distinguishing “good cause” showing for 23 sealing documents produced in discovery from “compelling reasons” standard when 24 merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for 23 sealing documents produced in discovery from “compelling reasons” standard when 24 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
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
KELLI EWEN, Individually, and as
11 Personal Representative of the Estate Case No. 2:19-cv-03656-FMO-GJS
of TODD EWEN, Deceased,
12
Plaintiff, STIPULATED PROTECTIVE
13 ORDER1
v.
14
NATIONAL HOCKEY LEAGUE, et
15 al.,
16 Defendants.
17 1. A. 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 prosecuting this litigation may
21 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
22 enter the following Stipulated Protective Order. The parties acknowledge that this
23 Order does not confer blanket protections on all disclosures or responses to
24 discovery and that the protection it affords from public disclosure and use extends
25
26
27
1 This Stipulated Protective Order is substantially based on the model protective
1 only to the limited information or items that are entitled to confidential treatment
2 under the applicable legal principles.
3 B. GOOD CAUSE STATEMENT
4 This action is likely to involve confidential financial, commercial and
5 Protected Health Information (“PHI”), as well as valuable competitively sensitive
6 and/or proprietary information for which special protection from public disclosure
7 and from use for any purpose other than prosecution of this action is warranted.
8 Such confidential and proprietary materials and information consist of, among other
9 things, confidential business, financial and commercial information, information
10 regarding confidential business practices, information implicating the privacy rights
11 of third parties, information regarding PHI of certain individuals, information
12 otherwise generally unavailable to the public, or which may be privileged or
13 otherwise protected from disclosure under state or federal statutes, court rules, case
14 decisions, or common law. Accordingly, to expedite the flow of information, to
15 facilitate the prompt resolution of disputes over confidentiality of discovery
16 materials, to adequately protect information the parties are entitled to keep
17 confidential, to ensure that the parties are permitted reasonable necessary uses of
18 such material in preparation for and in the conduct of trial, to address their handling
19 at the end of the litigation, and serve the ends of justice, a protective order for such
20 information is justified in this matter. It is the intent of the parties that information
21 will not be designated as confidential for tactical reasons and that nothing be so
22 designated without a good faith belief that it has been maintained in a confidential,
23 non-public manner, and there is good cause why it should not be part of the public
24 record of this case.
25 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
26 The parties further acknowledge, as set forth in Section 12.3, below, that this
27 Stipulated Protective Order does not entitle them to file confidential information
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 a “PROTECTED
14 DOCUMENT,” “PROTECTED DOCUMENT – ATTORNEYS’ EYES ONLY,” or
15 “PROTECTED DOCUMENT – PHI CONFIDENTIAL” does not—without the
16 submission of competent evidence by declaration, establishing that the material
17 sought to be filed under seal qualifies as confidential, privileged, or otherwise
18 protectable—constitute good cause.
19 Further, if a party requests sealing related to a dispositive motion or trial, then
20 compelling reasons, not only good cause, for the sealing must be shown, and the
21 relief sought shall be narrowly tailored to serve the specific interest to be protected.
22 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
23 each item or type of information, document, or thing sought to be filed or introduced
24 under seal in connection with a dispositive motion or trial, the party seeking
25 protection must articulate compelling reasons, supported by specific facts and legal
26 justification, for the requested sealing order. Again, competent evidence supporting
27 the application to file documents under seal must be provided by declaration.
1 Any document that is not confidential, privileged, or otherwise protectable in
2 its entirety will not be filed under seal if the confidential portions can be redacted.
3 If documents can be redacted, then a redacted version for public viewing, omitting
4 only the confidential, privileged, or otherwise protectable portions of the document,
5 shall be filed. Any application that seeks to file documents under seal in their
6 entirety should include an explanation of why redaction is not feasible.
7
8 2. DEFINITIONS
9 2.1 Actions: Ewen v. NHL, 2:19-cv-03656; Carcillo v. NHL, 19-cv-6156
10 (N.D. Ill.); Montador v. NHL, 15-cv-10989 (N.D. Ill.).
11 2.2 Challenging Party: a Party or Non-Party that challenges the
12 designation of information or items under this Order.
13 2.3 “PROTECTED DOCUMENT”: information (regardless of how it is
14 generated, stored or maintained) under the standards developed under Rule 26 of the
15 Federal Rules of Civil Procedure, or other applicable laws or rules related to
16 financial, trade secret, confidential, proprietary, commercially, or competitively
17 sensitive information, or information protected under privacy laws, including
18 information protected under the Health Insurance Portability and Accountability Act
19 (“HIPAA”), and as specified above in the Good Cause Statement.
20 2.4 “PROTECTED DOCUMENT – ATTORNEYS’ EYES ONLY”: refers
21 to a “PROTECTED DOCUMENT” that includes information that the Producing
22 Party believes in good faith contains such highly confidential information that its
23 disclosure would cause serious competitive, reputational, or privacy harm.
24 2.5 “PROTECTED DOCUMENT – PHI CONFIDENTIAL”: refers to a
25 “PROTECTED DOCUMENT” that that includes without limitation any document
26 or information supplied in any form, or any portion thereof, that identifies an
27 individual in any manner and relates to the past, present, or future care, services, or
1 supplies regarding the physical or mental health or condition of such individual, the
2 provision of health care to such individual, or the payment for the provision of
3 health care to such individual. “PHI CONFIDENTIAL” material also include
4 without limitation “protected health information” as such term is defined by the
5 Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R.
6 parts 160 and 164, promulgated pursuant to HIPAA, including prescriptions,
7 prescription notes, prescription records, prescription drug event reports, medical
8 bills, claims forms, charge sheets, medical records, medical charts, test results,
9 notes, dictation, invoices, itemized billing statements, remittance advice forms,
10 explanations of benefits, checks, notices, requests, summaries, or oral
11 communications.
12 2.6 Counsel: Outside Counsel of Record, Non-Party Counsel and House
13 Counsel (as well as their support staff).
14 2.7 Designating Party: a Party or Non-Party that designates information or
15 items that it produces in disclosures or in responses to discovery as “PROTECTED
16 DOCUMENT,” “PROTECTED DOCUMENT – ATTORNEYS’ EYES ONLY,” or
17 “PROTECTED DOCUMENT – PHI CONFIDENTIAL.”
18 2.8 Disclosure or Discovery Material: all items or information, regardless
19 of the medium or manner in which it is generated, stored, or maintained (including,
20 among other things, testimony, transcripts, and tangible things), that are produced or
21 generated in disclosures or responses to discovery in this matter.
22 2.9 Expert: a person with specialized knowledge or experience in a matter
23 pertinent to the litigation who has been retained by a Party or its Counsel to serve as
24 an expert witness or as a consultant in the Actions.
25 2.10 House Counsel: attorneys who are employees of a party to the Actions.
26 House Counsel does not include Outside Counsel of Record or any other outside
27 Counsel.
1 2.11 Non-Party: any natural person, partnership, corporation, association or
2 other legal entity not named as a Party to the Actions.
3 2.12 Outside Counsel of Record: attorneys who are not employees of a
4 party to the Actions but are retained to represent or advise a party to the Actions and
5 have appeared in the Actions on behalf of that party or are affiliated with a law firm
6 that has appeared on behalf of that party, and includes support staff.
7 2.13 Party: any party to the Actions, including all of its officers, directors,
8 employees, consultants, retained experts, and Outside Counsel of Record (and their
9 support staffs).
10 2.14 Producing Party: a Party or Non-Party that produces Disclosure or
11 Discovery Material in the Actions.
12 2.15 Professional Vendors: persons or entities that provide litigation
13 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
14 demonstrations, and organizing, storing, or retrieving data in any form or medium)
15 and their employees and subcontractors.
16 2.16 Protected Material: any Disclosure or Discovery Material that is
17 designated as “PROTECTED DOCUMENT,” “PROTECTED DOCUMENT –
18 ATTORNEYS’ EYES ONLY,” or “PROTECTED DOCUMENT – PHI
19 CONFIDENTIAL.”
20 2.17 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. This
1 Protective Order is binding upon the parties and their Counsel, and any Non-Party
2 party who supplies or receives discovery or information of any kind related to this
3 litigation, including their respective corporate parents, subsidiaries, and affiliates
4 and their respective attorneys, principals, experts, consultants, representatives,
5 directors, officers, employees, and others as set forth in this Protective Order.
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 4. DURATION
9 FINAL DISPOSITION of the action is defined as (a) termination of the
10 Actions, whether by judgment, settlement or otherwise; or (b) the conclusion of any
11 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
12 has run. Except as set forth below, the terms of this Protective Order apply through
13 FINAL DISPOSITION of the action. The parties may stipulate that the they will be
14 contractually bound by the terms of this agreement beyond FINAL DISPOSITION,
15 but will have to file a separate action for enforcement of the agreement once all
16 proceedings in this case are complete.
17 Once a case proceeds to trial, information that was designated as Protected
18 Material or maintained pursuant to this Protective Order used or introduced as an
19 exhibit at trial becomes public and will be presumptively available to all members of
20 the public, including the press, unless compelling reasons supported by specific
21 factual findings to proceed otherwise are made to the trial judge in advance of the
22 trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for
23 sealing documents produced in discovery from “compelling reasons” standard when
24 merits-related documents are part of court record). Accordingly, for such materials,
25 the terms of this Protective Order do not extend beyond the commencement of the
26 trial.
27
1 5. DESIGNATING PROTECTED MATERIAL
2 5.1 Exercise of Restraint and Care in Designating Material for Protection.
3 Each Party or Non-Party that designates information or items for protection under
4 this Order must take care to limit any such designation to specific material that
5 qualifies under the appropriate standards. The Designating Party must designate for
6 protection only those parts of material, documents, items or oral or written
7 communications that qualify so that other portions of the material, documents, items
8 or communications for which protection is not warranted are not swept unjustifiably
9 within the ambit of this Order.
10 Mass, indiscriminate or routinized designations are prohibited. Designations
11 that are shown to be clearly unjustified or that have been made for an improper
12 purpose (e.g., to unnecessarily encumber the case development process or to impose
13 unnecessary expenses and burdens on other parties) may expose the Designating
14 Party to sanctions.
15 If it comes to a Designating Party’s attention that information or items that it
16 designated for protection do not qualify for protection, that Designating Party must
17 promptly notify all other Parties that it is withdrawing the inapplicable designation.
18 5.2 Manner and Timing of Designations. Except as otherwise provided in
19 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise
20 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
21 under this Order must be clearly so designated before the material is disclosed or
22 produced.
23 Designation in conformity with this Order requires:
24 (a) for information in documentary form (e.g., paper or electronic
25 documents, but excluding transcripts of depositions or other pretrial or trial
26 proceedings), that the Producing Party affix at a minimum, the legend
27 “PROTECTED DOCUMENT,” “PROTECTED DOCUMENT – ATTORNEYS’
1 EYES ONLY,” or “PROTECTED DOCUMENT – PHI
2 CONFIDENTIAL”(hereinafter “PROTECTED legend”), to each page that contains
3 Protected Material. If only a portion of the material on a page qualifies for
4 protection, the Producing Party also must clearly identify the protected portion(s)
5 (e.g., by making appropriate markings in the margins).
6 A Party or Non-Party that makes original documents available for inspection
7 need not designate them for protection until after the inspecting Party has indicated
8 which documents it would like copied and produced. During the inspection and
9 before the designation, all of the material made available for inspection shall be
10 deemed Protected Material. After the inspecting Party has identified the documents
11 it wants copied and produced, the Producing Party must determine which
12 documents, or portions thereof, qualify for protection under this Order. Then,
13 before producing the specified documents, the Producing Party must affix the
14 “PROTECTED legend” to each page that contains Protected Material. If only a
15 portion of the material on a page qualifies for protection, the Producing Party also
16 must clearly identify the protected portion(s) (e.g., by making appropriate markings
17 in the margins).
18 (b) for testimony given in depositions that the Designating Party identifies
19 the Disclosure or Discovery Material on the record, before the close of the
20 deposition all protected testimony or within thirty (30) days of receiving the
21 transcript.
22 (c) for information produced in some form other than documentary and
23 for any other tangible items, that the Producing Party affix in a prominent place on
24 the exterior of the container or containers in which the information is stored the
25 legend “PROTECTED.” If only a portion or portions of the information warrants
26 protection, the Producing Party, to the extent practicable, shall identify the protected
27 portion(s).
1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
2 failure to designate qualified information or items does not, standing alone, waive
3 the Designating Party’s right to secure protection under this Order for such material.
4 Upon timely correction of a designation, the Receiving Party must make reasonable
5 efforts to assure that the material is treated in accordance with the provisions of this
6 Order.
7 5.4 Designation Not an Admission. Any document or information
8 designated as Protected Material under this Protective Order shall not be construed
9 as an admission or an agreement by any party that any document, material or
10 information, or any portion thereof, is relevant or admissible at trial.
11
12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
13 6.1 Challenge Timing and Procedure. Any Party or Non-Party may
14 challenge a designation of confidentiality at any time that is consistent with the
15 Court’s Scheduling Order and shall give the Producing Party notice in writing (a
16 letter to lead Counsel for plaintiff and defendants and Counsel for any Non-Party
17 whose designation is disputed delivered by email shall be sufficient) including the
18 listing of any such document(s) or the bates ranges for the document(s), or the
19 specific testimony with line and page numbers of the transcripts, and shall provide a
20 brief explanation of the basis for contesting the designation of each document or
21 testimony contested (the “Notice”). If the same document in the Notice appears in
22 the production at other bates numbers, the Notice shall be deemed to be sufficient
23 for all such documents. The Notice shall be sufficient if it identifies each document
24 or testimony being challenged and states the basis for each challenge. If the parties
25 cannot agree to the designation of a document or testimony within thirty (30) days
26 of the Producing Party’s receipt of the Notice, any party to this agreement may
27 challenge the propriety of the designation of any document or testimony as
1 Protected Material by motion to the Court, with written notice to all parties.
2 Pending a Court determination, no document designated as Protected Material under
3 this Protective Order shall be disseminated other than as provided by this Order
4 unless otherwise ordered by the Court or as stipulated by defendant and plaintiff.
5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
6 resolution process under Local Rule 37.1 et seq.
7 6.3 The burden of persuasion in any such challenge proceeding shall be on
8 the Designating Party. Frivolous challenges, and those made for an improper
9 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
10 parties) may expose the Challenging Party to sanctions. Unless the Designating
11 Party has waived or withdrawn the confidentiality designation, all parties shall
12 continue to afford the material in question the level of protection to which it is
13 entitled under the Producing Party’s designation until the Court rules on the
14 challenge.
15
16 7. ACCESS TO AND USE OF PROTECTED MATERIAL
17 7.1 Basic Principles. A Receiving Party may use Protected Material that is
18 disclosed or produced by another Party or by a Non-Party in connection with the
19 Actions only for prosecuting, defending or attempting to settle the Actions, and shall
20 not be used for any business or competitive purpose, or for any other purposes
21 whatsoever. Such Protected Material may be disclosed only to the categories of
22 persons, and under the conditions described in this Order. No person who examines
23 any item that is protected by this Protective Order shall disseminate orally, or by any
24 other means, any protected information other than as permitted by this Order. When
25 the Actions have been terminated, a Receiving Party must comply with the
26 provisions of Section 13 below (FINAL DISPOSITION).
27 Protected Material must be stored and maintained by a Receiving Party at a
1 location and in a secure manner that ensures that access is limited to the persons
2 authorized under this Order. Any persons having access to material or information
3 subject to this Protective Order, including consultants and experts, are permitted to
4 make copies, extracts, summaries, or descriptions of the material or information or
5 any portion thereof as necessary for the preparation and trial of any case in the
6 Actions.
7 Before being given access to any Protected Material, each person described in
8 Sections 7.2(c), (f) and (h), below, shall be advised of the terms of this Agreement,
9 shall be given a copy of this Agreement, and shall agree in writing to be bound by
10 its terms by executing the “Acknowledgment and Agreement to Be Bound” (Exhibit
11 A). The executed Exhibit A shall be retained by Counsel for the Receiving Party,
12 with a copy provided to Counsel for the Producing Party upon request. At the
13 conclusion of the Actions, Counsel for the Receiving Party shall confirm in writing
14 with Counsel for the Producing Party that it will seek to have any designated
15 documents that were provided to experts under subsection (c) of paragraph 7.2
16 returned to Counsel for the Receiving Party or destroyed.
17 7.2 Disclosure of “PROTECTED” Information or Items. Unless otherwise
18 ordered by the court or permitted in writing by the Designating Party, a Receiving
19 Party may disclose any information or item designated “PROTECTED
20 DOCUMENT” only to:
21 (a) the Receiving Party’s House Counsel or Outside Counsel of Record in
22 the Actions, as well as employees of said Outside Counsel of Record to whom it is
23 reasonably necessary to disclose the information for the Actions;
24 (b) the Receiving Party, or officers, directors, and employees of the
25 Receiving Party to whom disclosure is reasonably necessary for the Actions;
26 (c) Experts (as defined in this Order) of the Receiving Party to whom
27 disclosure is reasonably necessary for the Actions provided the Receiving Party
1 requests that the Experts sign the form attached as Exhibit A hereto, unless
2 otherwise agreed by the Designating Party or ordered by the court;
3 (d) the court and its personnel;
4 (e) court reporters and their staff;
5 (f) professional jury or trial consultants, mock jurors, and Professional
6 Vendors to whom disclosure is reasonably necessary for the Actions provided the
7 Receiving Party requests that they sign the form attached as Exhibit A hereto, unless
8 otherwise agreed by the Designating Party or ordered by the court;
9 (g) the author or recipient of a document containing the information or a
10 custodian or other person who otherwise possessed or knew the information;
11 (h) during their depositions, witnesses, and attorneys for witnesses, in the
12 Actions to whom disclosure is reasonably necessary provided the deposing party
13 requests that the witness sign the form attached as Exhibit A hereto, unless
14 otherwise agreed by the Designating Party or ordered by the court. Pages of
15 transcribed deposition testimony or exhibits to depositions that reveal Protected
16 Material may be separately bound by the court reporter and may not be disclosed to
17 anyone except as permitted under this Stipulated Protective Order; and
18 (i) any mediator or settlement officer, and their supporting personnel,
19 mutually agreed upon by any of the parties engaged in settlement discussions.
20 7.3 Disclosure of “PROTECTED – FOR ATTORNEYS’ EYES ONLY”
21 Information or Items. Unless otherwise ordered by the court or permitted in writing
22 by the Designating Party, a Receiving Party shall not disclose any information or
23 item designated “PROTECTED DOCUMENT – FOR ATTORNEYS’ EYES
24 ONLY” to any other person or entity, except that disclosure may be made consistent
25 with subsections (a), (c), (d), (e), (f), (g), (h), and (i) of Section 7.2 above.
26 7.4 Disclosure of “PROTECTED – PHI CONFIDENTIAL” Information or
27 Items. Unless otherwise ordered by the court or permitted in writing by the
1 Designating Party, a Receiving Party shall not disclose any information or item
2 designated “PROTECTED DOCUMENT – PHI CONFIDENTIAL” to any other
3 person or entity, except that disclosure may be made consistent with subsections (a),
4 (c), (d), (e), (f), (g), (h), and (i), of Section 7.2 above.
5 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
6 IN OTHER LITIGATION
7 If a Party is served with a subpoena or a court order issued in another
8 litigation that compels disclosure of any information or items designated in the
9 Actions as Protected Material, that Party must:
10 (a) promptly notify the Designating Party in writing via email and
11 overnight delivery (sent within 48 hours of receipt of the subpoena or other process)
12 of all of the following: (1) any document(s) or information designated as Protected
13 Material that is requested for production in the subpoena; (2) the date on which
14 compliance with the subpoena is requested; (3) the location at which compliance
15 with the subpoena is requested; (4) the identity of the party serving the subpoena;
16 and (5) the case name, jurisdiction and index, docket, complaint, charge, civil action
17 or other identification number or other designation identifying the litigation,
18 administrative proceeding or other proceeding in which the subpoena or other
19 process has been issued. In no event shall a designated document be produced prior
20 to the expiration of fifteen (15) days following transmission of written notice to
21 Counsel for the Producing Party unless required to do so by the subpoena seeking
22 the documents or court order;
23 (b) promptly notify in writing the party who caused the subpoena or order
24 to issue in the other litigation that some or all of the material covered by the
25 subpoena or order is subject to this Protective Order. Such notification shall include
26 a copy of this Stipulated Protective Order; and
27 (c) cooperate with respect to all reasonable procedures sought to be
1 pursued by the Designating Party whose Protected Material may be affected.
2 If the Designating Party timely seeks a protective order, the Party served with
3 the subpoena or court order shall not produce any information designated in the
4 Actions as Protected Materials before a determination by the court from which the
5 subpoena or order issued, unless the Party has obtained the Designating Party’s
6 permission. The Designating Party shall bear the burden and expense of seeking
7 protection in that court of its confidential material and nothing in these provisions
8 should be construed as authorizing or encouraging a Receiving Party in the Actions
9 to disobey a lawful directive from another court.
10
11 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
12 PRODUCED IN THIS LITIGATION
13 (a) The terms of this Order are applicable to information produced by a
14 Non-Party in the Actions and designated as Protected Material. Such information
15 produced by Non-Parties in connection with this litigation is protected by the
16 remedies and relief provided by this Order. Nothing in these provisions should be
17 construed as prohibiting a Non-Party from seeking additional protections.
18 (b) In the event that a Party is required, by a valid discovery request, to
19 produce a Non-Party’s confidential information in its possession, and the Party is
20 subject to an agreement with the Non-Party not to produce the Non-Party’s
21 confidential information, then the Party shall:
22 (1) promptly notify in writing the Requesting Party and the Non-Party
23 that some or all of the information requested is subject to a confidentiality
24 agreement with a Non-Party;
25 (2) promptly provide the Non-Party with a copy of the Stipulated
26 Protective Order in the Actions, the relevant discovery request(s), and a reasonably
27 specific description of the information requested; and
1 (3) make the information requested available for inspection by the
2 Non-Party, if requested.
3 (c) If the Non-Party fails to seek a protective order from this court within
4 14 days of receiving the notice and accompanying information, the Receiving Party
5 may produce the Non-Party’s confidential information responsive to the discovery
6 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
7 not produce any information in its possession or control that is subject to the
8 confidentiality agreement with the Non-Party before a determination by the court.
9 Absent a court order to the contrary, the Non-Party shall bear the burden and
10 expense of seeking protection in this court of its Protected Material.
11
12 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
13 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
14 Protected Material to any person or in any circumstance not authorized under this
15 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
16 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
17 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
18 persons to whom unauthorized disclosures were made of all the terms of this Order,
19 and (d) request such person or persons to execute the “Acknowledgment and
20 Agreement to Be Bound” that is attached hereto as Exhibit A.
21
22 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
23 PROTECTED MATERIAL
24 Inadvertent production of any privileged material or Protected Material will
25 not be deemed to waive a later claim to its confidential nature or preclude a party
26 from designating said document or information as Protected Material pursuant to
27 this Order at a later date. Any party may designate as Protected Material or
1 withdraw such designation from any material that it has produced; provided,
2 however, that such re-designation shall be effective only as of the date of such re-
3 designation. A party must treat such documents and things with the noticed level of
4 protection from the date such notice is received. Such re-designation shall be
5 accomplished by notifying Counsel for each party in writing of such re-designation
6 and providing replacement images bearing the appropriate description. Upon
7 receipt of any re-designation and replacement image that designates material as
8 Protected Material, all Parties shall: (1) treat such material in accordance with this
9 Order; (2) take reasonable steps to notify any persons known to have possession of
10 any such material of such re-designation under this Protective Order; and (3)
11 promptly endeavor to procure all copies of such material from any persons known to
12 have possession of such material who are not entitled to receipt under this Protective
13 Order.
14 12. MISCELLANEOUS
15 12.1 Right to Modification. Any Party, for good cause shown, may apply to
16 the Court for modification of this Protective Order, or the Protective Order may be
17 modified by consent of plaintiff and defendant in writing. This Protective Order
18 shall remain in full force and effect and each person subject to this Order shall
19 continue to be subject to the jurisdiction of this Court, for the purposes of this Order,
20 in perpetuity, and the Court shall not be divested of jurisdiction of any person or of
21 the subject matter of this Order by the occurrence of conclusion of this litigation, or
22 by the filing of a notice of appeal, or other pleading which would have the effect of
23 divesting this Court of jurisdiction of this matter generally.
24 12.2 Right to Assert Other Objections. By stipulating to the entry of this
25 Protective Order, no Party waives any right it otherwise would have to object to
26 disclosing or producing any information or item on any ground not addressed in this
27
1 Stipulated Protective Order. Similarly, no Party waives any right to object on any
2 ground to use in evidence of any of the material covered by this Protective Order.
3 12.3 Filing Protected Material. A Party that seeks to file under seal any
4 Protected Material must comply with Local Civil Rule 79-5. Protected Material
5 may only be filed under seal pursuant to a court order authorizing the sealing of the
6 specific Protected Material at issue. If a Party’s request to file Protected Material
7 under seal is denied by the court, then the Receiving Party may file the information
8 in the public record unless otherwise instructed by the court.
9 12.4 Qualified Protective Order. The parties agree that this Protective Order
10 will constitute a Qualified Protective Order under 45 C.F.R. 164.512(e).
11
12 13. FINAL DISPOSITION
13 After the final disposition of the Actions, as defined in Section 4, upon
14 written request from Counsel for the Designating Party, each Receiving Party must
15 return all Protected Material to the Producing Party or destroy such material. As
16 used in this subdivision, “all Protected Material” includes all copies, abstracts,
17 compilations, summaries, and any other format reproducing or capturing any of the
18 Protected Material. Whether the Protected Material is returned or destroyed, the
19 Receiving Party must submit a written certification to the Producing Party (and, if
20 not the same person or entity, to the Designating Party) that (1) identifies (by
21 category, where appropriate) all the Protected Material that was returned or
22 destroyed and (2) affirms that the Receiving Party has not retained any copies,
23 abstracts, compilations, summaries or any other format reproducing or capturing any
24 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
25 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
26 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
27 reports, attorney work product, and consultant and expert work product, even if such
1 materials contain Protected Material. Any such archival copies that contain or
2 constitute Protected Material remain subject to this Protective Order as set forth in
3 Section 4 (DURATION).
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 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
8
9 DATED: November 6, 2019
10
11 /s/ Caleb Marker
Caleb Marker (SBN 269721)
12
Christopher P. Ridout (SBN 143931)
13 ZIMMERMAN REED, LLP
2381 Rosecrans Avenue, Suite 328
14
Manhattan Beach, CA 90245
15 (877) 500-8780 Telephone
(877) 500-8781 Facsimile
16
Caleb.marker@zimmreed.com
17 Christopher.ridout@zimmreed.com
18
19 Brian C. Gudmundson (admitted pro hac vice)
Michael J. Laird (admitted pro hac vice)
20
ZIMMERMAN REED, LLP
21 1100 IDS Center
80 South 8th Street
22
Minneapolis, MN 55402
23 (612) 341-0400 Telephone
(612) 341-0844 Facsimile
24
Brian.gudmundson@zimmreed.com
25 Michael.laird@zimmreed.com
26
William T. Gibbs (admitted pro hac vice)
27 CORBOY & DEMETRIO, P.C.
33 N. Dearborn St., Suite 2100
1
Chicago, IL 60602
2 (312) 346-3191 Telephone
(312) 346-5562 Facsimile
3
wtg@corboydemetrio.com
4
Mark M. O’Mara (admitted pro hac vice)
5
O’MARA LAW GROUP
6 221 NE Ivanhoe Blvd., Suite 200
Orlando, FL 32804
7
Telephone: (407) 898-5151
8 Facsimile: (407) 898-2468
mark@omaralawgroup.com
9
10 Attorneys for Plaintiff
Kelli Ewen, Individually,
11
and as Personal Representative
12 of the Estate of TODD EWEN, Deceased,
13
14 DATED: November 6, 2019
15
16 /s/ Jack P. DiCanio
Jack P. DiCanio (SBN 138782)
17
SKADDEN, ARPS, SLATE,
18 MEAGHER & FLOM LLP
300 South Grand Avenue, Suite 3400
19
Los Angeles, California 90071
20 Telephone: (213) 687-5000
Facsimile: (213) 687-5600
21
jack.dicanio@skadden.com
22
John H. Beisner (SBN 81571)
23
SKADDEN, ARPS, SLATE,
24 MEAGHER & FLOM LLP
25 1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
26 Telephone: (202) 371-7000
27 john.beisner@skadden.com
Shepard Goldfein (admitted pro hac vice)
Matthew M. Martino (admitted pro hac vice)
2 || SKADDEN, ARPS, SLATE,
3 MEAGHER & FLOM LLP
Four Times Square
4 || New York, New York 10036-6522
s || Telephone: (212) 735-3000
shepard. goldfein@skadden.com
6 || matthew.martino@skadden.com
7
Joseph Baumgarten (admitted pro hac vice)
8 || Adam M. Lupion (admitted pro hac vice)
9 || ANDREW A. SMITH (SBN 275316)
PROSKAUER ROSE LLP
10 |} Eleven Times Square
11 || New York, New York 10036-8299
Telephone: (212) 969-3000
12 || jbaumgarten@proskauer.com
13. || alupion@proskauer.com
14 || Attorneys for Defendants
15 || NATIONAL HOCKEY LEAGUE,
NHL ENTERPRISES, LP AND
16 ||] NATIONAL HOCKEY LEAGUE BOARD
17 || OF GOVERNORS
18
19 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
0 DATED: December 2, 2019
21
22
|)}$ □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
GAIL J. STANDISH
24 || UNITED STATES MAGISTRATE JUDGE
25
26
27
28 21
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 November 6, 2019 in the case of ___________ Ewen v. NHL, No. 2:19-cv-
9 03656-FMO-GJS. I agree to comply with and to be bound by all the terms of this
10 Stipulated Protective Order and I understand and acknowledge that failure to so
11 comply could expose me to sanctions and punishment in the nature of contempt. I
12 solemnly promise that I will not disclose in any manner any information or item that
13 is subject to this Stipulated Protective Order to any person or entity except in strict
14 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
27 Signature: __________________________________