distinguishing 27 “good cause” showing for sealing documents produced in discovery from 28 1 “compelling reasons” standard when merits-related documents are part of court 2 record
How later courts described this case
- distinguishing 27 “good cause” showing for sealing documents produced in discovery from 28 1 “compelling reasons” standard when merits-related documents are part of court 2 record
Written by the judges who cited it.
The opinion
1 CYNTHIA M. GERMANO, Bar No. 151360
cynthia.germano@bbklaw.com
2 ROGER K. CRAWFORD, Bar No. 167426
roger.crawford@bbklaw.com
3 BEN CARNEY, Bar No. 317206
Ben.Carney@bbklaw.com
4 BEST BEST & KRIEGER LLP
3390 University Avenue, 5th Floor
5 P.O. Box 1028
Riverside, CA 92502
6 Telephone: (951) 686-1450
Facsimile: (951) 686-3083
7
Attorneys for Defendant,
8 CITY OF COLTON
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11
12 RICHARD ARAGON, JOEY Case No. 5:20-CV-00776-JGB-SPx
ARMENDAREZ, JONATHAN Judge: Hon. Jesus G. Bernal
13 BOGGS, RAY BRUNO, CON Referred to: Magistrate Judge Sheri Pym
CENDEJAS, ADAM
14 CHITTENDEN, CHRISTOPHER
DEANDA, THOMAS DEBELLIS, JOINT STIPULATION AND
15 MICHAEL DELCID, JONATHON PROTECTIVE ORDER
ENGLE, WILMER FLEENOR,
16 LUKE GRANGER, CALEB
GUINN, AMANDA HARTEL,
17 RONALD HELMS, SERVANDO
HERNANDEZ, RICHARD
18 HOUSLEY, BRANDON
HUMPHREY, TY HUTCHISON,
19 BRIAN KALOUSEK, JUSTIN
LODARSKI, MICHAEL LOYA,
20 JEFF MILLER, AARON
MULHALL, JAKE NOVAK,
21 NATHAN PALMER, HENRY
PEREZ, MICHAEL RUSTUN,
22 STEVEN SANDS, DAVID
SANTOS, DAVID SILVA, RYAN
23 STESLICKI, SHAUN TARCON,
JASON TOOLEY, JOHN VAIL,
24 KEVIN VALENTIN, STEVEN
VALLEZ, JUSTIN WEEMS, JAKE
25 ZAVOSKY, and JEFFREY
ZUIDEMA, on behalf of themselves
26 and all similarly situated individuals,
27 Plaintiff,
28
1
v.
2
CITY OF COLTON,
3
Defendant.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 I. PURPOSES AND LIMITATIONS
2
A. Discovery in this action is likely to involve production of confidential,
3
proprietary, or private information for which special protection from public
4
disclosure and from use for any purpose other than prosecuting this litigation may
5
be warranted. Accordingly, the parties hereby stipulate to and petition the Court
6
7 to enter the following Stipulated Protective Order. The parties acknowledge that
8 this Order does not confer blanket protections on all disclosures or responses to
9 discovery and that the protection it affords from public disclosure and use extends
10 only to the limited information or items that are entitled to confidential treatment
11
under the applicable legal principles. The parties further acknowledge, as set
12
forth in Section XIII(C), below, that this Stipulated Protective Order does not
13
entitle them to file confidential information under seal; Civil Local Rule 79-5 sets
14
forth the procedures that must be followed and the standards that will be applied
15
16 when a party seeks permission from the Court to file material under seal.
17 II. GOOD CAUSE STATEMENT
18 A. This action is likely to involve confidential employee payroll information
19
which implicates the privacy rights of both parties and third parties for which
20
special protection from public disclosure and from use for any purpose other than
21
prosecution of this action is warranted. Plaintiffs’ confidential payroll materials
22
and information consist of, among other things, confidential employee financial
23
24 information, information regarding deductions made from employees’ pay which
25 may implicate confidential medical information, employee social security
26 numbers, information regarding deductions made as a result of court-ordered
27
wage garnishments which may also reveal confidential employee information, and
28
1 information otherwise generally unavailable to the public, or which may be
2
privileged or otherwise protected from disclosure under state or federal statutes,
3
court rules, case decisions, or common law. Accordingly, to expedite the flow of
4
information, to facilitate the prompt resolution of disputes over confidentiality of
5
discovery materials, to adequately protect information the parties are entitled to
6
7 keep confidential, to ensure that the parties are permitted reasonable necessary
8 uses of such material in preparation for and in the conduct of trial, to address
9 their handling at the end of the litigation, and serve the ends of justice, a
10 protective order for such information is justified in this matter. It is the intent of
11
the parties that information will not be designated as confidential for tactical
12
reasons and that nothing be so designated without a good faith belief that it has
13
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
16 III. DEFINITIONS
17 A. Action: Richard Aragon, et al. v. City of Colton, Case No. 5:20-CV-00776-
18
JGB-SPx
19
B. Challenging Party: A Party or Non-Party that challenges the designation of
20
21 information or items under this Order.
22 C. “CONFIDENTIAL” Payroll Information or Payroll Items: Information
23 (regardless of how it is generated, stored or maintained) or tangible things that
24
qualify for protection under Federal Rule of Civil Procedure 26(c), and as
25
specified above in the Good Cause Statement in Section II
26
D. Counsel: Outside Counsel of Record and House Counsel (as well as their
27
support staff).
28
1 E. Designating Party: A Party or Non-Party that designates information or
2
items that it produces in disclosures or in responses to discovery as
3
“CONFIDENTIAL.”
4
F. Disclosure or Discovery Material: All items or information, regardless of
5
the medium or manner in which it is generated, stored, or maintained (including,
6
7 among other things, testimony, transcripts, and tangible things), that are
8 produced or generated in disclosures or responses to discovery in this matter.
9 G. Expert: A person with specialized knowledge or experience in a matter
10 pertinent to the litigation who has been retained by a Party or its counsel to serve
11
as an expert witness or as a consultant in this Action.
12
H. House Counsel: Attorneys who are employees of a party to this Action.
13
House Counsel does not include Outside Counsel of Record or any other outside
14
counsel.
15
16 I. Non-Party: Any natural person, partnership, corporation, association, or
17 other legal entity not named as a Party to this action.
18 J. Outside Counsel of Record: Attorneys who are not employees of a party to
19
this Action but are retained to represent or advise a party to this Action and have
20
appeared in this Action on behalf of that party or are affiliated with a law firm
21
which has appeared on behalf of that party, and includes support staff.
22
K. Party: Any party to this Action, including all of its officers, directors,
23
24 employees, consultants, retained experts, and Outside Counsel of Record (and
25 their support staffs).
26 L. Producing Party: A Party or Non-Party that produces Disclosure or
27
Discovery Material in this Action.
28
1 M. Professional Vendors: Persons or entities that provide litigation support
2
services (e.g., photocopying, videotaping, translating, preparing exhibits or
3
demonstrations, and organizing, storing, or retrieving data in any form or
4
medium) and their employees and subcontractors.
5
N. Protected Material: Any Disclosure or Discovery Material that is
6
7 designated as “CONFIDENTIAL.”
8 O. Receiving Party: A Party that receives Disclosure or Discovery Material
9 from a Producing Party.
10 IV. SCOPE
11
A. The protections conferred by this Stipulation and Order cover not only
12
Protected Material (as defined above in Section II), but also (1) any information
13
copied or extracted from Protected Material; (2) all copies, excerpts, summaries,
14
or compilations of Protected Material; and (3) any testimony, conversations, or
15
16 presentations by Parties or their Counsel that might reveal Protected Material.
17 B. Any use of Protected Material at trial shall be governed by the orders of
18 the trial judge. This Order does not govern the use of Protected Material at trial.
19
V. DURATION
20
A. Once a case proceeds to trial, all of the information that was designated as
21
confidential or maintained pursuant to this Protective Order becomes public and
22
will be presumptively available to all members of the public, including the press,
23
24 unless compelling reasons supported by specific factual findings to proceed
25 otherwise are made to the trial judge in advance of the trial. See Kamakana v. City
26 and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing
27
“good cause” showing for sealing documents produced in discovery from
28
1 “compelling reasons” standard when merits-related documents are part of court
2
record). Accordingly, the terms of this Protective Order do not extend beyond the
3
commencement of the trial.
4
VI. DESIGNATING PROTECTED MATERIAL
5
A. Exercise of Restraint and Care in Designating Material for Protection
6
7 1. Each Party or Non-Party that designates information or items for
8 protection under this Order must take care to limit any such designation to
9 specific material that qualifies under the Section II. . The Designating
10 Party must designate for protection only those parts of material,
11
documents, items, or oral or written communications that qualify so that
12
other portions of the material, documents, items, or communications for
13
which protection is not warranted are not swept unjustifiably within the
14
ambit of this Order.
15
16 2. Mass, indiscriminate, or routinized designations are prohibited.
17 Designations that are shown to be clearly unjustified or that have been
18 made for an improper purpose (e.g., to unnecessarily encumber the case
19
development process or to impose unnecessary expenses and burdens on
20
other parties) may expose the Designating Party to sanctions.
21
3. If it comes to a Designating Party’s attention that information or
22
items that it designated for protection do not qualify for protection, that
23
24 Designating Party must promptly notify all other Parties that it is
25 withdrawing the inapplicable designation.
26
27
28
1 B. Manner and Timing of Designations
2
1. Except as otherwise provided in this Order (see, e.g., Section B(2)(b)
3
below), or as otherwise stipulated or ordered, Disclosure or Discovery
4
Material that qualifies for protection under this Order must be clearly so
5
designated before the material is disclosed or produced.
6
7 2. Designation in conformity with this Order requires the following:
8 a. For information in documentary form (e.g., paper or
9 electronic documents, but excluding transcripts of depositions or
10 other pretrial or trial proceedings), that the Producing Party affix at
11
a minimum, the legend “CONFIDENTIAL” (hereinafter
12
“CONFIDENTIAL legend”), to each page that contains protected
13
material. If only a portion or portions of the material on a page
14
qualifies for protection, the Producing Party also must clearly
15
16 identify the protected portion(s) (e.g., by making appropriate
17 markings in the margins).
18 b. A Party or Non-Party that makes original documents
19
available for inspection need not designate them for protection until
20
after the inspecting Party has indicated which documents it would
21
like copied and produced. During the inspection and before the
22
designation, all of the material made available for inspection shall be
23
24 deemed “CONFIDENTIAL.” After the inspecting Party has
25 identified the documents it wants copied and produced, the
26 Producing Party must determine which documents, or portions
27
thereof, qualify for protection under this Order. Then, before
28
1 producing the specified documents, the Producing Party must affix
2
the “CONFIDENTIAL legend” to each page that contains Protected
3
Material. If only a portion or portions of the material on a page
4
qualifies for protection, the Producing Party also must clearly
5
identify the protected portion(s) (e.g., by making appropriate
6
7 markings in the margins).
8 c. For testimony given in depositions, that the Designating
9 Party identify the Disclosure or Discovery Material on the record,
10 before the close of the deposition all protected testimony.
11
d. For information produced in form other than document and
12
for any other tangible items, that the Producing Party affix in a
13
prominent place on the exterior of the container or containers in
14
which the information is stored the legend “CONFIDENTIAL.” If
15
16 only a portion or portions of the information warrants protection,
17 the Producing Party, to the extent practicable, shall identify the
18 protected portion(s).
19
C. Inadvertent Failure to Designate
20
1. If timely corrected, an inadvertent failure to designate qualified
21
information or items does not, standing alone, waive the Designating
22
Party’s right to secure protection under this Order for such material. Upon
23
24 timely correction of a designation, the Receiving Party must make
25 reasonable efforts to assure that the material is treated in accordance with
26 the provisions of this Order.
27
28
1 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2
A. Timing of Challenges
3
1. Any party or Non-Party may challenge a designation of
4
confidentiality at any time that is consistent with the Court’s Scheduling
5
Order.
6
7 B. Meet and Confer
8 1. The Challenging Party shall initiate the dispute resolution process
9 under Local Rule 37.1 et seq.
10 C. The burden of persuasion in any such challenge proceeding shall be on the
11
Designating Party. Frivolous challenges, and those made for an improper purpose
12
(e.g., to harass or impose unnecessary expenses and burdens on other parties)
13
may expose the Challenging Party to sanctions. Unless the Designating Party has
14
waived or withdrawn the confidentiality designation, all parties shall continue to
15
16 afford the material in question the level of protection to which it is entitled under
17 the Producing Party’s designation until the Court rules on the challenge.
18 VIII. ACCESS TO AND USE OF PROTECTED MATERIAL
19
A. Basic Principles
20
1. A Receiving Party may use Protected Material that is disclosed or
21
produced by another Party or by a Non-Party in connection with this
22
Action only for prosecuting, defending, or attempting to settle this Action.
23
24 Such Protected Material may be disclosed only to the categories of persons
25 and under the conditions described in this Order. When the Action has
26 been terminated, a Receiving Party must comply with the provisions of
27
Section XIV below.
28
1 2. Protected Material must be stored and maintained by a Receiving
2
Party at a location and in a secure manner that ensures that access is
3
limited to the persons authorized under this Order.
4
B. Disclosure of “CONFIDENTIAL” Information or Items
5
1. Unless otherwise ordered by the Court or permitted in writing by the
6
7 Designating Party, a Receiving Party may disclose any information or item
8 designated “CONFIDENTIAL” only to:
9 a. The Receiving Party’s Outside Counsel of Record in this
10 Action, as well as employees of said Outside Counsel of Record to
11
whom it is reasonably necessary to disclose the information for this
12
Action;
13
b. The officers, directors, and employees (including House
14
Counsel) of the Receiving Party to whom disclosure is reasonably
15
16 necessary for this Action;
17 c. Experts (as defined in this Order) of the Receiving Party to
18 whom disclosure is reasonably necessary for this Action and who
19
have signed the “Acknowledgment and Agreement to Be Bound”
20
(Exhibit A);
21
d. The Court and its personnel;
22
e. Court reporters and their staff;
23
24 f. Professional jury or trial consultants, mock jurors, and
25 Professional Vendors to whom disclosure is reasonably necessary or
26 this Action and who have signed the “Acknowledgment and
27
Agreement to be Bound” attached as Exhibit A hereto;
28
1 g. The author or recipient of a document containing the
2
information or a custodian or other person who otherwise possessed
3
or knew the information;
4
h. During their depositions, witnesses, and attorneys for
5
witnesses, in the Action to whom disclosure is reasonably necessary
6
7 provided: (i) the deposing party requests that the witness sign the
8 “Acknowledgment and Agreement to Be Bound;” and (ii) they will
9 not be permitted to keep any confidential information unless they
10 sign the “Acknowledgment and Agreement to Be Bound,” unless
11
otherwise agreed by the Designating Party or ordered by the Court.
12
Pages of transcribed deposition testimony or exhibits to depositions
13
that reveal Protected Material may be separately bound by the court
14
reporter and may not be disclosed to anyone except as permitted
15
16 under this Stipulated Protective Order; and
17 i. Any mediator or settlement officer, and their supporting
18 personnel, mutually agreed upon by any of the parties engaged in
19
settlement discussions.
20
IX. PROTECTED MATERIAL SUPOENAED OR ORDERED PRODUCED
21
IN OTHER LITIGATION
22
A. If a Party is served with a subpoena or a court order issued in other
23
24 litigation that compels disclosure of any information or items designated in this
25 Action as “CONFIDENTIAL,” that Party must:
26 1. Promptly notify in writing the Designating Party. Such notification
27
shall include a copy of the subpoena or court order;
28
1 2. Promptly notify in writing the party who caused the subpoena or
2
order to issue in the other litigation that some or all of the material covered
3
by the subpoena or order is subject to this Protective Order. Such
4
notification shall include a copy of this Stipulated Protective Order; and
5
3. Cooperate with respect to all reasonable procedures sought to be
6
7 pursued by the Designating Party whose Protected Material may be
8 affected.
9 B. If the Designating Party timely seeks a protective order, the Party served
10 with the subpoena or court order shall not produce any information designated in
11
this action as “CONFIDENTIAL” before a determination by the Court from which
12
the subpoena or order issued, unless the Party has obtained the Designating
13
Party’s permission. The Designating Party shall bear the burden and expense of
14
seeking protection in that court of its confidential material and nothing in these
15
16 provisions should be construed as authorizing or encouraging a Receiving Party in
17 this Action to disobey a lawful directive from another court.
18 X. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
19
PRODUCED IN THIS LITIGATION
20
A. The terms of this Order are applicable to information produced by a Non-
21
Party in this Action and designated as “CONFIDENTIAL.” Such information
22
produced by Non-Parties in connection with this litigation is protected by the
23
24 remedies and relief provided by this Order. Nothing in these provisions should be
25 construed as prohibiting a Non-Party from seeking additional protections.
26 B. In the event that a Party is required, by a valid discovery request, to
27
produce a Non-Party’s confidential information in its possession, and the Party is
28
1 subject to an agreement with the Non-Party not to produce the Non-Party’s
2
confidential information, then the Party shall:
3
1. Promptly notify in writing the Requesting Party and the Non-Party
4
that some or all of the information requested is subject to a confidentiality
5
agreement with a Non-Party;
6
7 2. Promptly provide the Non-Party with a copy of the Stipulated
8 Protective Order in this Action, the relevant discovery request(s), and a
9 reasonably specific description of the information requested; and
10 3. Make the information requested available for inspection by the Non-
11
Party, if requested.
12
C. If the Non-Party fails to seek a protective order from this court within 14
13
days of receiving the notice and accompanying information, the Receiving Party
14
may produce the Non-Party’s confidential information responsive to the discovery
15
16 request. If the Non-Party timely seeks a protective order, the Receiving Party
17 shall not produce any information in its possession or control that is subject to the
18 confidentiality agreement with the Non-Party before a determination by the court.
19
Absent a court order to the contrary, the Non-Party shall bear the burden and
20
expense of seeking protection in this court of its Protected Material.
21
XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
22
A. If a Receiving Party learns that, by inadvertence or otherwise, it has
23
24 disclosed Protected Material to any person or in any circumstance not authorized
25 under this Stipulated Protective Order, the Receiving Party must immediately (1)
26 notify in writing the Designating Party of the unauthorized disclosures, (2) use its
27
best efforts to retrieve all unauthorized copies of the Protected Material, (3)
28
1 inform the person or persons to whom unauthorized disclosures were made of all
2
the terms of this Order, and (4) request such person or persons to execute the
3
“Acknowledgment and Agreement to be Bound” that is attached hereto as Exhibit
4
A.
5
XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
6
7 PROTECTED MATERIAL
8 A. When a Producing Party gives notice to Receiving Parties that certain
9 inadvertently produced material is subject to a claim of privilege or other
10 protection, the obligations of the Receiving Parties are those set forth in Federal
11
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
12
whatever procedure may be established in an e-discovery order that provides for
13
production without prior privilege review. Pursuant to Federal Rule of Evidence
14
502(d) and (e), insofar as the parties reach an agreement on the effect of
15
16 disclosure of a communication or information covered by the attorney-client
17 privilege or work product protection, the parties may incorporate their agreement
18 in the Stipulated Protective Order submitted to the Court.
19
XIII. MISCELLANEOUS
20
A. Right to Further Relief
21
1. Nothing in this Order abridges the right of any person to seek its
22
modification by the Court in the future.
23
24 B. Right to Assert Other Objections
25 1. By stipulating to the entry of this Protective Order, no Party waives
26 any right it otherwise would have to object to disclosing or producing any
27
information or item on any ground not addressed in this Stipulated
28
1 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
3
Order.
4
C. Filing Protected Material
5
1. A Party that seeks to file under seal any Protected Material must
6
7 comply with Civil Local Rule 79-5. Protected Material may only be filed
8 under seal pursuant to a court order authorizing the sealing of the specific
9 Protected Material at issue. If a Party's request to file Protected Material
10 under seal is denied by the Court, then the Receiving Party may file the
11
information in the public record unless otherwise instructed by the Court.
12
XIV. FINAL DISPOSITION
13
A. After the final disposition of this Action, as defined in Section V, within
14
sixty (60) days of a written request by the Designating Party, each Receiving Party
15
16 must return all Protected Material to the Producing Party or destroy such
17 material. As used in this subdivision, “all Protected Material” includes all copies,
18 abstracts, compilations, summaries, and any other format reproducing or
19
capturing any of the Protected Material. Whether the Protected Material is
20
returned or destroyed, the Receiving Party must submit a written certification to
21
the Producing Party (and, if not the same person or entity, to the Designating
22
Party) by the 60 day deadline that (1) identifies (by category, where appropriate)
23
24 all the Protected Material that was returned or destroyed and (2) affirms that the
25 Receiving Party has not retained any copies, abstracts, compilations, summaries
26 or any other format reproducing or capturing any of the Protected Material.
27
Notwithstanding this provision, Counsel are entitled to retain an archival copy of
28
1 all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
2
memoranda, correspondence, deposition and trial exhibits, expert reports,
3
attorney work product, and consultant and expert work product, even if such
4
materials contain Protected Material. Any such archival copies that contain or
5
constitute Protected Material remain subject to this Protective Order as set forth
6
7 in Section V.
8 B. Any violation of this Order may be punished by any and all appropriate
9 measures including, without limitation, contempt proceedings and/or monetary
10 sanctions.
11
12
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
13
14 Dated: 7/27/20 /s/
DAVID E. MASTAGNI
15
ISAAC S. STEVENS
16 TASHAYLA D. BILLINGTON
JOEL M. WEINSTEIN
17 Attorneys for Plaintiffs
18
Dated: 7/27/20 /s/
19 CYNTHIA M. GERMANO
ROGER K. CRAWFORD
20 BEN CARNEY
21 Attorneys for Defendant
22
23
24
25
26
27
28
1 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
2
3 Dated: July 29, 2020
HONORABLE SHERI PYM
4 United States Magistrate Judge
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
2
3
I, [print or type full name], of Mastagni Holstedt,
4
A.P.C., 1912 “I” Street, Sacramento, California 95811, declare under penalty of perjury
5
that I have read in its entirety and understand the Stipulated Protective Order that was
6
7 issue by the United States District Court for the Central District of California on
8 _______________ in the case of Richard Aragon, et al. v. City of Colton, Case No.
9 5:20-CV-00776-DDP-SPx. 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 comply
11
could expose me to sanctions and punishment in the nature of contempt. I solemnly
12
promise that I will not disclose in any manner any information or item that is subject to
13
this Stipulated Protective Order to any person or entity except in strict compliance with
14
the provisions of this Order.
15
16 I further agree to submit to the jurisdiction of the United States District Court for
17 the Central District of California for the purpose of enforcing the terms of this Stipulated
18 Protective Order, even if such enforcement proceedings occur after termination of this
19
action. I hereby appoint [print or type full name] of
20
[print or type full address and telephone number] as my
21
California agent for service of process in connection with this action or any proceedings
22
related to enforcement of this Stipulated Protective Order.
23
24 Date:
25 City and State where sworn and signed:
26 Printed Name:
27
Signature:
28