even stipulated 17 protective orders require good cause showing
How later courts described this case
- even stipulated 17 protective orders require good cause showing
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 TERRY FABRICANT, individually ) Case No. 2:19-cv-02451-ODW(ASx)
)
11 and on behalf of all others similarly )
situated, ) PROTECTIVE ORDER
12 )
Plaintiff, )
13 )
)
14 v. )
)
15 PAYMENTCLUB INC., )
)
16 Defendants. )
)
17
1. PURPOSES AND LIMITATIONS
18
Discovery in this action is likely to involve production of confidential,
19
proprietary or private information for which special protection from public
20
disclosure and from use for any purpose other than pursuing this litigation may
21
be warranted. Accordingly, the parties hereby stipulate to and petition the
22
Court to enter the following Stipulated Protective Order. The parties
23
acknowledge that this Order does not confer blanket protections on all
24
disclosures or responses to discovery and that the protection it affords from
25
public disclosure and use extends only to the limited information or items that
26
are entitled to confidential treatment under the applicable legal principles.
27
28
1
2. GOOD CAUSE STATEMENT
2
This action is likely to involve trade secrets, customer and pricing lists
3
and other valuable research, development, commercial, financial, technical
4
and/or proprietary information for which special protection from public
5
disclosure and from use for any purpose other than prosecution of this action is
6
warranted. Such confidential and proprietary materials and information
7
consist of, among other things, confidential business or financial information,
8
information regarding confidential business practices, or other confidential
9
research, development, or commercial information (including information
10
implicating privacy rights of third parties), information otherwise generally
11
unavailable to the public, or which may be privileged or otherwise protected
12
from disclosure under state or federal statutes, court rules, case decisions, or
13
common law. With respect to Defendant in particular, such confidential and
14
proprietary materials and information consist of, among other things,
15
information regarding its business and sales tactics and practices, including its
16
leads lists, call metrics. and other materials and information that is valuable to
17
Defendant. Disclosure of such materials and information would create
18
19 substantial risk of serious financial or other injury that cannot be avoided by
20 less restrictive means.
21 Accordingly, to expedite the flow of information, to facilitate the prompt
22 resolution of disputes over confidentiality of discovery materials, to adequately
23 protect information the parties are entitled to keep confidential, to ensure that
24 the parties are permitted reasonable necessary uses of such material in
25 preparation for and in the conduct of trial, to address their handling at the end
26 of the litigation, and serve the ends of justice, a protective order for such
27 information is justified in this matter. It is the intent of the parties that
28 information will not be designated as confidential for tactical reasons and that
1
nothing be so designated without a good faith belief that it has been
2
maintained in a confidential, non-public manner, and there is good cause why
3
it should not be part of the public record of this case.
4
3. ACKNOWLEDGMENT OF UNDER SEAL FILING
5 PROCEDURE
6 The parties further acknowledge, as set forth in Section 14.3, below, that
7 this Stipulated Protective Order does not entitle them to file confidential
8 information under seal; Local Civil Rule 79-5 sets forth the procedures that
9 must be followed and the standards that will be applied when a party seeks
10 permission from the court to file material under seal. There is a strong
11 presumption that the public has a right of access to judicial proceedings and
12 records in civil cases. In connection with non-dispositive motions, good cause
13 must be shown to support a filing under seal. See Kamakana v. City and
14 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
15 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
16
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
17
protective orders require good cause showing), and a specific showing of good
18
cause or compelling reasons with proper evidentiary support and legal
19
justification, must be made with respect to Protected Material that a party
20
seeks to file under seal. The parties’ mere designation of Disclosure or
21
Discovery Material as CONFIDENTIAL does not— without the submission
22
of competent evidence by declaration, establishing that the material sought to
23
be filed under seal qualifies as confidential, privileged, or otherwise
24
protectable—constitute good cause.
25
Further, if a party requests sealing related to a dispositive motion or trial,
26
then compelling reasons, not only good cause, for the sealing must be shown,
27
and the relief sought shall be narrowly tailored to serve the specific interest to
28
1
be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th
2
Cir. 2010). For each item or type of information, document, or thing sought to
3
be filed or introduced under seal, the party seeking protection must articulate
4
compelling reasons, supported by specific facts and legal justification, for the
5
requested sealing order. Again, competent evidence supporting the application
6
to file documents under seal must be provided by declaration.
7
Any document that is not confidential, privileged, or otherwise
8
protectable in its entirety will not be filed under seal if the confidential portions
9
can be redacted. If documents can be redacted, then a redacted version for
10
public viewing, omitting only the confidential, privileged, or otherwise
11
protectable portions of the document, shall be filed. Any application that seeks
12
to file documents under seal in their entirety should include an explanation of
13
why redaction is not feasible.
14
4. DEFINITIONS
15
4.1 Action: This pending federal lawsuit.
16
4.2 Challenging Party: a Party or Non-Party that challenges the
17
designation of information or items under this Order.
18
19 4.3 “CONFIDENTIAL” Information or Items: information
20 (regardless of how it is generated, stored or maintained) or tangible things that
21 qualify for protection under Federal Rule of Civil Procedure 26(c), and as
22 specified above in the Good Cause Statement.
23 4.4 Counsel: Outside Counsel of Record and House Counsel (as well
24 as their support staff).
25 4.5 Designating Party: a Party or Non-Party that designates
26 information or items that it produces in disclosures or in responses to discovery
27 as “CONFIDENTIAL.”
28
1
4.6 Disclosure or Discovery Material: all items or information,
2
regardless of the medium or manner in which it is generated, stored, or
3
maintained (including, among other things, testimony, transcripts, and tangible
4
things), that are produced or generated in disclosures or responses to discovery.
5
4.7 Expert: a person with specialized knowledge or experience in a
6
matter pertinent to the litigation who has been retained by a Party or its
7
counsel to serve as an expert witness or as a consultant in this Action.
8
4.8 House Counsel: attorneys who are employees of a party to this
9
Action. House Counsel does not include Outside Counsel of Record or any
10
other outside counsel.
11
4.9 Non-Party: any natural person, partnership, corporation,
12
association or other legal entity not named as a Party to this action.
13
4.10 Outside Counsel of Record: attorneys who are not employees of a
14
party to this Action but are retained to represent a party to this Action and
15
have appeared in this Action on behalf of that party or are affiliated with a law
16
firm that has appeared on behalf of that party, and includes support staff.
17
4.11 Party: any party to this Action, including all of its officers,
18
19 directors, employees, consultants, retained experts, and Outside Counsel of
20 Record (and their support staffs).
21 4.12 Producing Party: a Party or Non-Party that produces Disclosure or
22 Discovery Material in this Action.
23 4.13 Professional Vendors: persons or entities that provide litigation
24 support services (e.g., photocopying, videotaping, translating, preparing
25 exhibits or demonstrations, and organizing, storing, or retrieving data in any
26 form or medium) and their employees and subcontractors.
27 4.14 Protected Material: any Disclosure or Discovery Material that is
28
1
designated as “CONFIDENTIAL.”
2
4.15 Receiving Party: a Party that receives Disclosure or Discovery
3
Material from a Producing Party.
4
5. SCOPE
5
The protections conferred by this Stipulation and Order cover not only
6
Protected Material (as defined above), but also (1) any information copied or
7
extracted from Protected Material; (2) all copies, excerpts, summaries, or
8
compilations of Protected Material; and (3) any testimony, conversations, or
9
presentations by Parties or their Counsel that might reveal Protected Material.
10
Any use of Protected Material at trial shall be governed by the orders of
11
the trial judge and other applicable authorities. This Order does not govern the
12
use of Protected Material at trial.
13
6. DURATION
14
Even after final disposition of this litigation, the confidentiality
15
obligations imposed by this Order shall remain in effect until a Designating
16
Party agrees otherwise in writing or a court order otherwise directs. Final
17
disposition shall be deemed to be the later of (1) dismissal of all claims and
18
19 defenses in this Action, with or without prejudice; and (2) final judgment
20 herein after the completion and exhaustion of all appeals, rehearings, remands,
21 trials, or reviews of this Action, including the time limits for filing any motions
22 or applications for extension of time pursuant to applicable law.
23 7. DESIGNATING PROTECTED MATERIAL
24 7.1 Exercise of Restraint and Care in Designating Material for
25 Protection. Each Party or Non-Party that designates information or items for
26 protection under this Order must take care to limit any such designation to
27 specific material that qualifies under the appropriate standards. The
28 Designating Party must designate for protection only those parts of material,
1
documents, items or oral or written communications that qualify so that other
2
portions of the material, documents, items or communications for which
3
protection is not warranted are not swept unjustifiably within the ambit of this
4
Order.
5
Mass, indiscriminate or routinized designations are prohibited.
6
Designations that are shown to be clearly unjustified or that have been made
7
for an improper purpose (e.g., to unnecessarily encumber the case development
8
process or to impose unnecessary expenses and burdens on other parties) may
9
expose the Designating Party to sanctions.
10
If it comes to a Designating Party’s attention that information or items
11
that it designated for protection do not qualify for protection, that Designating
12
Party must promptly notify all other Parties that it is withdrawing the
13
inapplicable designation.
14
7.2 Manner and Timing of Designations. Except as otherwise
15
provided in this Order (see, e.g., second paragraph of section 7.2(a) below), or as
16
otherwise stipulated or ordered, Disclosure of Discovery Material that qualifies
17
for protection under this Order must be clearly so designated before the
18
19 material is disclosed or produced.
20 Designation in conformity with this Order requires:
21 (a) for information in documentary form (e.g., paper or
22 electronic documents, but excluding transcripts of depositions or other pretrial
23 or trial proceedings), that the Producing Party affix at a minimum, the legend
24 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page
25 that contains protected material. If only a portion of the material on a page
26 qualifies for protection, the Producing Party also must clearly identify the
27 protected portion(s) (e.g., by making appropriate markings in the margins).
28 A Party or Non-Party that makes original documents available for
1
inspection need not designate them for protection until after the inspecting
2
Party has indicated which documents it would like copied and produced.
3
During the inspection and before the designation, all of the material made
4
available for inspection shall be deemed “CONFIDENTIAL.” After the
5
inspecting Party has identified the documents it wants copied and produced,
6
the Producing Party must determine which documents, or portions thereof,
7
qualify for protection under this Order. Then, before producing the specified
8
documents, the Producing Party must affix the “CONFIDENTIAL legend” to
9
each page that contains Protected Material. If only a portion of the material on
10
a page qualifies for protection, the Producing Party also must clearly identify
11
the protected portion(s) (e.g., by making appropriate markings in the margins).
12
(b) for testimony given in depositions that the Designating Party
13
identifies the Disclosure or Discovery Material on the record, before the close
14
of the deposition all protected testimony.
15
(c) for information produced in some form other than
16
documentary and for any other tangible items, that the Producing Party affix
17
in a prominent place on the exterior of the container or containers in which the
18
19 information is stored the legend “CONFIDENTIAL.” If only a portion or
20 portions of the information warrants protection, the Producing Party, to the
21 extent practicable, shall identify the protected portion(s).
22 7.3 Inadvertent Failures to Designate. If timely corrected, an
23 inadvertent failure to designate qualified information or items does not,
24 standing alone, waive the Designating Party’s right to secure protection under
25 this Order for such material. Upon timely correction of a designation, the
26 Receiving Party must make reasonable efforts to assure that the material is
27 treated in accordance with the provisions of this Order.
28
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8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2
8.1. Timing of Challenges. Any Party or Non-Party may challenge a
3
designation of confidentiality at any time that is consistent with the Court’s
4
Scheduling Order.
5
8.2 Meet and Confer. The Challenging Party shall initiate the dispute
6
resolution process under Local Rule 37-1 et seq.
7
8.3 Joint Stipulation. Any challenge submitted to the Court shall be
8
via a joint stipulation pursuant to Local Rule 37-2.
9
8.4 The burden of persuasion in any such challenge proceeding shall
10
be on the Designating Party. Frivolous challenges, and those made for an
11
improper purpose (e.g., to harass or impose unnecessary expenses and burdens
12
on other parties) may expose the Challenging Party to sanctions. Unless the
13
Designating Party has waived or withdrawn the confidentiality designation, all
14
parties shall continue to afford the material in question the level of protection
15
to which it is entitled under the Producing Party’s designation until the Court
16
rules on the challenge.
17
9. ACCESS TO AND USE OF PROTECTED MATERIAL
18
19 9.1 Basic Principles. A Receiving Party may use Protected Material
20 that is disclosed or produced by another Party or by a Non-Party in connection
21 with this Action only for prosecuting, defending or attempting to settle this
22 Action. Such Protected Material may be disclosed only to the categories of
23 persons and under the conditions described in this Order. When the Action has
24 been terminated, a Receiving Party must comply with the provisions of section
25 15 below (FINAL DISPOSITION).
26 Protected Material must be stored and maintained by a Receiving Party
27 at a location and in a secure manner that ensures that access is limited to the
28 persons authorized under this Order.
1
9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
2
otherwise ordered by the court or permitted in writing by the Designating
3
Party, a Receiving Party may disclose any information or item designated
4
“CONFIDENTIAL” only to:
5
(a) the Receiving Party’s Outside Counsel of Record in this
6
Action, as well as employees of said Outside Counsel of Record to whom it is
7
reasonably necessary to disclose the information for this Action;
8
(b) the officers, directors, and employees (including House
9
Counsel) of the Receiving Party to whom disclosure is reasonably necessary
10
for this Action;
11
(c) Experts (as defined in this Order) of the Receiving Party to
12
whom disclosure is reasonably necessary for this Action and who have signed
13
the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
14
(d) the court and its personnel;
15
(e) court reporters and their staff;
16
(f) professional jury or trial consultants, mock jurors, and
17
Professional Vendors to whom disclosure is reasonably necessary for this
18
19 Action and who have signed the “Acknowledgment and Agreement to Be
20 Bound” (Exhibit A);
21 (g) the author or recipient of a document containing the
22 information or a custodian or other person who otherwise possessed or knew
23 the information;
24 (h) during their depositions, witnesses, and attorneys for
25 witnesses, in the Action to whom disclosure is reasonably necessary provided:
26 (1) the deposing party requests that the witness sign the form attached as
27 Exhibit A hereto; and (2) they will not be permitted to keep any confidential
28 information unless they sign the “Acknowledgment and Agreement to Be
1
Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
2
ordered by the court. Pages of transcribed deposition testimony or exhibits to
3
depositions that reveal Protected Material may be separately bound by the
4
court reporter and may not be disclosed to anyone except as permitted under
5
this Stipulated Protective Order; and
6
(i) any mediators or settlement officers and their supporting
7
personnel, mutually agreed upon by any of the parties engaged in settlement
8
discussions.
9
10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
10 PRODUCED IN OTHER LITIGATION
11
If a Party is served with a subpoena or a court order issued in other
12
litigation that compels disclosure of any information or items designated in this
13
Action as “CONFIDENTIAL,” that Party must:
14
(a) promptly notify in writing the Designating Party. Such notification
15
shall include a copy of the subpoena or court order;
16
(b) promptly notify in writing the party who caused the subpoena or
17
order to issue in the other litigation that some or all of the material covered by
18
19 the subpoena or order is subject to this Protective Order. Such notification
20 shall include a copy of this Stipulated Protective Order; and
21 (c) cooperate with respect to all reasonable procedures sought to be
22 pursued by the Designating Party whose Protected Material may be affected.
23 If the Designating Party timely seeks a protective order, the Party served
24 with the subpoena or court order shall not produce any information designated
25 in this action as “CONFIDENTIAL” before a determination by the court from
26 which the subpoena or order issued, unless the Party has obtained the
27 Designating Party’s permission. The Designating Party shall bear the burden
28 and expense of seeking protection in that court of its confidential material and
1
nothing in these provisions should be construed as authorizing or encouraging
2
a Receiving Party in this Action to disobey a lawful directive from another
3
court.
4
11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
5 BE PRODUCED IN THIS LITIGATION
6
(a) The terms of this Order are applicable to information produced by
7
a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
8
information produced by Non-Parties in connection with this litigation is
9
protected by the remedies and relief provided by this Order. Nothing in these
10
provisions should be construed as prohibiting a Non-Party from seeking
11
additional protections.
12
13 (b) In the event that a Party is required, by a valid discovery request,
14 to produce a Non-Party’s confidential information in its possession, and the
15 Party is subject to an agreement with the Non-Party not to produce the Non-
16 Party’s confidential information, then the Party shall:
17 (1) promptly notify in writing the Requesting Party and the
18 Non-Party that some or all of the information requested is subject to a
19 confidentiality agreement with a Non-Party;
20 (2) promptly provide the Non-Party with a copy of the
21 Stipulated Protective Order in this Action, the relevant discovery request(s),
22 and a reasonably specific description of the information requested; and
23 (3) make the information requested available for inspection by
24 the Non-Party, if requested.
25 (c) If the Non-Party fails to seek a protective order from this court
26 within 14 days of receiving the notice and accompanying information, the
27
Receiving Party may produce the Non-Party’s confidential information
28
1
responsive to the discovery request. If the Non-Party timely seeks a protective
2
order, the Receiving Party shall not produce any information in its possession
3
or control that is subject to the confidentiality agreement with the Non-Party
4
before a determination by the court. Absent a court order to the contrary, the
5
Non-Party shall bear the burden and expense of seeking protection in this court
6
of its Protected Material.
7
12. UNAUTHORIZED DISCLOSURE OF PROTECTED
8
MATERIAL
9
10 If a Receiving Party learns that, by inadvertence or otherwise, it has
11 disclosed Protected Material to any person or in any circumstance not
12 authorized under this Stipulated Protective Order, the Receiving Party must
13 immediately (a) notify in writing the Designating Party of the unauthorized
14 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
15 Protected Material, (c) inform the person or persons to whom unauthorized
16 disclosures were made of all the terms of this Order, and (d) request such
17 person or persons to execute the “Acknowledgment an Agreement to Be
18 Bound” attached hereto as Exhibit A.
19
13. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
20
21
When a Producing Party gives notice to Receiving Parties that certain
22
inadvertently produced material is subject to a claim of privilege or other
23
protection, the obligations of the Receiving Parties are those set forth in
24
Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
25
modify whatever procedure may be established in an e-discovery order that
26
provides for production without prior privilege review. Pursuant to Federal
27
Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on
28
1
the effect of disclosure of a communication or information covered by the
2
attorney-client privilege or work product protection, the parties may
3
incorporate their agreement in the stipulated protective order submitted to the
4
court.
5
14. MISCELLANEOUS
6
14.1 Right to Further Relief. Nothing in this Order abridges the right of
7
any person to seek its modification by the Court in the future.
8
14.2 Right to Assert Other Objections. By stipulating to the entry of this
9
Protective Order, no Party waives any right it otherwise would have to object
10
to disclosing or producing any information or item on any ground not
11
addressed in this Stipulated Protective Order. Similarly, no Party waives any
12
right to object on any ground to use in evidence of any of the material covered
13
by this Protective Order.
14
14.3 Filing Protected Material. A Party that seeks to file under seal any
15
Protected Material must comply with Local Civil Rule 79-5. Protected
16
Material may only be filed under seal pursuant to a court order authorizing the
17
sealing of the specific Protected Material at issue. If a Party’s request to file
18
19 Protected Material under seal is denied by the court, then the Receiving Party
20 may file the information in the public record unless otherwise instructed by the
21 court.
22 15. FINAL DISPOSITION
23 After the final disposition of this Action, as defined in paragraph 6,
24 within 60 days of a written request by the Designating Party, each Receiving
25 Party must return all Protected Material to the Producing Party or destroy such
26 material. As used in this subdivision, “all Protected Material” includes all
27 copies, abstracts, compilations, summaries, and any other format reproducing
28 or capturing any of the Protected Material. Whether the Protected Material is
1
returned or destroyed, the Receiving Party must submit a written certification
2
to the Producing Party (and, if not the same person or entity, to the
3
Designating Party) by the 60-day deadline that (1) identifies (by category,
4
where appropriate) all the Protected Material that was returned or destroyed
5
and (2) affirms that the Receiving Party has not retained any copies, abstracts,
6
compilations, summaries or any other format reproducing or capturing any of
7
the Protected Material. Notwithstanding this provision, Counsel are entitled to
8
retain an archival copy of all pleadings, motion papers, trial, deposition, and
9
hearing transcripts, legal memoranda, correspondence, deposition and trial
10
exhibits, expert reports, attorney work product, and consultant and expert
11
work product, even if such materials contain Protected Material. Any such
12
archival copies that contain or constitute Protected Material remain subject to
13
this Protective Order as set forth in Section 6 (DURATION).
14
16. VIOLATION
15
Any violation of this Order may be punished by appropriate measures
16
including, without limitation, contempt proceedings and/or monetary
17
sanctions.
18
19 ////
20 ////
21 ////
22 ////
23 ////
24 ////
25 ////
26 ////
27 ////
28 ////
1
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
2
3 DATED: _9/10/19________ _/s/Anthony Paronich, Esq. _______
4 Attorneys for Plaintiff
5
6
7
DATED: _9/10/19________ __/s/ Joshua J. Herndon, Esq.___
8 Attorneys for Defendant
9
10 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
11
12
DATED: _S_e_p_t_em__b_e_r_ 1_3_,_ 2_0_1__9
13
14
____________/_ _s _/_ _________________
15
The Hon. Alka Sagar
16 United States Magistrate Judge
17
18
19
20
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of
4 _______________________ [print or type full address], declare under penalty of
5 perjury that I have read in its entirety and understand the Stipulated Protective
6 Order that was issued by the United States District Court for the Central
7 District of California on [date] in the case of Terry Fabricant v. Net Element,
8 Inc. 2:19-cv-02451-ODW(ASx). I agree to comply with and to be bound by
9 all the terms of this Stipulated Protective Order and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and
11 punishment in the nature of contempt. I solemnly promise that I will not
12
disclose in any manner any information or item that is subject to this
13
Stipulated Protective Order to any person or entity except in strict compliance
14
with the provisions of this Order. I further agree to submit to the jurisdiction of
15
the United States District Court for the Central District of California for the
16
purpose of enforcing the terms of this Stipulated Protective Order, even if such
17
enforcement proceedings occur after termination of this action. I hereby
18
appoint __________________________ [print or type full name] of
19
_______________________________________ [print or type full address and
20
telephone number] as my California agent for service of process in connection
21
with this action or any proceedings related to enforcement of this Stipulated
22
Protective Order.
23
Date: ______________________________________
24
City and State where sworn and signed: ______________________________
25
Printed name: _______________________________
26
Signature: __________________________________
27
28