distinguishing “good cause” 9 showing for sealing documents produced in discovery from “compelling reasons” 10 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 9 showing for sealing documents produced in discovery from “compelling reasons” 10 standard when merits-related documents are part of court record
- even stipulated protective orders 14 require good cause showing
Written by the judges who cited it.
The opinion
1 MICHAEL W. BIEN – 096891
LISA ELLS – 243657
2 CAROLINE E. JACKSON – 329980
ROSEN BIEN GALVAN & GRUNFELD LLP
3 101 Mission Street, Sixth Floor
San Francisco, California 94105-1738
4 Telephone: (415) 433-6830
Facsimile: (415) 433-7104
5 Email: mbien@rbgg.com
lells@rbgg.com
6 cjackson@rbgg.com
7 Attorneys for Plaintiff
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
11
12 CLAUDIA CHAVEZ, Case No. 2:19-cv-10735-JAK-RAO
13 Plaintiff, STIPULATED PROTECTIVE
ORDER1
14 v.
Judge: Hon. Rozella A. Oliver
15 COUNTY OF LOS ANGELES,
Action Filed: December 19, 2019
16 Defendant. Trial Date: None Set
17
18
19
20
21
22
23
24
25
26
27 1 This Stipulated Protective Order is substantially based on the model protective order
provided under Magistrate Judge Rozella A. Oliver’s Procedures.
1 1. A. PURPOSES AND LIMITATIONS
2 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 to
6 enter the following Stipulated Protective Order. The parties acknowledge that this
7 Order does not confer blanket protections on all disclosures or responses to
8 discovery and that the protection it affords from public disclosure and use extends
9 only to the limited information or items that are entitled to confidential treatment
10 under the applicable legal principles.
11 B. GOOD CAUSE STATEMENT
12 This case centers around Defendant’s alleged failure to provide a qualified
13 interpreter to communicate with Ms. Chavez while she received medical care at
14 their facility, and the alleged emotional distress she experienced as a result. This
15 action is likely to involve disclosure and discussion of Ms. Chavez’s medical
16 records and other information protected by the Health Insurance Portability and
17 Accountability Act of 1996 (HIPAA). Public disclosure of this information violates
18 HIPAA.
19 This action is also likely to involve discovery activity and production of
20 confidential, proprietary, financial, business, or other private information for which
21 special protection from public disclosure and from use for any purpose other than
22 this litigation is warranted.
23 Accordingly, to expedite the flow of information, to facilitate the prompt
24 resolution of disputes over confidentiality of discovery materials, to adequately
25 protect information the parties are entitled to keep confidential, to ensure that the
26 parties are permitted reasonable necessary uses of such material in preparation for
27 and in the conduct of trial, to address their handling at the end of the litigation, and
1 matter.
2 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
3 The parties further acknowledge, as set forth in Section 12.3, below, that this
4 Stipulated Protective Order does not entitle them to file confidential information
5 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
6 and the standards that will be applied when a party seeks permission from the court
7 to file material under seal.
8 There is a strong presumption that the public has a right of access to judicial
9 proceedings and records in civil cases. In connection with non-dispositive motions,
10 good cause must be shown to support a filing under seal. See Kamakana v. City and
11 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
12 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
13 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
14 require good cause showing), and a specific showing of good cause or compelling
15 reasons with proper evidentiary support and legal justification, must be made with
16 respect to Protected Material that a party seeks to file under seal. The parties’ mere
17 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
18 without the submission of competent evidence by declaration, establishing that the
19 material sought to be filed under seal qualifies as confidential, privileged, or
20 otherwise protectable—constitute good cause.
21 Further, if a party requests sealing related to a dispositive motion or trial, then
22 compelling reasons, not only good cause, for the sealing must be shown, and the
23 relief sought shall be narrowly tailored to serve the specific interest to be protected.
24 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
25 each item or type of information, document, or thing sought to be filed or introduced
26 under seal in connection with a dispositive motion or trial, the party seeking
27 protection must articulate compelling reasons, supported by specific facts and legal
1 the application to file documents under seal must be provided by declaration.
2 Any document that is not confidential, privileged, or otherwise protectable in
3 its entirety will not be filed under seal if the confidential portions can be redacted.
4 If documents can be redacted, then a redacted version for public viewing, omitting
5 only the confidential, privileged, or otherwise protectable portions of the document,
6 shall be filed. Any application that seeks to file documents under seal in their
7 entirety should include an explanation of why redaction is not feasible.
8 2. DEFINITIONS
9 2.1 Action: this pending federal lawsuit.
10 2.2 Challenging Party: a Party or Non-Party that challenges the designation
11 of information or items under this Order.
12 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
13 how it is generated, stored or maintained) or tangible things that qualify for
14 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
15 the Good Cause Statement.
16 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
17 their support staff).
18 2.5 Designating Party: a Party or Non-Party that designates information or
19 items that it produces in disclosures or in responses to discovery as
20 “CONFIDENTIAL.”
21 2.6 Disclosure or Discovery Material: all items or information, regardless
22 of the medium or manner in which it is generated, stored, or maintained (including,
23 among other things, testimony, transcripts, and tangible things), that are produced or
24 generated in disclosures or responses to discovery in this matter.
25 2.7 Expert: a person with specialized knowledge or experience in a matter
26 pertinent to the litigation who has been retained by a Party or its counsel to serve as
27 an expert witness or as a consultant in this Action.
1 House Counsel does not include Outside Counsel of Record or any other outside
2 counsel.
3 2.9 Non-Party: any natural person, partnership, corporation, association or
4 other legal entity not named as a Party to this action.
5 2.10 Outside Counsel of Record: attorneys who are not employees of a party
6 to this Action but are retained to represent or advise a party to this Action and have
7 appeared in this Action on behalf of that party or are affiliated with a law firm that
8 has appeared on behalf of that party, and includes support staff.
9 2.11 Party: any party to this Action, including all of its officers, directors,
10 employees, consultants, retained experts, and Outside Counsel of Record (and their
11 support staffs).
12 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
13 Discovery Material in this Action.
14 2.13 Professional Vendors: persons or entities that provide litigation support
15 services (e.g., photocopying, videotaping, translating, preparing exhibits or
16 demonstrations, and organizing, storing, or retrieving data in any form or medium)
17 and their employees and subcontractors.
18 2.14 Protected Material: any Disclosure or Discovery Material that is
19 designated as “CONFIDENTIAL.”
20 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
21 from a Producing Party.
22 3. SCOPE
23 The protections conferred by this Stipulation and Order cover not only
24 Protected Material (as defined above), but also (1) any information copied or
25 extracted from Protected Material; (2) all copies, excerpts, summaries, or
26 compilations of Protected Material; and (3) any testimony, conversations, or
27 presentations by Parties or their Counsel that might reveal Protected Material.
1 trial judge. This Order does not govern the use of Protected Material at trial.
2 4. DURATION
3 Once a case proceeds to trial, information that was designated as
4 CONFIDENTIAL or maintained pursuant to this protective order used or introduced
5 as an exhibit at trial becomes public and will be presumptively available to all
6 members of the public, including the press, unless compelling reasons supported by
7 specific factual findings to proceed otherwise are made to the trial judge in advance
8 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
9 showing for sealing documents produced in discovery from “compelling reasons”
10 standard when merits-related documents are part of court record). Accordingly, the
11 terms of this protective order do not extend beyond the commencement of the trial.
12 5. DESIGNATING PROTECTED MATERIAL
13 5.1 Exercise of Restraint and Care in Designating Material for Protection.
14 Each Party or Non-Party that designates information or items for protection under
15 this Order must take care to limit any such designation to specific material that
16 qualifies under the appropriate standards. The Designating Party must designate for
17 protection only those parts of material, documents, items or oral or written
18 communications that qualify so that other portions of the material, documents, items
19 or communications for which protection is not warranted are not swept unjustifiably
20 within the ambit of this Order.
21 Mass, indiscriminate or routinized designations are prohibited. Designations
22 that are shown to be clearly unjustified or that have been made for an improper
23 purpose (e.g., to unnecessarily encumber the case development process or to impose
24 unnecessary expenses and burdens on other parties) may expose the Designating
25 Party to sanctions.
26 If it comes to a Designating Party’s attention that information or items that it
27 designated for protection do not qualify for protection, that Designating Party must
1 5.2 Manner and Timing of Designations. Except as otherwise provided in
2 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
4 under this Order must be clearly so designated before the material is disclosed or
5 produced.
6 Designation in conformity with this Order requires:
7 (a) for information in documentary form (e.g., paper or electronic
8 documents, but excluding transcripts of depositions or other pretrial or trial
9 proceedings), that the Producing Party affix at a minimum, the legend
10 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
11 contains protected material. If only a portion of the material on a page qualifies for
12 protection, the Producing Party also must clearly identify the protected portion(s)
13 (e.g., by making appropriate markings in the margins).
14 A Party or Non-Party that makes original documents available for inspection
15 need not designate them for protection until after the inspecting Party has indicated
16 which documents it would like copied and produced. During the inspection and
17 before the designation, all of the material made available for inspection shall be
18 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
19 documents it wants copied and produced, the Producing Party must determine which
20 documents, or portions thereof, qualify for protection under this Order. Then, before
21 producing the specified documents, the Producing Party must affix the
22 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
23 portion of the material on a page qualifies for protection, the Producing Party also
24 must clearly identify the protected portion(s) (e.g., by making appropriate markings
25 in the margins).
26 (b) for testimony given in depositions that the Designating Party
27 identifies the Disclosure or Discovery Material on the record, before the close of the
1 (c) for information produced in some form other than documentary
2 and for any other tangible items, that the Producing Party affix in a prominent place
3 on the exterior of the container or containers in which the information is stored the
4 legend “CONFIDENTIAL.” If only a portion or portions of the information
5 warrants protection, the Producing Party, to the extent practicable, shall identify the
6 protected portion(s).
7 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
8 failure to designate qualified information or items does not, standing alone, waive
9 the Designating Party’s right to secure protection under this Order for such material.
10 Upon timely correction of a designation, the Receiving Party must make reasonable
11 efforts to assure that the material is treated in accordance with the provisions of this
12 Order.
13 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
14 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
15 designation of confidentiality at any time that is consistent with the Court’s
16 Scheduling Order.
17 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
18 resolution process under Local Rule 37.1 et seq.
19 6.3 The burden of persuasion in any such challenge proceeding shall be on
20 the Designating Party. Frivolous challenges, and those made for an improper
21 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
22 parties) may expose the Challenging Party to sanctions. Unless the Designating
23 Party has waived or withdrawn the confidentiality designation, all parties shall
24 continue to afford the material in question the level of protection to which it is
25 entitled under the Producing Party’s designation until the Court rules on the
26 challenge.
27 7. ACCESS TO AND USE OF PROTECTED MATERIAL
1 disclosed or produced by another Party or by a Non-Party in connection with this
2 Action only for prosecuting, defending or attempting to settle this Action. Such
3 Protected Material may be disclosed only to the categories of persons and under the
4 conditions described in this Order. When the Action has been terminated, a
5 Receiving Party must comply with the provisions of section 13 below (FINAL
6 DISPOSITION).
7 Protected Material must be stored and maintained by a Receiving Party at a
8 location and in a secure manner that ensures that access is limited to the persons
9 authorized under this Order.
10 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
11 otherwise ordered by the court or permitted in writing by the Designating Party, a
12 Receiving Party may disclose any information or item designated
13 “CONFIDENTIAL” only to:
14 (a) the Receiving Party’s Outside Counsel of Record in this Action,
15 as well as employees of said Outside Counsel of Record to whom it is reasonably
16 necessary to disclose the information for this Action;
17 (b) the officers, directors, and employees (including House Counsel)
18 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
19 (c) Experts (as defined in this Order) of the Receiving Party to
20 whom disclosure is reasonably necessary for this Action and who have signed the
21 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
22 (d) the court and its personnel;
23 (e) court reporters and their staff;
24 (f) professional jury or trial consultants, mock jurors, and
25 Professional Vendors to whom disclosure is reasonably necessary for this Action
26 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
27 A);
1 or a custodian or other person who otherwise possessed or knew the information;
2 (h) during their depositions, witnesses, and attorneys for witnesses,
3 in the Action to whom disclosure is reasonably necessary provided: (1) the deposing
4 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
5 they will not be permitted to keep any confidential information unless they sign the
6 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
7 agreed by the Designating Party or ordered by the court. Pages of transcribed
8 deposition testimony or exhibits to depositions that reveal Protected Material may
9 be separately bound by the court reporter and may not be disclosed to anyone except
10 as permitted under this Stipulated Protective Order; and
11 (i) any mediator or settlement officer, and their supporting
12 personnel, mutually agreed upon by any of the parties engaged in settlement
13 discussions.
14 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
15
If a Party is served with a subpoena or a court order issued in other litigation
16
that compels disclosure of any information or items designated in this Action as
17
“CONFIDENTIAL,” that Party must:
18
(a) promptly notify in writing the Designating Party. Such
19
notification shall include a copy of the subpoena or court order;
20
(b) promptly notify in writing the party who caused the subpoena or
21
order to issue in the other litigation that some or all of the material covered by the
22
subpoena or order is subject to this Protective Order. Such notification shall include
23
a copy of this Stipulated Protective Order; and
24
(c) cooperate with respect to all reasonable procedures sought to be
25
pursued by the Designating Party whose Protected Material may be affected.
26
If the Designating Party timely seeks a protective order, the Party served with
27
the subpoena or court order shall not produce any information designated in this
1 action as “CONFIDENTIAL” before a determination by the court from which the
2 subpoena or order issued, unless the Party has obtained the Designating Party’s
3 permission. The Designating Party shall bear the burden and expense of seeking
4 protection in that court of its confidential material and nothing in these provisions
5 should be construed as authorizing or encouraging a Receiving Party in this Action
6 to disobey a lawful directive from another court.
7 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
8
(a) The terms of this Order are applicable to information produced
9
by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
10
information produced by Non-Parties in connection with this litigation is protected
11
by the remedies and relief provided by this Order. Nothing in these provisions
12
should be construed as prohibiting a Non-Party from seeking additional protections.
13
(b) In the event that a Party is required, by a valid discovery request,
14
to produce a Non-Party’s confidential information in its possession, and the Party is
15
subject to an agreement with the Non-Party not to produce the Non-Party’s
16
confidential information, then the Party shall:
17
(1) promptly notify in writing the Requesting Party and the
18
Non-Party that some or all of the information requested is subject to a
19
confidentiality agreement with a Non-Party;
20
(2) promptly provide the Non-Party with a copy of the
21
Stipulated Protective Order in this Action, the relevant discovery request(s), and a
22
reasonably specific description of the information requested; and
23
(3) make the information requested available for inspection by
24
the Non-Party, if requested.
25
(c) If the Non-Party fails to seek a protective order from this court
26
within 14 days of receiving the notice and accompanying information, the Receiving
27
Party may produce the Non-Party’s confidential information responsive to the
1 discovery request. If the Non-Party timely seeks a protective order, the Receiving
2 Party shall not produce any information in its possession or control that is subject to
3 the confidentiality agreement with the Non-Party before a determination by the
4 court.
5 Absent a court order to the contrary, the Non-Party shall bear the burden and
6 expense of seeking protection in this court of its Protected Material.
7 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
8 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
9 Protected Material to any person or in any circumstance not authorized under this
10 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
11 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
12 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
13 persons to whom unauthorized disclosures were made of all the terms of this Order,
14 and (d) request such person or persons to execute the “Acknowledgment and
15 Agreement to Be Bound” that is attached hereto as Exhibit A.
16 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
17
When a Producing Party gives notice to Receiving Parties that certain
18
inadvertently produced material is subject to a claim of privilege or other protection,
19
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
20
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
21
may be established in an e-discovery order that provides for production without
22
prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
23
as the parties reach an agreement on the effect of disclosure of a communication or
24
information covered by the attorney-client privilege or work product protection, the
25
parties may incorporate their agreement in the stipulated protective order submitted
26
to the court.
27
1 12. MISCELLANEOUS
2 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
3 person to seek its modification by the Court in the future.
4 12.2 Right to Assert Other Objections. By stipulating to the entry of this
5 Protective Order, no Party waives any right it otherwise would have to object to
6 disclosing or producing any information or item on any ground not addressed in this
7 Stipulated Protective Order. Similarly, no Party waives any right to object on any
8 ground to use in evidence of any of the material covered by this Protective Order.
9 12.3 Filing Protected Material. A Party that seeks to file under seal any
10 Protected Material must comply with Local Civil Rule 79-5. Protected Material may
11 only be filed under seal pursuant to a court order authorizing the sealing of the
12 specific Protected Material at issue. If a Party’s request to file Protected Material
13 under seal is denied by the court, then the Receiving Party may file the information
14 in the public record unless otherwise instructed by the court.
15 12.4 Qualified Protective Order. This Order constitutes a qualified
16 protective order under 45 C.F.R. § 164.512(e)(v).
17 13. FINAL DISPOSITION
18 After the final disposition of this Action, as defined in paragraph 4, within 60
19 days of a written request by the Designating Party, each Receiving Party must return
20 all Protected Material to the Producing Party or destroy such material. As used in
21 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
22 summaries, and any other format reproducing or capturing any of the Protected
23 Material. Whether the Protected Material is returned or destroyed, the Receiving
24 Party must submit a written certification to the Producing Party (and, if not the same
25 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
26 (by category, where appropriate) all the Protected Material that was returned or
27 destroyed and (2) affirms that the Receiving Party has not retained any copies,
1 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to
2 ||retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
3 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
4 ||reports, attorney work product, and consultant and expert work product, even if such
5 || materials contain Protected Material. Any such archival copies that contain or
6 || constitute Protected Material remain subject to this Protective Order as set forth in
7||Section 4 (DURATION).
8j}14. VIOLATION
9 Any violation of this Order may be punished by appropriate measures
10 || including, without limitation, contempt proceedings and/or monetary sanctions.
11
12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
13
14||DATED: August 16, 2020 ROSEN, BIEN, GALVAN & GRUNFELD,
LLP
15
16 By: /s/ Caroline E. Jackson
7 Caroline E. Jackson
18 Attorneys for Plaintiff
DATED: August 14, 2020 REBACK, MCANDREWS & BLESSEY
20
3 By: Brandon Sanchez
Brandon Sanchez
22
33 Attorneys for Defendant
>A FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
25 Oe
36 DATED: August 18, 2020 Rey On,
Honorable Rozella A. Oliver
27 United States Magistrate Judge
28