the City of Austin v. Donald Baker

ACCEPTED
03-16-00607-CV
12662619
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/13/2016 9:46:35 AM
JEFFREY D. KYLE
CLERK
No. 03-16-00607-CV

FILED IN
3rd COURT OF APPEALS
In the Third Court of Appeals AUSTIN, TEXAS
Austin, Texas 9/13/2016 9:46:35 AM
JEFFREY D. KYLE
Clerk

AARON BISHOP, ALBERT CORTEZ, JR., AURELIO MARTINEZ, TOMAS
MONTEZ, RICARDO PELAYO, RODERICK WESLEY, RONALD BOOKER,
ERIC DELOSSANTOS, JOVITA LOPEZ, NORRIS MCKENZIE, OSCAR
RAMIREZ, MONROE YARBROUGH, RICHARD BURNS, HENRY MORENO,
JESSE PRADO, ET AL.
Plaintiffs – Appellants

v.

THE CITY OF AUSTIN
Defendant - Appellee

Appeal from Cause No. D-1-GN-14-002459
345th Judicial District Court of Travis County, Texas

JOINT MOTION TO LIFT STAY FOR ENTRY OF
CONFIDENTIALITY ORDERS AND TO
PERMIT SUPPEMENTATION OF THE CLERK’S RECORD AS TO
CERTAIN PLEADINGS

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellant/Cross-Appellee 1, City of Austin; Appellee, Donald Baker; and
0F

Cross-Appellants, Bishop, Booker, Burns, Cortez, De los Santos, Lopez, Martinez,

1 The City of Austin is the appellee in a related appeal from the same underlying lawsuit,
Third Court of Appeals No. 03-16-00580-CV, which appeal was filed by all plaintiffs
with the exception of Donald Baker.
McKenzie, Montez, Moreno, Pelayo, Prado, Ramirez, Stanesic, Vanzura, Wesley

and Yarbrough (jointly referred to as “the Parties”), file this Motion to Lift Stay for

Entry of Confidentiality Orders and to Permit Supplementation of the Clerk’s

Record as follows:

I. PROCEDURAL BACKGROUND

A. Automatic Stay of Trial Court Proceedings

Pursuant to sections 51.014 and 101.001(3)(B), Texas Civil Practices &

Remedies Code, Plaintiffs’ Notice of Appeal in Third Court of Appeals No. 03-16-

00580-CV (filed August 30, 2016), which arises from the trial court’s orders

granting the City’s pleas to the jurisdiction in regard to seventeen of the eighteen

plaintiffs in the underlying lawsuit, initiated an automatic stay to all proceedings in

the trial court. See TEX.CIV.PRAC.&REM. CODE §§51.014(a)(8) and (b). This

appeal is an accelerated, interlocutory appeal. Id; TEX.R.APP.P. 28.1(a).

B. September 8th Notice of Appeal by the City related to Baker Order

On September 8, 2016, the City of Austin filed its Notice of Appeal in

regard to the August 22, 2016 “Order Denying City of Austin’s Plea to the

Jurisdiction & Motion for Summary Judgment as to Plaintiff, Donald Baker”,

which is the basis for this appeal.

II. PENDING CONFIDENTIALITY ORDERS IN THE TRIAL COURT

At the time Plaintiffs’/Appellants filed their Notice of Appeal in Third Court

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of Appeals No. 03-16-00607-CV, counsel for the Parties were in the process of

finalizing proposed orders for the state district court judge who presided over a

hearing on the Parties’ “Joint Motion for Temporary Sealing of Exhibits Pursuant

to Texas Rule of Civil procedure 76a”, 345th Judicial District Court Judge, Stephen

Yelenosky. The pending orders relate to confidential records and information

designated by one or more of the Parties or a witness as confidential, submitted to

the District Clerk under seal by the City of Austin, or filed by Plaintiffs with a

heading in red ink, “Contains Sensitive Data”, “Contains Sensitive Information”,

or similar heading to indicate confidentiality of Austin Police Department Internal

Affairs Division records, and which are confidential by state statute or other law.

Nine confidentiality orders were signed by Judge Yelenosky, between August 9,

2016 and August 22, 2016, and thus, prior to the Notice of Appeal. The parties

anticipate providing an estimated 12 additional proposed confidentiality orders to

Judge Yelenosky for signature in regard to Judge Yelenosky’s rulings. Attached as

Exhibit “1” to this Motion is a true and correct copy of the Parties’ Joint Motion

for Temporary Sealing of Exhibits and Exhibits “A”, “B”, and “C” to that motion.

Attached as Exhibit “2” to this Motion is a letter to Judge Yelenosky that contains

a list of confidential records at issue.

Following is a list of the exhibits to specified pleadings and portions of

pleadings that have been identified by the Parties as containing confidential

3
information pursuant to law, and in regard to which the Parties are seeking

additional trial court orders sealing the confidential records/information:

1. Exhibit “5” of Exhibit “A-Aff of City of Austin’s Plea to the

Jurisdiction & Motion for Traditional and No Evidence Summary Judgment Re:

Jesse Prado (9/30/15);

2. Paragraphs 19-20 (contained on pages 7-8) of Plaintiff Donald

Baker’s Response to Defendant City of Austin’s Plea to the Jurisdiction and

Motion for Traditional and No-Evidence Summary Judgment.

3. Affidavit of Donald Baker, which bears the denotation, “CONTAINS

SENSITIVE DATA” 2 1F

4. Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio

Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Response to

Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and

No-Evidence Summary Judgment (3/29/16)

5. Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio

2 Baker’s affidavit includes confidential information related to Internal Affairs investigations
about which he complains. His affidavit is attached to numerous responses and amended
responses to pleas to the jurisdiction (PTJ) and motions for summary judgment (MSJ).
which was submitted by Plaintiffs as an exhibit to numerous responses and amended responses to
pleas to the jurisdiction (PTJ)/motions for summary judgment(MSJ).:
(a) Exhibit “C” to Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea to
the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment;
(b) Exhibit “D” to Vanzura’s Response to the City’s PTJ/MSJ
(c) Exhibit “E” to Burns’ Amended Response (and response) to the City’s PTJ/MSJ
(d) Exhibit “E” to Prado’s Amended Response (and response) to the City’s PTJ/MSJ
(e) Exhibit “E” to Amended Response (and response) to the City’s PTJ/MSJ re Lt/Sgt/Lopez
4
Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Response to

Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and

No-Evidence Summary Judgment (3/29/16)

6. Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio

Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended

Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for

Traditional and No-Evidence Summary Judgment (4/11/16)

7. Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio

Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s Amended

Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for

Traditional and No-Evidence Summary Judgment (4/11/16)

8. Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez,

Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s

Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for

Traditional and No-Evidence Summary Judgment (3/29/16)

9. Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez,

Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s

Amended Response to Defendant City of Austin’s Plea to the Jurisdiction and

Motion for Traditional and No-Evidence Summary Judgment (4/11/16)

10. Exhibit “D” to Plaintiffs’ Response to Defendant City of Austin’s

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Late-Filed Exhibits AAA-EEE” (6/1/16), and designated as “*** Confidential

Portion ***” and “CONTAINS SENSITIVE DATA” (the second transcript, pp. 6 -

62), which was inadvertently submitted by Plaintiffs.

III. RELIEF REQUESTED

First, the Parties request that this Court enter an order lifting the automatic stay of

proceedings in the trial court for the limited purpose of finalizing trial court orders

related to the records listed as items 1 through 10 in the preceding subsection I(C)

of this Motion. See TEX.CIV.PRAC.&REM. CODE §§51.014(a)(8) and (b).

Secondly, the Parties request that the Court enter an order directing the

District Clerk to NOT include in the initial Clerk’s Record the following pleadings,

which contain, in part, information or records that are confidential by law.

1. City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No

Evidence Summary Judgment Re: Jesse Prado (9/30/15);

2. Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea to

the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment

(3/10/16);

3. Plaintiff Lester Vanzura’s Response to Defendant City of Austin’s Plea

to the Jurisdiction and Motion for Traditional No-Evidence Summary Judgment

(4/6/16);

4. Plaintiff Richard Burns’ Response to Defendant City of Austin’s Plea to

6
the Jurisdiction and Motion for Traditional No-Evidence Summary Judgment

Response to the City’s PTJ/MSJ (4/1/16);

5. Plaintiff Richard Burns’ Amended Response to Defendant City of

Austin’s Plea to the Jurisdiction and Motion for Traditional No-Evidence

Summary Judgment Response to the City’s PTJ/MSJ (4/11/16);

6. Plaintiff Jesse Prado’s Response to Defendant City of Austin’s Plea to

the Jurisdiction and Motion for Traditional No-Evidence Summary Judgment

(3/30/16);

7. Plaintiff Jesse Prado’s Amended Response to Defendant City of Austin’s

Plea to the Jurisdiction and Motion for Traditional No-Evidence Summary

Judgment the City’s PTJ/MSJ (4/11/16);

8. Plaintiffs Ronald Booker, Eric De los Santos, Jovita Lopez, Norris

McKenzie, Oscar Ramirez and Monroe Yarbrough, Jr.’s Response to Defendant

City of Austin’s Plea to the Jurisdiction and Motion for Traditional No-Evidence

Summary Judgment (3/23/16)

9. Plaintiffs Ronald Booker, Eric De los Santos, Jovita Lopez, Norris

McKenzie, Oscar Ramirez and Monroe Yarbrough, Jr.’s Amended Response to

Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional No-

Evidence Summary Judgment (4/11/16)

10. Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas

7
Montez, Ricardo Pelayo and Roderick Wesley’s Response to Defendant City of

Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence

Summary Judgment (3/29/16)

11. Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas

Montez, Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant

City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-

Evidence Summary Judgment (4/11/16)

12. Plaintiffs’ Response to Defendant City of Austin’s Late-Filed Exhibits

AAA-EEE (6/1/16).

Finally, the Parties request that the Court enter an Order directing the trial

court clerk to supplement the Clerk’s Record in this appeal within ten days of entry

of orders by the trial court that address the preceding issues of confidentiality

raised by the Parties in regard to the preceding listed pleadings (items 1-12 of pp.

6-8 of this Motion).

IV. ARGUMENT & AUTHORITIES

This Court has directed that “Documents originating at the trial court level

that have been sealed by order of the trial court should be sealed by the clerk of the

trial court before the documents are tendered to [the Third Court of Appeals]”.

Practice Before the Third Court of Appeals, item 32

http://www.txcourts.gov/3rdcoa/practice-before-the-court/#sealed-docs-orig-trial-

8
court. Additionally, this Court has directed that the trial court clerk segregate

sealed records from unsealed records and tender the records separately. Id.

The confidential information and records sought to be protected by the

Parties includes confidential Austin Police Department Internal Affairs Division

investigation records and decision making relevant to those records, which are

confidential under state law. TEX. LOCAL GOV'T CODE §§ 143.051-.055; OR 2011-

16265; OR2001-2888; Ex. “1”, Joint Motion for Temporary Sealing of Exhibits

pursuant to Texas Rule of Civil Procedure 76a at 7-9. Further, information

contained in the confidential transcript of the deposition of Robert Travis also

contains information protected by federal law, the Family Medical Leave Act. 29

U.S.C. 2601, et seq. 29 C.F.R. §825.500(g); Ex. “1” at 9-10. Additionally, Texas

Rules of Appellate Procedure 9.2(c )(3) and 9.9 (a), (b) and (d) provide procedures

for maintaining the confidential nature of sealed records and information that is

confidential by law.

In Chapter 143 of Texas Local Government Code, the Texas Legislature

authorized police and fire departments to maintain confidential records of police

officers and fire fighters (section 143.089(g)) and specified that the department’s

confidential file may not include records related to the following types of

disciplinary actions: removal, suspension, demotion, and uncompensated duty. See

TEX. LOCAL GOV'T CODE §§ 143.051-.055; OR 2011-16265; see OR2001-2888 at 2

9
and Atty Gen’l Op. JC-0257 at 1 (2000)(written reprimand is not disciplinary

action for purposes of chapter 143 of the Local Government Code; a written

reprimand must be placed in the confidential departmental file—not in the public

civil service file). Information reasonably relating to an officer's employment

relationship with a police or fire department and maintained in the department's

internal file pursuant to section 143.098(g) is confidential. City of San Antonio v.

San Antonio Express-News, No.04-99-00848-CV, 2000 WL 1918877 (Tex. App. --

San Antonio, Dec. 20, 2000, no pet. h.); OR 2001-2888 at 2.

Pursuant to the procedures of this Court, the above argument and authorities,

and and the argument and authorities set forth in the Joint Motion for Temporary

Sealing of Records, the Parties request that the automatic stay be lifted for the

limited purpose of allowing the trial court to finalize all orders related to the

sealing of confidential records in the custody of the Travis County District Clerk

prior to the Clerk’s Record being prepared in regard to the twelve pleadings listed

on pages 6-8 of this Motion.

V. PRAYER FOR RELIEF

For the reasons set forth above, the Parties: Appellants, City of Austin and

Appellee Baker in this appeal and Cross-Appellants in Third Court of Appeals No.

03-16-00580, respectfully request that this Court grant their Joint Motion for Entry

of Clerk to Lift Stay for Entry of Confidentiality Orders and to Permit

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Supplementation of the Clerk’s Record as to Certain Pleadings. The Parties request

that the automatic stay be lifted so that the trial court may finalize all orders related

to the sealing of confidential records in the custody of the Travis County District

Clerk prior to the Clerk’s Record being prepared in regard to the twelve pleadings

listed on pages 6-8 of this Motion.

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RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF LITIGATION

BY: /S/ Lynn E. Carter
Michael Siegel
State Bar No. 24093148
Michael.siegel@austintexas.gov
Lynn E.Carter
Assistant City Attorney
State Bar No. 03925990
Lynn.carter@austintexas.gov
City of Austin-Law Department
P. O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-1342
Facsimile: (512) 974-1311
COUNSEL FOR APPELLEE/CROSS-
APPELLANTS

By: /s/ Mark Crampton (by permission)
Mark W. Crampton
State Bar No. 00789786
CRAMPTON LAW OFFICE
3355 BEE CAVES ROAD, SUITE 301-B
Austin, Texas 78746
(512) 892-9300
(512) 891-0262 (fax)
mark@cloatx.com
COUNSEL FOR APPELLANTS/
PLAINTIFFS AND CROSS-
APPELLEE/PLAINTIFF BAKER

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 CERTIFICATE OF CONFERENCE
Pursuant to TEX. R. APP. PROC. 10.5, I certify that counsel for all Parties in the
lawsuit made the basis of this appeal are in agreement with and join in this
motion as indicated by the above signatures.

/s/ Lynn E. Carter
Lynn E. Carter
Assistant City Attorney
Counsel for Defendant – Appellee

CERTIFICATE OF SERVICE

I hereby certify that I served a copy of this notice on counsel of record
electronically, in accordance with the Court’s rules on electronic filing, on
September 12, 2016, as listed below:

Via E-Service to:
Mark W. Crampton
Crampton Law Office
3355 Bee Caves Road, Suite 301-B
Austin, Texas 78746
COUNSEL FOR PLAINTIFFS - APPELLANTS

I further certify that a Copy of this motion is being provided to the Travis
County District Clerk on the date of electronic filing of this Motion

/s/ Lynn E. Carter
Lynn E. Carter
Assistant City Attorney
Counsel for Defendant – Appellee

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 EXHIBIT 1

JOINT MOTION TO LIFT STAY FOR ENTRY OF
CONFIDENTIALITY ORDERS AND TO
PERMIT SUPPEMENTATION OF THE CLERK’S RECORD AS TO CERTAIN PLEADINGS
 6/16/2016 11:35:21 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-14-002459 D-1-GN-14-002459
Jonathan Sanders

AARON BISHOP, RONALD J. § IN THE DISTRICT COURT OF
BOOKER, RICHARD BURNS, §
ALBERT CORTEZ, JR., §
ERIC DE LOS SANTOS, JOVITA §
LOPEZ, AURELIO MARTINEZ, §
NORRIS McKENZIE, TOMAS §
MONTEZ, HENRY D. MORENO, §
RICARDO PELAYO, JESSE PRADO, §
OSCAR RAMIREZ, RICARDO §
REZA, JAMES STANESIC, § TRAVIS COUNTY, TEXAS
LESTER VANZURA, §
RODERICK WESLEY, and §
MONROE YARBROUGH, JR., §
Plaintiffs, §
§
V. §
§
CITY OF AUSTIN, §
Defendant. § 353RD JUDICIAL DISTRICT

JOINT MOTION FOR TEMPORARY SEALING OF EXHIBITS
PURSUANT TO TEXAS RULE OF CIVIL PROCEDURE 76a

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiffs and Defendant, City of Austin, also referred to as “the Parties”, request that the

Court grant their Joint Motion for Temporary Sealing of Exhibits pursuant to Texas Rule of Civil

Procedure 76a. Prior to filing of this joint motion, Plaintiffs’ counsel reviewed and concurred

with sections I, II, III and IV(a) and with the general position that information made confidential

by the Family Medical Leave Act is confidential by law and that dates of birth are protected by

individual rights of privacy. The remainder of the joint motion (sections IV(B)(C), and (D)) is

the product of the City of Austin, unless and until Plaintiffs subsequently indicate their

agreement with these specific sections of the motion.
 I. SUMMARY OF ARGUMENT

It is the Parties’ position that the following information is “Confidential” by federal or

state law: dates of birth (protected by individual rights of privacy under federal and state law);

information protected by the Family Medical Leave Act (federal law); and records contained in

the Austin Police Department Internal Affairs investigation files (Texas Local Government Code

section 143.089(g) and 143.051-.055). The City further asserts that the above records under Rule

76a(2)(a) constitute “documents in court files to which access is otherwise restricted by law”,

and therefore, the Court should enter an order (1) temporarily sealing the records listed in section

III below; (2) permitting the parties to redact all dates of birth from any exhibits attached to

pleadings, motions, responses, or replies that contain dates of birth of any Austin Police

Department employee or former employee; and (3) permitting the parties to seal, or otherwise

withdraw or redact, any deposition testimony of Robert “Bob” Travis designated as

“Confidential” and filed under seal or, otherwise, filed with or without notation of

confidentiality.

II. LIST OF EXHIBITS

The parties incorporate by reference the following:

A. Amended Joint Motion for Agreed Protective Order (12/2/14);

B. Select Rule 11 Agreements; and

C. Plaintiffs’ List of Exhibits that reference Exhibits “4” and “5” of Dr. Pearson’s
expert reports (dates of birth) and confidential portions of Robert “Bob” Travis’
deposition1.

In addition to the above-described exhibits, the Parties rely on the pleadings and all other
1
Counsel for the City does not have a clear understanding as to what has been substituted in regard to
Bob Travis’ deposition testimony, Ex. “D” of Plaintiffs’ Response to…Exhibits AAA-EEE, p. 3 of Exhibit
“3” to this motion.

2
relevant Rule 11 Agreements on file in this cause.

III. LIST OF RECORDS AT ISSUE

A. Records of the City of Austin filed under Seal

COA’s PTJs/MSJs Exhibits Filed Under Seal

1. Baker

Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for
Traditional and No-Evidence Summary Judgment Re: Donald Baker (9/30/15)

Exhibit “CC” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No-
Evidence Summary Judgment Re: Donald Baker (9/30/15)

Exhibits 1-4 of Exhibit “D” of City of Austin’s Plea to the Jurisdiction & Motion for Traditional
and No-Evidence Summary Judgment Re: Donald Baker (9/30/15)

2. HTU
Statement of Facts to City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment
Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for Summary
Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo
Pelayo and Roderick Wesley (9/30/15)

Exhibit “D” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “E” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “G” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “H” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

3
Exhibit “J” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “K” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “L” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “N” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “P” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “Q” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “S” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Exhibit “V” of City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

Attachments to Exhibit “XX” of City of Austin’s Plea to the Jurisdiction & Motion for Summary
Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo
Pelayo and Roderick Wesley (9/30/15)

3. Lieutenants, Sergeants & Lopez

Exhibit “AA” of City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence Motion
for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita Lopez, Norris
McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)

4
Exhibit “A-Aff-S” of City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence
Motion for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita Lopez,
Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)

Exhibits 7 and 8 to Exhibit “O” of City of Austin’s Plea to the Jurisdiction & Traditional and
No-Evidence Motion for Summary Judgment Regarding Ronald Booker, Eric De Los Santos,
Jovita Lopez, Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)

4. Burns, Moreno, Prado, Stanesic, & Vanzura

Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for
Traditional and No Evidence Summary Judgment Re: Richard Burns (9/30/15)

Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for
Traditional and No Evidence Summary Judgment Re: Henry Moreno (9/30/15)

Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for
Traditional and No Evidence Summary Judgment Re: Jesse Prado (9/30/15)

Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for
Traditional and No Evidence Summary Judgment Re: James Stanesic (9/30/15)

Exhibit 5 of Exhibit “A-Aff” of City of Austin’s Plea to the Jurisdiction & Motion for
Traditional and No Evidence Summary Judgment Re: Lester Vanzura (9/30/15)

5. COA Post-Hearing Reply (filed June 10, 2016)

Exhibit “D” of Defendant, City of Austin’s, Reply to Plaintiffs’ Post Hearing Submission of June
1, 2016 (6/10/16)

B. Records filed by Plaintiffs—generally with the notation of “CONTAINS
SENSITIVE DATA” or “CONTAINS SENSITIVE INFORMATION” or
“Confidential”

1. Internal Affairs Division Files and Statements Quoted from the IA Files

Paragraphs 19-20 of Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea to the
Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment.

Exhibit “C”, Affidavit of Donald Baker, which bears the denotation, “CONTAINS SENSITIVE
DATA”

5
Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez,
Ricardo Pelayo and Roderick Wesley’s Response to Defendant City of Austin’s Plea to the
Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (3/29/16)

Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez,
Ricardo Pelayo and Roderick Wesley’s Response to Defendant City of Austin’s Plea to the
Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (3/29/16)

Exhibit “V” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez,
Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant City of Austin’s Plea to
the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (4/11/16)

Exhibit “W” of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez,
Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant City of Austin’s Plea to
the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (4/11/16)

Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas
Montez, Ricardo Pelayo and Roderick Wesley’s Response to Defendant City of Austin’s Plea to
the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (3/29/16)

Paragraphs 32-40, 43-45 of Plaintiffs Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas
Montez, Ricardo Pelayo and Roderick Wesley’s Amended Response to Defendant City of
Austin’s Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary
Judgment (4/11/16)

C. Records containing Dates of Birth or Information Protected by FMLA

On the date of filing of this motion, Plaintiffs had taken steps to substitute records with

the Travis County District Attorneys’ Office to redact dates of birth from Exhibits “4” and “5”

of Plaintiffs’ expert, Dr. Pearson’s reports (the original report, amended report and second

amended report) filed by Plaintiffs as “ (Bishop COA 005563-5567)(also bears denotation of

Exhibit “C” and “CONTAINS SENSITIVE DATA”). See Exhibit “3” to this motion, pp. 1-3.

Additionally, Plaintiffs had taken steps to address the filing of the Deposition Transcript

designated as “Confidential” of Robert “Bob” Travis’ Deposition filed as:

a. Exhibit “D” to Plaintiffs’ Response to Defendant City of Austin’s Late-Filed
6
Exhibits AAA-EEE” (6/1/16), and designated as “*** Confidential Portion ***” and
“CONTAINS SENSITIVE DATA” (the second transcript, pp. 6 -62).

b. Exhibit “D” of Defendant, City of Austin’s Reply to Plaintiffs’ Post-Hearing
Submission of June 1, 2016 (6/10/16), which submitted for filing under seal by the City.

IV. ARGUMENTS AND AUTHORITIES

A. Internal Affairs Investigation Files of the Austin Police Department

In Chapter 143 of Texas Local Government Code, the Texas Legislature authorized

police and fire departments to maintain confidential records of police officers and fire fighters

(section 143.089(g)) and specified that the department’s confidential file may not include records

related to the following types of disciplinary actions: removal, suspension, demotion, and

uncompensated duty. See TEX. LOCAL GOV'T CODE §§ 143.051-.055; OR 2011-16265; see

OR2001-2888 at 2 and Atty Gen’l Op. JC-0257 at 1 (2000)(written reprimand is not disciplinary

action for purposes of chapter 143 of the Local Government Code; a written reprimand must be

placed in the confidential departmental file—not in the public civil service file). Information

reasonably relating to an officer's employment relationship with a police or fire department and

maintained in the department's internal file pursuant to section 143.098(g) is confidential. City of

San Antonio v. San Antonio Express-News, No.04-99-00848-CV, 2000 WL 1918877 (Tex. App.

-- San Antonio, Dec. 20, 2000, no pet. h.); OR 2001-2888 at 2.

Additionally, APD’s Internal Affairs Division files are protected—not only under Texas

Local Government Code §143.089 under Texas law—but also by the terms of the Collective

Bargaining Agreement between the City of Austin and the Austin Police Association. See Ex. N,

p. 53 (COA 14237)(2008-2013 contract); p. 46 (2013-2017 contract)(“Information concerning

the administrative review of complaints against officers, including but not limited to Internal

Affairs Division files and all contents thereof, are intended solely for the Department’s use

7
pursuant to Section 143.089(g) of the Texas Local Government Code (the 143.089(g) file.”)

Section 143.089(g) of the Texas Local Gov’t Code authorizes, police departments to

maintain for the police department’s use “a separate and independent personnel file on a police

officer.” TEX. LOCAL GOV'T CODE § 143.089(g); see Ex. “N” to Defendant’s Second Amended

Response to Plaintiffs’ Second Amended Motion to Compel…. (1/22/15). Subsection (g) also

regulates the keeping of these files, providing that “the department may not release any

information contained in the department file to any agency or person requesting information

relating to a police officer”. Abbott v. City of Corpus Christi, 109 S.W.3d 113, 116 (Tex. App.—

Austin 2003, no pet.); see Ealoms v. State, 983 S.W.2d 853, 858 (Tex. App.–Waco 1998, writ

ref’d)(Statutorily, files maintained under section 143.089(g) are not subject to disclosure.); City

of San Antonio v. Texas Atty. Gen., 851 S.W.2d 946, 948 (Tex.App.—Austin 1993, writ

denied)(Under the legislative policy of section 143.089, “allegations of misconduct made against

a police officer shall not be subject to compelled disclosure under the Act unless they have been

substantiated and resulted in disciplinary action.”)

The Meet and Confer Agreements also expressly state that information provided or made

available for review “remains confidential in the hands of the Officer and his/her representative

pursuant to 143.089(g), APD police, and orders of noncommunication about internal

investigations.” Ex. N to Defendant’s Second Amended Response to Plaintiffs’ Second Amended

Motion to Compel…. (1/22/15) at pp. 53-57 (COA 14240-42); see pp. 50-51 (COA 14234-35);

pp. 52, 60 of the 2013-2017 agreement. Also, as explained by the certified copy of the letter of

Diane Webb, there is no waiver of this privilege by the City’s producing Internal Affairs

investigation files to the Equal Employment Opportunity Commission (EEOC). Ex. “J” to

Defendant’s Second Amended Response to Plaintiffs’ Second Amended Motion to Compel….

8
(1/22/15).

Because section 143.089(g) files including Internal Affairs Division files are maintained

for the purposes of the department rather than the employee, the employee does not possess the

right to waive section 143.089(g)’s confidentiality provisions. Pursuant to Texas Local

Government Code section 143.089(g) and sections 6 and 8 of the Meet and Confer Agreements 2

that apply to plaintiffs (and the preceding authorities), all internal affairs investigation files

produced to Plaintiffs and marked as “Confidential” in this lawsuit are confidential under Texas

law. Based on the terms of the Agreed Protective Order in this case, the City marked as

“confidential” or for “attorneys eyes only” and produced all relevant Internal Affairs Division

(IA) records to Plaintiffs with the exception of the file withheld at the request of the Travis

County District Attorney’s Office subject to the ongoing criminal investigation privilege. See

Order related to Plaintiffs’ Second Amended Motion to Compel (3/12/15), ¶10. Plaintiffs’ filing

of information from APD’s Internal Affairs investigation files and marking those filings as

“CONTAINS SENSITIVE INFORMATION” or “CONTAINS SENSITIVE DATA” does not

operate as a waiver of the “Confidentiality” designation in regard to Plaintiffs’ filings.

B. FMLA Information and Privacy Interests in Dates of Birth

The Family Medical Leave Act (FMLA) and federal regulations of the U.S. Department

of Labor established pursuant to the FMLA contain confidentiality requirements. 29 U.S.C.

2601, et seq. 29 C.F.R. § 825.500(g). Detective Bob Travis testified that he wanted to retain the

confidentiality of the facts relevant to leave taken by him under the FMLA and in regard to the

2
The terms of the Meet and Confer Agreement are preemptive of the section 143.089(g) to the extent
there is any conflict. TEX. LOCAL GOV'T CODE § 142.067; Ex. N at 55 (COA 14239)(2008-13); p. 59
(2013-2017).

9
private health information of his family members. Confidential transcript of deposition of Bob

Travis at 45-46, 49. (During the hearing on this motion, the cited pages of the confidential

transcript of Travis’ deposition will be submitted to the Court for in camera review or for filing

under seal—as the Court deems appropriate.) Accordingly, based on non-party, Robert “Bob”

Travis’ privacy interests and the FMLA, the Parties request that the Court enter an order that

protects the confidentiality of the deposition testimony of Mr. Travis that has been designated as

confidential and submitted by either party as part of their summary judgment/plea to the

jurisdiction evidence or evidence submitted in response to same.

The Texas Supreme Court has recognized public employees’ privacy interests in

maintaining the confidentiality of their dates of birth, and has held that disclosing birth dates

under the Texas Public Information Act would constitute a clearly unwarranted invasion of

personal privacy. Texas Comptroller of Pub. Accounts v. Attorney Gen. of Texas, 354 S.W.3d

336, 347-48 (Tex. 2010). Likewise, the U.S. Supreme Court has held that “[i]nformation such as

place of birth, date of birth, date of marriage, employment history, and comparable data…if

contained in a ‘personnel’ or ‘medical’ file” is exempt from any disclosure under the Freedom of

Information Act “as such disclosure would constitute a clearly unwarranted invasion of personal

privacy.” U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 600, 102 S.Ct. 1957, 72 L.Ed.2d

358 (1982). In the Texas Supreme Court decision cited above, the threat of identity theft

connected to disclosure of birth dates was discussed at length. Texas Comptroller of Pub.

Accounts, 354 S.W.3d at 343-348. Accordingly, the parties have substituted exhibits to their

pleadings with redacted dates of birth to protect the privacy interests of Austin Police

Department employees—some of whom are plaintiffs and the majority of whom are non-parties.

The Parties request that the Court enter an order approving the Parties substitution of exhibits

10
with redacted dates of birth.

C. Specific, Serious and Substantial Interest

Because the Parties intended for the records at issue to be confidential and because the

records at issue are confidential under federal and state law, the Parties have shown that a

specific, serious and substantial interests that clearly outweigh any presumption of openness

involved in any unintended disclosure of the records to the public. Further a review of the

records themselves shows that sealing the records would have no effect upon the general public

health or safety. Where records sought to be sealed were originally intended to be confidential

and that the underlying matter may not have been finally resolved, the party seeking to seal the

record established a “specific, serious and substantial interest” in having the records sealed. In

re Browning-Ferris Indus., Inc., 267 S.W.3d 508, 513 (Tex. App. 2008)

D. CONFLICT BETWEEN SUBSTANTIVE RULES OF CONFIDENTIALITY AND
RULE 176A

It is the City’s position that to the extent Rule 76a requires a showing of immediate or

irreparable injury prior to temporarily sealing records that are confidential by federal or state

law, that Rule 76a conflicts with section 22.004(a) of the Texas Government Code, which

provides: “The supreme court has the full rulemaking power in the practice and procedure in

civil actions, except that its rules may not abridge, enlarge, or modify the substantive rights of a

litigation.” As shown by the Parties’ agreements and stipulations in their joint motion for

protective order, their Rule 11 Agreements in this cause, and the content of the actual records

filed under seal, as well as the content of the records filed with notations indicating the records

are confidential in nature, there was no intent by the City to waive any confidentiality of the

records at issue; nor is there evidence of any other act of waiver (by intent or inadvertence) by a

11
party with the authority to waive the confidentiality of any records at issue. Because Texas and

federal substantive law provide for the confidentiality of the records at issue, any further required

showing of immediate or irreparable harm provides a temporary substantive right to the public

that conflicts with the substantive rights of individuals to their privacy interests and to the City’s

interests in maintaining the confidentiality of Internal Affairs investigative files. Accordingly,

Rule 76a is in conflict with section 22.004 of the Texas Government Code, as well as federal and

state substantive law, because requiring such additional proof would abridge, limit, or modify the

substantive rights of litigants, as well as non-parties to the litigation. Further, it is the City’s

position that no party should be able to waive the privacy or the confidentiality interests of

another party or a non-party by filing records designated as confidential in a manner that does

not comply with the terms of an Agreed Protective Order, or in a manner that fails to protect the

confidentiality of the records. “[W]hen a rule of procedure conflicts with a statute, the statute

prevails unless the rule has been passed subsequent to the statute and repeals the statute as

provided by Texas Government Code section 22.004.” Johnstone v. State, 22 S.W.3d 408, 409

(Tex. 2000); Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex.1971); see Kirkpatrick

v. Hurst, 484 S.W.2d 587, 589 (Tex.1972)(Rule 4 may not be given effect to conflict with

substantive statutes of limitations.)

WHEREFORE, PREMISES CONSIDERED, the Parties request that the Court enter

an order temporarily sealing the records identified in section III of this motion, and that the Court

further enter an order in compliance with Rule 76a to ensure the sealing of the identified records

permanently, and if appropriate, that the Court’s order include the additional requirements of

Rule 76a for setting a hearing on the parties’ motion to permanently seal court records. The

Parties further request any and all other relief that the Court deems they are entitled.

12
RESPECTFULLY SUBMITTED,

/s/ Lynn E. Carter
Lynn E. Carter, Assistant City Attorney
Attorney in Charge
State Bar No. 03925990
lynn.carter@austintexas.gov
H. Gray Laird, Assistant City Attorney
State Bar No. 24087054
gray.laird@austintexas.gov
Megan T. Mosby, Assistant City Attorney
State Bar No. 24073392
megan.mosby@austintexas.gov
Michael Siegel, Assistant City Attorney
State Bar No. 24093148
michael.siegel@austintexas.gov
City of Austin Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2171
Facsimile: (512) 974-1311
ATTORNEYS FOR DEFENDANT

_/s/Mark Crampton_(signed with permission)_
Mark Crampton
Crampton Law Office
3355 Bee Caves Road, Suite 301-B
Austin, Texas 78746
Telephone: (512) 892-9300
Facsimile: (512) 891-0262
mark@cloatx.com
mike@cloatx.com

13
 Jerry Galow
Justin Studdard
Galow & Studdard, P.C.
2203 Onion Creek Parkway, Unit 10
Austin, Texas 78747
Telephone: (512) 481-0200
Facsimile: (512) 481-0250
jerry@galowlaw.com
justin@galowlaw.com
jolynn@galowlaw.com
ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of June, 2016, I electronically filed the above

pleading with the Clerk of the Court and that I served Plaintiffs as follows:

Via E-Service:

Mark Crampton Jerry Galow
Crampton Law Office Justin Studdard
3355 Bee Caves Road, Suite 301-B Galow & Studdard, P.C.
Austin, Texas 78746 2203 Onion Creek Parkway, Unit 10
Telephone: (512) 892-9300 Austin, Texas 78747
Facsimile: (512) 891-0262 Telephone: (512) 481-0200
mark@cloatx.com Facsimile: (512) 481-0250
mike@cloatx.com jerry@galowlaw.com
justin@galowlaw.com
ATTORNEYS FOR PLAINTIFFS jolynn@galowlaw.com

/s/ Lynn E. Carter
Lynn E. Carter

14
 EXHIBIT A
JOINT MOTION FOR TEMPORARY SEALING OF EXHIBITS
PURSUANT TO TEXAS RULES OF CIVIL PROCEDURE 76a
 12/2/2014 9:24:18 AM
Amalia Rodriguez-Mendoza
District Clerk
Travis County
CAUSE NO. D-1-GN-14-002459 D-1-GN-14-002459

AARON BISHOP, RONALD J. § IN THE DISTRICT COURT OF
BOOKER, RICHARD BURNS, §
ALBERT CORTEZ, JR., §
ERIC DE LOS SANTOS, JOVITA §
LOPEZ, AURELIO MARTINEZ, §
NORRIS McKENZIE, TOMAS §
MONTEZ, HENRY D. MORENO, §
RICARDO PELAYO, JESSE PRADO, §
OSCAR RAMIREZ, RICARDO §
REZA, JAMES STANESIC, § TRAVIS COUNTY, TEXAS
LESTER VANZURA, §
RODERICK WESLEY, and §
MONROE YARBROUGH, JR., §
Plaintiffs, §
§
V. §
§
CITY OF AUSTIN, §
Defendant. § 353RD JUDICIAL DISTRICT

AMENDED JOINT MOTION FOR AGREED PROTECTIVE ORDER

Pursuant to Texas Rule of Civil Procedure 176.6(e), Plaintiffs and Defendant (“the

Parties”) file this amended joint motion to request that the Court enter an Agreed Protective

Order, which addresses in part the issues for which a protective order may be appropriate in this

lawsuit.

The parties acknowledge that they have not been able to reach agreement on all issues in

dispute in regard to the terms of a protective order. However, the attached includes the

agreement reached between the parties to date, as well as substituted language in paragraph 12

and 13 of the proposed order pursuant to the Court’s “Preferred Rule 76a Language to Modify

Western District Protective Order”.
 PRAYER

PREMISES CONSIDERED, the Parties request that the Court enter into the record the

“Agreed Protective Order” attached as Exhibit A to this motion.

RESPECTFULLY SUBMITTED,

/s/ Lynn E. Carter
LYNN E. CARTER
Assistant City Attorney
Attorney in Charge
State Bar No. 03925990
City of Austin Law Department
P. O. Box 1546
Austin, Texas 78767-1546
(512) 974-2171 (Telephone)
(512) 974-1311 (Facsimile)
lynn.carter@austintexas.gov
ATTORNEYS FOR DEFENDANT

_____________________________________
MARK CRAMPTON
Crampton Law Office
1601 Rio Grande Street, Suite 348
Austin, Texas 78701
512-892-9300 phone
512-891-0262 fax
mark@cramptonassociates.com

WALTER L. TAYLOR
Taylor Law Firm
1601 Rio Grande Street, Suite 348
Austin, TX 78701
512-474-6600
512-474-6700 fax
taylorlawfirmatx@gmail.com

ATTORNEYS FOR PLAINTIFFS

JOINT MOTION FOR AGREED PROTECTIVE ORDER Page 2 of 3
 CERTIFICATE OF SERVICE

I hereby certify that on December 2, 2014, I served the above pleading on Plaintiffs, by
and through their attorneys of record, in compliance with the Texas Rules of Civil Procedure.

Via E-filing and Facsimile to:
Mark Crampton Walter L. Taylor
Crampton Law Office Taylor Law Firm
1601 Rio Grande Street, Suite 348 1601 Rio Grande Street, Suite 348
Austin, Texas 78701 Austin, TX 78701
512-892-9300 phone 512-474-6600
512-891-0262 fax 512-474-6700 fax
mark@cramptonassociates.com taylorlawfirmatx@gmail.com

ATTORNEYS FOR PLAINTIFFS

/s/ Lynn E. Carter
LYNN E. CARTER

JOINT MOTION FOR AGREED PROTECTIVE ORDER Page 3 of 3
 CAUSE NO. D-1-GN-14-002459

AARON BISHOP, RONALD J. § IN THE DISTRICT COURT OF
BOOKER, RICHARD BURNS, §
ALBERT CORTEZ, JR., §
ERIC DE LOS SANTOS, JOVITA §
LOPEZ, AURELIO MARTINEZ, §
NORRIS McKENZIE, TOMAS §
MONTEZ, HENRY D. MORENO, §
RICARDO PELAYO, JESSE PRADO, §
OSCAR RAMIREZ, RICARDO §
REZA, JAMES STANESIC, § TRAVIS COUNTY, TEXAS
LESTER VANZURA, §
RODERICK WESLEY, and §
MONROE YARBROUGH, JR., §
Plaintiffs, §
§
V. §
§
CITY OF AUSTIN, §
Defendant. § 353RD JUDICIAL DISTRICT

AGREED PROTECTIVE ORDER

On the ______ day of ____________, the Court considered the Parties Joint Motion for

Agreed Protective Order created pursuant to Texas Rule of Civil Procedure 176.6(e). The Parties

have acknowledged that this Order does not resolve all issues in dispute between the parties in

regard confidential information or claims of privilege. However, the Court finds that the

following will assist the Parties in proceeding with discovery in the lawsuit.

It is hereby ORDERED that:

1. All Classified Information produced or exchanged in the course of this litigation

shall be used solely for the purpose of preparation and trial of this litigation or similar litigation

involving third parties who were former detectives in the Human Trafficking/Vice Unit of the

Organized Crime Division, and for no other purpose whatsoever, and shall not be disclosed to

any person except in accordance with the terms of this Order. Although this Order does not

Page 1 of 11
directly apply to any potential lawsuits, the City is ordered to present a copy of this Order to any

opposing party in a lawsuit involving incidents made the basis of this lawsuit.

2. "Classified Information," as used herein, means any information of any type,

kind, or character which is designated as "Confidential" or "For Counsel Only" (or "Attorneys'

Eyes Only") by any of the supplying or receiving parties, whether it be a document, information

contained in a document, information revealed during a deposition, information revealed in an

interrogatory answer or otherwise. In designating information as "Confidential" or "For Counsel

Only" (or "Attorneys' Eyes Only"), a party will make such designation only as to that

information that it in good faith believes contains confidential information, and any information

that is specifically addressed herein. Information or material that is available to the public,

including public records, advertising materials, or similar information or material shall not be

classified.

3. The Parties to this lawsuit agree that the following described categories of

information are “Confidential” and shall be designated and marked as “Confidential” by any

Party who obtains such documents produced for inspection and copying or by any Party

producing such documents in discovery in this Lawsuit and in any other lawsuit (subject to third

party and/or the court’s approval in that separate lawsuit) that may be filed by former detectives

in the Human Trafficking/Vice Unit (HTU) of the Austin Police Department (APD) during the

tenure of any Plaintiff in HTU.

(a) Confidential health/medical information and individually identifiable
medical/health information of APD personnel pursuant to the Health Insurance Portability and
Accountability Act and the Family Medical Leave Act. The Parties further agree that the
identities of any non-parties to this Agreement shall be redacted prior to use of same in either
Lawsuit.

AGREED PROTECTIVE ORDER Page 2 of 11
 (b) Personal identifying information, including dates of birth, driver’s license
numbers, social security numbers, e-mail addresses, home address information, home phone
numbers, or personal cell phone numbers that appear in records produced in this lawsuit. APD
uniformed employee personnel records and photos of APD uniformed personnel that fit within
the definition of TEX. LOCAL GOV’T CODE §143,089(g) and 143.090. Personal identifying
information and medical/health-related information of family members/relatives of APD
personnel.

(c) Records that identify victims of a crime or suspected crime.

(d) Records of any kind related to juvenile offenders or juvenile victims.

(e) Disciplinary records, charges of misconduct, Internal Affairs Division (IAD) files,

communications to/from Internal Affairs related to specific complaints or disciplinary actions,

Special Investigations Unit (SIU) files, communications to/from SIU related to specific non-

public complaints or disciplinary actions, and any other personnel records or files that fit within

the definition of section 143.089 of the Texas Local Government Code.

(f) Any information marked by the City or any Plaintiff as constituting confidential

intelligence information; confidential informant information; or confidential investigative

strategies for work groups or task forces.

(g) Records of ongoing criminal investigations. (The parties acknowledge that there

are records of ongoing criminal investigations that remain in dispute between the parties.).

(h) Records contained in the following numbered Internal Affairs Division files:

2013-0476

2013-0746

2013-1017

2013-1018

2013-1048

AGREED PROTECTIVE ORDER Page 3 of 11
 2013-1081

4. "Qualified Persons," as used herein means:

(a) Attorneys of record for the parties in this litigation and employees of such

attorneys to whom it is necessary that the material be shown for purposes of this litigation;

(b) Consulting experts who receive information subject to the confidential

consulting expert privilege. Retained experts or testifying experts (non-consulting experts), who

have been designated in writing by notice to all counsel prior to any disclosure of "Confidential"

or "For Counsel Only" (or Attorneys' Eyes Only"). Information shall be provided to retained or

testifying experts who have signed a document agreeing to be bound by the terms of this

protective order (such signed document to be served on opposing counsel upon disclosure or

designation of the expert witness);

(c) The party or one party representative (in regard to the City of Austin) who

shall be designated in writing by the party prior to any disclosure of “Confidential” information

to such person and who shall sign a document agreeing to be bound by the terms of this

protective order (such signed document to be filed with the Clerk of this Court by the party

designating such person); and

(d) Identified third parties who are providing court reporting services;

videotaping of depositions; or copying, scanning, bates labeling, or other production of

documents in this Lawsuit.

(e) If this Court so elects, any other person may be designated as a Qualified

Person by agreement of the Parties to this Lawsuit, or by order of this Court, after notice and

hearing to all parties.

AGREED PROTECTIVE ORDER Page 4 of 11
 5. Documents produced in this action may be designated by any party or parties as

"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") information by marking each

page of the document(s) so designated with a stamp stating "Confidential" or "For Counsel

Only" (or "Attorneys' Eyes Only").

In lieu of marking the original of a document, if the original is not produced, the

designating party may mark the copies that are produced or exchanged. Originals shall be

preserved for inspection.

6. Information disclosed at (a) the deposition of a party or one of its present or

former officials, representatives, employees, agents or testifying experts retained by counsel for

the purpose of this litigation, or (b) the deposition of a third party (which information pertains to

a party) may be designated by any party as "Confidential" or "For Counsel Only" (or “Attorneys'

Eyes Only") information by indicating on the record at the deposition that the testimony is

"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") and is subject to the

provisions of this Order.

Any party may also designate information disclosed at such deposition as "Confidential"

or "For Counsel Only" (or "Attorneys' Eyes Only") by notifying all of the parties in writing

within thirty (30) days of receipt of the transcript, of the specific pages and lines of the transcript

which should be treated as "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only")

thereafter. Each party shall attach a copy of such written notice or notices to the face of the

transcript and each copy thereof in his possession, custody, or control. Similar protections shall

be applied to all electronic copies of the transcript. All deposition transcripts shall be treated as

"For Counsel Only" (or "Attorneys' Eyes Only") for a period of thirty (30) days after the receipt

of the transcript.

AGREED PROTECTIVE ORDER Page 5 of 11
 To the extent possible, the court reporter shall segregate into separate transcripts

information designated as "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only"),

with blank, consecutively numbered pages being provided in a non-designated main transcript.

The separate transcript containing "Confidential" and/or "For Counsel Only" (or "Attorneys'

Eyes Only") information shall have page numbers that correspond to the blank pages in the main

transcript.

7. (a) "Confidential" information shall not be disclosed or made available by the

receiving party to persons other than Qualified Persons. Information designated as "For Counsel

Only" (or "Attorneys' Eyes Only") shall be restricted in circulation to Qualified Persons

described in Paragraphs 3(a) and (b) above.

(b) Copies of "For Counsel Only" (or "Attorneys' Eyes Only") information

provided to a receiving party shall be maintained in the offices of counsel for Plaintiff(s) and

Defendant(s). Any documents produced in this litigation, regardless of classification, which are

provided to Qualified Persons of Paragraph 3(b) above, shall be maintained only at the office of

such Qualified Person and only working copies shall be made of any such documents. Copies of

documents produced under this Protective Order may be made, or exhibits prepared by

independent copy services, printers or illustrators for the purpose of this litigation.

(c) Each party's counsel shall maintain a log of all copies of "For Counsel

Only" (or "Attorneys' Eyes Only") documents which are delivered to any one or more Qualified

Person of Paragraph 3 above.

8. Documents previously produced shall be retroactively designated by notice in

writing of the designated class of each document by Bates number within thirty (30) days of the

entry of this order. Documents unintentionally produced without designation as "Confidential"

AGREED PROTECTIVE ORDER Page 6 of 11
may be retroactively designated in the same manner and shall be treated appropriately from the

date written notice of the designation is provided to the receiving party.

Documents to be inspected for the purposes of being produced for inspection and copying

shall be treated as "For Counsel Only" (or "Attorneys' Eyes Only") during inspection. At the

time of copying for the receiving parties, such inspected documents shall be stamped

prominently "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") by the producing

party.

9. Nothing herein shall prevent disclosure beyond the terms of this order if each

party designating the information as "Confidential" or "For Counsel Only" (or “Attorneys' Eyes

Only") consents to such disclosure or, if the court, after notice to all affected parties, orders such

disclosures. Nor shall anything herein prevent any counsel of record from utilizing

"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") information in the

examination or cross-examination of any person who is a plaintiff, a current APD employee, or

an expert in regard to any document identified as "Confidential" or "For Counsel Only” (or

"Attorneys' Eyes Only") information, irrespective of which party produced such information.

The parties agree to confer in an attempt to reach agreement as to any former APD employee

who is a non-plaintiff and for whom examination or cross-examination is sought by a party in

regard to documents identified as “Confidential or “For Counsel Only” (or “Attorneys’ Eyes

Only”)

10. A party shall not be obligated to challenge the propriety of a designation as

"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") at the time made, and a failure

to do so shall not preclude a subsequent challenge thereto. In the event that any party to this

litigation disagrees at any stage of these proceedings with the designation by the designating

AGREED PROTECTIVE ORDER Page 7 of 11
party of any information as "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only"), or

the designation of any person as a Qualified Person, the parties shall first try to resolve such

dispute in good faith on an informal basis, such as production of redacted copies. If the dispute

cannot be resolved, the objecting party may invoke this Protective Order by objecting in writing

to the party who has designated the document or information as "Confidential" or "For Counsel

Only" (or "Attorneys' Eyes Only"). The designating party shall be required to move the Court

for an order preserving the designated status of such information within fourteen (14) days of

receipt of the written objection, and failure to do so shall constitute a termination of the restricted

status of such item.

The parties may, by stipulation, provide for exceptions to this order and any party may

seek an order of this Court modifying this Protective Order.

11. Nothing shall be designated as "For Counsel Only" (or "Attorneys' Eyes Only")

information except information of the most sensitive nature, which if disclosed to persons of

expertise in the area would reveal information that is ,for example, confidential by statute.

Nothing shall be regarded as "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only")

information if it is information that either:

(a) is in the public domain at the time of disclosure, as evidence by a written

document;

(b) becomes part of the public domain through no fault of the other party, as

evidenced by a written document;

(c) the receiving party can show by written document that the information

was in its rightful and lawful possession at the time of disclosure; or

AGREED PROTECTIVE ORDER Page 8 of 11
 (d) the receiving party lawfully receives such information at a later date from

a third party without restriction as to disclosure, provided such third party has the right to

make the disclosure to the receiving party.

12. If a party wishes to include a document, or portions of a document marked as

“Confidential” or "For Counsel Only" (or "Attorneys' Eyes Only") in a pleading or other paper to

be filed with the Clerk, that party shall serve the pleading or other paper on opposing parties but

shall not file it. Service alone shall constitute filing for the purpose of any deadline. For 7 days

following service, no party shall file the pleading or other paper with the Clerk except pursuant

to a ruling on a motion for a Temporary Sealing Order under Rule 76a. Immediately thereafter,

if no motion for a Temporary Sealing Order has been granted, the party who served the pleading

or other paper shall file it unsealed with the Clerk.

13. If a party wishes to offer a document, or portions of a document marked as

“Confidential” or "For Counsel Only" (or "Attorneys' Eyes Only") in evidence, any party may, at

the time the document is offered, move for a Temporary Sealing Order.

14. Unless otherwise agreed to in writing by the parties or ordered by the Court, all

proceedings involving or relating to documents or any other information shall be subject to the

provisions of this order.

15. Within one-hundred twenty (120) days after conclusion of this litigation and any

appeal thereof, any document and all reproductions of documents produced by a party, in the

possession of any of the persons qualified under Paragraphs 3(a) through (d) shall be returned to

the producing party, except as this Court may otherwise order or to the extent such information

was used as evidence at the trial. As far as the provisions of any protective orders entered in this

action restrict the communication and use of the documents produced thereunder, such orders

AGREED PROTECTIVE ORDER Page 9 of 11
shall continue to be binding after the conclusion of this litigation, except (a) that there shall be

no restriction on documents that are used as exhibits in Court unless such exhibits were filed

under seal, and (b) that a party may seek the written permission of the producing party or order

of the Court with respect to dissolution or modification of such protective orders.

16. This order shall not bar any attorney herein in the course of rendering advice to

his client with respect to this litigation from conveying to any party client his evaluation in a

general way of "Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") information

produced or exchanged herein; provided, however that in rendering such advice and otherwise

communicating with his client, the attorney shall not disclose the specific contents of any

"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") information produced by

another party herein, which disclosure would be contrary to the terms of this Protective Order.

17. Any party designating any person as a Qualified Person shall have the duty to

reasonably ensure that such person observes the terms of this Protective Order and shall be

responsible upon breach of such duty for the failure of any such person to observe the terms of

this Protective Order.

SIGNED this ____ day of _______________, 2014.

PRESIDING JUDGE

AGREED PROTECTIVE ORDER Page 10 of 11
APPROVED AS TO FORM AND SUBSTANCE:

/s/ Lynn E. Carter
LYNN E. CARTER
Assistant City Attorney
Attorney in Charge
State Bar No. 03925990
City of Austin Law Department
P. O. Box 1546
Austin, Texas 78767-1546
(512) 974-2171 (Telephone)
(512) 974-1311 (Facsimile)
lynn.carter@austintexas.gov
ATTORNEYS FOR DEFENDANT

_____________________________________
MARK CRAMPTON
Crampton Law Office
1601 Rio Grande Street, Suite 348
Austin, Texas 78701
512-892-9300 phone
512-891-0262 fax
mark@cramptonassociates.com

WALTER L. TAYLOR
Taylor Law Firm
1601 Rio Grande Street, Suite 348
Austin, TX 78701
512-474-6600
512-474-6700 fax
taylorlawfirmatx@gmail.com

ATTORNEYS FOR PLAINTIFFS

AGREED PROTECTIVE ORDER Page 11 of 11
 EXHIBIT B
JOINT MOTION FOR TEMPORARY SEALING OF EXHIBITS
PURSUANT TO TEXAS RULES OF CIVIL PROCEDURE 76a
 City of Austin

· Law Department
City Hall, 301West2nd Street, P.O. Box 1546
Austin, Texas 78767-1546
(512) 974-2268

Writer's Direct Line Writer's Fax Line
512-974-2171 512-974-1311

October 27, 2014

VIA E-MAIL:
Mark Crampton Walter L. Taylor
Crampton Law Office Taylor Law Firm
1601 Rio Grande Street, Suite 348 1601 Rio Grande Street, Suite 348
Austin, Texas 78701 Austin, TX 78701
512-891-0262 fax 512-474-6700 fax
mark@cramptonassociates.com taylorlawfirmatx@gmail.com

RULEllAGREEMENT

Re: RULE 11 AGREEMENT: Cause No. D-1-GN-14-002459; Aaron Bishop, et al. v. City
ofAustin in the District Court of Travis County, Texas, 353rd Judicial District.

Dear Mark and Walt,

Following is a proposed Rule 11 Agreement, which includes agreements related to confidential
records and a clawback/snap back agreement. The City proposes thi~ Rule 11 Agreement so the
City can move forward with producing for inspection and copying confidential personnel records
and additional documents for your review while the parties (and Bermudez' attorney) attempt to
work out the terms of a more comprehensive agreed protective order that addresses relevant
Internal Affairs files, ongoing criminal investigation records, and other privileged, relevant
records.

Plaintiffs and their counsel agree to maintain the confidentiality of the following described
information by ( 1) redaction prior to filing with the court; and (2) by all other reasonable means
necessary to protect the confidential nature of the information:

CONFIDENTIAL AND PRIVILEGED INFORMATION

1. Confidential health/medical information and individually identifiable
medical/health information of Austin Police Department personnel pursuant to. the Health
Insurance Portability and accountability Act and the Family Medical Leave Act.
October 27, 2014, Rule 11 Agreement
Page2

2. Personal identifying information, including dates of birth, driver's license
numbers, social security numbers, e-mail addresses, home address information, home phone
numbers, or personal cell phone numbers that appear in records produced in this lawsuit. APD
uniformed employee personnel records and photos of APD uniformed personnel. TEx. LocAL
Gov'T CODE § 143,089(g) and 143.090. Personal identifying information and medical/health-
related information of family members/relatives of APD personnel.
3. Records that identify victims of a crime or suspected crime.

4. Records of any kind related to juvenile offenders or juvenile victims.

CLAWBACKAGREEMENT
The parties agree that for the purposes of facilitating discovery, the City is turning over
voluminous documents and document files (in electronic and paper form), including electronic
mail (e-mails), that may contain confidential or privileged communications or information,
including private/personal health information; private/personal home address, personal e-mail
addresses, and home or personal phone information; attorney-client communications; attorney
work product; and information protected by the ongoing criminal investigation privilege, other
privileges, or by APD Policy.

The parties further agree that during the thirty (30) day period following the date of
delivery of any electronic information or paper documents following the signing of this
agreement, the City may identify to Plaintiffs' counsel any documents or electronic information
that it claims to be confidential pursuant to the attorney-client or work product privileges, the
ongoing criminal investigation privilege, or other confidential information described as
confidential in the APD Policy Manual and that such documents or electronic information,
including all copies of such documents or electronic data will be returned to the City of Austin.
In the event Plaintiffs intend to challenge the confidential nature of the documents or electronic
information identified by the City as privileged, Plaintiffs will submit such information for in-
camera inspection by the Court, and will retain the confidential nature of the documents and
information until the court has made a final ruling or the parties reach further agreement in
regard to the documents or information.

Assistant City Attorney
City of Austin

Agreed: - - -- - - - - -- - - - Date: - - - -- -- - -
Mark Crampton
Walter L. Taylor
Attorneys for Plaintiffs
October 27, 2014, Rule 11 Agreement
Page2

2. Personal identifying information, including dates of birth, driver's license
numbers, social security numbers, e-mail addresses, home address information, home phone
numbers, or personal cell phone numbers that appear in records produced in this lawsuit. APD
uniformed employee personnel records and photos of APD uniformed personnel. TEX. LOCAL
Gov'T CODE §143,089(g) and 143.090. Personal identifying information and medical/health-
related information of family members/relatives of APD personnel.

3. Records that identify victims of a crime or suspected crime.

4. Records of any kind related to juvenile offenders or juvenile victims.

CLAWBACKAGREEMENT
The parties agree that for the purposes of facilitating discovery, the City is turning over
voluminous documents and document files (in electronic and paper form), including electronic
mail (e-mails), that may contain confidential or privileged communications or information,
including private/personal health information; private/personal home address, personal e-mail
addresses, and home or personal phone information; attorney-client communications; attorney
work product; and information protected by the ongoing criminal investigation privilege, other
privileges, or by APD Policy.

The parties further agree that during the thirty (30) day period following the date of
delivery of any electronic information or paper documents following the signing of this
agreement, the City may identify to Plaintiffs' counsel any documents or electronic information
that it claims to be confidential pursuant to the attorney-client or work product privileges, the
ongoing criminal investigation privilege, or other confidential information described as
confidential in the APD Policy Manual and that such documents or electronic information,
including all copies of such documents or electronic data will be returned to the City of Austin.
In the event Plaintiffs intend to challenge the confidential nature of the documents or electronic
information identified by the City as privileged, Plaintiffs will submit such information for in-
camera inspection by the Court, and will retain the confidential nature of the documents and
information until the court has made a final ruling or the parties reach further agreement in
regard to the documents or information.

Sincerely,

Lynn E. Carter
Assistant City Attorney
City of Austin

Date: November 12, 2014
Mark Crampton
Walter L. Taylor
Attorneys for Plaintiffs
 City of Austin

Law Deparbnent
City Hall, 301 West 2nd Street, P.O. Box 1546
Austin, Texas 78767-1546
(512) 974-2268

Writer's Direct Line Writer's Fax Line
512-974-2171 512-974-1311
April 19,2016
RULE 11 AGREEMENT

Mark Crampton JenyGalow
Crampton Law Office Justin Studdard
812 San Antonio Street, Ste G-12 Galow & Smith, P.c.
Austin, TX 78701 1204 Nueces Street
mark@cloatx.com Austin, Texas 78701
mikc@c1oatx.com jerry@galowlaw.coll1
megan(?i)cloatx.com i ustin@galow.com
jolYlU1@ga!ow.com

Re: Rule 11 Agreement: Cause No. D-I-GN-14-002459; Aaron V. Bishop, et al. v. City of
Austin in the District Court of Travis County, Texas, 353 rd Judicial District

Dear Counselors:

The following sets forth our agreement regarding all pending motions on file. If accurate, please
review, sign, and return to me for filing.

(1) The parties have agreed to set all pleas to the jurisdiction and motions for summary
judgment, as well as Defendant's objections to Plaintiffs expert and motion to exclude the
expert, for hearing on May 9, 2016 for four hours (due to conflicts in Plaintiffs counsel's
pre-trial and trial schedule).

(2) All responses or amended responses to the City'S pleas to the jurisdiction or motions for
summary judgment that were filed on or before April 12, 2016 by Plaintiffs are considered
timely in exchange for Plaintiffs' agreement to a 30-day extension oftime for the City to file
its brief on appeal, if requested and if interlocutory appeal is taken in regard to any ruling on
the pending pleas to the court's jurisdiction set for hearing on May 9,2016.

(3) The deadline for the City to reply to Plaintiff Donald Baker's responses to the City's plea to
the jurisdiction and motion for summary judgment is May 2,2016.

(4) The deadline for the City to reply to Plaintiffs Bishop, Cortez, Martinez, Montez, Pelayo,
and Wesley's amended response to the City's plea to the jurisdiction and motion for
summary judgment is May 2,2016.

(5) The deadline for the City to reply to the remaining plaintiffs' response or amended response
to the City's pleas to the jurisdiction and motions for summary judgment is May 6,2016.
April 19, 2016
Rule 11 Agreement, Bishop, et al. v. City ofAustin
Page 2

(6) Plaintiffs will work with the Travis County District Court Clerk to ensure that any exhibits to
any responses or pleadings filed since March 1,2016, are corrected so that no dates of birth,
or other personal identifying information addressed by Rule 11 Agreement or the Agreed
Protective order are contained in the public record.

(7) The City will file its reply to Plaintiffs' Response to Defendant's Motion to Strike Expelt on
or before May 2, 2016.

Agreed:U~JC_P>=
Jerry Galow

Date: 4. (-z..:o
"
{l1c.
"\

Cc: Gray Laird, Megan Mosby, Mike Siegel (City of Austin Law Department)
 EXHIBIT C
JOINT MOTION FOR TEMPORARY SEALING OF EXHIBITS
PURSUANT TO TEXAS RULES OF CIVIL PROCEDURE 76a
 Exhibits to be Substituted
Cause No. D-1-GN-14-002459
Bishop, et al. v. City of Austin

Substitution from Pearson’s Expert Report
Exhibits 4 and 5

Envelope # Date Document Exhibit Page
9752674 3/23/16 Plaintiffs’ Booker, et al. Response to Exhibit “P” pp. 125-129 and
Defendant City of Austin’s Plea to the 131-132
Jurisdiction and Motion for Traditional
and No-Evidence Summary Judgment
9837475 3/29/16 Plaintiffs’ Bishop, et al. Response to Exhibit “N: pp. 117-121 and
Defendant City of Austin’s Plea to the 123-124
Jurisdiction and Motion for Traditional
and No-Evidence Summary Judgment
9860767 3/30/16 Plaintiff Prado’s Response to Exhibit “F” pp. 76-80 and
Defendant City of Austin’s Plea to the 82-83
Jurisdiction and Motion for Traditional
and No-Evidence Summary Judgment
9877545 3/31/16 Plaintiff Moreno’s Response to Exhibit “F” pp. 92-96 and
Defendant City of Austin’s Plea to the 98-99
Jurisdiction and Motion for Traditional
and No-Evidence Summary Judgment
9903926 4/1/16 Plaintiff Burns’ Response to Defendant Exhibit “F” pp. 64-68 and
City of Austin’s Plea to the Jurisdiction 70-71
and Motion for Traditional and No-
Evidence Summary Judgment
9951693 4/5/16 Plaintiff Stanesic’s Response to Exhibit “E” pp. 79-83 and
Defendant City of Austin’s Plea to the 85-86
Jurisdiction and Motion for Traditional
and No-Evidence Summary Judgment
 Substitution from Pearson 1st Amended Report
Exhibits 4 and 5

Envelope # Date Document Exhibit Page
9986782 4/6/16 Plaintiff Vanzura’s Response to Exhibit “H” pp. 69-73 and
Defendant City of Austin’s Plea to the 75-76
Jurisdiction and Motion for Traditional
and No-Evidence Summary Judgment
10034856 4/8/16 Plaintiffs’ Response to Defendant’s Exhibit 2 pp. 38-42 and
Motion to Strike Expert 44-45
10042868 4/11/16 Plaintiff Stanesic’s Amended Response Exhibit “E” pp. 79-83 and
to Defendant City of Austin’s Plea to 85-86
the Jurisdiction and Motion for
Traditional and No-Evidence Summary
Judgment
10048895 4/11/16 Plaintiff Prado’s Amended Response to Exhibit “F” pp. 76-80 and
Defendant City of Austin’s Plea to the 82-83
Jurisdiction and Motion for Traditional
and No-Evidence Summary Judgment
10049210 4/11/16 Plaintiff Moreno’s Amended Response Exhibit “F” pp. 92-96 and
to Defendant City of Austin’s Plea to 98-99
the Jurisdiction and Motion for
Traditional and No-Evidence Summary
Judgment
10049554 4/11/16 Plaintiff Burns’ Amended Response to Exhibit “F” pp. 64-68 and
Defendant City of Austin’s Plea to the 70-71
Jurisdiction and Motion for Traditional
and No-Evidence Summary Judgment
10050051 4/11/16 Plaintiffs’ Booker, et al. Amended Exhibit “P” pp. 127-131 and
Response to Defendant City of Austin’s 133-134
Plea to the Jurisdiction and Motion for
Traditional and No-Evidence Summary
Judgment
10050392 4/11/16 Plaintiffs’ Bishop, et al. Amended Exhibit “N” pp. 117-121
Response to Defendant City of Austin’s and 123-124
Plea to the Jurisdiction and Motion for
Traditional and No-Evidence Summary
Judgment
10070576 4/12/16 Plaintiffs’ Amended Response to Exhibit 2 pp. 39-43 and
Defendant’s Motion to Strike Expert 45-46

2
 Substitution from Pearson 2nd Amended Report
Exhibits 4 and 5

Envelope # Date Document Exhibit Page
10919571 6/1/16 Plaintiffs’ Response to Defendant City Exhibit “C” pp. 44-48 and
of Austin’s Late-Filed Exhibits AAA- 50-51
EEE

Removing Bob Travis’ Confidential Deposition Portion
Envelope # Date Document Exhibit Page
10919571 6/1/16 Plaintiffs’ Response to Defendant City Exhibit “D” pp. 96-123
of Austin’s Late-Filed Exhibits AAA-
EEE

3
 EXHIBIT 2

JOINT MOTION TO LIFT STAY FOR ENTRY OF
CONFIDENTIALITY ORDERS AND TO
PERMIT SUPPEMENTATION OF THE CLERK’S RECORD AS TO CERTAIN PLEADINGS
 City of Austin

Law Department
301 West 2nd Street, P.O. Box 1546
Austin, Texas 78767-1546
(512) 974-2268

Writer’s Direct Line Writer’s Fax Line
(512) 974-2171 (512) 974-1311

June 28, 2016

The Honorable Stephen Yelenosky Via email to: claire.webb@traviscountytx.gov
345th District Court
Travis County District Court
1000 Guadalupe Street, 4th Floor
Austin, TX 78701

RE: Cause No. D-1-GN-14-002459; Aaron Bishop, et al. v. City of Austin in the District Court
of Travis County, Texas, 353rd Judicial District.

Dear Judge Yelenosky:

As requested by the Court, the following is a list of confidential records by subject matter.

List of Confidential Records at Issue by Subject Matter:

I. Records of the Austin Police Department (APD) Internal Affairs Division

A. Evidence Relevant mainly to the PTJ/MSJ re Baker

1. Baker’s affidavit marked, “CONTAINS SENSITIVE DATA”, which was submitted by
Plaintiffs as an exhibit to numerous responses and amended responses to pleas to the
jurisdiction (PTJ)/motions for summary judgment(MSJ).

(a) Exhibit “C” to Plaintiff Donald Baker’s Response to Defendant City of Austin’s Plea
to the Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment;

(b) Exhibit “D” to Vanzura’s Amended Response (and response) to the City’s PTJ/MSJ

(c) Exhibit “E” to Burns’ Amended Response (and response) to the City’s PTJ/MSJ

(d) Exhibit “E” to Prado’s Amended Response (and response) to the City’s PTJ/MSJ

(e) Exhibit “E” to Amended Response (and response) to the City’s PTJ/MSJ re
Lt/Sgt/Lopez
 2. Paragraphs 19-20 of pages 7-8 (highlighted) of Plaintiff Donald Baker’s Response to
Defendant City of Austin’s Plea to the Jurisdiction and Motion for Traditional and No-
Evidence Summary Judgment (3/10/16)

3. Exhibits to the City of Austin’s Plea to the Jurisdiction & Motion for Traditional and No-
Evidence Summary Judgment Re: Donald Baker (9/30/15)

(a) Exhibit 5 of Exhibit “A-Aff”, Internal Affairs file records attached to Acevedo
Affidavit, which contains two confidential memos that are part of APD’s Internal Affairs
Division files (Also filed with all of the City’s PTJs/MSJs re all plaintiffs.)

(b) Exhibit “CC”, Confidential deposition testimony by Plaintiff Baker, also filed with
the City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron
Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

(c ) Exhibits 1-4 of Exhibit “D”, Internal Affairs file records attached to Manley Affidavit

4. Unredacted paragraphs 19-20 of Acevedo’s affidavit, which disusses the subject matter
and outcome of a confidential Internal Affairs investigation, attached as Exhibit “A-Aff-
S” of the City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence Motion
for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita Lopez,
Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)

B. Evidence relevant mainly to the PTJ/MSJ re HTU Detectives

5. The Statement of Facts to the City of Austin’s Plea to the Jurisdiction & Motion for
Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas
Montez, Ricardo Pelayo and Roderick Wesley (9/30/15), which was submitted under seal

6. Sworn statements in IA investigation files, submitted under seal by the City as Exhibits
“D”, “E”, “G”, “H”, “J”, “K”, “L”, “N”, “P”, “Q”, and “S” of the City of Austin’s Plea to
the Jurisdiction & Motion for Summary Judgment Re: Aaron Bishop, Albert Cortez, Jr.,
Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley (9/30/15)

7. Confidential Internal Affairs Case Summary related to File No. 2013-0746; Exhibit “H”
of the City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re:
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)(submitted under seal)

8. IA Complaint related to Internal Affairs File No. 2013-0746, submitted under seal by the
City as Exhibit “G” of City of Austin’s Plea to the Jurisdiction & Motion for Summary
Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez,
Ricardo Pelayo and Roderick Wesley (9/30/15)

9. IA Complaint related to Internal Affairs File No. 2013-1081, submitted under seal by the
City as Exhibit “V” of City of Austin’s Plea to the Jurisdiction & Motion for Summary
Judgment Re: Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez,
 Ricardo Pelayo and Roderick Wesley (9/30/15)

10. File No. 2013-0749 of APD’s Internal Affairs Division submitted under seal as
attachments to Exhibit “XX”, the affidavit of APD records custodian, Chris Foley, to the
City of Austin’s Plea to the Jurisdiction & Motion for Summary Judgment Re: Aaron
Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley (9/30/15)

11. Paragraphs 32-40, 43-45 of pages 22-29 (highlighted) of Plaintiffs Aaron Bishop, Albert
Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and Roderick Wesley’s
Amended Response to Defendant City of Austin’s Plea to the Jurisdiction and Motion for
Traditional and No-Evidence Summary Judgment (4/11/16)(same was submitted as
Plaintiff’s original response)

12. Statements contained in APD Internal Affairs files, Exhibits “V” and “W” of Plaintiffs
Aaron Bishop, Albert Cortez, Jr., Aurelio Martinez, Tomas Montez, Ricardo Pelayo and
Roderick Wesley’s Amended Response to Defendant City of Austin’s Plea to the
Jurisdiction and Motion for Traditional and No-Evidence Summary Judgment (4/11/16).
(Same was submitted with the Plaintiffs’ response by similar name (3/29/16) )(same was
submitted as Plaintiff’s original response)

C. Evidence mainly Relevant to both Baker and the HTU detectives

13. Confidential testimony of APD Chief Acevedo (by deposition) related to confidential
Internal Affairs investigation files and outcomes of those investigations: filed as Exhibit
“AA” to the City of Austin’s Plea to the Jurisdiction & Traditional and No-Evidence
Motion for Summary Judgment Regarding Ronald Booker, Eric De Los Santos, Jovita
Lopez, Norris McKenzie, Oscar Ramirez, and Monroe Yarbrough (10/2/15)

II. Confidential Deposition Testimony Protected by the Family Medical Leave Act

14. City’s Submission under Seal of an excerpt from the Confidential Deposition transcript
of Robert “Bob” Travis, submitted on June 10, 2016 as Exhibit “D” of Defendant, City of
Austin’s, Reply to Plaintiffs’ Post Hearing Submission of June 1, 2016

15. Plaintiff’s Inadvertent Submission of the Confidential Transcript of Robert “Bob” Travis’
deposition as Exhibit “D” to Plaintiffs’ Response to Defendant City of Austin’s Late-Filed
Exhibits AAA-EEE” (6/1/16), designated as “*** Confidential Portion ***” and
“CONTAINS SENSITIVE DATA” (the second transcript, pp. 6 -62).

The confidential portions of Travis’ deposition testimony submitted by Plaintiffs are still
viewable on the District Clerk’s e-filing website. To the City’s knowledge no further
word has been received from the Travis County District Clerk on this inadvertent filing
and Plaintiffs’ request to withdraw same.

III. Confidential Dates of Birth in which Redaction has been Completed

The District Clerk’s e-filing website has now been updated so that all dates of birth are redacted
in regard to Exhibits “4” and “5” of Dr. Pearson’s reports filed by Plaintiffs.
IV. Confidential Dates of Birth Submitted under Seal, and which the City Requests to
Remain Under Seal

16. Exhibits “7” and “8” to Exhibit “O” of City of Austin’s Plea to the Jurisdiction &
Traditional and No-Evidence Motion for Summary Judgment Regarding Ronald Booker,
Eric De Los Santos, Jovita Lopez, Norris McKenzie, Oscar Ramirez, and Monroe
Yarbrough (10/2/15)”.

I believe the above accurately reflects all confidential records at issue, and which are listed by
subject matter.

Sincerely,
/s/Lynn E. Carter (electronic signature)
Lynn E. Carter
Assistant City Attorney
lynn.carter@austintexas.gov

Cc: Plaintiffs’ Counsel: Mark Crampton; Jerry Galow, and Justin Studdard
Assistant City Attorneys: Gray Laird, Megan Mosby, and Michael Siegel