even stipulated protective orders 27 require good cause showing, and a specific showing of good cause or compelling 1 respect to material that a party seeks to file under seal
How later courts described this case
- even stipulated protective orders 27 require good cause showing, and a specific showing of good cause or compelling 1 respect to material that a party seeks to file under seal
Written by the judges who cited it.
The opinion
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9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
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12 J.B., a Minor, by and through his CASE NO. 2:19-cv-10607-FMO-PLAx
Guardian Ad Litem, ROSE
13 ESPARAZA, DISCOVERY MATTER
14 Plaintiff, STIPULATED PROTECTIVE
ORDER GOVERNING
15 v. PRODUCTION OF
“CONFIDENTIAL”
16 COUNTY OF LOS ANGELES and INFORMATION
DOES 1 through 10, inclusive,
17
Defendants. [Assigned to Hon. Fernando M. Olguin,
18 Courtroom “6D”]
19 [Discovery Document: Referred to
Magistrate Paul L. Abrams]
20
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22 I. PURPOSE AND LIMITATIONS
23 Discovery in this action is likely to involve production of confidential or
24 private information for which special protection from public disclosure and from use
25 for any purpose other than prosecuting this action may be warranted. Accordingly,
26 the parties hereby stipulate to and petition the Court to enter the following
27 [Proposed] Stipulated Protective Order (hereafter “this Order”). The parties
1 responses to discovery; and that the protection it affords from public disclosure and
2 use extends only to the limited information or items that are entitled to confidential
3 treatment under the applicable legal principles.
4 II. GOOD CAUSE STATEMENT
5 This action is likely to involve confidential information pertaining to
6 personnel records and other materials subject to privacy protections for which
7 special protection from public disclosure and from use for any purpose other than
8 prosecution of this action is warranted. Limiting disclosure of these documents to
9 the context of this litigation as provided herein will, accordingly, further important
10 law enforcement objectives and interests, including the safety of personnel and the
11 public, as well as the privacy rights of plaintiff, the individual defendants, and third
12 party witnesses. Such confidential materials and information consists of, among
13 other things, materials entitled to privileges and/or protections under the following:
14 the United States Constitution, First Amendment; the California Constitution,
15 Article I, Section 1; California Penal Code §§ 832.5, 832.7, and 832.8; California
16 Evidence Code §§ 1040 and 1043, et seq.; the Privacy Act of 1974, 5 U.S.C. § 552a;
17 Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law
18 104-191, decisional law relating to such provisions; and information otherwise
19 generally unavailable to the public; or which may be privileged or otherwise
20 protected from disclosure under state or federal statutes, court rules, case decisions,
21 or common law. Defendants also contend that such confidential materials and
22 information consists of materials entitled to the Official Information Privilege.
23 Confidential information with respect to the Defendants may include:
24 personnel files; internal investigative files and documents; email and written
25 correspondence records; and policies and procedures that are kept from the public in
26 the ordinary course of business, as well as other items subject to the Official
27 Information Privilege and other privileges. Confidential information with respect to
1 correspondence records; and psychological notes, evaluations, and report and
2 treatment plans relating to the treatment, care, and evaluation of the Plaintiff.
3 The parties reserve the right to challenge a designation of confidentiality
4 pursuant to the terms set forth under Paragraph 8 of this Order.
5 Accordingly, to expedite the flow of information; to facilitate the prompt
6 resolution of disputes over confidentiality of discovery materials; to adequately
7 protect information the parties are entitled to keep confidential; to ensure that the
8 parties are permitted to reasonably use such material in preparation for and in
9 conduct of trial; to address their handling at the end of the litigation; and serve the
10 ends of justice, a protective order for such information is justified in this matter. It
11 is the intent of the parties that information will not be designated as confidential for
12 tactical reasons and that nothing be so designated without a good faith belief that it
13 has been maintained in a confidential, non-public manner; and there is good cause
14 why it should not be part of the public record of this case.
15 III. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
16 SEAL
17 The parties further acknowledge, as set forth in Section 14.3, below, that this
18 Order does not entitle them to file confidential information under seal; Local Civil
19 Rule 79-5 sets forth the procedures that must be followed and the standards that will
20 be applied when a party seeks permission from the court to file material under seal.
21 There is a strong presumption that the public has a right of access to judicial
22 proceedings and records in civil cases. In connection with non-dispositive motions,
23 good cause must be shown to support a filing under seal. See Kamakana v. City and
24 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
25 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
26 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
27 require good cause showing, and a specific showing of good cause or compelling
1 respect to material that a party seeks to file under seal). The parties’ mere
2 designation of material as “CONFIDENTIAL” does not— without the submission
3 of competent evidence by declaration, establishing that the material sought to be
4 filed under seal qualifies as confidential, privileged, or otherwise protectable—
5 constitute good cause. Further, if a party requests sealing related to dispositive
6 motion or trial, then compelling reasons, not only good cause, for the sealing must
7 be shown, and the relief sought shall be narrowly tailored to serve the specific
8 interest to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79
9 (9th Cir. 2010).
10 Any document that is not confidential, privileged, or otherwise protectable in
11 its entirety will not be filed under seal if the confidential portions can be redacted.
12 If documents can be redacted, then a redacted version for public viewing, omitting
13 only the confidential, privileged, or otherwise protectable portions of the document,
14 shall be filed. Any application that seeks to file documents under seal in their
15 entirety should include an explanation of why redaction is not feasible.
16 IV. DEFINITIONS
17 4.1 Action: J.B., a Minor, by and through his Guardian Ad Litem, ROSE
18 ESPARAZA, Case No. 2:19-cv-10607-FMO-PLA.
19 4.2 Challenging Party: a Party or Non-Party that challenges the designation
20 of information or items under this Order.
21 4.3 “CONFIDENTIAL” Information or Items: Information (regardless of
22 the medium or manner in which it is generated, stored, or maintained) or tangible
23 things that qualify for protection under Federal Rule of Civil Procedure 26(c), and
24 as specified above in the Good Cause Statement.
25 4.4 Counsel: General Counsel of Record and House Counsel (as well as
26 their support staff).
27 4.5 Designating Party: a Party or Non-Party that designated information or
1 “CONFIDENTIAL.”
2 4.6 Disclosure or Discovery Material: all items or information, regardless
3 of the medium or manner in which it is generated, stored, or maintained (including,
4 among other things, testimony, transcripts, and tangible things), that are produced or
5 generated in disclosures or responses to discovery in this matter.
6 4.7 Expert: a person with specialized knowledge or experience in a matter
7 pertinent to the litigation who has been retained by a Party or its counsel to serve as
8 an expert witness or as a consultant in this Action.
9 4.8 House Counsel: attorneys who are employees of a party to this Action.
10 House Counsel does not include General Counsel of Record or any other outside
11 Counsel.
12 4.9 Non-Party: any natural person, partnership, corporation, association or
13 other legal entity not named as a Party to this action.
14 4.10 General Counsel of Record: attorneys who are not employees of a
15 Party to this Action but are retained to represent or advise a Party to this Action and
16 have appeared in this Action on behalf of that party or are affiliated with a law firm
17 that has appeared on behalf of that Party, as well as their support staff.
18 4.11 Party: any Party to this Action, including all of its officers, directors,
19 employees, consultants, retained experts, and General Counsel of Record (and their
20 support staffs).
21 4.12 Producing Party: a Party or Non-Party that makes a Disclosure or
22 produces Discovery Material in this Action.
23 4.13 Professional Vendors: persons or entities that provide litigation
24 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
25 demonstrations, and organizing, storing, or retrieving data in any form or medium)
26 and their employees and subcontractors.
27 4.14 Protected Material: any Disclosure or Discovery Material that is
1 4.15 Producing Party: a Party that makes a Disclosure or produces
2 Discovery Material to the Receiving Party.
3 4.15 Receiving Party: a Party that receives a Disclosure or Discovery
4 Material from a Producing Party.
5 V. SCOPE
6 The protections conferred by this Stipulation and Order cover not only
7 Protected Material (as defined above), but also (1) any information copied or
8 extracted from Protected Material; (2) all copies, excerpts, summaries, or
9 compilations of Protected Material; and (3) any testimony, conversations, or
10 presentations by Parties or their Counsel (as defined by Sections 4.8 and 4.10) that
11 might reveal Protected Material.
12 Any use of Protected Material at trial shall be governed by the orders of the
13 trial judge. This Order does not govern the use of Protected Material at trial.
14 VI. DURATION
15 The confidentiality obligations imposed by this Order shall remain in effect
16 until Final Disposition of this case. “Final Disposition” shall be deemed to be the
17 later of (1) dismissal of all claims and defenses in this Action, with or without
18 prejudice; and (2) final judgment herein after the completion and exhaustion of all
19 appeals, rehearings, remands, trials, or reviews of this Action, including the time
20 limits for filing any motions or applications for extension of time pursuant to
21 applicable law.
22 VII. DESIGNATING PROTECTED MATERIAL
23 7.1 Exercise of Restraint and Care in Designating Material for Protection.
24 Each Party or Non-Party that designates information or items for protection under
25 this Order must take care to limit any such designation to specific material that
26 qualifies under the appropriate standards. The Designating Party must designate for
27 protection only those parts of material, documents, items or oral or written
1 or communications for which protection is not warranted are not swept unjustifiably
2 within the ambit of this Order.
3 Mass, indiscriminate, or routinized designations are prohibited. Designations
4 that are shown to be clearly unjustified or that have been made for an improper
5 purpose (e.g., to unnecessarily encumber the case development process or to impose
6 unnecessary expenses and burdens on other parties) may expose the Designating
7 Party to sanctions.
8 If it comes to a Designating Party’s attention that information or items that it
9 designated for protection do not qualify for protection, that Designating Party must
10 promptly notify all other Parties that it is withdrawing the inapplicable designation.
11 7.2 Manner and Timing of Designations. Except as otherwise provided in
12 this Order (see, e.g., second paragraph of section 7.2(a) below), or as otherwise
13 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
14 under this Order must be clearly so designated before the material is disclosed or
15 produced.
16 Designation in conformity with this Order requires:
17 (a) for information in documentary form (e.g., paper or electronic
18 documents, but excluding transcripts of depositions or other pretrial or trial
19 proceedings), that the Producing Party affix at a minimum, the legend
20 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
21 contains protected material. If only a portion of the material on a page qualifies for
22 protection, the Producing Party also must clearly identify the protected portion(s)
23 (e.g., by making appropriate markings in the margins).
24 A Party or Non-Party that makes original documents available for inspection
25 need not designate them for protection until after the inspecting Party has indicated
26 which documents it would like copied and produced. During the inspection and
27 before the designation, all of the materials made available for inspection shall be
1 documents it wants copied and produced, the Producing Party must determine which
2 documents, or portions thereof, qualify for protection under this Order. Then,
3 before producing the specified documents, the Producing Party must affix the
4 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
5 portion of the material on a page qualifies for protection, the Producing Party also
6 must clearly identify the protected portion(s) (e.g., by making appropriate markings
7 in the margins).
8 (b) for testimony given in depositions that the Designating Party identifies
9 the Disclosure or Discovery Material on the record, and before the close of the
10 deposition all protected testimony.
11 (c) for information produced in some form other than documentary and for
12 any other tangible items, that the Producing Party affix in a prominent place on the
13 exterior of the container or containers in which the information is stored the legend
14 “CONFIDENTIAL.” If only a portion or portions of the information warrants
15 protection, the Producing Party, to the extent practicable, shall identify the protected
16 portion(s).
17 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
18 failure to designate qualified information or items does not, standing alone, waive
19 the Designating Party’s right to secure protection under this Order for such material.
20 Upon timely correction of a designation, the Receiving Party must make reasonable
21 efforts to assure that the material is treated in accordance with the provisions of this
22 Order.
23 VIII. CHALLENGING CONFIDENTIALITY DESIGNATIONS
24 8.1 Timing of Challenges. Any Party or Non-Party may challenge a
25 designation of confidentiality at any time that is consistent with the Court’s
26 Scheduling Order.
27 8.2 Meet and Confer. The Challenging Party shall initiate the meet and
1 8.3 The burden of persuasion, in any such challenge proceeding, shall be
2 on the Designating Party. Frivolous challenges, and those made for an improper
3 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
4 parties) may expose the Challenging Party to sanctions. Unless the Designating
5 Party has waived or withdrawn the confidentiality designation, all parties shall
6 continue to afford the material in question the level of protection to which it is
7 entitled under the Producing Party’s designation until the Court rules on the
8 challenge.
9 IX. ACCESS TO AND USE OF PROTECTED MATERIAL
10 9.1 Basic Principles. A Receiving Party may use Protected Material that is
11 disclosed or produced by another Party or by a Non-Party in connection with this
12 Action only for prosecuting, defending or attempting to settle this Action. Such
13 Protected Material may be disclosed only to the categories of persons and under the
14 conditions described in this Order. When the Action has been terminated, a
15 Receiving Party must comply with the provisions of Section VI, infra.
16 Protected Material must be stored and maintained by a Receiving Party at a
17 location and in a secure manner that ensures that access is limited to the persons
18 authorized under this Order.
19 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
20 otherwise ordered by the Court or permitted in writing by the Designating Party, a
21 Receiving Party may disclose any information or item designated
22 “CONFIDENTIAL” only to:
23 (a) the Receiving Party’s General Counsel of Record in this Action, as well
24 as employees of said General Counsel of Record to whom it is reasonably necessary
25 to disclose the information for this Action;
26 (b) the officers, directors, and employees (including House Counsel) of the
27 Receiving Party to whom disclosure is reasonably necessary for this Action;
1 disclosure is reasonably necessary for this Action and who have signed the
2 “Acknowledgment and Agreement to Be Bound,” attached and hereafter referred to
3 as “Exhibit A.”
4 (d) the court and its personnel;
5 (e) court reporters and their staff;
6 (f) professional jury or trial consultants, mock jurors, and Professional
7 Vendors to whom disclosure is reasonably necessary for this Action and who have
8 signed Exhibit A.
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 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
13 requests that the witness sign Exhibit A; and (2) they will not be permitted to keep
14 any confidential information unless they sign Exhibit A, unless otherwise agreed by
15 the Designating Party or ordered by the Court. Pages of transcribed deposition
16 testimony or exhibits to depositions that reveal Protected Material may be separately
17 bound by the court reporter and may not be disclosed to anyone except as permitted
18 under this Order; and
19 (i) any mediator or settlement officer, and their supporting personnel,
20 mutually agreed upon by any of the parties engaged in settlement discussions.
21 X. PROTECTED MATERIAL SUBPOENAED OR ORDERED
22 PRODUCED IN OTHER LITIGATION
23 If a Party is served with a subpoena or a court order issued in other litigation
24 that compels disclosure of any information or items designated in this Action as
25 “CONFIDENTIAL,” that Party must:
26 (a) promptly notify in writing the Designating Party. Such notification
27 shall include a copy of the subpoena or court order;
1 to issue in the other litigation that some or all of the material covered by the
2 subpoena or order is subject to this Order. Such notification shall include a copy of
3 this Order; and
4 (c) cooperate with respect to all reasonable procedures sought to be pursued
5 by the Designating Party whose Protected Material may be affected.
6 If the Designating Party timely seeks a protective order, the Party served with
7 the subpoena or court order shall not produce any information designated in this
8 action as “CONFIDENTIAL” before a determination by the Court from which the
9 subpoena or order issued, unless the Party has obtained the Designating Party’s
10 permission. The Designating Party shall bear the burden and expense of seeking
11 protection in that court of its confidential material and nothing in these provisions
12 should be construed as authorizing or encouraging a Receiving Party in this Action
13 to disobey a lawful directive from another court.
14 XI. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
15 PRODUCED IN THIS LITIGATION
16 (a) The terms of this Order are applicable to information produced by a
17 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
18 produced by Non-Parties in connection with this litigation is protected by the
19 remedies and relief provided by this Order. Nothing in these provisions should be
20 construed as prohibiting a Non-Party from seeking additional protections.
21 (b) In the event that a Party is required, by a valid discovery request, to
22 produce a Non-Party’s confidential information in its possession, and the Party is
23 subject to an agreement with the Non-Party not to produce the Non-Party’s
24 confidential information, then the Party shall:
25 (1) promptly notify in writing the Requesting Party and the Non-Party
26 that some or all of the information requested is subject to a confidentiality
27 agreement with a Non-Party;
1 Action, the relevant discovery request(s), and a reasonably specific description of
2 the information requested; and
3 (3) make the information requested available for inspection by the Non-
4 Party, if requested.
5 (c) If the Non-Party fails to seek a protective order from this Court within
6 fourteen (14) days of receiving the notice and accompanying information, the
7 Receiving Party may produce the Non-Party’s confidential information responsive
8 to the discovery request. If the Non-Party timely seeks a protective order, the
9 Receiving Party shall not produce any information in its possession or control that is
10 subject to the confidentiality agreement with the Non-Party before a determination
11 by the Court. Absent a court order to the contrary, the Non-Party shall bear the
12 burden and expense of seeking protection in this Court of its Protected Material.
13 XII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
14 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
15 Protected Material to any person or in any circumstance not authorized under this
16 Order, the Receiving Party must immediately (a) notify in writing the Designating
17 Party of the unauthorized disclosures; (b) use its best efforts to retrieve all
18 unauthorized copies of the Protected Material; (c) inform the person or persons to
19 whom unauthorized disclosures were made of all the terms of this Order; and (d)
20 request such person or persons to execute Exhibit A.
21 XIII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
22 PROTECTED MATERIAL
23 When a Producing Party gives notice to Receiving Parties that certain
24 inadvertently produced material is subject to a claim of privilege or other protection,
25 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
26 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
27 procedure may be established in an e-discovery order that provides for production
1 (e), insofar as the Parties reach an agreement on the effect of disclosure of a
2 communication or information covered by the attorney-client privilege or work
3 product protection, the Parties may incorporate their agreement in a subsequent
4 stipulation to the Court.
5 XIV. MISCELLANEOUS
6 14.1 Right to Further Relief. Nothing in this Order abridges the right of any
7 person to seek its modification by the Court in the future.
8 14.2 Right to Assert Other Objections. By stipulating to the entry of this
9 Order, no Party waives any right it otherwise would have to object to disclosing or
10 producing any information or item on any ground not addressed in this Order.
11 Similarly, no Party waives any right to object on any ground to use in evidence of
12 any of the material covered by this Order.
13 14.3 Filing Protected Material. A Party that seeks to file under seal any
14 Protected Material must comply with Local Civil Rule 79-5. Protected Material
15 may only be filed under seal pursuant to a court order authorizing the sealing of the
16 specific Protected Material at issue. If a Party’s request to file Protected Material
17 under seal is denied by the Court, then the Receiving Party may file the information
18 in the public record unless otherwise instructed by the Court.
19 XV. FINAL DISPOSITION
20 After the final disposition of this Action, as defined in Section VI, supra,
21 within 60 days of a written request by the Designating Party, each Receiving Party
22 must return all Protected Material to the Producing Party or destroy such material.
23 As used in this subdivision, “all Protected Material” includes all copies, abstracts,
24 compilations, summaries, and any other format reproducing or capturing any of the
25 Protected Material. Whether the Protected Material is returned or destroyed, the
26 Receiving Party must submit a written certification to the Producing Party (and, if
27 not the same person or entity, to the Designating Party) by the 60 day deadline that
1 || returned or destroyed and (2) affirms that the Receiving Party has not retained any
2 || copies, abstracts, compilations, summaries or any other format reproducing or
3 ||capturing any of the Protected Material. Notwithstanding this provision, Counsel
4|/are entitled to retain an archival copy of all pleadings, motion papers, trial,
5 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition
6 || and trial exhibits, expert reports, attorney work product, and consultant and expert
7 || work product, even if such materials contain Protected Material. Any such archival
8 || copies that contain or constitute Protected Material remain subject to this Order as
9 || set forth in Section VI, supra.
10||XVI. VIOLATION
11 Any violation of this Order may be punished by appropriate measures
12 || including, without limitation, contempt proceedings and/or monetary sanctions.
os 13 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
a4
DATED: May 5, 2020
re Jad? K. Mamet
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18 THE HONORABLE PAUL L. ABRAMS
19 UNITED STATES MAGISTRATE JUDGE
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of
4 _________________________________ [print or type full address], declare under
5 penalty of perjury that I have read in its entirety and understand the Stipulated
6 Protective Order that was issued by the United States District Court for the Central
7 District of California in the case of J.B., a Minor, by and through his Guardian Ad
8 Litem, ROSE ESPARAZA v. County of Los Angeles, et al., Case No. 2:19-cv-10607-
9 FMO-PLA. 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. I further agree to submit to the
15 jurisdiction of the United States District Court for the Central District of California
16 for enforcing the terms of this Stipulated Protective Order, even if such enforcement
17 proceedings occur after termination of this action.
18
19 Date: _________________________________
20
21 City and State where sworn and signed: _________________________________
22
23 Printed name: _________________________________
24
25 Signature: _________________________________
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