only a portion or portions of the information warrants 26 protection, the Producing Party, to the extent practicable, shall identify the protected 27 portion(s). 28 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 2 to designate qualified information or items does not, standing alone, waive the 3 Designating Party’s right to secure protection under this Order for such material. Upon 4 timely correction of a designation, the Receiving Party must make reasonable efforts to 5 assure that the material is treated in accordance with the provisions of this Order. 6 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 7 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation 8 of confidentiality at any time that is consistent with the Court’s Scheduling Order. 9 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 10 resolution process under Local Rule 37.1 et seq. 11 6.3 The burden of persuasion in any such challenge proceeding shall be on the 12 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., 13 to harass or impose unnecessary expenses and burdens on other parties) may expose the 14 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn 15 the confidentiality designation, all parties shall continue to afford the material in 16 question the level of protection to which it is entitled under the Producing Party’s 17 designation until the Court rules on the challenge. 18 7. ACCESS TO AND USE OF PROTECTED MATERIAL 19 7.1 Basic Principles. A Receiving Party may use Protected Material that is 20 disclosed or produced by another Party or by a Non-Party in connection with this Action 21 only for prosecuting, defending, or attempting to settle this Action. Such Protected 22 Material may be disclosed only to the categories of persons and under the conditions 23 described in this Order. When the Action has been terminated, a Receiving Party must 24 comply with the provisions of section 13 below (FINAL DISPOSITION). 25 Protected Material must be stored and maintained by a Receiving Party at a 26 location and in a secure manner that ensures that access is limited to the persons 27 authorized under this Order. 28 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 2 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 3 may disclose any information or item designated “CONFIDENTIAL” only to: 4 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 5 employees of said Outside Counsel of Record to whom it is reasonably necessary to 6 disclose the information for this Action; 7 (b) the officers, directors, and employees (including House Counsel) of the 8 Receiving Party to whom disclosure is reasonably necessary for this Action; 9 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure 10 is reasonably necessary for this Action and who have signed the “Acknowledgment and 11 Agreement to Be Bound” (Exhibit A); 12 (d) the court and its personnel; 13 (e) court reporters and their staff; 14 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 15 to whom disclosure is reasonably necessary for this Action and who have signed the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (g) the author or recipient of a document containing the information or a 18 custodian or other person who otherwise possessed or knew the information; 19 (h) during their depositions, witnesses ,and attorneys for witnesses, in the 20 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 21 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not 22 be permitted to keep any confidential information unless they sign the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 24 by the Designating Party or ordered by the court. Pages of transcribed deposition 25 testimony or exhibits to depositions that reveal Protected Material may be separately 26 bound by the court reporter and may not be disclosed to anyone except as permitted 27 under this Stipulated Protective Order; and 28 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 4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 5 OTHER LITIGATION 6 7 If a Party is served with a subpoena or a court order issued in other litigation that 8 compels disclosure of any information or items designated in this Action as 9 “CONFIDENTIAL,” that Party must: 10 (a) promptly notify in writing the Designating Party. Such notification shall 11 include a copy of the subpoena or court order; 12 (b) promptly notify in writing the party who caused the subpoena or order to 13 issue in the other litigation that some or all of the material covered by the subpoena or 14 order is subject to this Protective Order. Such notification shall include a copy of this 15 Stipulated Protective Order; and 16 (c) cooperate with respect to all reasonable procedures sought to be pursued by 17 the Designating Party whose Protected Material may be affected. 18 If the Designating Party timely seeks a protective order, the Party served with the 19 subpoena or court order shall not produce any information designated in this action as 20 “CONFIDENTIAL” before a determination by the court from which the subpoena or 21 order issued, unless the Party has obtained the Designating Party’s permission. The 22 Designating Party shall bear the burden and expense of seeking protection in that court 23 of its confidential material and nothing in these provisions should be construed as 24 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive 25 from another court. 26 27 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 28 IN THIS LITIGATION 1 (a) The terms of this Order are applicable to information produced by a Non- 2 Party in this Action and designated as “CONFIDENTIAL.” Such information produced 3 by Non-Parties in connection with this litigation is protected by the remedies and relief 4 provided by this Order. Nothing in these provisions should be construed as prohibiting 5 a Non-Party from seeking additional protections. 6 (b) In the event that a Party is required, by a valid discovery request, to produce 7 a Non-Party’s confidential information in its possession, and the Party is subject to an 8 agreement with the Non-Party not to produce the Non-Party’s confidential information, 9 then the Party shall: 10 (1) promptly notify in writing the Requesting Party and the Non-Party that 11 some or all of the information requested is subject to a confidentiality agreement with a 12 Non-Party; 13 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 14 Order in this Action, the relevant discovery request(s), and a reasonably specific 15 description of the information requested; and 16 (3) make the information requested available for inspection by the Non- 17 Party, if requested. 18 (c) If the Non-Party fails to seek a protective order from this court within 14 days 19 of receiving the notice and accompanying information, the Receiving Party may produce 20 the Non-Party’s confidential information responsive to the discovery request. If the 21 Non-Party timely seeks a protective order, the Receiving Party shall not produce any 22 information in its possession or control that is subject to the confidentiality agreement 23 with the Non-Party before a determination by the court. Absent a court order to the 24 contrary, the Non-Party shall bear the burden and expense of seeking protection in this 25 court of its Protected Material. 26 27 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 28 1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 2 Protected Material to any person or in any circumstance not authorized under this 3 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 4 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 5 all unauthorized copies of the Protected Material, (c) inform the person or persons to 6 whom unauthorized disclosures were made of all the terms of this Order, and (d) request 7 such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 8 that is attached hereto as Exhibit A. 9 10 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 11 PROTECTED MATERIAL 12 13 When a Producing Party gives notice to Receiving Parties that certain 14 inadvertently produced material is subject to a claim of privilege or other protection, the 15 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 16 26(b)(5)(B). This provision is not intended to modify whatever procedure may be 17 established in an e-discovery order that provides for production without prior privilege 18 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach 19 an agreement on the effect of disclosure of a communication or information covered by 20 the attorney-client privilege or work product protection, the parties may incorporate 21 their agreement in the stipulated protective order submitted to the court. 22 23 12. MISCELLANEOUS 24 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 25 person to seek its modification by the Court in the future. 26 12.2 Right to Assert Other Objections. By stipulating to the entry of this 27 Protective Order no Party waives any right it otherwise would have to object to 28 disclosing or producing any information or item on any ground not addressed in this 1 Stipulated Protective Order. Similarly, no Party waives any right to object on any ground 2 to use in evidence of any of the material covered by this Protective Order. 3 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 4 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 5 under seal pursuant to a court order authorizing the sealing of the specific Protected 6 Material at issue. If a Party's request to file Protected Material under seal is denied by 7 the court, then the Receiving Party may file the information in the public record unless 8 otherwise instructed by the court. 9 10 13. FINAL DISPOSITION 11 After the final disposition of this Action, as defined in paragraph 4, within 60 days 12 of a written request by the Designating Party, each Receiving Party must return all 13 Protected Material to the Producing Party or destroy such material. As used in this 14 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 15 summaries, and any other format reproducing or capturing any of the Protected Material. 16 Whether the Protected Material is returned or destroyed, the Receiving Party must 17 submit a written certification to the Producing Party (and, if not the same person or 18 entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, 19 where appropriate) all the Protected Material that was returned or destroyed and 20 (2)affirms that the Receiving Party has not retained any copies, abstracts, compilations, 21 summaries or any other format reproducing or capturing any of the Protected Material. 22 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 23 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 24 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 25 consultant and expert work product, even if such materials contain Protected Material. 26 Any such archival copies that contain or constitute Protected Material remain subject to 27 this Protective Order as set forth in Section 4 (DURATION). 28 14. Any violation of this Order may be punished by any and all appropriate measures 2 || including, without limitation, contempt proceedings and/or monetary sanctions. 3

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

5 6|| Dated: April 15, 2020 LAW OFFICES OF AKUDINOBI & IKONTE 7 8 By:/S/ Chu (oke O. Ikonte

CHIJOKE O. IKONTE, ESQ.

9 Attorney for Plaintiff Mac Shorty 10 1] || Dated: April 15, 2020 MICHAEL N. FEUER, City Attorney KATHLEEN A. KENEALY, Chief Assist. City Attorney 12 SCOTT MARCUS. Chief Civil Litigation Branch CORY M. BRENTE, Sr. Assist. City Attorney LISA W. LEE, Deputy City Attorney 14 By: [Si Lua W. Lee 15 LISA W. LEE, Deputy City Attorney Attorneys for Defendants LOS ANGELES POLICE 16 DEPARTMENT and ANDY G. SALCIDO 17 18 Dated: April 15, 2020 REILY & JEFFERY, INC By: /Si Janine K. 19 JANINE TEHFERY FS 0 Attorneys for Defendant AN DRE BURTON 21 22 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 23 DATED: April 23, 2020 25 26 ALN Z s7K_

HONORABLE KAREN L. STEVENSON

38 UNITED STATES MAGISTRATE JUDGE

14

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of _________________ 5 [print or type full address], declare under penalty of perjury that I have read in its entirety 6 and understand the Stipulated Protective Order that was issued by the United States 7 District Court for the Central District of California on___________ [date] in the case of 8 MAC SHORTY V. LAPD, ET.AL, CASE NO. CV19-09355 DSF (KSx) 9 I agree to comply with and to be bound by all the terms of this Stipulated Protective 10 Order and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will not 12 disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the provisions 14 of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for the 16 Central District of California for the purpose of enforcing the terms of this Stipulated 17 Protective Order, even if such enforcement proceedings occur after termination of this 18 action. I hereby appoint __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with this 21 action or any proceedings related to enforcement of this Stipulated Protective Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: _______________________________ 25 Signature: __________________________________ 26 27 28