1 Office of the Los Angeles City Attorney DENISE C. MILLS, Deputy City Attorney (SBN 191992) 2 [email protected] 200 North Main Street, 6th Floor, City Hall East 3 Los Angeles, California 90012 Phone: 213-978-6954 4 DANIEL S. ROBERTS, Bar No. 205535 5 [email protected] NICOLE R. ROGGEVEEN, Bar No. 252587 6 [email protected] ADRIAN VERDUZCO, Bar No. 336027 7 [email protected] COLE HUBER LLP 8 3401 Centrelake Drive, Suite 670 Ontario, California 91761 9 Telephone: (909) 230-4209 Facsimile: (909) 937-2034 10 Attorneys for Defendants City of Los 11 Angeles, Chief Michel Moore, Officer Anthony Lopez and Officer Robert R. 12 Martinez 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 16 BENJAMIN MONTEMAYOR, Case No. 2:21-cv-03124-CBM (ASx) The Hon. Consuelo B. Marshall 17 Plaintiff, PROTECTIVE ORDER 18 v. Judge: Hon. Alka Sagar 19 CITY OF LOS ANGELES; CHIEF MICHEL MOORE; 20 SERGEANT RUBEN T. MARTINEZ; OFFICER HENRY FELIX; 21 OFFICER ANTHONY LOPEZ; and OFFICER ROBERT R. MARTINEZ, 22 Defendants. 23 24 1. A. PURPOSES AND LIMITATIONS 25 Discovery in this action is likely to involve production of confidential, 26 proprietary, or private information for which special protection from public 27 disclosure and from use for any purpose other than prosecuting this litigation may 1 enter the following Stipulated Protective Order. The parties acknowledge that this 2 Order does not confer blanket protections on all disclosures or responses to 3 discovery and that the protection it affords from public disclosure and use extends 4 only to the limited information or items that are entitled to confidential treatment 5 under the applicable legal principles. The parties further acknowledge, as set forth in 6 Section 12.3, below, that this Stipulated Protective Order does not entitle them to 7 file confidential information under seal; Civil Local Rule 79-5 sets forth the 8 procedures that must be followed and the standards that will be applied when a party 9 seeks permission from the court to file material under seal. 10 B. GOOD CAUSE STATEMENT 11 This action involves Defendants City of Los Angeles, Los Angeles Police 12 Department Chief Michel Moore, and members of the Los Angeles Police 13 Department (“Defendants”) on the one side and Plaintiff Benjamin Montemayor 14 (“Plaintiff”), a private citizen, who is claiming damages from the City and its police 15 officers for economic, physical, emotional, and mental injuries allegedly caused by 16 them on the other side. One or more of the Parties assert that this action is likely to 17 involve documents and information for which special protection from public 18 disclosure and from use for any purpose other than prosecution of this action is 19 warranted. Such confidential and proprietary materials and information consist of, 20 among other things, the personnel files of the police officers involved in this 21 incident, Internal Affairs materials and information, video recordings, audio 22 recordings, Force Investigation Division materials and information and other 23 administrative materials and information currently in the possession of the City, as 24 well as Plaintiff’s medical records and employment information, information 25 otherwise generally unavailable to the public, or which may be privileged or 26 otherwise protected from disclosure under state or federal statutes, court rules, case 27 decisions, or common law. 1 Absent a protective order delineating the responsibilities of nondisclosure on 2 the part of the parties hereto, there is a specific risk of unnecessary and undue 3 disclosure by one or more of the many attorneys, secretaries, law clerks, paralegals 4 and expert witnesses involved in this case, as well as the corollary risk of 5 embarrassment, harassment and professional and legal harm on the part of Plaintiff, 6 Defendants, other LAPD officers, and non-party civilians who may be referenced in 7 the materials and information. 8 Accordingly, to expedite the flow of information, to facilitate the prompt 9 resolution of disputes over confidentiality of discovery materials, to adequately 10 protect information the parties are entitled to keep confidential, to ensure that the 11 parties are permitted reasonable necessary uses of such material in preparation for 12 and in the conduct of trial, to address their handling at the end of the litigation, and 13 serve the ends of justice, a protective order for such information is justified in this 14 matter. It is the intent of the parties that information will not be designated as 15 confidential for tactical reasons and that nothing be so designated without a good 16 faith belief that it has been maintained in a confidential, non-public manner, and 17 there is good cause why it should not be part of the public record of this case. 18 19 2. DEFINITIONS 20 2.1 Action: The above-captioned suit. 21 2.2 Challenging Party: a Party or Non-Party that challenges the designation of 22 information or items under this Order. 23 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how 24 it is generated, stored or maintained) or tangible things that qualify for 25 protection under Federal Rule of Civil Procedure 26(c), and as specified 26 above in the Good Cause Statement. 27 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 1 2.5 Designating Party: a Party or Non-Party that designates information or 2 items that it produces in disclosures or in responses to discovery as 3 “CONFIDENTIAL.” 4 2.6 Disclosure or Discovery Material: all items or information, regardless of 5 the medium or manner in which it is generated, stored, or maintained 6 (including, among other things, testimony, transcripts, and tangible 7 things), that are produced or generated in disclosures or responses to 8 discovery in this matter. 9 2.7 Expert: a person with specialized knowledge or experience in a matter 10 pertinent to the litigation who has been retained by a Party or its counsel 11 to serve as an expert witness or as a consultant in this Action. 12 2.8 House Counsel: attorneys who are employees of a party to this Action. 13 House Counsel does not include Outside Counsel of Record or any other 14 outside counsel. 15 2.9 Non-Party: any natural person, partnership, corporation, association, or 16 other legal entity not named as a Party to this action. 17 2.10 Outside Counsel of Record: attorneys who are not employees of a party 18 to this Action but are retained to represent or advise a party to this Action 19 and have appeared in this Action on behalf of that party or are affiliated 20 with a law firm which has appeared on behalf of that party, and includes 21 support staff. 22 2.11 Party: any party to this Action, including all of its officers, directors, 23 employees, consultants, retained experts, and Outside Counsel of Record 24 (and their support staffs). 25 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 26 Discovery Material in this Action. 27 2.13 Professional Vendors: persons or entities that provide litigation support 1 or demonstrations, and organizing, storing, or retrieving data in any form 2 or medium) and their employees and subcontractors. 3 2.14 Protected Material: any Disclosure or Discovery Material that is 4 designated as “CONFIDENTIAL.” 5 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 6 from a Producing Party. 7 8 3. SCOPE 9 The protections conferred by this Stipulation and Order cover not only 10 Protected Material (as defined above), but also (1) any information copied or 11 extracted from Protected Material; (2) all copies, excerpts, summaries, or 12 compilations of Protected Material; and (3) any testimony, conversations, or 13 presentations by Parties or their Counsel that might reveal Protected Material. 14 Any use of Protected Material at trial shall be governed by the orders of the 15 trial judge. This Order does not govern the use of Protected Material at trial. 16 17 4. DURATION 18 Once trial commences in this action, all of the information that was 19 designated as CONFIDENTIAL or maintained pursuant to this protective order and 20 that is introduced or admitted at trial becomes public and will be presumptively 21 available to all members of the public, including the press, unless compelling 22 reasons supported by specific factual findings to proceed otherwise are made to the 23 trial judge in advance of the trial. See Kamakana v. City and County of Honolulu, 24

(9th Cir. 2006) (distinguishing “good cause” showing for 25 sealing documents produced in discovery from “compelling reasons” standard when 26 merits-related documents are part of court record). Accordingly, the terms of this 27 protective order do not extend beyond the commencement of the trial as to the 1 CONFIDENTIAL information and materials introduced or admitted as an exhibit at 2 trial. 3 4 5. DESIGNATING PROTECTED MATERIAL 5 5.1 Exercise of Restraint and Care in Designating Material for Protection. 6 Each Party or Non-Party that designates information or items for protection under 7 this Order must take care to limit any such designation to specific material that 8 qualifies under the appropriate standards. The Designating Party must designate for 9 protection only those parts of material, documents, items, or oral or written 10 communications that qualify so that other portions of the material, documents, 11 items, or communications for which protection is not warranted are not swept 12 unjustifiably within the ambit of this Order. 13 Mass, indiscriminate, or routinized designations are prohibited. Designations 14 that are shown to be clearly unjustified or that have been made for an improper 15 purpose (e.g., to unnecessarily encumber the case development process or to impose 16 unnecessary expenses and burdens on other parties) may expose the Designating 17 Party to sanctions. 18 If it comes to a Designating Party’s attention that information or items that it 19 designated for protection do not qualify for protection, that Designating Party must 20 promptly notify all other Parties that it is withdrawing the inapplicable designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in this 22 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 23 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 24 under this Order must be clearly so designated before the material is disclosed or 25 produced. 26 27 / / / 1 Designation in conformity with this Order requires: 2 (a) for information in documentary form (e.g., paper or electronic documents, 3 but excluding transcripts of depositions or other pretrial or trial proceedings), that 4 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 5 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 6 portion or portions of the material on a page qualifies for protection, the Producing 7 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 8 markings in the margins). 9 10 A Party or Non-Party that makes original documents available for inspection 11 need not designate them for protection until after the inspecting Party has indicated 12 which documents it would like copied and produced. During the inspection and 13 before the designation, all of the material made available for inspection shall be 14 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 15 documents it wants copied and produced, the Producing Party must determine which 16 documents, or portions thereof, qualify for protection under this Order. Then, before 17 producing the specified documents, the Producing Party must affix the 18 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 19 portion or portions of the material on a page qualifies for protection, the Producing 20 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 21 markings in the margins). 22 (b) for testimony given in depositions that the Designating Party identify 23 the Disclosure or Discovery Material on the record, before the close of the 24 deposition all protected testimony. 25 (c) for information produced in some form other than documentary and for 26 any other tangible items, that the Producing Party affix in a prominent place on the 27 exterior of the container or containers in which the information is stored the legend 1 protection, the Producing Party, to the extent practicable, shall identify the protected 2 portion(s). 3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 4 failure to designate qualified information or items does not, standing alone, waive 5 the Designating Party’s right to secure protection under this Order for such material. 6 Upon timely correction of a designation, the Receiving Party must make reasonable 7 efforts to assure that the material is treated in accordance with the provisions of this 8 Order. 9 10 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 11 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 12 designation of confidentiality at any time that is consistent with the Court’s 13 Scheduling Order. 14 6.2 Meet and Confer. The Challenging Party shall initiate the informal dispute 15 resolution process set forth in the Court’s Procedures and Schedules. See 16 http://www.cacd.uscourts.gov/honorable-alka-sagar. 17 6.3 The burden of persuasion in any such challenge proceeding shall be on the 18 Designating Party. Frivolous challenges, and those made for an improper purpose 19 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 20 expose the Challenging Party to sanctions. Unless the Designating Party has waived 21 or withdrawn the confidentiality designation, all parties shall continue to afford the 22 material in question the level of protection to which it is entitled under the 23 Producing Party’s designation until the Court rules on the challenge. 24 6.4 Withdrawal of Designation. 25 A Designating Party may withdraw the designation of information or items 26 for protection under this Order or remove the protected material from some or all of 27 the protections and provisions of this Stipulation and its associated Order by 1 Party shall be construed to have withdrawn a designation for protection under this 2 Order by either (1) making such protected material part of the public record— 3 including but not limited to attaching such material as exhibits to any filing with the 4 Court without moving, prior to such filing, for the Court to seal such records; or (2) 5 failing to timely oppose a Challenging Party’s motion to remove the designation to 6 specific protected material. 7 8 7. ACCESS TO AND USE OF PROTECTED MATERIAL 9 7.1 Basic Principles. A Receiving Party may use Protected Material that is 10 disclosed or produced by another Party or by a Non-Party in connection with this 11 Action only for prosecuting, defending, or attempting to settle this Action. Such 12 Protected Material may be disclosed only to the categories of persons and under the 13 conditions described in this Order. When the Action has been terminated, a 14 Receiving Party must comply with the provisions of section 13 below (FINAL 15 DISPOSITION). 16 Protected Material must be stored and maintained by a Receiving Party at a 17 location and in a secure manner that ensures that access is limited to the persons 18 authorized under this Order. 19 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 20 ordered by the court or permitted in writing by the Designating Party, a Receiving 21 Party may disclose any information or item designated “CONFIDENTIAL” only to: 22 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 23 employees of said Outside Counsel of Record to whom it is reasonably necessary to 24 disclose the information for this Action; 25 (b) the officers, directors, and employees (including House Counsel) of the 26 Receiving Party to whom disclosure is reasonably necessary for this Action; 27 1 (c) Experts (as defined in this Order) of the Receiving Party to whom 2 disclosure is reasonably necessary for this Action and who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (d) the court and its personnel; 5 (e) court reporters and their staff; 6 (f) professional jury or trial consultants, mock jurors, and Professional 7 Vendors to whom disclosure is reasonably necessary for this Action and who have 8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (g) the author or recipient of a document containing the information or a 10 custodian or other person who otherwise possessed or knew the information; 11 (h) during their depositions, witnesses, and attorneys for witnesses, in the 12 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 13 requests that the witness sign the form attached as Exhibit A hereto; and (2) they 14 will not be permitted to keep any confidential information unless they sign the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 16 agreed by the Designating Party or ordered by the court. Pages of transcribed 17 deposition testimony or exhibits to depositions that reveal Protected Material may 18 be separately bound by the court reporter and may not be disclosed to anyone except 19 as permitted under this Stipulated Protective Order; and 20 (i) any mediator or settlement officer, and their supporting personnel, 21 mutually agreed upon by any of the parties engaged in settlement discussions. 22 23 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 24 OTHER LITIGATION 25 If a Party is served with a subpoena or a court order issued in other litigation 26 that compels disclosure of any information or items designated in this Action as 27 “CONFIDENTIAL,” that Party must: 1 (a) promptly notify in writing the Designating Party. Such notification shall 2 include a copy of the subpoena or court order; 3 (b) promptly notify in writing the party who caused the subpoena or order to 4 issue in the other litigation that some or all of the material covered by the subpoena 5 or order is subject to this Protective Order. Such notification shall include a copy of 6 this Stipulated Protective Order; and 7 (c) cooperate with respect to all reasonable procedures sought to be pursued 8 by the Designating Party whose Protected Material may be affected. 9 If the Designating Party timely seeks a protective order, the Party served with the 10 subpoena or court order shall not produce any information designated in this action 11 as “CONFIDENTIAL” before a determination by the court from which the 12 subpoena or order issued, unless the Party has obtained the Designating Party’s 13 permission. 14 The Designating Party shall bear the burden and expense of seeking protection in 15 that court of its confidential material and nothing in these provisions should be 16 construed as authorizing or encouraging a Receiving Party in this Action to disobey 17 a lawful directive from another court. 18 19 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 20 PRODUCED IN THIS LITIGATION 21 (a) The terms of this Order are applicable to information produced by a Non- 22 Party in this Action and designated as “CONFIDENTIAL.” Such information 23 produced by Non-Parties in connection with this litigation is protected by the 24 remedies and relief provided by this Order. Nothing in these provisions should be 25 construed as prohibiting a Non-Party from seeking additional protections. 26 (b) In the event that a Party is required, by a valid discovery request, to 27 produce a Non-Party’s confidential information in its possession, and the Party is 1 subject to an agreement with the Non-Party not to produce the Non-Party’s 2 confidential information, then the Party shall: 3 (1) promptly notify in writing the Requesting Party and the Non-Party that 4 some or all of the information requested is subject to a confidentiality agreement 5 with a Non-Party; 6 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 7 Order in this Action, the relevant discovery request(s), and a reasonably specific 8 description of the information requested; and 9 (3) make the information requested available for inspection by the Non-Party, 10 if requested. 11 (c) If the Non-Party fails to seek a protective order from this court within 14 12 days of receiving the notice and accompanying information, the Receiving Party 13 may produce the Non-Party’s confidential information responsive to the discovery 14 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 15 not produce any information in its possession or control that is subject to the 16 confidentiality agreement with the Non-Party before a determination by the court. 17 Absent a court order to the contrary, the Non-Party shall bear the burden and 18 expense of seeking protection in this court of its Protected Material. 19 20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 21 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 22 Protected Material to any person or in any circumstance not authorized under this 23 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 24 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 25 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 26 persons to whom unauthorized disclosures were made of all the terms of this Order, 27 and (d) request such person or persons to execute the “Acknowledgment and 1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 2 PROTECTED MATERIAL 3 When a Producing Party gives notice to Receiving Parties that certain 4 inadvertently produced material is subject to a claim of privilege or other protection, 5 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 6 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 7 may be established in an e-discovery order that provides for production without 8 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar 9 as the parties reach an agreement on the effect of disclosure of a communication or 10 information covered by the attorney-client privilege or work product protection, the 11 parties may incorporate their agreement in the stipulated protective order submitted 12 to the court. 13 14 12. MISCELLANEOUS 15 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 16 person to seek its modification by the Court in the future. 17 12.2 Right to Assert Other Objections. By stipulating to the entry of this 18 Protective Order no Party waives any right it otherwise would have to object to 19 disclosing or producing any information or item on any ground not addressed in this 20 Stipulated Protective Order. Similarly, no Party waives any right to object on any 21 ground to use in evidence of any of the material covered by this Protective Order. 22 12.3 Filing Protected Material. A Party that seeks to file under seal any 23 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 24 only be filed under seal pursuant to a court order authorizing the sealing of the 25 specific Protected Material at issue. If a Party’s request to file Protected Material 26 under seal is denied by the court, then the Receiving Party may file the information 27 in the public record unless otherwise instructed by the court. 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 60 3 days of a written request by the Designating Party, each Receiving Party must return 4 all Protected Material to the Producing Party or destroy such material. As used in 5 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 6 summaries, and any other format reproducing or capturing any of the Protected 7 Material. Whether the Protected Material is returned or destroyed, the Receiving 8 Party must submit a written certification to the Producing Party (and, if not the same 9 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 10 (by category, where appropriate) all the Protected Material that was returned or 11 destroyed and (2) affirms that the Receiving Party has not retained any copies, 12 abstracts, compilations, summaries or any other format reproducing or capturing any 13 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 14 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 15 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 16 reports, attorney work product, and consultant and expert work product, even if such 17 materials contain Protected Material. Any such archival copies that contain or 18 constitute Protected Material remain subject to this Protective Order as set forth in 19 Section 4 (DURATION). 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 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 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 Dated: November 12, 2021 HADSELL STORMER RENICK & DAI LLP 7 8 By: /s/ Shaleen Shanbhag Shaleen Shanbhag 9 Attorneys for Plaintiff Benjamin Montemayor 10 Dated: November 15, 2021 COLE HUBER LLP 11 12 By: /s/ Daniel S. Roberts* 13 Daniel S. Roberts 14 Attorneys for Defendants City of Los Angeles, 15 Chief Michel Moore, Officer Anthony Lopez And Officer Robert R. Martinez 16 Dated: November 15, 2021 BURKE, WILLIAMS & SORENSEN, LLP 17 18 19 By: /s/ Susan E. Coleman Susan E. Coleman 20 Attorneys for Defendant OFFICER HENRY 21 FELIX * Pursuant to Local Rule 5-4.3.4(a)(2)(i), the filer of this Stipulation attests that all 22 other signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the filing. 23 24 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 25 DATED: __N_o_v_e_m__b_e_r _1_6_, _2_0_2_1_______ 26 ________/ _s _/_ S_a_g_a_r______________________ 27 Honorable Alka Sagar United States Magistrate Judge 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 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on [date] in the case of Benjamin Montemayor v. City of Los Angeles, et al., Case 9 No. 2:21-cv-03124-CBM (ASx). I agree to comply with and to be bound by all the 10 terms of this Stipulated Protective Order and I understand and acknowledge that 11 failure to so comply could expose me to sanctions and punishment in the nature of 12 contempt. I solemnly promise that I will not disclose in any manner any information 13 or item that is subject to this Stipulated Protective Order to any person or entity 14 except in strict compliance with the provisions 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 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint __________________________ [print or 19 type full name] of _______________________________________ [print or type 20 full address and telephone number] as my California agent for service of process in 21 connection with this action or any proceedings related to enforcement of this 22 Stipulated Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: ________________________________ 25 26 Printed name: _______________________________ 27