distinguishing “good cause” 17 showing for sealing documents produced in discovery from “compelling reasons” 18 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 17 showing for sealing documents produced in discovery from “compelling reasons” 18 standard when merits-related documents are part of court record
- even stipulated protective orders 10 require good cause showing
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 WESTERN DIVISION
11
12 KALEE PRZYBYLAK and ANIL CASE NO. 2:19-CV-02038-PA-
KUMAR URMIL, on behalf of GJSx
13 themselves and all others similarly
situated,
14 [PROPOSED] STIPULATED
Plaintiffs, PROTECTIVE ORDER
15
16 v.
BISSELL BETTER LIFE, LLC,
17
Defendant.
18
1. A. PURPOSES AND LIMITATIONS
19
Discovery in this action is likely to involve production of confidential,
20
proprietary or private information for which special protection from public
21
disclosure and from use for any purpose other than prosecuting this litigation may
22
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
23
enter the following Stipulated Protective Order. The parties acknowledge that this
24
Order does not confer blanket protections on all disclosures or responses to
25
discovery and that the protection it affords from public disclosure and use extends
26
only to the limited information or items that are entitled to confidential treatment
27
1
B. GOOD CAUSE STATEMENT
2
This action is likely to involve trade secrets, confidential pricing information,
3
customer and supplier information, and other valuable research, development,
4
commercial, financial, technical and/or proprietary information for which special
5
protection from public disclosure and from use for any purpose other than
6
prosecution of this action is warranted. Such confidential and proprietary materials
7
and information consist of, among other things, confidential business or financial
8
information, customer and supplier information, information regarding confidential
9
business practices, or other confidential research, development, or commercial
10
information concerning the products at issue and the ingredients in those products,
11
information otherwise generally unavailable to the public, or which may be
12
privileged or otherwise protected from disclosure under state or federal statutes,
13
court rules, case decisions, or common law. Accordingly, to expedite the flow of
14
information, to facilitate the prompt resolution of disputes over confidentiality of
15
discovery materials, to adequately protect information the parties are entitled to keep
16
confidential, to ensure that the parties are permitted reasonable necessary uses of
17
such material in preparation for and in the conduct of trial, to address their handling
18
at the end of the litigation, and serve the ends of justice, a protective order for such
19
information is justified in this matter. It is the intent of the parties that information
20
will not be designated as confidential for tactical reasons and that nothing be so
21
designated without a good faith belief that it has been maintained in a confidential,
22
non-public manner, and there is good cause why it should not be part of the public
23
record of this case.
24
C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
25
The parties further acknowledge, as set forth in Section 12.3, below, that this
26
Stipulated Protective Order does not entitle them to file confidential information
27
1
under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
2
and the standards that will be applied when a party seeks permission from the court
3
to file material under seal.
4
There is a strong presumption that the public has a right of access to judicial
5
proceedings and records in civil cases. In connection with non-dispositive motions,
6
good cause must be shown to support a filing under seal, see Kamakana v. City and
7
County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
8
Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
9
Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
10
require good cause showing), and a specific showing of good cause or compelling
11
reasons with proper evidentiary support and legal justification, must be made with
12
respect to Protected Material that a party seeks to file under seal. The parties’ mere
13
designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
14
without the submission of competent evidence by declaration, establishing that the
15
material sought to be filed under seal qualifies as confidential, privileged, or
16
otherwise protectable—constitute good cause.
17
Further, if a party requests sealing related to a dispositive motion or trial, then
18
compelling reasons, not only good cause, for the sealing must be shown, and the
19
relief sought shall be narrowly tailored to serve the specific interest to be protected.
20
See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
21
each item or type of information, document, or thing sought to be filed or introduced
22
under seal in connection with a dispositive motion or trial, the party seeking
23
protection must articulate compelling reasons, supported by specific facts and legal
24
justification, for the requested sealing order. Again, competent evidence supporting
25
the application to file documents under seal must be provided by declaration.
26
Any document that is not confidential, privileged, or otherwise protectable in
27
1
its entirety will not be filed under seal if the confidential portions can be redacted.
2
If documents can be redacted, then a redacted version for public viewing, omitting
3
only the confidential, privileged, or otherwise protectable portions of the document,
4
shall be filed. Any application that seeks to file documents under seal in their
5
entirety should include an explanation of why redaction is not feasible.
6
2. DEFINITIONS
7
2.1 Action: this pending federal lawsuit.
8
2.2 Challenging Party: a Party or Non-Party that challenges the
9
designation of information or items under this Order.
10
2.3 “CONFIDENTIAL” Information or Items: information (regardless of
11
how it is generated, stored or maintained) or tangible things that qualify for
12
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
13
the Good Cause Statement.
14
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
15
their support staff).
16
2.5 Designating Party: a Party or Non-Party that designates information or
17
items that it produces in disclosures or in responses to discovery as
18
“CONFIDENTIAL.”
19
2.6 Disclosure or Discovery Material: all items or information, regardless
20
of the medium or manner in which it is generated, stored, or maintained (including,
21
among other things, testimony, transcripts, and tangible things), that are produced or
22
generated in disclosures or responses to discovery in this matter.
23
2.7 Expert: a person with specialized knowledge or experience in a matter
24
pertinent to the litigation who has been retained by a Party or its counsel to serve as
25
an expert witness or as a consultant in this Action.
26
2.8 House Counsel: attorneys who are employees of a party to this Action.
27
1
House Counsel does not include Outside Counsel of Record or any other outside
2
counsel.
3
2.9 Non-Party: any natural person, partnership, corporation, association or
4
other legal entity not named as a Party to this action.
5
2.10 Outside Counsel of Record: attorneys who are not employees of a
6
party to this Action but are retained to represent or advise a party to this Action and
7
have appeared in this Action on behalf of that party or are affiliated with a law firm
8
that has appeared on behalf of that party, and includes support staff.
9
2.11 Party: any party to this Action, including all of its officers, directors,
10
employees, consultants, retained experts, and Outside Counsel of Record (and their
11
support staffs).
12
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
13
Discovery Material in this Action.
14
2.13 Professional Vendors: persons or entities that provide litigation
15
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
16
demonstrations, and organizing, storing, or retrieving data in any form or medium)
17
and their employees and subcontractors.
18
2.14 Protected Material: any Disclosure or Discovery Material that is
19
designated as “CONFIDENTIAL.”
20
2.15 Receiving Party: a Party that receives Disclosure or Discovery
21
Material from a Producing Party.
22 3. SCOPE
23 The protections conferred by this Stipulation and Order cover not only
24 Protected Material (as defined above), but also (1) any information copied or
25 extracted from Protected Material; (2) all copies, excerpts, summaries, or
26 compilations of Protected Material; and (3) any testimony, conversations, or
27 presentations by Parties or their Counsel that might reveal Protected Material.
1
Any use of Protected Material at trial shall be governed by the orders of the
2
trial judge. This Order does not govern the use of Protected Material at trial.
3
4. DURATION
4
FINAL DISPOSITION of the action is defined as the conclusion of any
5
appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
6
has run. Except as set forth below, the terms of this protective order apply through
7
FINAL DISPOSITION of the action. The parties may stipulate that they will be
8
contractually bound by the terms of this agreement beyond FINAL DISPOSITION,
9
but will have to file a separate action for enforcement of the agreement once all
10
proceedings in this case are complete.
11
Once a case proceeds to trial, information that was designated as
12
CONFIDENTIAL or maintained pursuant to this protective order used or introduced
13
as an exhibit at trial becomes public and will be presumptively available to all
14
members of the public, including the press, unless compelling reasons supported by
15
specific factual findings to proceed otherwise are made to the trial judge in advance
16
of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
17
showing for sealing documents produced in discovery from “compelling reasons”
18
standard when merits-related documents are part of court record). Accordingly, for
19
such materials, the terms of this protective order do not extend beyond the
20
commencement of the trial.
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
1
communications that qualify so that other portions of the material, documents, items
2
or communications for which protection is not warranted are not swept unjustifiably
3
within the ambit of this Order.
4
Mass, indiscriminate or routinized designations are prohibited. Designations
5
that are shown to be clearly unjustified or that have been made for an improper
6
purpose (e.g., to unnecessarily encumber the case development process or to impose
7
unnecessary expenses and burdens on other parties) may expose the Designating
8
Party to sanctions.
9
If it comes to a Designating Party’s attention that information or items that it
10
designated for protection do not qualify for protection, that Designating Party must
11
promptly notify all other Parties that it is withdrawing the inapplicable designation.
12
5.2 Manner and Timing of Designations. Except as otherwise provided in
13
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
14
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
15
under this Order must be clearly so designated before the material is disclosed or
16
produced.
17
Designation in conformity with this Order requires:
18
(a) for information in documentary form (e.g., paper or electronic
19
documents, but excluding transcripts of depositions or other pretrial or trial
20
proceedings), that the Producing Party affix at a minimum, the legend
21
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
22
contains protected material. If only a portion of the material on a page qualifies for
23
protection, the Producing Party also must clearly identify the protected portion(s)
24
(e.g., by making appropriate markings in the margins).
25
A Party or Non-Party that makes original documents available for inspection
26
need not designate them for protection until after the inspecting Party has indicated
27
1
which documents it would like copied and produced. During the inspection and
2
before the designation, all of the material made available for inspection shall be
3
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
4
documents it wants copied and produced, the Producing Party must determine which
5
documents, or portions thereof, qualify for protection under this Order. Then,
6
before producing the specified documents, the Producing Party must affix the
7
“CONFIDENTIAL legend” to each page that contains Protected Material. If only a
8
portion of the material on a page qualifies for protection, the Producing Party also
9
must clearly identify the protected portion(s) (e.g., by making appropriate markings
10
in the margins).
11
(b) for testimony given in depositions that the Designating Party identifies
12
the Disclosure or Discovery Material on the record, before the close of the
13
deposition all protected testimony.
14
(c) for information produced in some form other than documentary and
15
for any other tangible items, that the Producing Party affix in a prominent place on
16
the exterior of the container or containers in which the information is stored the
17
legend “CONFIDENTIAL.” If only a portion or portions of the information
18
warrants protection, the Producing Party, to the extent practicable, shall identify the
19
protected portion(s).
20
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
21
failure to designate qualified information or items does not, standing alone, waive
22
the Designating Party’s right to secure protection under this Order for such material.
23
Upon timely correction of a designation, the Receiving Party must make reasonable
24
efforts to assure that the material is treated in accordance with the provisions of this
25
Order.
26
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
27
1
6.1 Timing of Challenges. Any Party or Non-Party may challenge a
2
designation of confidentiality at any time that is consistent with the Court’s
3
Scheduling Order.
4
6.2 Meet and Confer. The Challenging Party shall initiate the dispute
5
resolution process under Local Rule 37.1 et seq.
6
6.3 The burden of persuasion in any such challenge proceeding shall be on
7
the Designating Party. Frivolous challenges, and those made for an improper
8
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
9
parties) may expose the Challenging Party to sanctions. Unless the Designating
10
Party has waived or withdrawn the confidentiality designation, all parties shall
11
continue to afford the material in question the level of protection to which it is
12
entitled under the Producing Party’s designation until the Court rules on the
13
challenge.
14
7. ACCESS TO AND USE OF PROTECTED MATERIAL
15
7.1 Basic Principles. A Receiving Party may use Protected Material that is
16
disclosed or produced by another Party or by a Non-Party in connection with this
17
Action only for prosecuting, defending or attempting to settle this Action. Such
18
Protected Material may be disclosed only to the categories of persons and under the
19
conditions described in this Order. When the Action has been terminated, a
20
Receiving Party must comply with the provisions of section 13 below (FINAL
21
DISPOSITION).
22
Protected Material must be stored and maintained by a Receiving Party at a
23
location and in a secure manner that ensures that access is limited to the persons
24
authorized under this Order.
25
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
26
otherwise ordered by the court or permitted in writing by the Designating Party, a
27
1
Receiving Party may disclose any information or item designated
2
“CONFIDENTIAL” only to:
3
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
4
well as employees of said Outside Counsel of Record to whom it is reasonably
5
necessary to disclose the information for this Action;
6
(b) the officers, directors, and employees (including House Counsel) of
7
the Receiving Party to whom disclosure is reasonably necessary for this Action;
8
(c) Experts (as defined in this Order) of the Receiving Party to whom
9
disclosure is reasonably necessary for this Action and who have signed the
10
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
11
(d) the court and its personnel;
12
(e) court reporters and their staff;
13
(f) professional jury or trial consultants, mock jurors, and Professional
14
Vendors to whom disclosure is reasonably necessary for this Action and who have
15
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
16
(g) the author or recipient of a document containing the information or a
17
custodian or other person who otherwise possessed or knew the information;
18
(h) during their depositions, witnesses, and attorneys for witnesses, in the
19
Action to whom disclosure is reasonably necessary provided: (1) the deposing party
20
requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
21
not be permitted to keep any confidential information unless they sign the
22
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
23
agreed by the Designating Party or ordered by the court. Pages of transcribed
24
deposition testimony or exhibits to depositions that reveal Protected Material may
25
be separately bound by the court reporter and may not be disclosed to anyone except
26
as permitted under this Stipulated Protective Order; and
27
1
(i) any mediator or settlement officer, and their supporting personnel,
2
mutually agreed upon by any of the parties engaged in settlement discussions.
3
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
4
IN OTHER LITIGATION
5
If a Party is served with a subpoena or a court order issued in other litigation
6
that compels disclosure of any information or items designated in this Action as
7
“CONFIDENTIAL,” that Party must:
8
(a) promptly notify in writing the Designating Party. Such notification
9
shall include a copy of the subpoena or court order;
10
(b) promptly notify in writing the party who caused the subpoena or order
11
to issue in the other litigation that some or all of the material covered by the
12
subpoena or order is subject to this Protective Order. Such notification shall include
13
a copy of this Stipulated Protective Order; and
14
(c) cooperate with respect to all reasonable procedures sought to be
15
pursued by the Designating Party whose Protected Material may be affected.
16
If the Designating Party timely seeks a protective order, the Party served with
17
the subpoena or court order shall not produce any information designated in this
18
action as “CONFIDENTIAL” before a determination by the court from which the
19
subpoena or order issued, unless the Party has obtained the Designating Party’s
20
permission. The Designating Party shall bear the burden and expense of seeking
21
protection in that court of its confidential material and nothing in these provisions
22
should be construed as authorizing or encouraging a Receiving Party in this Action
23
to disobey a lawful directive from another court.
24
25
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
26
PRODUCED IN THIS LITIGATION
27
1
(a) The terms of this Order are applicable to information produced by a
2
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
3
produced by Non-Parties in connection with this litigation is protected by the
4
remedies and relief provided by this Order. Nothing in these provisions should be
5
construed as prohibiting a Non-Party from seeking additional protections.
6
(b) In the event that a Party is required, by a valid discovery request, to
7
produce a Non-Party’s confidential information in its possession, and the Party is
8
subject to an agreement with the Non-Party not to produce the Non-Party’s
9
confidential information, then the Party shall:
10
(1) promptly notify in writing the Requesting Party and the Non-Party
11
that some or all of the information requested is subject to a confidentiality
12
agreement with a Non-Party;
13
(2) promptly provide the Non-Party with a copy of the Stipulated
14
Protective Order in this Action, the relevant discovery request(s), and a reasonably
15
specific description of the information requested; and
16
(3) make the information requested available for inspection by the
17
Non-Party, if requested.
18
(c) If the Non-Party fails to seek a protective order from this court within
19
14 days of receiving the notice and accompanying information, the Receiving Party
20
may produce the Non-Party’s confidential information responsive to the discovery
21
request. If the Non-Party timely seeks a protective order, the Receiving Party shall
22
not produce any information in its possession or control that is subject to the
23
confidentiality agreement with the Non-Party before a determination by the court.
24
Absent a court order to the contrary, the Non-Party shall bear the burden and
25
expense of seeking protection in this court of its Protected Material.
26
27
1
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
2
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
3
Protected Material to any person or in any circumstance not authorized under this
4
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
5
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
6
to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
7
persons to whom unauthorized disclosures were made of all the terms of this Order,
8
and (d) request such person or persons to execute the “Acknowledgment and
9
Agreement to Be Bound” that is attached hereto as Exhibit A.
10
11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
11
PROTECTED MATERIAL
12
When a Producing Party gives notice to Receiving Parties that certain
13
inadvertently produced material is subject to a claim of privilege or other protection,
14
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
15
Procedure 26(b)(5)(B). This provision is not intended to modify whatever
16
procedure may be established in an e-discovery order that provides for production
17
without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
18
(e), insofar as the parties reach an agreement on the effect of disclosure of a
19
communication or information covered by the attorney-client privilege or work
20
product protection, the parties may incorporate their agreement in the stipulated
21
protective order submitted to the court.
22
12. MISCELLANEOUS
23
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
24
person to seek its modification by the Court in the future.
25
12.2 Right to Assert Other Objections. By stipulating to the entry of this
26
Protective Order, no Party waives any right it otherwise would have to object to
27
1
disclosing or producing any information or item on any ground not addressed in this
2
Stipulated Protective Order. Similarly, no Party waives any right to object on any
3
ground to use in evidence of any of the material covered by this Protective Order.
4
12.3 Filing Protected Material. A Party that seeks to file under seal any
5
Protected Material must comply with Local Civil Rule 79-5. Protected Material
6
may only be filed under seal pursuant to a court order authorizing the sealing of the
7
specific Protected Material at issue. If a Party’s request to file Protected Material
8
under seal is denied by the court, then the Receiving Party may file the information
9
in the public record unless otherwise instructed by the court.
10
13. FINAL DISPOSITION
11
After the final disposition of this Action, as defined in paragraph 4, within 60
12
days of a written request by the Designating Party, each Receiving Party must return
13
all Protected Material to the Producing Party or destroy such material. As used in
14
this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
15
summaries, and any other format reproducing or capturing any of the Protected
16
Material. Whether the Protected Material is returned or destroyed, the Receiving
17
Party must submit a written certification to the Producing Party (and, if not the same
18
person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
19
(by category, where appropriate) all the Protected Material that was returned or
20
destroyed and (2) affirms that the Receiving Party has not retained any copies,
21
abstracts, compilations, summaries or any other format reproducing or capturing any
22
of the Protected Material. Notwithstanding this provision, Counsel are entitled to
23
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
24
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
25
reports, attorney work product, and consultant and expert work product, even if such
26
materials contain Protected Material. Any such archival copies that contain or
27
1
constitute Protected Material remain subject to this Protective Order as set forth in
2
Section 4 (DURATION).
3
4
14. VIOLATION
5
Any violation of this Order may be punished by appropriate measures including,
6
without limitation, contempt proceedings and/or monetary sanctions.
7
8
[CONTINUED ON NEXT PAGE]
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1
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
2
3 DATED: October 14, 2019
4
5 GOFFSTEIN LAW, LLC BERRY SILBERBERG STOKES PC
6 /s/ Adam M. Goffstein /s/ Robert P. Berry
7 ADAM M. GOFFSTEIN ROBERT P. PERRY
g Attorneys for Plaintiffs CAROL M. SILBERBERG
Attorneys for Defendant
9
10
ROR GOOD CAUSE SHOWN, IT IS SO ORDERED.
12
| DATED: October 17, 2019
14
pa
16
17 || GAIL J. STANDISH
18 UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25
26
27
28 16
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 perjury
5 that I have read in its entirety and understand the Stipulated Protective Order that
6 was issued by the United States District Court for the Central District of California
7 on [date] in the case of Kaylee Przybylak and Anil Kumar Urmil, on behalf of
8 themselves and all others similarly situated v. BISSELL Better Life, LLC, Case No.
9 2:19-cv-02038-PA-GJSx. I agree to comply with and to be bound by all the terms
10 of this Stipulated Protective Order and I understand and acknowledge that failure to
11 so comply could expose me to sanctions and punishment in the nature of contempt.
12 I solemnly promise that I will not disclose in any manner any information or item
13 that is subject to this Stipulated Protective Order to any person or entity except in
14 strict compliance with the provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court for the
16 Central District of California for enforcing the terms of this Stipulated Protective
17 Order, even if such enforcement proceedings occur after termination of this action.
18 I hereby 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 with
21 this action or any proceedings related to enforcement of this Stipulated Protective
22 Order.
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25 Printed name: _______________________________
26 Signature: __________________________________
27