distinguishing “good cause” showing for sealing documents produced in 23 discovery from “compelling reasons” standard when merits-related documents are part 24 of court record
How later courts described this case
- distinguishing “good cause” showing for sealing documents produced in 23 discovery from “compelling reasons” standard when merits-related documents are part 24 of court record
Written by the judges who cited it.
The opinion
1 ROBERT L. WALLAN (SBN 126480)
robert.wallan@pillsburylaw.com
2
PILLSBURY WINTHROP SHAW PITTMAN LLP
3 725 South Figueroa Street, Suite 2800
Los Angeles, CA 90017-5406
4
Telephone: 213.488.7100
5 Facsimile: 213.629.1033
6
Attorneys for Plaintiff
7 BANC OF CALIFORNIA, N.A.
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11
BANC OF CALIFORNIA NATIONAL Case No. 8:20-cv-00132-DOC-DFM
12
ASSOCIATION,
13 STIPULATED PROTECTIVE
Plaintiff, ORDER
14
15 vs.
16 FEDERAL INSURANCE COMPANY, Judge: Honorable David O. Carter
17 Defendant. Magistrate: Hon. Douglas F. McCormick
18 Discovery Document: Referred to
Magistrate Judge Douglas F. McCormick
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20
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25
26
27
1 1. A. PURPOSES AND LIMITATIONS
2 Discovery in this action may involve production of confidential, proprietary, or
3 private information for which special protection from public disclosure and from use
4 for any purpose other than prosecuting this litigation may be warranted. Accordingly,
5 the parties hereby stipulate to and petition the Court to enter the following Stipulated
6 Protective Order. The parties acknowledge that this Order does not confer blanket
7 protections on all disclosures or responses to discovery and that the protection it affords
8 from public disclosure and use extends only to the limited information or items that are
9 entitled to confidential treatment under the applicable legal principles. The parties
10 further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective
11 Order does not entitle them to file confidential information under seal; Civil Local Rule
12 79-5 sets forth the procedures that must be followed and the standards that will be
13 applied when a party seeks permission from the court to file material under seal.
14 B. GOOD CAUSE STATEMENT
15 Plaintiff Banc of California, N.A. (“Plaintiff” or “Banc”) brings this action for a
16 single claim of breach of contract against Defendant Federal Insurance Company
17 (“Defendant” or “Federal”) under a financial institution bond issued by Federal to Banc
18 (Defendant and Plaintiff are referred to collectively herein as the “Parties”). The claim
19 relates to a loan issued to Mary Carole McDonnell. Before this lawsuit there was other
20 litigation filed relating to Ms. McDonnell and involving third parties which settled in
21 the course of a mediation on a confidential basis.
22 The Parties expect that discovery in this case may include the production of
23 documents that contain confidential and commercially sensitive information to the
24 Parties as well as third parties not named in this action. Banc has litigated and settled
25 actions against such non-parties in an attempt to recover its loss. Banc considers the
26 correspondence and documents exchanged during mediation and settlement
27 negotiations, which are now being sought in discovery, to be confidential and
1 parties if the information were to be publicly disclosed. Banc believes that protection
2 from public disclosure and from use for any purpose other than prosecution of this
3 action is warranted.
4 Such confidential information is likely to consist of, among other things,
5 confidential business or financial information, settlement communications and
6 documents, documents and correspondence related to mediation, information otherwise
7 generally unavailable to the public, or which may be privileged or otherwise protected
8 from disclosure under state or federal statutes, court rules, case decisions, or common
9 law. Accordingly, to expedite the flow of information, to facilitate the prompt
10 resolution of disputes over confidentiality of discovery materials, to adequately protect
11 information the Parties are entitled to keep confidential, to ensure that the Parties are
12 permitted reasonable necessary uses of such material in preparation for and in the
13 conduct of trial, to address their handling at the end of the litigation, and serve the ends
14 of justice, a protective order for such information is justified in this matter. It is the
15 intent of the Parties that information will not be designated as confidential for tactical
16 reasons and that nothing be so designated without a good faith belief that it has been
17 maintained in a confidential, non-public manner, and there is good cause why it should
18 not be part of the public record of this case.
19 2. DEFINITIONS
20 2.1 Action: This pending federal lawsuit entitled Banc of California National
21 Association v. Federal Insurance Company, United States District Court for the Central
22 District of California, Case No. 8:20-cv-00132-DOC-DFM
23 2.2 Challenging Party: a Party or Non-Party that challenges the designation of
24 information or items under this Order.
25 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how
26 it is generated, stored or maintained) or tangible things that qualify for protection under
27 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
1 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
2 support staff).
3 2.5 Designating Party: a Party or Non-Party that designates information or
4 items that it produces in disclosures or in responses to discovery as
5 “CONFIDENTIAL.”
6 2.6 Disclosure or Discovery Material: all items or information, regardless of
7 the medium or manner in which it is generated, stored, or maintained (including, among
8 other things, testimony, transcripts, and tangible things), that are produced or generated
9 in disclosures or responses to discovery in this matter.
10 2.7 Expert: a person with specialized knowledge or experience in a matter
11 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
12 expert witness or as a consultant in this Action.
13 2.8 House Counsel: attorneys who are employees of a party to this Action.
14 House Counsel does not include Outside Counsel of Record or any other outside
15 counsel.
16 2.9 Non-Party: any natural person, partnership, corporation, association, or
17 other legal entity not named as a Party to this action.
18 2.10 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 which
21 has appeared on behalf of that party, and includes support staff.
22 2.11 Party: any party to this Action, including all of its officers, directors,
23 employees, consultants, retained experts, and Outside Counsel of Record (and their
24 support staffs).
25 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
26 Discovery Material in this Action.
27 2.13 Professional Vendors: persons or entities that provide litigation support
1 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
2 their employees and subcontractors.
3 2.14 Protected Material: any Disclosure or Discovery Material that is
4 designated as “CONFIDENTIAL.”
5 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
6 from a Producing Party.
7 3. SCOPE
8 The protections conferred by this Stipulation and Order cover not only Protected
9 Material (as defined above), but also (1) any information copied or extracted from
10 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
11 Material; and (3) any testimony, conversations, or presentations by Parties or their
12 Counsel that might reveal Protected Material.
13 Any use of Protected Material at trial shall be governed by the orders of the trial
14 judge. This Order does not govern the use of Protected Material at trial.
15 4. DURATION
16 Once a case proceeds to trial, all of the information that was designated as
17 confidential or maintained pursuant to this protective order used or introduced as an
18 exhibit at trial becomes public and will be presumptively available to all members of
19 the public, including the press, unless compelling reasons supported by specific legal
20 and factual findings to proceed otherwise are made to the trial judge in advance of the
21 trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir.
22 2006) (distinguishing “good cause” showing for sealing documents produced in
23 discovery from “compelling reasons” standard when merits-related documents are part
24 of court record). Prior to the trial, the parties shall meet and confer to discuss how to
25 handle Confidential Material and may seek additional relief from the Court.
26 Even after final disposition of this litigation, the confidentiality obligations
27 imposed by this Order shall remain in effect until a Designating Party agrees otherwise
1 later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;
2 and (2) final judgment herein after the completion and exhaustion of all appeals,
3 rehearings, remands, trials, or reviews of this Action, including the time limits for filing
4 any motions or applications for extension of time pursuant to applicable law.
5 5. DESIGNATING PROTECTED MATERIAL
6 5.1 Exercise of Restraint and Care in Designating Material for Protection.
7 Each Party or Non-Party that designates information or items for protection under this
8 Order must take care to limit any such designation to specific material that qualifies
9 under the appropriate standards. The Designating Party must designate for protection
10 only those parts of material, documents, items, or oral or written communications that
11 qualify so that other portions of the material, documents, items, or communications for
12 which protection is not warranted are not swept unjustifiably within the ambit of this
13 Order.
14 Mass, indiscriminate, or routinized designations are prohibited. Designations
15 that are shown to be clearly unjustified or that have been made for an improper purpose
16 (e.g., to unnecessarily encumber the case development process or to impose
17 unnecessary expenses and burdens on other parties) may expose the Designating Party
18 to sanctions.
19 If it comes to a Designating Party’s attention that information or items that it
20 designated for protection do not qualify for protection, that Designating Party must
21 promptly notify all other Parties that it is withdrawing the inapplicable designation.
22 5.2 Manner and Timing of Designations. Except as otherwise provided in this
23 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
24 or ordered, Disclosure or Discovery Material that qualifies for protection under this
25 Order must be clearly so designated before the material is disclosed or produced.
26 Designation in conformity with this Order requires:
27 (a) for information in documentary form (e.g., paper or electronic documents,
1 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
2 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
3 portion or portions of the material on a page qualifies for protection, the Producing Party
4 also must clearly identify the protected portion(s) (e.g., by making appropriate markings
5 in the margins).
6 A Party or Non-Party that makes original documents available for inspection
7 need not designate them for protection until after the inspecting Party has indicated
8 which documents it would like copied and produced. During the inspection and before
9 the designation, all of the material made available for inspection shall be deemed
10 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
11 copied and produced, the Producing Party must determine which documents, or portions
12 thereof, qualify for protection under this Order. Then, before producing the specified
13 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
14 that contains Protected Material. If only a portion or portions of the material on a page
15 qualifies for protection, the Producing Party also must clearly identify the protected
16 portion(s) (e.g., by making appropriate markings in the margins).
17 (b) for testimony given in depositions that the Designating Party identify the
18 Disclosure or Discovery Material on the record, before the close of the deposition all
19 protected testimony.
20 (c) for information produced in some form other than documentary and for
21 any other tangible items, that the Producing Party affix in a prominent place on the
22 exterior of the container or containers in which the information is stored the legend
23 “CONFIDENTIAL.” If only a portion or portions of the information warrants
24 protection, the Producing Party, to the extent practicable, shall identify the protected
25 portion(s).
26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
27 failure to designate qualified information or items does not, standing alone, waive the
1 timely correction of a designation, the Receiving Party must make reasonable efforts to
2 assure that the material is treated in accordance with the provisions of this Order.
3 5.4 Limits on Designation. Notwithstanding any other provision herein,
4 nothing in this order shall be construed to allow a Party to Designate as Confidential
5 documents or information which appears in the public record.
6 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
7 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
8 designation of confidentiality at any time that is consistent with the Court’s Scheduling
9 Order.
10 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
11 resolution process under Local Rule 37.1 et seq.
12 6.3 The burden of persuasion in any such challenge proceeding shall be on the
13 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
14 to harass or impose unnecessary expenses and burdens on other parties) may expose the
15 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
16 the confidentiality designation, all parties shall continue to afford the material in
17 question the level of protection to which it is entitled under the Producing Party’s
18 designation until the Court rules on the challenge.
19 7. ACCESS TO AND USE OF PROTECTED MATERIAL
20 7.1 Basic Principles. A Receiving Party may use Protected Material that is
21 disclosed or produced by another Party or by a Non-Party in connection with this Action
22 only for prosecuting, defending, or attempting to settle this Action. Such Protected
23 Material may be disclosed only to the categories of persons and under the conditions
24 described in this Order. When the Action has been terminated, a Receiving Party must
25 comply with the provisions of Section 13 below (FINAL DISPOSITION).
26 Protected Material must be stored and maintained by a Receiving Party at a
27 location and in a secure manner that ensures that access is limited to the persons
1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
2 ordered by the court or permitted in writing by the Designating Party, a Receiving Party
3 may disclose any information or item designated “CONFIDENTIAL” only to:
4 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
5 employees of said Outside Counsel of Record to whom it is reasonably necessary to
6 disclose the information for this Action;
7 (b) the officers, directors, and employees (including House Counsel) of the
8 Receiving Party to whom disclosure is reasonably necessary for this Action;
9 (c) Experts (as defined in this Order) of the Receiving Party to whom
10 disclosure is reasonably necessary for this Action and who have signed the
11 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
12 (d) the court and its personnel;
13 (e) court reporters and their staff;
14 (f) professional jury or trial consultants, mock jurors, and Professional
15 Vendors to whom disclosure is reasonably necessary for this Action and who have
16 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
17 (g) the author or recipient of a document containing the information or a
18 custodian or other person who otherwise possessed or knew the information;
19 (h) during their depositions, witnesses, and attorneys for witnesses, in the
20 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
21 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
22 not be permitted to keep any confidential information unless they sign the
23 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
24 by the Designating Party or ordered by the court. Pages of transcribed deposition
25 testimony or exhibits to depositions that reveal Protected Material may be separately
26 bound by the court reporter and may not be disclosed to anyone except as permitted
27 under this Stipulated Protective Order; and
1 (i) any mediator or settlement officer, and their supporting personnel,
2 mutually agreed upon by any of the parties engaged in settlement discussions.
3 (j) Regulatory or auditing authorities or professionals.
4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
5 OTHER LITIGATION
6 If a Party is served with a subpoena or a court order issued in other litigation that
7 compels disclosure of any information or items designated in this Action as
8 “CONFIDENTIAL,” that Party must:
9 (a) promptly notify in writing the Designating Party. Such notification shall
10 include a copy of the subpoena or court order;
11 (b) promptly notify in writing the party who caused the subpoena or order to
12 issue in the other litigation that some or all of the material covered by the subpoena or
13 order is subject to this Protective Order. Such notification shall include a copy of this
14 Stipulated Protective Order; and
15 (c) cooperate with respect to all reasonable procedures sought to be pursued
16 by the Designating Party whose Protected Material may be affected.
17 If the Designating Party timely seeks a protective order, the Party served with the
18 subpoena or court order shall not produce any information designated in this action as
19 “CONFIDENTIAL” before a determination by the court from which the subpoena or
20 order issued, unless the Party has obtained the Designating Party’s permission. The
21 Designating Party shall bear the burden and expense of seeking protection in that court
22 of its confidential material and nothing in these provisions should be construed as
23 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
24 from another court. However, nothing in this protective order prohibits the Party served
25 with the subpoena or court order to object to same or to seek protection against such
26 subpoena from the court having jurisdiction over said subpoena or court order.
27
1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
2 IN THIS LITIGATION
3 (a) The terms of this Order are applicable to information produced by a Non-
4 Party in this Action and designated as “CONFIDENTIAL.” Such information produced
5 by Non-Parties in connection with this litigation is protected by the remedies and relief
6 provided by this Order. Nothing in these provisions should be construed as prohibiting
7 a Non-Party from seeking additional protections.
8 (b) In the event that a Party is required, by a valid discovery request, to
9 produce a Non-Party’s confidential information in its possession, and the Party is
10 subject to an agreement with the Non-Party not to produce the Non-Party’s confidential
11 information, then the Party shall:
12 (1) promptly notify in writing the Requesting Party and the Non-Party
13 that some or all of the information requested is subject to a confidentiality agreement
14 with a Non-Party;
15 (2) promptly provide the Non-Party with a copy of the Stipulated
16 Protective Order in this Action, the relevant discovery request(s), and a reasonably
17 specific description of the information requested; and
18 (3) make the information requested available for inspection by the Non-
19 Party, if requested.
20 (c) If the Non-Party fails to seek a protective order from this court within 14
21 days of receiving the notice and accompanying information, the Receiving Party may
22 produce the Non-Party’s confidential information responsive to the discovery request.
23 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
24 any information in its possession or control that is subject to the confidentiality
25 agreement with the Non-Party before a determination by the court. Absent a court order
26 to the contrary, the Non-Party shall bear the burden and expense of seeking protection
27 in this court of its Protected Material.
1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
3 Protected Material to any person or in any circumstance not authorized under this
4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
5 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
6 all unauthorized copies of the Protected Material, (c) inform the person or persons to
7 whom unauthorized disclosures were made of all the terms of this Order, and (d) request
8 such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
9 that is attached hereto as Exhibit A.
10 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
11 PROTECTED MATERIAL
12 When a Producing Party gives notice to Receiving Parties that certain
13 inadvertently produced material is subject to a claim of privilege or other protection,
14 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
16 may be established in an e-discovery order that provides for production without prior
17 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
18 parties reach an agreement on the effect of disclosure of a communication or
19 information covered by the attorney-client privilege or work product protection, the
20 parties may incorporate their agreement in the stipulated protective order submitted to
21 the court.
22 12. MISCELLANEOUS
23 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
24 person to seek its modification by the Court in the future.
25 12.2 Right to Assert Other Objections. By stipulating to the entry of this
26 Protective Order no Party waives any right it otherwise would have to object to
27 disclosing or producing any information or item on any ground not addressed in this
1 Stipulated 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 Order.
3 12.3 Filing Protected Material. A Party that seeks to file under seal any
4 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
5 only be filed under seal pursuant to a court order authorizing the sealing of the specific
6 Protected Material at issue. If a Party’s request to file Protected Material under seal is
7 denied by the court, then the Receiving Party may file the information in the public
8 record unless otherwise instructed by the court.
9 13. FINAL DISPOSITION
10 After the final disposition of this Action, as defined in paragraph 4, within 60
11 days of a written request by the Designating Party, each Receiving Party must return all
12 Protected Material to the Producing Party or destroy such material. As used in this
13 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
14 summaries, and any other format reproducing or capturing any of the Protected
15 Material. Whether the Protected Material is returned or destroyed, the Receiving Party
16 must submit a written certification to the Producing Party (and, if not the same person
17 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
18 category, where appropriate) all the Protected Material that was returned or destroyed
19 and (2) affirms that the Receiving Party has not retained any copies, abstracts,
20 compilations, summaries or any other format reproducing or capturing any of the
21 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
22 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
23 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
24 work product, and consultant and expert work product, even if such materials contain
25 Protected Material. Any such archival copies that contain or constitute Protected
26 Material remain subject to this Protective Order as set forth in Section 4 (DURATION).
27
1 |}14. Any violation of this Order may be punished by any and all appropriate measures
2 || including, without limitation, contempt proceedings and/or monetary sanctions.
3
4 |/IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
> || Dated: August 17, 2020 PILLSBURY WINTHROP SHAW
6 PITTMAN LLP
7
8 /S/ ROBERT WALLAN
9 By: ROBERT WALLAN
10 Attorneys for Plaintiff BANC OF
CALIFORNIA NATIONAL
1] ASSOCIATION
12
ll Dated: August 11, 2020 ANDERSON, MCPHARLIN & CONNERS
14 LLP
15
16 /S/ DAVID J. BILLINGS
7 By: CARLETON R. BURCH
KENNETH D. WATNICK
18 DAVID J. BILLINGS
19
Attorneys for Defendant FEDERAL
20 INSURANCE COMPANY
21
22 ||FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
23
Dated: August 28, 2020
24
25
7 || Douglas F. McCormick
United States Magistrate Judge
28
-14-
1 ATTESTATION
2 Pursuant to L.R. 5-4.3.4(a)(2)(i), I hereby attest that all other signatories listed
3 and on whose behalf the filing is submitted, concur in the filing’s content and have
4 authorized this filing.
5
6
Dated: August 17, 2020 PILLSBURY WINTHROP SHAW
7
PITTMAN LLP
8
9
/S/ ROBERT WALLAN
10 By: ROBERT WALLAN
11 Attorneys for Plaintiff BANC OF
CALIFORNIA NATIONAL
12
ASSOCIATION
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14
15
16
17
18
19
20
21
22
23
24
25
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, [print or type full name], of
5 [print or type full address], declare under penalty of perjury that I have read in its
6 entirety and understand the Stipulated Protective Order that was issued by the United
7 States District Court for the Central District of California on _____________ [date] in
8 the case of Banc of California, N.A. v. Federal Insurance Company, Case No.:
9 8:20−cv−00132−DOC-DFM. I agree to comply with and to be bound by all the terms
10 of this 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 is
13 subject to this Stipulated Protective Order to any person or entity except in strict
14 compliance with the provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court for
16 the Central District of California for the purpose of enforcing the terms of this Stipulated
17 Protective Order, even if such enforcement proceedings occur after termination of this
18 action. I hereby appoint _________________________ [print or type full name] of
19 [print or type full address and telephone
20 number] as my California agent for service of process in connection with this action or
21 any proceedings related to enforcement of this Stipulated Protective Order.
22 Date:
23 City and State where sworn and signed:
24
25 Printed name:
26
27 Signature: