distinguishing “good cause” showing for sealing 17 documents produced in discovery from “compelling reasons” standard when merits-related 18 documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for sealing 17 documents produced in discovery from “compelling reasons” standard when merits-related 18 documents are part of court record
- even stipulated 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 TACORI ENTERPRISES, Case No. 2:18-cv-09921-R-AFM
11 Plaintiff, [PROPOSED] STIPULATED
PROTECTIVE ORDER1
12 v.
DISCOVERY MATTER
13 S. KASHI & SONS,
14 Defendant. Alexander F. MacKinnon
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28 1 This Stipulated Protective Order is based substantially on the model protective order
provided under Magistrate Judge Alexander F. MacKinnon’s Procedures.
2 Discovery in this action is likely to involve production of confidential, proprietary
3 or private information for which special protection from public disclosure and from use for
4 any purpose other than prosecuting this litigation may be warranted. Accordingly, the
5 parties hereby stipulate to and petition the Court to enter the following Stipulated Protective
6 Order. The parties acknowledge that this Order does not confer blanket protections on all
7 disclosures or responses to discovery and that the protection it affords from public
8 disclosure and use extends only to the limited information or items that are entitled to
9 confidential treatment under the applicable legal principles.
10 B. GOOD CAUSE STATEMENT
11 This copyright infringement action is likely to involve confidential information,
12 including trade secrets, customer and pricing lists and other valuable research,
13 development, commercial, financial, technical and/or proprietary information for which
14 special protection from public disclosure and from use for any purpose other than
15 prosecution of this action is warranted. Such confidential and proprietary materials and
16 information consist of, among other things, confidential business or financial information,
17 including customer pricing lists, customer information, supplier information, forward
18 looking business plans, and profit and loss statements.
19 This action may also potentially involve information regarding confidential business
20 practices, or other confidential research, development, or commercial information
21 (including information implicating privacy rights of third parties), information otherwise
22 generally unavailable to the public, or which may be privileged or otherwise protected from
23 disclosure under state or federal statutes, court rules, case decisions, or common law.
24 Accordingly, to expedite the flow of information, to facilitate the prompt resolution
25 of disputes over confidentiality of discovery materials, to adequately protect information
26 the parties are entitled to keep confidential, to ensure that the parties are permitted
27 reasonable necessary uses of such material in preparation for and in the conduct of trial, to
28 address their handling at the end of the litigation, and serve the ends of justice, a protective
2 intent of the parties that information will not be designated as confidential for tactical
3 reasons and that nothing be so designated without a good faith belief that it has been
4 maintained in a confidential, non-public manner, and there is good cause why it should not
5 be part of the public record of this case.
6 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
7 The parties further acknowledge, as set forth in Section 12.3, below, that this
8 Stipulated Protective Order does not entitle them to file confidential information under
9 seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and the
10 standards that will be applied when a party seeks permission from the court to file material
11 under seal.
12 There is a strong presumption that the public has a right of access to judicial
13 proceedings and records in civil cases. In connection with non-dispositive motions, good
14 cause must be shown to support a filing under seal. See Kamakana v. City and County of
15 Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d
16 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577
17 (E.D. Wis. 1999) (even stipulated protective orders require good cause showing), and a
18 specific showing of good cause or compelling reasons with proper evidentiary support and
19 legal justification, must be made with respect to Protected Material that a party seeks to
20 file under seal. The parties’ mere designation of Disclosure or Discovery Material as
21 CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY does
22 not—without the submission of competent evidence by declaration, establishing that the
23 material sought to 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, then
26 compelling reasons, not only good cause, for the sealing must be shown, and the relief
27 sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos
28 v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of
2 with a dispositive motion or trial, the party seeking protection must articulate compelling
3 reasons, supported by specific facts and legal justification, for the requested sealing order.
4 Again, competent evidence supporting the application to file documents under seal must
5 be provided by declaration.
6 Any document that is not confidential, privileged, or otherwise protectable in its
7 entirety will not be filed under seal if the confidential portions can be redacted. If
8 documents can be redacted, then a redacted version for public viewing, omitting only the
9 confidential, privileged, or otherwise protectable portions of the document, shall be filed.
10 Any application that seeks to file documents under seal in their entirety should include an
11 explanation of why redaction is not feasible.
12 2. DEFINITIONS
13 2.1 Action: this pending federal lawsuit.
14 2.2 Challenging Party: a Party or Non-Party that challenges the designation
15 of information or items under this Order.
16 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
17 how it is generated, stored or maintained) or tangible things that qualify for protection
18 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
19 Statement.
20 2.4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
21 Information of Items: information (regardless of how it is generated, stored or maintained)
22 or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c),
23 and as specified above in the Good Cause Statement, and the disclosure of which would
24 put the Producing Party at a competitive disadvantage.
25 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as
26 their support staff).
27 2.6 Designating Party: a Party or Non-Party that designates information or
28 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2 of the medium or manner in which it is generated, stored, or maintained (including, among
3 other things, testimony, transcripts, and tangible things), that are produced or generated in
4 disclosures or responses to discovery in this matter.
5 2.8 Expert: a person with specialized knowledge or experience in a matter
6 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
7 expert witness or as a consultant in this Action.
8 2.9 House Counsel: attorneys who are employees of a party to this Action.
9 House Counsel does not include Outside Counsel of Record or any other outside counsel.
10 2.10 Non-Party: any natural person, partnership, corporation, association or
11 other legal entity not named as a Party to this action.
12 2.11 Outside Counsel of Record: attorneys who are not employees of a party
13 to this Action but are retained to represent or advise a party to this Action and have
14 appeared in this Action on behalf of that party or are affiliated with a law firm that has
15 appeared on behalf of that party, and includes support staff.
16 2.12 Party: any party to this Action, including all of its officers, directors,
17 employees, consultants, retained experts, and Outside Counsel of Record (and their support
18 staffs).
19 2.13 Producing Party: a Party or Non-Party that produces Disclosure or
20 Discovery Material in this Action.
21 2.14 Professional Vendors: persons or entities that provide litigation support
22 services (e.g., photocopying, videotaping, translating, preparing exhibits or
23 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
24 their employees and subcontractors.
25 2.15 Protected Material: any Disclosure or Discovery Material that is
26 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
27 EYES ONLY.”
28 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
2 3. SCOPE
3 The protections conferred by this Stipulated Protective Order cover not only
4 Protected Material (as defined above), but also (1) any information copied or extracted
5 from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
6 Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel
7 that might reveal Protected Material.
8 Any use of Protected Material at trial shall be governed by the orders of the trial
9 judge. This Order does not govern the use of Protected Material at trial.
10 4. DURATION
11 Once a case proceeds to trial, information that (1) was designated as Protected
12 Material or maintained pursuant to this protective order and (2) used or introduced as an
13 exhibit at trial becomes public and will be presumptively available to all members of the
14 public, including the press, unless compelling reasons supported by specific factual
15 findings to proceed otherwise are made to the trial judge in advance of the trial. See
16 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing
17 documents produced in discovery from “compelling reasons” standard when merits-related
18 documents are part of court record). Accordingly, the terms of this protective order do not
19 extend beyond the commencement of the trial, for items introduced into the public record
20 at trial.
21 Even after final disposition of this litigation, the confidentiality obligations imposed
22 by this Order shall remain in effect until a Designating Party agrees otherwise in writing
23 or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)
24 dismissal of all claims and defenses in this action, with or without prejudice; and (2) final
25 judgment herein after the completion and exhaustion of all appeals, rehearings, remands,
26 trials, or reviews of this action, including the time limits for filing any motions or
27 applications for extension of time pursuant to applicable law.
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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 this
4 Order must take care to limit any such designation to specific material that qualifies under
5 the appropriate standards. The Designating Party must designate for protection only those
6 parts of material, documents, items or oral or written communications that qualify so that
7 other portions of the material, documents, items or communications for which protection
8 is not warranted are not swept unjustifiably within the ambit of this Order.
9 Mass, indiscriminate or routinized designations are prohibited. Designations that are
10 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
11 unnecessarily encumber the case development process or to impose unnecessary expenses
12 and burdens on other parties) may expose the Designating Party to sanctions.
13 If it comes to a Designating Party’s attention that information or items that it
14 designated for protection do not qualify for protection, that Designating Party must
15 promptly notify all other Parties that it is withdrawing the inapplicable designation.
16 5.2 Manner and Timing of Designations.
17 Except as otherwise provided in this Order (see, e.g., second paragraph of section
18 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that
19 qualifies for protection under this Order must be clearly so designated before the material
20 is disclosed or produced.
21 Designation in conformity with this Order requires:
22 (a) for information in documentary form (e.g., paper or electronic
23 documents, but excluding transcripts of depositions or other pretrial or trial proceedings),
24 that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” or “HIGHLY
25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (hereinafter “CONFIDENTIAL
26 legend”), to each page that contains protected material. If only a portion of the material on
27 a page qualifies for protection, the Producing Party also must clearly identify the protected
28 portion(s) (e.g., by making appropriate markings in the margins).
2 need not designate them for protection until after the inspecting Party has indicated which
3 documents it would like copied and produced. During the inspection and before the
4 designation, all of the material made available for inspection shall be deemed “HIGHLY
5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has
6 identified the documents it wants copied and produced, the Producing Party must determine
7 which documents, or portions thereof, qualify for protection under this Order. Then, before
8 producing the specified documents, the Producing Party must affix the appropriate
9 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a portion
10 of the material on a page qualifies for protection, the Producing Party also must clearly
11 identify the protected portion(s) (e.g., by making appropriate markings in the margins).
12 (b) for testimony given in depositions that the Designating Party identifies
13 the Disclosure or Discovery Material on the record, before the close of the deposition all
14 protected testimony.
15 (c) for information produced in some form other than documentary and for
16 any other tangible items, that the Producing Party affix in a prominent place on the exterior
17 of the container or containers in which the information is stored the appropriate
18 “CONFIDENTIAL legend.” If only a portion or portions of the information warrants
19 protection, the Producing Party, to the extent practicable, shall identify the protected
20 portion(s).
21 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
22 to designate qualified information or items does not, standing alone, waive the Designating
23 Party’s right to secure protection under this Order for such material. Upon timely correction
24 of a designation, the Receiving Party must make reasonable efforts to assure that the
25 material is treated in accordance with the provisions of this Order.
26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
27 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation
28 of confidentiality at any time that is consistent with the Court’s Scheduling Order.
2 process under Local Rule 37-1, et seq.
3 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint
4 stipulation pursuant to Local Rule 37-2.
5 6.4 Burden. The burden of persuasion in any such challenge proceeding shall be
6 on the Designating Party. Frivolous challenges, and those made for an improper purpose
7 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose
8 the Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
9 the confidentiality designation, all parties shall continue to afford the material in question
10 the level of protection to which it is entitled under the Producing Party’s designation until
11 the Court rules on the challenge.
12 7. ACCESS TO AND USE OF PROTECTED MATERIAL
13 7.1 Basic Principles. A Receiving Party may use Protected Material that is
14 disclosed or produced by another Party or by a Non-Party in connection with this Action
15 only for prosecuting, defending or attempting to settle this Action. Such Protected Material
16 may be disclosed only to the categories of persons and under the conditions described in
17 this Order. When the Action has been terminated, a Receiving Party must comply with the
18 provisions of section 13 below (FINAL DISPOSITION).
19 Protected Material must be stored and maintained by a Receiving Party at a location
20 and in a secure manner that ensures that access is limited to the persons authorized under
21 this Order.
22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
23 ordered by the court or permitted in writing by the Designating Party, a Receiving Party
24 may disclose any information or item designated “CONFIDENTIAL” only to:
25 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
26 as employees of said Outside Counsel of Record to whom it is reasonably necessary to
27 disclose the information for this Action;
28 (b) the officers, directors, and employees (including House Counsel) of the
2 (c) Experts (as defined in this Order) of the Receiving Party to whom
3 disclosure is reasonably necessary for this Action and who have signed the
4 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
5 (d) the court and its personnel;
6 (e) court reporters and their staff;
7 (f) professional jury or trial consultants, mock jurors, and Professional
8 Vendors to whom disclosure is reasonably necessary for this Action and who have signed
9 the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
10 (g) the author or recipient of a document containing the information or a
11 custodian or other person who otherwise possessed or knew the information;
12 (h) during their depositions, witnesses, and attorneys for witnesses, in the
13 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
14 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not
15 be permitted to keep any confidential information unless they sign the “Acknowledgment
16 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
17 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to
18 depositions that reveal Protected Material may be separately bound by the court reporter
19 and may not be disclosed to anyone except as permitted under this Stipulated Protective
20 Order; and
21 (i) any mediator or settlement officer, and their supporting personnel,
22 mutually agreed upon by any of the parties engaged in settlement discussions.
23 7.3 Disclosure of “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
24 Information or Items. Unless otherwise ordered by the court or permitted in writing by the
25 Designating Party, a Receiving Party may disclose any information or item designated
26 “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” only to: the individuals
27 listed in section 7.2, above, except for those listed in subsections (b) and (h), unless
28 consented to by the Designating Party or as otherwise permitted by the Court.
2 OTHER LITIGATION
3 If a Party is served with a subpoena or a court order issued in other litigation that
4 compels disclosure of any information or items designated in this Action as Protected
5 Material, that Party must:
6 (a) promptly notify in writing the Designating Party. Such notification
7 shall include a copy of the subpoena or court order;
8 (b) promptly notify in writing the party who caused the subpoena or order
9 to issue in the other litigation that some or all of the material covered by the subpoena or
10 order is subject to this Protective Order. Such notification shall include a copy of this
11 Stipulated Protective Order; and
12 (c) cooperate with respect to all reasonable procedures sought to be
13 pursued by the Designating Party whose Protected Material may be affected.
14 If the Designating Party timely seeks a protective order, the Party served with the
15 subpoena or court order shall not produce any information designated in this action as
16 Protected Material before a determination by the court from which the subpoena or order
17 issued, unless the Party has obtained the Designating Party’s permission. The Designating
18 Party shall bear the burden and expense of seeking protection in that court of its
19 confidential material and nothing in these provisions should be construed as authorizing or
20 encouraging a Receiving Party in this Action to disobey a lawful directive from another
21 court.
22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
23 THIS LITIGATION
24 (a) The terms of this Order are applicable to information produced by a Non-Party
25 in this Action and designated as Protected Material. Such information produced by
26 Non-Parties in connection with this litigation is protected by the remedies and relief
27 provided by this Order. Nothing in these provisions should be construed as prohibiting a
28 Non-Party from seeking additional protections.
2 a Non-Party’s confidential information in its possession, and the Party is subject to an
3 agreement with the Non-Party not to produce the Non-Party’s confidential information,
4 then the Party shall:
5 (1) promptly notify in writing the Requesting Party and the Non-Party that
6 some or all of the information requested is subject to a confidentiality agreement with a
7 Non-Party;
8 (2) promptly provide the Non-Party with a copy of the Stipulated
9 Protective Order in this Action, the relevant discovery request(s), and a reasonably specific
10 description of the information requested; and
11 (3) make the information requested available for inspection by the Non-
12 Party, if requested.
13 (c) If the Non-Party fails to seek a protective order from this court within 14 days
14 of receiving the notice and accompanying information, the Receiving Party may produce
15 the Non-Party’s confidential information responsive to the discovery request. If the Non-
16 Party timely seeks a protective order, the Receiving Party shall not produce any
17 information in its possession or control that is subject to the confidentiality agreement with
18 the Non-Party before a determination by the court. Absent a court order to the contrary, the
19 Non-Party shall bear the burden and expense of seeking protection in this court of its
20 Protected Material.
21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
22 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
23 Protected Material to any person or in any circumstance not authorized under this
24 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the
25 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all
26 unauthorized copies of the Protected Material, (c) inform the person or persons to whom
27 unauthorized disclosures were made of all the terms of this Order, and (d) request such
28 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is
2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
3 PROTECTED MATERIAL
4 When a Producing Party gives notice to Receiving Parties that certain inadvertently
5 produced material is subject to a claim of privilege or other protection, the obligations of
6 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
7 This provision is not intended to modify whatever procedure may be established in an e-
8 discovery order that provides for production without prior privilege review. Pursuant to
9 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the
10 effect of disclosure of a communication or information covered by the attorney-client
11 privilege or work product protection, the parties may incorporate their agreement in the
12 stipulated protective order submitted to the court.
13 12. MISCELLANEOUS
14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person
15 to seek its modification by the Court in the future.
16 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective
17 Order, no Party waives any right it otherwise would have to object to disclosing or
18 producing any information or item on any ground not addressed in this Stipulated
19 Protective Order. Similarly, no Party waives any right to object on any ground to use in
20 evidence of any of the material covered by this Protective Order.
21 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected
22 Material must comply with Local Civil Rule 79-5. Protected Material may only be filed
23 under seal pursuant to a court order authorizing the sealing of the specific Protected
24 Material at issue. If a Party’s request to file Protected Material under seal is denied by the
25 court, then the Receiving Party may file the information in the public record unless
26 otherwise instructed by the court.
27 13. FINAL DISPOSITION
28 After the final disposition of this Action, as defined in paragraph 4, within 60 days
1||of a written request by the Designating Party, each Receiving Party must return all
Protected Material to the Producing Party or destroy such material. As used in this
3||subdivision, “all Protected Material’ includes all copies, abstracts, compilations,
4||summaries, and any other format reproducing or capturing any of the Protected Material.
5|| Whether the Protected Material is returned or destroyed, the Receiving Party must submit
6|| a written certification to the Producing Party (and, if not the same person or entity, to the
7||Designating Party) by the 60 day deadline that (1) identifies (by category, where
8|| appropriate) all the Protected Material that was returned or destroyed and (2) affirms that
9|| the Receiving Party has not retained any copies, abstracts, compilations, summaries or any
other format reproducing or capturing any of the Protected Material. Notwithstanding this
11]| provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers,
12]| trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and
exhibits, expert reports, attorney work product, and consultant and expert work
14]| product, even if such materials contain Protected Material. Any such archival copies that
15|| contain or constitute Protected Material remain subject to this Protective Order as set forth
16||in Section 4 (DURATION).
17|| 14. VIOLATION
18 Any violation of this Order may be punished by appropriate measures including,
19]|| without limitation, contempt proceedings and/or monetary sanctions.
20
21 IT IS SO ORDERED.
22 °
23 (Wy Woe f<——~
24|| DATED: 12/18/2019
5 Alexander F. MacKinnon
U.S. Magistrate Judge
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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 that I have read in its entirety
5 and understand the Stipulated Protective Order that was issued by the United States District
6 Court for the Central District of California on _______ in the case of Tacori Enterprises v.
7 S. Kashi & Sons, 2:18-cv-9921-R-AFM. I agree to comply with and to be bound by all the
8 terms of this Stipulated Protective Order and I understand and acknowledge that failure to
9 so comply could expose me to sanctions and punishment in the nature of contempt. I
10 solemnly promise that I will not disclose in any manner any information or item that is
11 subject to this Stipulated Protective Order to any person or entity except in strict
12 compliance with the provisions of this Order. I further agree to submit to the jurisdiction
13 of the United States District Court for the Central District of California for enforcing the
14 terms of this Stipulated Protective Order, even if such enforcement proceedings occur after
15 termination of this action. I hereby appoint __________________________ [print or type
16 full name] of _______________________________________ [print or type full address
17 and telephone number] as my California agent for service of process in connection with
18 this action or any proceedings related to enforcement of this Stipulated Protective Order.
19 Date: ______________________________________
20 City and State where sworn and signed: _________________________________
21
22 Printed name: _______________________________
23
24 Signature: __________________________________
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