distinguishing 16 “good cause” showing for sealing documents produced in discovery from 17 “compelling reasons” standard when merits-related documents are part of court 18 record
How later courts described this case
- distinguishing 16 “good cause” showing for sealing documents produced in discovery from 17 “compelling reasons” standard when merits-related documents are part of court 18 record
Written by the judges who cited it.
The opinion
1 Thomas C. Hurrell, State Bar No. 119876
E-Mail: thurrell@hurrellcantrall.com
2 John V. McNulty, State Bar No. 290834
E-Mail: jmcnulty@hurrellcantrall.com
3 HURRELL CANTRALL LLP
300 South Grand Avenue, Suite 1300
4 Los Angeles, California 90071
Telephone: (213) 426-2000
5 Facsimile: (213) 426-2020
6 Attorneys for Defendants, COUNTY OF LOS ANGELES, LOS ANGELES
COUNTY SHERIFF’S DEPARTMENT and DEPUTY DEANNA BALLESTEROS
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
10
11
LETICIA SANCHEZ, CASE NO.: 2:19-cv-04014-R (SKx)
12
Plaintiff, [Assigned to Hon. R. Gary Klausner,
13 Courtroom “850” ]
v.
14
COUNTY OF LOS ANGELES, STIPULATED PROTECTIVE
15 DEANNA BALLESTEROS, an ORDER
individual deputy with the COUNTY
16 OF LOS ANGELES SHERIFF’S
DEPARTMENT; and DOES 1 through
17 20, Inclusive,
18 Defendants.
19
20 1. A. PURPOSES AND LIMITATIONS
21 Discovery in this action is likely to involve production of confidential,
22 proprietary, or private information for which special protection from public
23 disclosure and from use for any purpose other than prosecuting this litigation may
24 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
25 enter the following Stipulated Protective Order. The parties acknowledge that this
26 Order does not confer blanket protections on all disclosures or responses to
27 discovery and that the protection it affords from public disclosure and use extends
1 under the applicable legal principles. The parties further acknowledge, as set forth in
2 Section 12.3, below, that this Stipulated Protective Order does not entitle them to
3 file confidential information under seal; Civil Local Rule 79-5 sets forth the
4 procedures that must be followed and the standards that will be applied when a party
5 seeks permission from the court to file material under seal.
6 B. GOOD CAUSE STATEMENT
7
8 This action arises from allegations of misconduct by peace officers employed
9 by the Los Angeles Sheriff’s Department (“LASD”) in conducting a search and
10 arrest of Plaintiff Leticia Sanchez (“Plaintiff”) on November 1, 2017. Plaintiff
11 alleges that this misconduct violated her constitutional rights. Prior to this lawsuit,
12 Plaintiff made complaints to LASD, which launched an internal investigation by the
13 LASD Internal Criminal Investigation Bureau (“ICIB”). The investigatory materials
14 generated by the ICIB are kept and maintained in confidence by the LASD and also
15 provided to the Los Angeles County District Attorney’s Office. Accordingly, this
16 action will necessarily involve the disclosure of confidential and privileged
17 information regarding peace officers employed by LASD, which may include, but is
18 not limited to, the contents contained in the personnel files of LASD personnel, such
19 as personal contact information, disciplinary records, and information derived from
20 internal LASD investigations such as an investigation by the ICIB. Such
21 information concerning peace officers employed by LASD is protected from
22 disclosure by the constitutional and privacy rights of the peace officers, LASD’s
23 official information and deliberative process privileges, and California statutory law
24 governing the disclosure of peace officer personnel records, such as California
25 Penal Code § 832.5 and California Evidence Code § 1043(a). In addition, discovery
26 in this case may also subsume the privacy interests of third parties whose
27 constitutional and privacy interests may need protection given the ongoing nature of
1 Accordingly, to expedite the flow of information, to facilitate the prompt
2 resolution of disputes over confidentiality of discovery materials, to adequately
3 protect information the parties are entitled to keep confidential, to ensure that the
4 parties are permitted reasonable necessary uses of such material in preparation for
5 and in the conduct of trial, to address their handling at the end of the litigation, and
6 serve the ends of justice, a protective order for such information is justified in this
7 matter. It is the intent of the parties that information will not be designated as
8 confidential for tactical reasons and that nothing be so designated without a good
9 faith belief that it has been maintained in a confidential, non-public manner, and
10 there is good cause why it should not be part of the public record of this case.
11
12 2. DEFINITIONS
13 2.1 Action: This pending federal lawsuit, bearing the case name of Leticia
14 Sanchez v. County of Los Angeles, et al., Case No. 2:19-cv-04014-R (SKx).
15 2.2 Challenging Party: A Party or Non-Party that challenges the
16 designation of information or items under this Order.
17 2.3 “CONFIDENTIAL” Information or Items: Information (regardless of
18 how it is generated, stored or maintained) or tangible things that qualify for
19 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
20 the Good Cause Statement.
21 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
22 their support staff).
23 2.5 Designating Party: A Party or Non-Party that designates information or
24 items that it produces in disclosures or in responses to discovery as
25 “CONFIDENTIAL.”
26 2.6 Disclosure or Discovery Material: All items or information, regardless
27 of the medium or manner in which it is generated, stored, or maintained (including,
1 generated in disclosures or responses to discovery in this matter.
2 2.7 Expert: A person with specialized knowledge or experience in a matter
3 pertinent to the litigation who has been retained by a Party or its counsel to serve as
4 an expert witness or as a consultant in this Action.
5 2.8 House Counsel: Attorneys who are employees of a party to this Action.
6 House Counsel does not include Outside Counsel of Record or any other outside
7 counsel.
8 2.9 Non-Party: Any natural person, partnership, corporation, association or
9 other legal entity not named as a Party to this action.
10 2.10 Outside Counsel of Record: Attorneys who are not employees of a
11 party to this Action but are retained to represent or advise a party to this Action and
12 have appeared in this Action on behalf of that party or are affiliated with a law firm
13 that has appeared on behalf of that party, and includes support staff.
14 2.11 Party: Any party to this Action, including all of its officers, directors,
15 employees, consultants, retained experts, and Outside Counsel of Record (and their
16 support staffs).
17 2.12 Producing Party: A Party or Non-Party that produces Disclosure or
18 Discovery Material in this Action.
19 2.13 Professional Vendors: Persons or entities that provide litigation support
20 services (e.g., photocopying, videotaping, translating, preparing exhibits or
21 demonstrations, and organizing, storing, or retrieving data in any form or medium)
22 and their employees and subcontractors.
23 2.14 Protected Material: Any Disclosure or Discovery Material that is
24 designated as “CONFIDENTIAL.”
25 2.15 Receiving Party: A Party that receives Disclosure or Discovery
26 Material from a Producing Party.
27
1 The protections conferred by this Stipulation and Order cover not only
2 Protected Material (as defined above), but also (1) any information copied or
3 extracted from Protected Material; (2) all copies, excerpts, summaries, or
4 compilations of Protected Material; and (3) any testimony, conversations, or
5 presentations by Parties or their Counsel that might reveal Protected Material.
6 Any use of Protected Material at trial shall be governed by the orders of the
7 trial judge. This Order does not govern the use of Protected Material at trial.
8
9 4. DURATION
10 Once a case proceeds to trial, all of the information that was designated as
11 CONFIDENTIAL or maintained pursuant to this protective order becomes public
12 and will be presumptively available to all members of the public, including the
13 press, unless compelling reasons supported by specific factual findings to proceed
14 otherwise are made to the trial judge in advance of the trial. See Kamakana v. City
15 and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing
16 “good cause” showing for sealing documents produced in discovery from
17 “compelling reasons” standard when merits-related documents are part of court
18 record). Accordingly, the terms of this protective order do not extend beyond the
19 commencement of the trial.
20
21 5. DESIGNATING PROTECTED MATERIAL
22 5.1 Exercise of Restraint and Care in Designating Material for Protection.
23 Each Party or Non-Party that designates information or items for protection under
24 this Order must take care to limit any such designation to specific material that
25 qualifies under the appropriate standards. The Designating Party must designate for
26 protection only those parts of material, documents, items or oral or written
27 communications that qualify so that other portions of the material, documents, items
1 within the ambit of this Order.
2 Mass, indiscriminate or routinized designations are prohibited. Designations
3 that are shown to be clearly unjustified or that have been made for an improper
4 purpose (e.g., to unnecessarily encumber the case development process or to impose
5 unnecessary expenses and burdens on other parties) may expose the Designating
6 Party to sanctions.
7 If it comes to a Designating Party’s attention that information or items that it
8 designated for protection do not qualify for protection, that Designating Party must
9 promptly notify all other Parties that it is withdrawing the inapplicable designation.
10 5.2 Manner and Timing of Designations. Except as otherwise provided in
11 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
12 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
13 under this Order must be clearly so designated before the material is disclosed or
14 produced.
15 Designation in conformity with this Order requires:
16 (a) for information in documentary form (e.g., paper or electronic
17 documents, but excluding transcripts of depositions or other pretrial or trial
18 proceedings), that the Producing Party affix at a minimum, the legend
19 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
20 contains protected material. If only a portion of the material on a page qualifies for
21 protection, the Producing Party also must clearly identify the protected portion(s)
22 (e.g., by making appropriate markings in the margins).
23 A Party or Non-Party that makes original documents available for inspection
24 need not designate them for protection until after the inspecting Party has indicated
25 which documents it would like copied and produced. During the inspection and
26 before the designation, all of the material made available for inspection shall be
27 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
1 documents, or portions thereof, qualify for protection under this Order. Then, before
2 producing the specified documents, the Producing Party must affix the
3 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
4 portion of the material on a page qualifies for protection, the Producing Party also
5 must clearly identify the protected portion(s) (e.g., by making appropriate markings
6 in the margins).
7 (b) for testimony given in depositions, the Designating Party must
8 identify the Disclosure or Discovery Material on the record before the close of the
9 deposition as to all protected testimony.
10 (c) for information produced in some form other than documentary and
11 for any other tangible items, that the Producing Party affix in a prominent place on
12 the exterior of the container or containers in which the information is stored the
13 legend “CONFIDENTIAL.” If only a portion or portions of the information
14 warrants protection, the Producing Party, to the extent practicable, shall identify the
15 protected portion(s).
16 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
17 failure to designate qualified information or items does not, standing alone, waive
18 the Designating Party’s right to secure protection under this Order for such material.
19 Upon timely correction of a designation, the Receiving Party must make reasonable
20 efforts to assure that the material is treated in accordance with the provisions of this
21 Order.
22
23 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
24 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
25 designation of confidentiality at any time that is consistent with the Court’s
26 Scheduling Order.
27 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
1 6.3 The burden of persuasion in any such challenge proceeding shall be on
2 the Designating Party. Frivolous challenges, and those made for an improper
3 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
4 parties) may expose the Challenging Party to sanctions. Unless the Designating
5 Party has waived or withdrawn the confidentiality designation, all parties shall
6 continue to afford the material in question the level of protection to which it is
7 entitled under the Producing Party’s designation until the Court rules on the
8 challenge.
9
10 7. ACCESS TO AND USE OF PROTECTED MATERIAL
11 7.1 Basic Principles. A Receiving Party may use Protected Material that is
12 disclosed or produced by another Party or by a Non-Party in connection with this
13 Action only for prosecuting, defending or attempting to settle this Action. Such
14 Protected Material may be disclosed only to the categories of persons and under the
15 conditions described in this Order. When the Action has been terminated, a
16 Receiving Party must comply with the provisions of section 13 below (FINAL
17 DISPOSITION).
18 Protected Material must be stored and maintained by a Receiving Party at a
19 location and in a secure manner that ensures that access is limited to the persons
20 authorized under this Order.
21 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
22 otherwise ordered by the court or permitted in writing by the Designating Party, a
23 Receiving Party may disclose any information or item designated
24 “CONFIDENTIAL” only to:
25 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
26 well as employees of said Outside Counsel of Record to whom it is reasonably
27 necessary to disclose the information for this Action;
1 the Receiving Party to whom disclosure is reasonably necessary for this Action;
2 (c) Experts (as defined in this Order) of the Receiving Party to whom
3 disclosure is reasonably necessary for this Action and who have signed the
4 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
5 (d) the court and its personnel;
6 (e) court reporters and their staff;
7 (f) professional jury or trial consultants, mock jurors, and Professional
8 Vendors to whom disclosure is reasonably necessary for this Action and who have
9 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
10 (g) the author or recipient of a document containing the information or
11 a custodian or other person who otherwise possessed or knew the information;
12 (h) during their depositions, witnesses, and attorneys for witnesses, in
13 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
14 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
15 they will not be permitted to keep any confidential information unless they sign the
16 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
17 agreed by the Designating Party or ordered by the court. Pages of transcribed
18 deposition testimony or exhibits to depositions that reveal Protected Material may
19 be separately bound by the court reporter and may not be disclosed to anyone except
20 as permitted under this Stipulated Protective Order; and
21 (i) any mediators or settlement officers and their supporting personnel,
22 mutually agreed upon by any of the parties engaged in settlement discussions.
23
24 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
25 IN OTHER LITIGATION
26 If a Party is served with a subpoena or a court order issued in other litigation
27 that compels disclosure of any information or items designated in this Action as
1 (a) promptly notify in writing the Designating Party. Such notification
2 shall include a copy of the subpoena or court order;
3 (b) promptly notify in writing the party who caused the subpoena or
4 order to issue in the other litigation that some or all of the material covered by the
5 subpoena or order is subject to this Protective Order. Such notification shall include
6 a copy of this Stipulated Protective Order; and
7 (c) cooperate with respect to all reasonable procedures sought to be
8 pursued by the Designating Party whose Protected Material may be affected.
9 If the Designating Party timely seeks a protective order, the Party
10 served with the subpoena or court order shall not produce any information
11 designated in this action as “CONFIDENTIAL” before a determination by the court
12 from which the subpoena or order issued, unless the Party has obtained the
13 Designating Party’s permission. The Designating Party shall bear the burden and
14 expense of seeking protection in that court of its confidential material and nothing in
15 these provisions should be construed as authorizing or encouraging a Receiving
16 Party in this Action to disobey a lawful directive from another court.
17
18 9. A NON-PARTY’S PROPOSED MATERIAL SOUGHT TO BE
19 PRODUCED IN THIS LITIGATION
20 (a) The terms of this Order are applicable to information produced by a
21 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
22 produced by Non-Parties in connection with this litigation is protected by the
23 remedies and relief provided by this Order. Nothing in these provisions should be
24 construed as prohibiting a Non-Party from seeking additional protections.
25 (b) In the event that a Party is required, by a valid discovery request, to
26 produce a Non-Party’s confidential information in its possession, and the Party is
27 subject to an agreement with the Non-Party not to produce the Non-Party’s
1 (1) promptly notify in writing the Requesting Party and the Non-
2 Party that some or all of the information requested is subject to a confidentiality
3 agreement with a Non-Party;
4 (2) promptly provide the Non-Party with a copy of the Stipulated
5 Protective Order in this Action, the relevant discovery request(s), and a reasonably
6 specific description of the information requested; and
7 (3) make the information requested available for inspection by
8 the Non-Party, if requested.
9 (c) If the Non-Party fails to seek a protective order from this court
10 within 14 days of receiving the notice and accompanying information, the Receiving
11 Party may produce the Non-Party’s confidential information responsive to the
12 discovery request. If the Non-Party timely seeks a protective order, the Receiving
13 Party shall not produce any information in its possession or control that is subject to
14 the confidentiality agreement with the Non-Party before a determination by the
15 court. Absent a court order to the contrary, the Non-Party shall bear the burden and
16 expense of seeking protection in this court of its Protected Material.
17
18 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
19 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
20 Protected Material to any person or in any circumstance not authorized under this
21 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
22 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
23 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
24 persons to whom unauthorized disclosures were made of all the terms of this Order,
25 and (d) request such person or persons to execute the “Acknowledgment and
26 Agreement to Be Bound” attached hereto as Exhibit A.
27
1
2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
3 PROTECTED MATERIAL
4 When a Producing Party gives notice to Receiving Parties that certain
5 inadvertently produced material is subject to a claim of privilege or other protection,
6 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
7 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
8 may be established in an e-discovery order that provides for production without
9 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
10 as the parties reach an agreement on the effect of disclosure of a communication or
11 information covered by the attorney-client privilege or work product protection, the
12 parties may incorporate their agreement in the stipulated protective order submitted
13 to the court.
14
15 12. MISCELLANEOUS
16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
17 person to seek its modification by the Court in the future.
18 12.2 Right to Assert Other Objections. By stipulating to the entry of this
19 Protective Order no Party waives any right it otherwise would have to object to
20 disclosing or producing any information or item on any ground not addressed in this
21 Stipulated Protective Order. Similarly, no Party waives any right to object on any
22 ground to use in evidence of any of the material covered by this Protective Order.
23 12.3 Filing Protected Material. A Party that seeks to file under seal any
24 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
25 only be filed under seal pursuant to a court order authorizing the sealing of the
26 specific Protected Material at issue. If a Party's request to file Protected Material
27 under seal is denied by the court, then the Receiving Party may file the information
1
2 13. FINAL DISPOSITION
3 After the final disposition of this Action, as defined in paragraph 4, within 60
4 days of a written request by the Designating Party, each Receiving Party must return
5 all Protected Material to the Producing Party or destroy such material. As used in
6 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
7 summaries, and any other format reproducing or capturing any of the Protected
8 Material. Whether the Protected Material is returned or destroyed, the Receiving
9 Party must submit a written certification to the Producing Party (and, if not the same
10 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
11 (by category, where appropriate) all the Protected Material that was returned or
12 destroyed and (2)affirms that the Receiving Party has not retained any copies,
13 abstracts, compilations, summaries or any other format reproducing or capturing any
14 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
15 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
16 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
17 reports, attorney work product, and consultant and expert work product, even if such
18 materials contain Protected Material. Any such archival copies that contain or
19 constitute Protected Material remain subject to this Protective Order as set forth in
20 Section 4 (DURATION).
21
22 14. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
23 The parties further acknowledge, below, that this Stipulated Protective Order
24 does not entitle them to file confidential information under seal; Local Civil Rule
25 79-5 sets forth the procedures that must be followed and the standards that will be
26 applied when a party seeks permission from the court to file material under seal.
27 There is a strong presumption that the public has a right of access to judicial
1 good cause must be shown to support a filing under seal. See Kamakana v. City and
2 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
3 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), MakarWelbon v. Sony Electrics,
4 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999). The parties’ mere designation of
5 Disclosure or Discovery Material as CONFIDENTIAL does not – without the
6 submission of competent evidence by declaration, establishing that the material
7 sought to be filed under seal qualifies as confidential, privileged, or otherwise
8 protectable – constitute good cause.
9 Further, if a party requests sealing related to a dispositive motion or trial, then
10 compelling reasons, not only good cause, for the sealing must be shown, and the
11 relief sought shall be narrowly tailored to serve the specific interest to be protected.
12 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For
13 each item or type of information, document, or thing sought to be filed or introduced
14 under seal, the party seeking protection must articulate compelling reasons,
15 supported by specific facts and legal justification, for the requested sealing order.
16 Again, competent evidence supporting the application to file documents under seal
17 must be provided by declaration.
18 Any document that is not confidential, privileged, or otherwise protectable in
19 its entirety will not be filed under seal if the confidential portions can be redacted. If
20 documents can be redacted, then a redacted version for public viewing, omitting
21 only the confidential, privileged, or otherwise protectable portions of the document,
22 shall be filed. Any application that seeks to file documents under seal in their
23 entirety should include an explanation of why redaction is not feasible.
24
25 15. Any violation of this Order may be punished by any and all appropriate
26 measures including, without limitation, contempt proceedings and/or monetary
27 sanctions.
1| IT IS SO STIPULATED, THROUGH COUNSKY/ OPREC □□□
2 <i, Uf bis
Jose 9 lege
4 \ fo ae for ry 7
5
6|| DATED: //9 Lexy
Attorneys for Defendant
9 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
10
11||DATED: _ September 13, 2019 _ Se □
g Honorable Steve Kim
13 United States Magistrate Judge
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28
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [print or type full name], of
5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that
7 was issued by the United States District Court for the Central District of California
8 on [date] in the case of ___________ [insert formal name of the case and the
9 number and initials assigned to it by the court]. I agree to comply with and to be
10 bound by all the terms of this Stipulated Protective Order and I understand and
11 acknowledge that failure to so comply could expose me to sanctions and punishment
12 in the nature of contempt. I solemnly promise that I will not disclose in any manner
13 any information or item that is subject to this Stipulated Protective Order to any
14 person or entity except in strict compliance with the provisions of this Order. I
15 further agree to submit to the jurisdiction of the United States District Court for the
16 Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint __________________________ [print or
19 type full name] of _______________________________________ [print or type
20 full address and telephone number] as my California agent for service of process in
21 connection with this action or any proceedings related to enforcement of this
22 Stipulated Protective Order.
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25
26 Printed name: _______________________________
27