Gentry v. Manteca Police Dept.

1 Bradley J. Swingle, SBN 171535 File No. 10430 SWINGLE, VAN EGMOND & HEITLINGER A Professional Law Corporation 1207 I Street Post Office Box 3287 Modesto, California 95353 Telephone: (209) 522-2211 Facsimile: (209) 522-2980 Email: [email protected] Attorneys for Defendants MANTECA POLICE DEPARTMENT; DEVIN BROOKS; and RAUL HERNANDEZ UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA BRANDON GENTRY, Civil No.: 2:22-CV-00720-MCE-JDP Plaintiff, 13 STIPULATED PROTECTIVE ORDER vs. MANTECA POLICE DEPARTMENT, Manteca Police Officer D. BROOKS, Badge No. 3878; Manteca Police Officer HERNANDEZ; and DOES 1-50, 17 Defendants. _________________________________/ 19 The parties hereto stipulate to the following protective order: 20 1. PURPOSES AND LIMITATIONS 21 Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby stipulate to the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. The parties further acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates no entitlement to file confidential information under seal; California Rule of Court 243.1Local Rule 141 sets forth the procedures that must be followed and reflects the standards that will be applied when a party seeks permission from the court to file material under seal.

4 2. DEFINITIONS 5 2.1 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and respective counsel (and their support staff).

7 2.2 Disclosure or Discovery Material: all items or information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced by a party to this action or generated by a party to this action in disclosures or responses to discovery in this matter.

11 2.3 “Confidential” Information or Items: information (regardless of how generated, stored or maintained) or tangible things that concern the City of Manteca, may include but are not limited to, training material, instruction manuals, business operation plans, practice, policy and procedure guidelines, and other documentation, records and reports dealing with or relating to the City of Manteca’s corporate practices or internal affairs and training of its officers.

16 2.4 “Highly Confidential – Attorneys’ Eyes Only” Information or Items: extremely sensitive “Confidential Information or Items” whose disclosure to another Party or nonparty would create a substantial risk or serious injury that could not be avoided by less restrictive means. This includes, but is not limited to, personnel files of City of Manteca employees and medical or psychological records, examinations, testing, or related information of City of Manteca employees and Plaintiff.

22 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.

24 2.6 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action.

26 2.7 Designating Party: a Party or non-party that designates information or items that it produces in disclosures or in responses to discovery as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only.”

1 2.8 Protected Material: any Disclosure or Discovery Material that is designated as “Confidential” or as “Highly Confidential – Attorneys’ Eyes Only,” but shall not include those same materials or other materials that are lawfully obtained from a source other than a Party or this action.

4 A Party, however, may apply to the above-titled Court to designate as Protected Material any information or materials lawfully obtained from a source other than a Party to this action.

6 2.9 Expert: a person with specializing knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action and who is not a past or a current employee of a Party or of a competitor of a Party’s and who, at the time of retention, is not anticipated to become an employee of a Party ort a competitor of a Party. This definition includes a professional jury or trial consultant retained in connection with this litigation.

12 3. SCOPE 13 The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Material.

17 4. DURATION 18 Even after the termination of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs.

21 5. DESIGNATING PROTECTED MATERIAL 22 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or non-party that designates information for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. A Designating Party must take care to designate for protection only those parts of material, documents, items, or oral or written communications that qualify – so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order.

1 If it comes to a Party’s or a non-party’s attention that information or items that it designated for protection do not qualify for protection at all, or do not qualify for the level of protection initially asserted, that Party or non-party must promptly notify all other parties that it is withdrawing the mistaken designation.

5 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced.

9 Designation is conformity with this Order requires: 10 (a) for information in documentary form (apart from the transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” at the bottom of each page that contains protected material or, if the material is produced electronically, in a manner that alerts the Receiving Party that the material is being designated in such manner. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

19 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Party or non-party offering or sponsoring the testimony identify on the record, before the disclosure of the deposition, hearing, or other proceeding, all protected testimony, and further specify any portions of the testimony that qualify as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

24 When it is impractical to identify separately each portion of testimony that is entitled to protection, and when it appears that substantial portions of the testimony may qualify for protection, the Party or non-party that sponsors, offers, or gives the testimony may invoke on the record (before the deposition or proceeding is concluded) a right to have up to 10 days to identify the specific portions of the testimony as to which protection is sought and to specify the level of protection being asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

2 Only those portions of the testimony that are appropriately designated for protection within the 10 days shall be covered by the provisions of this Stipulated Protective Order.

4 Transcript pages containing Protected Material must be separately bound by the court reporter, who must affix to the bottom of each such party the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as instructed by the Party or non-party offering or sponsoring the witness or presenting the testimony. The Designating Party of any such material shall bear any additional court reporter fees or costs that are caused by the designation.

9 (c) for information produced in some form other than documentary, and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portions, specifying whether they qualify as “Confidential” or as “Highly Confidential, Attorneys’ Eyes Only.”

15 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating Party’s right to secure protection under this Order for such material. If material is appropriately designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” after the material was initially produced, the Receiving Party, on timely notification of the designation, must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order.

23 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 24 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party’s confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed.

1 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating Party’s confidentiality designation must do so in good faith and must begin the process by conferring directly (in voice-to-voice dialogue; other forms of communications are not sufficient) with counsel for the Designating Party. In conferring, the challenging Party must explain the basis for its belief that that confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first.

9 6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality designation after considering the justification offered by the Designating Party may file and serve a motion that identifies the challenged material and sets forth in detail the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms that the moving party has complied with the meet and confer requirements imposed in the preceding paragraph and that sets forth with specificity the justification for the confidentiality designation that was given by the Designating Party in the meet and confer dialogue.

16 The burden of persuasion in any such challenge proceeding shall be on the Designating Party.

17 Until the court rules on the challenge, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party’s designation.

19 7. ACCESS TO AND USE OF PROTECTED MATERIAL 20 7.1 When the litigation has been terminated, a Receiving Party must comply with the provisions of Section 11, below.

22 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order.

24 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated CONFIDENTIAL only to: 27 (a) the Receiving Party Outside Counsel of record in this action, as well as employees of Said Counsel to whom it is reasonably necessary to disclose the information for this litigation; 1 (b) the employees of the Receiving Party to whom disclosure is reasonably necessary for this litigation; 3 (c) experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the “Agreement to be Bound by Protective Order” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters, their staffs, and professional vendors to whom disclosure is reasonably necessary for this litigation; 9 (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. The party designating any material in the deposition “CONFIDENTIAL” shall bear any additional court reporter fees or costs that are caused by the designation.

15 (g) the author of the document or the original source of the information.

16 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Item. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 20 (a) the Receiving Party’s Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably necessary to disclose the information for this litigation; 22 (b) Experts (as defined in this Order) (1) to whom disclosure is reasonably necessary for this litigation, (2) who have signed the “Agreement to be Bound by Protective Order” (Exhibit A), 24 (c) the court and its personnel; 25 (d) court reporters, their staffs, and professional vendors to whom disclosure is reasonably necessary for this litigation; 27 (e) the author of the document or the original source of the information; and 1 (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. The party designating any material in the deposition “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall bear any additional court reporter fees or costs that are caused by the designation.

7 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION.

9 If a Receiving Party is served with a subpoena or an order issued in other litigation that would compel disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the Receiving Party must so notify the Designating Party, in writing (by facsimile, if possible) immediately and in no event more than three court days after receiving the subpoena or order. Such notification must include a copy of the subpoena or court order.

15 The Receiving Party also must immediately inform in writing the Party who caused the subpoena or order to issue in the other litigation that some or all the material covered by the subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that caused the subpoena or order to issue.

20 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party an opportunity to try to protect its confidentiality interests in the appropriate court. The Designating Party shall bear the burdens and the expenses of seeking protection in that court of its confidential material – and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court.

26 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 27 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to be Bound” that is attached hereto as Exhibit A.

6 10. FILING PROTECTED MATERIAL 7 Without written permission from the Designating Party, Protected Material shall be filed pursuant to California Rules of Court Rules 2.550 and 2.551 Local Rule 141.

9 11. FINAL DISPOSITION 10 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days after the final termination of this action, each Receiving Party must return all Protected Material to the Producing Party. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries or any other form of reproducing or capturing any of the Protected Material.

14 With permission in writing from the Designating Party, the Receiving Party may destroy some or all of the Protected Material instead of returning it. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the sixty day deadline that identifies (by category, whether appropriate) all the Protected Material that was returned or destroyed and that affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protected Order as set forth in Section 4, above.

25 12. MISCELLANEOUS 26 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future.

1 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addresses in this Stipulated Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order.

6 IT IS SO STIPULATED BY AND BETWEEN THE PARTIES THROUGH THEIR COUNSEL OF RECORD: Dated: April ____, 2023 SWINGLE, VAN EGMOND & HEITLINGER A Professional Law Corporation By 11 BRADLEY J. SWINGLE Attorneys for Defendants 12 MANTECA POLICE DEPARTMENT; DEVIN BROOKS; and RAUL HERNANDEZ Dated: April ____, 2023 BRYANT LAW GROUP, LLP

By Paul L. Alaga Kevin Mitchell Attorney for Plaintiff BRANDON GENTRY

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, __________________________, declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order agreed upon by the parties in the action styled Brandon Gentry v. Manteca Police Department, Manteca Police Officer D. Brooks, Badge No. 3878; Manteca Police Officer Hernandez; and Does 1-50, United States District Country for the Eastern District of California, Case No. 2:22-CV-00720-MCE-JDP.

8 I agree to comply with and to be bound by all the terms of this Stipulated Protective Order unless and until modified by any court Order. I understand and acknowledge that failure to so comply could expose me to sanctions and punishment I the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order.

13 I further agree to submit to the jurisdiction of the courts in and for the state of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action.

16 Date: ____________________ 18 City and State where sworn and signed: _____________________________ 20 Print Name: ________________________________ 22 Signature: _________________________________ 1 ORDER 2 The Court adopts this Stipulated Protective Order submitted by the parties. The parties are || advised that, pursuant to the Local Rules of the United States District Court, Eastern District of || California, any documents subject to this Stipulated Protective order to be filed under seal must be || accompanied by a written request which complies with Local Rule 141 prior to sealing. The party || making a request to file documents under seal shall be required to show good cause for documents || attached to a non-dispositive motion or compelling reasons for documents attached to a dispositive || motion. Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-78 (9th Cir. 2009). Within five (5) day || of any approved document filed under seal, the party shall file a redacted copy of the sealed || document. The redactions shall be narrowly tailored to protect only the information that is || confidential or was deemed confidential.

13 || IT IS SO ORDERED.

14 □ Dated: _ June 13, 2023 \ 15 JE .P 6 UNITED STATES MAGISTRATE JUDGE STIPULATED PROTECTIVE ORDER- 12