even stipulated 9 protective orders require good cause showing
How later courts described this case
- even stipulated 9 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 Dongyuan Li et al., ) Case No. 8:20-cv-00068-JLS (JDEx)
)
11 )
Plaintiffs, ) STIPULATED PROTECTIVE
12 ) ) ORDER
13 v. )
)
14 City of Santa Ana et al., )
)
15 Defendants. )
16 Pursuant to the parties’ Stipulation (Dkt. 32) and for good cause shown,
17
the Court finds and orders as follows:
18
1. PURPOSES AND LIMITATIONS
19
Discovery in this action is likely to involve production of confidential,
20
proprietary or private information for which special protection from public
21
disclosure and from use for any purpose other than pursuing this litigation may
22
be warranted. Accordingly, the parties hereby stipulate to and petition the
23
Court to enter the following Stipulated Protective Order. The parties
24
acknowledge that this Order does not confer blanket protections on all
25
disclosures or responses to discovery and that the protection it affords from
26
public disclosure and use extends only to the limited information or items that
27
are entitled to confidential treatment under the applicable legal principles.
28
1 2. GOOD CAUSE STATEMENT
2 This action is likely to involve sensitive police and jail records, including
3 medical records, for which special protection from public disclosure and from
4 use for any purpose other than prosecution of this action is warranted. Such
5 confidential and proprietary materials and information consist of, among other
6 things, investigative and incident reports, surveillance video depicting sensitive
7
jail and police building locations, camera placement, paths of ingress and
8
egress, specific individuals, as well as medical records containing confidential
9
medical information (or other information) of inmates, and confidential
10
personnel files protected by law, as well as other information generally
11
unavailable to the public. In addition, privacy rights of third parties are
12
implicated by the above. Accordingly, to expedite the flow of information, to
13
facilitate the prompt resolution of disputes over confidentiality of discovery
14
materials, to adequately protect information the parties are entitled to keep
15
confidential, to ensure that the parties are permitted reasonable necessary uses
16
of such material in preparation for and in the conduct of trial, to address their
17
handling at the end of the litigation, and to serve the ends of justice, a
18
protective order for such information is justified in this matter. It is the intent
19
of the parties that information will not be designated as confidential for tactical
20
21 reasons and that nothing be so designated without a good faith belief that it has
22 been maintained in a confidential, non-public manner, and there is good cause
23 why it should not be part of the public record of this case.
24 3. ACKNOWLEDGMENT OF UNDER SEAL FILING
25 PROCEDURE
26 The parties further acknowledge, as set forth in Section 14.3, below, that
27 this Stipulated Protective Order does not entitle them to file confidential
28 information under seal; Local Civil Rule 79-5 sets forth the procedures that
1 must be followed and the standards that will be applied when a party seeks
2 permission from the court to file material under seal. There is a strong
3 presumption that the public has a right of access to judicial proceedings and
4 records in civil cases. In connection with non-dispositive motions, good cause
5 must be shown to support a filing under seal. See Kamakana v. City and
6 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
7
Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
8
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
9
protective orders require good cause showing), and a specific showing of good
10
cause or compelling reasons with proper evidentiary support and legal
11
justification, must be made with respect to Protected Material that a party
12
seeks to file under seal. The parties’ mere designation of Disclosure or
13
Discovery Material as CONFIDENTIAL does not— without the submission
14
of competent evidence by declaration, establishing that the material sought to
15
be filed under seal qualifies as confidential, privileged, or otherwise
16
protectable—constitute good cause.
17
Further, if a party requests sealing related to a dispositive motion or trial,
18
then compelling reasons, not only good cause, for the sealing must be shown,
19
and the relief sought shall be narrowly tailored to serve the specific interest to
20
21 be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th
22 Cir. 2010). For each item or type of information, document, or thing sought to
23 be filed or introduced under seal, the party seeking protection must articulate
24 compelling reasons, supported by specific facts and legal justification, for the
25 requested sealing order. Again, competent evidence supporting the application
26 to file documents under seal must be provided by declaration.
27 Any document that is not confidential, privileged, or otherwise
28 protectable in its entirety will not be filed under seal if the confidential portions
1 can be redacted. If documents can be redacted, then a redacted version for
2 public viewing, omitting only the confidential, privileged, or otherwise
3 protectable portions of the document, shall be filed. Any application that seeks
4 to file documents under seal in their entirety should include an explanation of
5 why redaction is not feasible.
6 4. DEFINITIONS
7
4.1 Action: this pending federal lawsuit.
8
4.2 Challenging Party: a Party or Non-Party that challenges the
9
designation of information or items under this Order.
10
4.3 “CONFIDENTIAL” Information or Items: information
11
(regardless of how it is generated, stored or maintained) or tangible things that
12
qualify for protection under Federal Rule of Civil Procedure 26(c), and as
13
specified above in the Good Cause Statement.
14
4.4 Counsel: Outside Counsel of Record and House Counsel (as well
15
as their support staff).
16
4.5 Designating Party: a Party or Non-Party that designates
17
information or items that it produces in disclosures or in responses to discovery
18
as “CONFIDENTIAL.”
19
4.6 Disclosure or Discovery Material: all items or information,
20
21 regardless of the medium or manner in which it is generated, stored, or
22 maintained (including, among other things, testimony, transcripts, and tangible
23 things), that are produced or generated in disclosures or responses to discovery.
24 4.7 Expert: a person with specialized knowledge or experience in a
25 matter pertinent to the litigation who has been retained by a Party or its
26 counsel to serve as an expert witness or as a consultant in this Action.
27 4.8 House Counsel: attorneys who are employees of a party to this
28 Action. House Counsel does not include Outside Counsel of Record or any
1 other outside counsel.
2 4.9 Non-Party: any natural person, partnership, corporation,
3 association or other legal entity not named as a Party to this action.
4 4.10 Outside Counsel of Record: attorneys who are not employees of a
5 party to this Action but are retained to represent a party to this Action and
6 have appeared in this Action on behalf of that party or are affiliated with a law
7
firm that has appeared on behalf of that party, and includes support staff.
8
4.11 Party: any party to this Action, including all of its officers,
9
directors, employees, consultants, retained experts and investigators, and
10
Outside Counsel of Record (and their support staffs).
11
4.12 Producing Party: a Party or Non-Party that produces Disclosure or
12
Discovery Material in this Action.
13
4.13 Professional Vendors: persons or entities that provide litigation
14
support services (e.g., photocopying, videotaping, translating, preparing
15
exhibits or demonstrations, and organizing, storing, or retrieving data in any
16
form or medium) and their employees and subcontractors.
17
4.14 Protected Material: any Disclosure or Discovery Material that is
18
designated as “CONFIDENTIAL.”
19
4.15 Receiving Party: a Party that receives Disclosure or Discovery
20
21 Material from a Producing Party.
22 4.16 Investigator: a person who has been retained or commissioned by
23 a Party or its counsel to assist with gathering facts and evidence in this Action.
24 5. SCOPE
25 The protections conferred by this Stipulation and Order cover not only
26 Protected Material (as defined above), but also (1) any information copied or
27 extracted from Protected Material; (2) all copies, excerpts, summaries, or
28 compilations of Protected Material; and (3) any testimony, conversations, or
1 presentations by Parties or their Counsel that might reveal Protected Material.
2 Any use of Protected Material at trial shall be governed by the orders of
3 the trial judge and other applicable authorities. This Order does not govern the
4 use of Protected Material at trial.
5 6. DURATION
6 Once a case proceeds to trial, information that was designated as
7
CONFIDENTIAL or maintained pursuant to this protective order used or
8
introduced as an exhibit at trial becomes public and will be presumptively
9
available to all members of the public, including the press, unless compelling
10
reasons supported by specific factual findings to proceed otherwise are made to
11
the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
12
(distinguishing “good cause” showing for sealing documents produced in
13
discovery from “compelling reasons” standard when merits-related documents
14
are part of court record). Accordingly, the terms of this protective order do not
15
extend beyond the commencement of the trial.
16
7. DESIGNATING PROTECTED MATERIAL
17
7.1 Exercise of Restraint and Care in Designating Material for
18
Protection. Each Party or Non-Party that designates information
19
or items for protection under this Order must take care to limit any such
20
21 designation to specific material that qualifies under the appropriate standards.
22 The Designating Party must designate for protection only those parts of
23 material, documents, items or oral or written communications that qualify so
24 that other portions of the material, documents, items or communications for
25 which protection is not warranted are not swept unjustifiably within the ambit
26 of this Order.
27 Mass, indiscriminate or routinized designations are prohibited.
28 Designations that are shown to be clearly unjustified or that have been made
1 for an improper purpose (e.g., to unnecessarily encumber the case development
2 process or to impose unnecessary expenses and burdens on other parties) may
3 expose the Designating Party to sanctions.
4 If it comes to a Designating Party’s attention that information or items
5 that it designated for protection do not qualify for protection, that Designating
6 Party must promptly notify all other Parties that it is withdrawing the
7
inapplicable designation.
8
7.2 Manner and Timing of Designations. Except as otherwise
9
provided in this Order, or as otherwise stipulated or ordered, Disclosure of
10
Discovery Material that qualifies for protection under this Order must be
11
clearly so designated before the material is disclosed or produced.
12
Designation in conformity with this Order requires:
13
(a) for information in documentary form (e.g., paper or electronic
14
documents, but excluding transcripts of depositions or other pretrial or trial
15
proceedings), that the Producing Party affix at a minimum, the legend
16
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page
17
that contains protected material. If only a portion of the material on a page
18
qualifies for protection, the Producing Party also must clearly identify the
19
protected portion(s) (e.g., by making appropriate markings in the margins).
20
21 A Party or Non-Party that makes original documents available for
22 inspection need not designate them for protection until after the inspecting
23 Party has indicated which documents it would like copied and produced.
24 During the inspection and before the designation, all of the material made
25 available for inspection shall be deemed “CONFIDENTIAL.” After the
26 inspecting Party has identified the documents it wants copied and produced,
27 the Producing Party must determine which documents, or portions thereof,
28 qualify for protection under this Order. Then, before producing the specified
1 documents, the Producing Party must affix the “CONFIDENTIAL legend” to
2 each page that contains Protected Material. If only a portion of the material on
3 a page qualifies for protection, the Producing Party also must clearly identify
4 the protected portion(s) (e.g., by making appropriate markings in the margins).
5 (b) for testimony given in depositions that the Designating Party
6 identifies the Disclosure or Discovery Material on the record, before the close
7
of the deposition all protected testimony.
8
(c) for information produced in some form other than
9
documentary and for any other tangible items, that the Producing Party affix
10
in a prominent place on the exterior of the container or containers in which the
11
information is stored the legend “CONFIDENTIAL.” If only a portion or
12
portions of the information warrants protection, the Producing Party, to the
13
extent practicable, shall identify the protected portion(s).
14
7.3 Inadvertent Failures to Designate. If timely corrected, an
15
inadvertent failure to designate qualified information or items does not,
16
standing alone, waive the Designating Party’s right to secure protection under
17
this Order for such material. Upon timely correction of a designation, the
18
Receiving Party must make reasonable efforts to assure that the material is
19
treated in accordance with the provisions of this Order.
20
21 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
22 8.1. Timing of Challenges. Any Party or Non-Party may challenge a
23 designation of confidentiality at any time that is consistent with the Court’s
24 Scheduling Order.
25 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
26 resolution process under Local Rule 37-1 et seq.
27 8.3 Joint Stipulation. Any challenge submitted to the Court shall be
28 via a joint stipulation pursuant to Local Rule 37-2.
1 8.4 The burden of persuasion in any such challenge proceeding shall
2 be on the Designating Party. Frivolous challenges, and those made for an
3 improper purpose (e.g., to harass or impose unnecessary expenses and burdens
4 on other parties) may expose the Challenging Party to sanctions. Unless the
5 Designating Party has waived or withdrawn the confidentiality designation, all
6 parties shall continue to afford the material in question the level of protection
7
to which it is entitled under the Producing Party’s designation until the Court
8
rules on the challenge.
9
9. ACCESS TO AND USE OF PROTECTED MATERIAL
10
11 9.1 Basic Principles. A Receiving Party may use Protected Material
12 that is disclosed or produced by another Party or by a Non-Party in connection
13 with this Action only for prosecuting, defending or attempting to settle this
14 Action. Such Protected Material may be disclosed only to the categories of
15 persons and under the conditions described in this Order. When the Action has
16 been terminated, a Receiving Party must comply with the provisions of section
17 15 below (FINAL DISPOSITION).
18 Protected Material must be stored and maintained by a Receiving Party
19 at a location and in a secure manner that ensures that access is limited to the
20 persons authorized under this Order.
21
9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
22
otherwise ordered by the court or permitted in writing by the Designating
23
Party, a Receiving Party may disclose any information or item designated
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“CONFIDENTIAL” only to:
25
(a) the Receiving Party’s Outside Counsel of Record in this
26
Action, as well as employees of said Outside Counsel of Record to whom it is
27
reasonably necessary to disclose the information for this Action;
28
1 (b) the officers, directors, and employees (including House
2 Counsel) of the Receiving Party to whom disclosure is reasonably necessary
3 for this Action;
4 (c) Experts and Investigators (as defined in this Order) of the
5 Receiving Party to whom disclosure is reasonably necessary for this Action
6 and who have signed the “Acknowledgment and Agreement to Be Bound”
7
(Exhibit A);
8
(d) the court and its personnel;
9
(e) court reporters and their staff;
10
(f) professional jury or trial consultants, mock jurors, and
11
Professional Vendors to whom disclosure is reasonably necessary for this
12
Action and who have signed the “Acknowledgment and Agreement to Be
13
Bound” (Exhibit A);
14
(g) the author or recipient of a document containing the
15
information or a custodian or other person who otherwise possessed or knew
16
the information;
17
(h) during their depositions, witnesses, and attorneys for witnesses,
18
in the Action to whom disclosure is reasonably necessary provided: (1) the
19
deposing party requests that the witness sign the form attached as Exhibit A
20
21 hereto; and (2) they will not be permitted to keep any confidential information
22 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit
23 A), unless otherwise agreed by the Designating Party or ordered by the court.
24 Pages of transcribed deposition testimony or exhibits to depositions that reveal
25 Protected Material may be separately bound by the court reporter and may not
26 be disclosed to anyone except as permitted under this Stipulated Protective
27 Order; and
28 (i) any mediators or settlement officers and their supporting
1 personnel, mutually agreed upon by any of the parties engaged in settlement
2 discussions.
3 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
4
5 If a Party is served with a subpoena or a court order issued in other
6 litigation that compels disclosure of any information or items designated in this
7
Action as “CONFIDENTIAL,” that Party must:
8
(a) promptly notify in writing the Designating Party. Such
9
notification shall include a copy of the subpoena or court order;
10
(b) promptly notify in writing the party who caused the subpoena
11
or order to issue in the other litigation that some or all of the material covered
12
by the subpoena or order is subject to this Protective Order. Such notification
13
shall include a copy of this Stipulated Protective Order; and
14
(c) cooperate with respect to all reasonable procedures sought to be
15
pursued by the Designating Party whose Protected Material may be affected. If
16
the Designating Party timely seeks a protective order, the Party served with the
17
subpoena or court order shall not produce any information designated in this
18
action as “CONFIDENTIAL” before a determination by the court from which
19
the subpoena or order issued, unless the Party has obtained the Designating
20
21 Party’s permission. The Designating Party shall bear the burden and expense
22 of seeking protection in that court of its confidential material and nothing in
23 these provisions should be construed as authorizing or encouraging a
24 Receiving Party in this Action to disobey a lawful directive from another court.
25
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1 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
BE PRODUCED IN THIS LITIGATION
2
3 (a) The terms of this Order are applicable to information produced
4 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
5 information produced by Non-Parties in connection with this litigation is
6 protected by the remedies and relief provided by this Order. Nothing in these
7
provisions should be construed as prohibiting a Non-Party from seeking
8
additional protections.
9
(b) In the event that a Party is required, by a valid discovery
10
request, to produce a Non-Party’s confidential information in its possession,
11
and the Party is subject to an agreement with the Non-Party not to produce the
12
Non-Party’s confidential information, then the Party shall:
13
(1) promptly notify in writing the Requesting Party and the Non-
14
Party that some or all of the information requested is subject to a
15
confidentiality agreement with a Non-Party;
16
(2) promptly provide the Non-Party with a copy of the Stipulated
17
Protective Order in this Action, the relevant discovery request(s), and a
18
reasonably specific description of the information requested; and
19
(3) make the information requested available for inspection by the
20
21 Non-Party, if requested.
22 (c) If the Non-Party fails to seek a protective order from this court
23 within 14 days of receiving the notice and accompanying information, the
24 Receiving Party may produce the Non-Party’s confidential information
25 responsive to the discovery request. If the Non-Party timely seeks a protective
26 order, the Receiving Party shall not produce any information in its possession
27 or control that is subject to the confidentiality agreement with the Non-Party
28 before a determination by the court. Absent a court order to the contrary, the
1 Non-Party shall bear the burden and expense of seeking protection in this court
2 of its Protected Material.
3 (d) In the event a Party subpoenas a Non-Party to produce
4 information or documents in this Action, and another Party claims that the
5 information or documents subpoenaed or produced by the Non-Party is
6 confidential, that other Party (the Designating Party) may designate such
7
information or documents as CONFIDENTIAL Information. The
8
Designating Party may so designate by informing all other Parties of the
9
particular documents, or reasonably-defined categories of documents,
10
subpoenaed or produced that it considers to contain CONFIDENTIAL
11
Information. That designation must occur when the Designating Party first
12
becomes aware that its confidential information is being subpoenaed or
13
produced, but in no event later than five (5) business days after the Designating
14
Party receives a copy of any information or documents produced pursuant to
15
the subpoena.
16
12. UNAUTHORIZED DISCLOSURE OF PROTECTED
17
MATERIAL
18
If a Receiving Party learns that, by inadvertence or otherwise, it has
19
disclosed Protected Material to any person or in any circumstance not
20
21 authorized under this Stipulated Protective Order, the Receiving Party must
22 immediately (a) notify in writing the Designating Party of the unauthorized
23 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
24 Protected Material, (c) inform the person or persons to whom unauthorized
25 disclosures were made of all the terms of this Order, and (d) request such
26 person or persons to execute the “Acknowledgment an Agreement to Be
27 Bound” attached hereto as Exhibit A.
28
1 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
2
3 When a Producing Party gives notice to Receiving Parties that certain
4 inadvertently produced material is subject to a claim of privilege or other
5 protection, the obligations of the Receiving Parties are those set forth in
6 Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
7
modify whatever procedure may be established in an e-discovery order that
8
provides for production without prior privilege review. Pursuant to Federal
9
Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on
10
the effect of disclosure of a communication or information covered by the
11
attorney-client privilege or work product protection, the parties may
12
incorporate their agreement in the stipulated protective order submitted to the
13
court.
14
14. MISCELLANEOUS
15
14.1 Right to Further Relief. Nothing in this Order abridges the right of
16
any person to seek its modification by the Court in the future.
17
14.2 Right to Assert Other Objections. By stipulating to the entry of this
18
Protective Order, no Party waives any right it otherwise would have to object
19
to disclosing or producing any information or item on any ground not
20
21 addressed in this Stipulated Protective Order. Similarly, no Party waives any
22 right to object on any ground to use in evidence of any of the material covered
23 by this Protective Order.
24 14.3 Filing Protected Material. A Party that seeks to file under seal any
25 Protected Material must comply with Local Civil Rule 79-5. Protected
26 Material may only be filed under seal pursuant to a court order authorizing the
27 sealing of the specific Protected Material. If a Party’s request to file Protected
28
1 Material under seal is denied by the court, then the Receiving Party may file
2 the information in the public record unless otherwise instructed by the court.
3 15. FINAL DISPOSITION
4 After the final disposition of this Action, as defined in paragraph 6,
5 within 60 days of a written request by the Designating Party, each Receiving
6 Party must return all Protected Material to the Producing Party or destroy such
7
material. As used in this subdivision, “all Protected Material” includes all
8
copies, abstracts, compilations, summaries, and any other format reproducing
9
or capturing any of the Protected Material. Whether the Protected Material is
10
returned or destroyed, the Receiving Party must submit a written certification
11
to the Producing Party (and, if not the same person or entity, to the
12
Designating Party) by the 60-day deadline that (1) identifies (by category,
13
where appropriate) all the Protected Material that was returned or destroyed
14
and (2) affirms that the Receiving Party has not retained any copies, abstracts,
15
compilations, summaries or any other format reproducing or capturing any of
16
the Protected Material. Notwithstanding this provision, Counsel are entitled to
17
retain an archival copy of all pleadings, motion papers, trial, deposition, and
18
hearing transcripts, legal memoranda, correspondence, deposition and trial
19
exhibits, expert reports, attorney work product, and consultant and expert
20
21 work product, even if such materials contain Protected Material. Any such
22 archival copies that contain or constitute Protected Material remain subject to
23 this Protective Order as set forth in Section 6 (DURATION).
24 //
25 //
26 //
27 //
28 //
I 16. VIOLATION
2 Any violation of this Order may be punished by appropriate measures
3 including, without limitation, contempt proceedings and/or monetary
4 || sanctions.
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
6
DATED: August 24, 2020
Lf
whee oo
Il nited States Magistrate Judge
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1
EXHIBIT A
2 COMPLIANCE AGREEMENT
3 I hereby acknowledge that I, ______________________________ [name],
4 ____________________________________________ [position and employer], am
5 about to receive documents or items designated as “CONFIDENTIAL” (hereinafter
6 “Protected Documents”) supplied in connection with Dongyuan Li et al. v. City of
7 Santa Ana et al., Case No. 8:20-cv-00068-JLS-JDE. I certify that I understand that
8 the Protected Documents are provided to me subject to the terms and restrictions of
9 the Protective Order filed in this case. I have been given a copy of the Protective
10 Order; I have read it; and I agree to be bound by its terms.
11 I understand that Protected Documents, including any notes or other records
12 that may be made regarding such materials, shall not be disclosed to anyone except
13 as expressly permitted by the Protective Order. I will not copy or use, except solely
14 for the purposes of this Action, any Protected Documents obtained pursuant to this
15 Protective Order, except as provided therein or otherwise ordered by the Court in
16 the Action.
17 I further understand that I am to retain all copies of all Protected Documents
18 provided to me in the case in a secure manner, and that all copies of such materials
19 are to remain in my personal custody until termination of my participation in this
20 case, whereupon the copies of such materials will be returned to counsel who
provided me with such materials.
21
22 I declare under penalty of perjury under the laws of the State of California
23 that the foregoing is true and correct. Executed this ___day of _______________,
24 20___, at ____________________________________________ [place].
25 Signature: __________________________________________
26 Title: ______________________________________________
27 Address: ___________________________________________
28 Telephone Number: ___________________________________