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Case 8:09-cv-01153-CJC-AN Document 34 Filed 06/25/10 Page 1 of 8 Page ID #:324

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION

Plaintiffs,

vs.

A.K.C., a minor by and through her
Guardian ad Litem Steve Kim, et al.,



CITY OF SANTA ANA; et al.,




Defendants.

SACV 09-01153 CJC (ANx)

DISCOVERY MATTER

STIPULATED PROTECTIVE
ORDER REGARDING
PRODUCTION OF RECORDS BY
ORANGE COUNTY DISTRICT
ATTORNEY PURSUANT TO
THIRD-PARTY SUBPOENA



PROTECTIVE ORDER

Having reviewed the Stipulation by and between Plaintiff, A.K.C., a minor,
by and through Steve Kim, et al., and third-party witness and custodian of records,
Orange County District Attorney’s Office (“OCDA”), and their attorneys of record,
and GOOD CAUSE APPEARING, the Court ORDERS the following:

OCDA shall produce all responsive records to the subpoena served by
Plaintiff dated March 5, 2010; provided all records produced, (“Responsive
records”) be subject to the following ORDER:
1. GOOD CAUSE: PURPOSE AND SCOPE

Plaintiff served a subpoena duces tecum for documents to the OCDA; in
response thereto, the OCDA is producing documents deemed privileged and/or
confidential, and specifically the confidential records are those produced in response

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to the subpoena duces tecum attached to the concurrently filed Stipulation for
Protective Order. The documents to be produced are those documents held by the
OCDA responsive to the following request: “Any and all documents and drafts of
documents, including but not limited to reports, photos, investigation files, summaries,
charts, graphs, diagrams, papers, memoranda, communications (including emails letters
and messages), audio recordings, video recordings and handwritten and voice-dictated
notes that refer tor relate to Susie Young Kim, her April 10, 2009, death and your
investigation thereof.”

OCDA objected to the production of the records on the basis that the

investigation was pending and the responsive records to the request were privileged
under both state and federal statutes including but not limited to the federal official
information privilege. The information sought involves an investigation into the
death of an individual and the subsequent investigation into the officers’ conduct
involved in the shooting. The records held by the District attorney include
confidential witness statements, investigator notes, records regarding the cause of
death and facts surrounding the death. Good cause exists to keep this information
private. First, the investigation contains information on the victim which should not
be released absent a protective order.

Releasing the records publically could have a impact on the individuals who

were investigated, specifically those who are sworn officers. While the DA
recognizes Plaintiff’s need for the records, there is an overriding need to protect the
privacy of the officers involved as well as any witnesses who provided information.
The records may contain the names of witnesses who came forward and provided
information during the investigation on the agreement that the information provided
would remain confidential.

All Documents produced by the OCDA, as well as information extracted

therefrom, shall be referred to as “Confidential Information,” and shall be subject to
this Protective Order.

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2.

DURATION
The confidentiality obligations imposed by this Protective Order shall remain
in effect even after the termination of this litigation, and shall not be lifted without
further order of this Court.

In the event that the case proceeds to trial, all of the Confidential Information

becomes public and will be presumptively available to all members of the public,
including the press, unless sufficient cause is shown in advance of trial to proceed
otherwise.
3.

DESIGNATED CONFIDENTIAL INFORMATION
3.1. Each party or non-party that designates Confidential Information for

protection under this Protective Order shall ensure that such designation
is not over-broad, and applies only to those materials, documents, items,
or communications (or portions thereof) for which such protection is
warranted.
Information may qualify as Confidential Information only if it has not
been made public.

3.2.

3.3. Confidential Information protected by this Protective Order must be

clearly designated prior to the disclosure or production of such
Confidential Information, and must bear the notation of “Confidential”
on each page that contains Confidential Information, provided that such
notation does not obscure or obliterate the document contents.

3.4. An inadvertent failure to designated Confidential Information does not

waive the producing party’s right to secure protection under this
Protective Order. If the producing party discovers after production of
the Confidential Information that the information is lacking the
appropriate designation, the producing party must timely notify the
receiving party, who shall make reasonable effort to ensure that the

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4.

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Confidential Information is treated in accordance with the provisions of
this Order.

TERMS AND CONDITIONS OF USE OF INFORMATION
4.0. The Responsive Records produced by OCDA pursuant to this

Stipulated Protective Order shall be used solely in connection with the
case of A.K.C., a minor by and through her Guardian ad Litem Steve
Kim, et al. v. City of Santa Ana, et al., Case No. SACV 09-01153 CJC
(ANx) including any associated appellate proceedings and collateral
review, and not for any other purpose;

4.1. Confidential Information must be stored and maintained by the

receiving party at a location and in a secure manner that ensures that
access is limited to the person authorized under this Protective Order.

4.2. Confidential information and information derived therefrom may not be
disclosed in any form to anyone not covered under this protective order.
If any other party to this civil litigation requests copies of the
Responsive Records produced by the OCDA, counsel for OCDA shall
first provide a copy of the Stipulated Protective Order to the requesting
party. The requesting party shall confirm in writing that both the party
and their attorney(s) of record shall be bound by the terms of the
Stipulated Protective Order prior to disclosure of the requested records.
The writing must also include consent by the party to whom disclosure
is going to be made, to be subject to the jurisdiction of this Court with
respect to any proceeding related to the enforcement of this Stipulated
Protective Order, including but not limited to a proceeding for
contempt;

4.3. Disclosure of Confidential Information designated “Confidential” shall
be limited to the personnel and/or classification of persons listed below:
4.3.1 Any Party to this action and that Party’s counsel;

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Case 8:09-cv-01153-CJC-AN Document 34 Filed 06/25/10 Page 5 of 8 Page ID #:328



4.3.2 staff and personnel employed by counsel for any party to this

action;

4.3.3 the Court and court personnel, in connection with this litigation;
4.3.4 during their depositions, witnesses who, from the face of the

document, appear to have previously authored or received it; and
4.3.5 experts or consultants retained/consulted to work on this case by
counsel for any party to this action (so long as each such expert
or consultant agrees, in writing, to be bound by the terms of this
Protective Order).

4.4. Confidential Information that a party intends to use in support of or in

opposition to a pre-trial filing with the Court must be filed in
accordance with the Central District of California Local Rules relating
to under seal filings, including Local Rule 79-5. Counsel intending to
use Confidential Information must both (a) submit unredacted
documents containing Confidential Information under seal and (b) file
public versions of the same documents with the Confidential
Information redacted.

4.5. Except as set forth in paragraph 4.5.1, counsel for any party to this

action shall advise those individuals to whom disclosure of Confidential
Information is to be made of the contents of this Protective Order, and
such counsel shall obtain the consent of such individual that he or she
will be bound by this Protective Order in writing, prior to disclosure of
Confidential Information. In the event such individual does not consent
to be bound by this Protective Order, no disclosure of Confidential
Information shall be made to that individual.

The foregoing provision shall not apply to the disclosure of Confidential

Information to the Court or the Court’s staff.

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5.

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4.6. Any counsel, expert, consultant or investigator retained by counsel for
any party to this case shall not refer to Confidential Information in any
other court proceeding without further order of this Court.

4.7. The parties shall made good faith efforts to consent to the use of

Confidential Information, and shall meet and confer to discuss
redactions of particularly sensitive information before making use
thereof.

4.8. Nothing in this Order shall be construed as authorizing a party to

disobey a lawful subpoena issued in another action.

5.2

CHALLENGES TO DESIGNATION OF CONFIDENTIAL INFOR-
MATION
5.1 Should a party challenge the confidentiality of information so designated,
that party must do so in good faith, and shall confer directly with counsel
for the producing party.
If the parties are unable to resolve the designation informally, the party
challenging the designation may file and serve a motion under Civil
Local Rules 37-1 and 37-2, including the Joint Stipulation requirement
(and in compliance with Civil Local Rule 79-5, if applicable), identifying
the basis for the challenge. The burden of persuasion in any such
challenge proceeding shall be on the party designating Confidential
Information. The designation of the challenged information shall remain
unchanged until the Court rules on the challenge.

5.3 The production of Responsive Records and Testimony by OCDA
pursuant to this Order shall not be deemed a waiver of the federal
investigation privilege by the OCDA for any future purpose;
If Plaintiffs, Plaintiffs’ counsel, or any other person, party or entity seeks
relief from this Order, an appropriate noticed motion shall be served in
advance on the Orange County District Attorney, through his attorney of

5.4

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6.

record, and all other parties;

UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFOR-
MATION
6.1

If a receiving party learns that it has disclosed Confidential Information
to any person or entity not authorized to receive such information
pursuant to this Protective Order, the receiving party shall immediately
(a) notify the producing party of the unauthorized disclosure, including
identification of the person or entity to whom such unauthorized
disclosure was made, (b) retrieve all copies of the Confidential
Information from the unauthorized recipient, (c) inform the unauthorized
recipient of the terms of this Protective Order and request that they
agree, in writing, to be bound hereto. Should the Court determine that
the receiving party intentionally disclosed Confidential Information to an
unauthorized party, the Court may consider the imposition of sanctions,
including but not limited to monetary sanctions and/or issue preclusion.
6.2 Under no circumstances shall the receiving party file in the public record

any Confidential Information, without written permission from the
producing party or an Order of this Court, and only upon timely written
notice to all interested parties. The parties shall made good faith efforts
to consent to the use of Confidential Information, and shall meet and
confer to discuss redactions of particularly sensitive information.

7

RIGHT TO ASSERT OBJECTIONS
7.1. By the entry of this Protective Order, the parties are not waiving any

rights that they might otherwise have to objecting to disclosure or
production of information on any ground not addressed herein. The
parties do not waive any right to object to the use in evidence of the
material covered by this Protective Order.

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This Order may not be modified unless by written consent of the parties and

approval of the Court.

IT IS SO ORDERED.


June 25, 2010



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