even stipulated protective orders require good 8 ||cause showing
How later courts described this case
- even stipulated protective orders require good 8 ||cause showing
- even stipulated protective orders require good 10 || cause showing
Written by the judges who cited it.
The opinion
2
4
6
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
|| CHARLES CHURCHILL, Case No. CV 19-9883 MWF (AFMx)
Plaintiff,
STIPULATION FOR PROTECTIVE
13 v. ORDER’ AND PROTECTIVE
ORDER
14||DOLGEN CALIFORNIA, LLC dba
DOLLAR GENERAL, a private entity; | Action Filed: 9/6/2019
3 15 ||and DOES | through 20, inclusive,
Trial Date: 9/2/2022
16 Defendants.
Bl 17
18/11, A. 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 disclosure
and from use for any purpose other than prosecuting this litigation may be warranted.
|| Accordingly, the parties hereby stipulate to and petition the Court to enter the
23 || following Stipulated Protective Order. The parties acknowledge that this Order does
24 || not confer blanket protections on all disclosures or responses to discovery and that
25 || the protection it affords from public disclosure and use extends only to the limited
26 ||information or items that are entitled to confidential treatment under the applicable
27 AAA
28 ! This Stipulated Protective Order is based substantially on the model protective order provided
under Magistrate Judge Alexander F. MacKinnon’s Procedures.
1 || legal principles.
2||/B. GOOD CAUSE STATEMENT
3 This action is likely to involve requests for documents which contain trade
secrets, and other valuable research, development, commercial, financial, technical
5 || and/or proprietary information for which special protection from public disclosure and
6|/from use for any purpose other than prosecution of this action is warranted. Such
7 || confidential and proprietary materials and information consist of, among other things,
8 |/confidential business or financial information, information regarding confidential
business practices, or other confidential research, development, or commercial
10||information (including information implicating privacy rights of third parties),
11 || information otherwise generally unavailable to the public, or which may be privileged
12 || or otherwise protected from disclosure under state or federal statutes, court rules, case
13 □□ decisions, or common law. Accordingly, to expedite the flow of information, to
14 || facilitate the prompt resolution of disputes over confidentiality of discovery materials,
15 to adequately protect information the parties are entitled to keep confidential, to ensure
16 || that the parties are permitted reasonable necessary uses of such material in preparation
= 17 || for and in the conduct of trial, to address their handling at the end of the litigation, and
18 || serve the ends of justice, a protective order for such information is justified in this
19}| matter. It is the intent of the parties that information will not be designated as
20 || confidential for tactical reasons and that nothing be so designated without a good faith
belief that it has been maintained in a confidential, non-public manner, and there is
22 || good cause why it should not be part of the public record of this case.
C. ACKNOWLEDGEMENT OF PROCEDURE FOR FILING UNDER
SEAL
25 The parties further acknowledge, as set forth in Section 12.3 below, that this
26 || Stipulated Protective Order does not entitle them to file confidential information
27 || under seal; Local Rule 79-5 sets forth the procedures that must be followed and the
28 || standards that will be applied when a party seeks permission from the court to file
1 || material under seal.
2 There is a strong presumption that the public has a right of access to judicial
3 || proceedings and records in civil cases. In connection with non-dispositive motions,
4|| good cause must be shown to support a filing under seal. See Kamakana vy. City and
|| County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
6 || Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,
7\|187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
8 ||cause showing), and a specific showing of good cause or compelling reasons with
9|| proper evidentiary support and legal justification, must be made with respect to
10 || Protected Material that a party seeks to file under seal. The parties’ mere designation
s| }lof Disclosure or Discovery Material as CONFIDENTIAL does not— without the
12 |)/submission of competent evidence by declaration, establishing that the material
13 ||sought to be filed under seal qualifies as confidential, privileged, or otherwise
14 || protectable—constitute good cause.
15 Further, if a party requests sealing related to a dispositive motion or trial, then
16 || compelling reasons, not only good cause, for the sealing must be shown, and the relief
- 17 |)sought shall be narrowly tailored to serve the specific interest to be protected. See
18 || Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each
19 |! item or type of information, document, or thing sought to be filed or introduced under
20 || seal in connection with a dispositive motion or trial, the party seeking protection must
articulate compelling reasons, supported by specific facts and legal justification, for
22 || the requested sealing order. Again, competent evidence supporting the application to
23 || file documents under seal must be provided by declaration.
24 Any document that is not confidential, privileged, or otherwise protectable in
25 entirety will not be filed under seal if the confidential portions can be redacted. If
26 || documents can be redacted, then a redacted version for public viewing, omitting only
27 || the confidential, privileged, or otherwise protectable portions of the document, shall
28
1|lbe filed. Any application that seeks to file documents under seal in their entirety
2 || should include an explanation of why redaction is not feasible.
2. DEFINITIONS
5 2.1. Action: Charles Churchill v. Dolgen California, LLC, et al.
6 2.2 Challenging Party: a Party or Non-Party that challenges the designation
7 || of information or items under this Order.
8 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how
9||it is generated, stored or maintained) or tangible things that qualify for protection
10 ||under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
|| Cause Statement.
12 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
13 || their support staff).
14 2.5 Designating Party: a Party or Non-Party that designates information or
| 1S items that it produces in disclosures or in responses to discovery as
16||*CONFIDENTIAL.”
17 2.6 Disclosure or Discovery Material: all items or information, regardless
18 || of the medium or manner in which it is generated, stored, or maintained (including,
19 || among other things, testimony, transcripts, and tangible things), that are produced or
20 || generated in disclosures or responses to discovery in this matter.
21 2.7. Expert: a person with specialized knowledge or experience in a matter
22 || pertinent to the litigation who has been retained by a Party or its counsel to serve as
23 || an expert witness or as a consultant in this Action.
24 2.8 House Counsel: attorneys who are employees of a party to this Action.
25 || House Counsel does not include Outside Counsel of Record or any other outside
26 || counsel.
27 2.9 Non-Party: any natural person, partnership, corporation, association, or
28 || other legal entity not named as a Party to this action.
1 2.10 Outside Counsel of Record: attorneys who are not employees of a party to
2||this Action but are retained to represent or advise a party to this Action and have
3 || appeared in this Action on behalf of that party or are affiliated with a law firm which
|| has appeared on behalf of that party, and includes support staff.
5 2.11 Party: any party to this Action, including all of its officers, directors,
6 ||employees, consultants, retained experts, and Outside Counsel of Record (and their
|| support staffs).
8 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
9 || Discovery Material in this Action.
10 2.13 Professional Vendors: persons or entities that provide litigation support
11 |\services (e.g., photocopying, videotaping, translating, preparing exhibits or
12 || demonstrations, and organizing, storing, or retrieving data in any form or medium)
13 || and their employees and subcontractors.
14 2.14 Protected Material: any Disclosure or Discovery Material that is
15 designated as “CONFIDENTIAL.”
16 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
- 17 || from a Producing Party.
18 SCOPE
19 The protections conferred by this Stipulation and Order cover not only
20 || Protected Material (as defined above), but also (1) any information copied or extracted
21||from Protected Material; (2) all copies, excerpts, summaries, or compilations of
22 || Protected Material; and (3) any testimony, conversations, or presentations by Parties
23 || or their Counsel that might reveal Protected Material.
24 Any use of Protected Material at trial shall be governed by the orders of the
25 || trial judge. This Order does not govern the use of Protected Material at trial.
26 || 4. DURATION
27 Once a case proceeds to trial, information that was designated as
28 || CONFIDENTIAL or maintained pursuant to this protective order used or introduced
1|las an exhibit at trial becomes public and will be presumptively available to all
2 ||members of the public, including the press, unless compelling reasons supported by
3 || specific factual findings to proceed otherwise are made to the trial judge in advance
4\\of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
5 ||showing for sealing documents produced in discovery from “compelling reasons”
|| standard when merits-related documents are part of court record). Accordingly, the
7 || terms of this protective order do not exceed beyond the commencement of the trial.
9||5, DESIGNATING PROTECTED MATERIAL
10 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
11|/Party or Non-Party that designates information or items for protection under this
12 || Order must take care to limit any such designation to specific material that qualifies
13 || under the appropriate standards. The Designating Party must designate for protection
14 || only those parts of material, documents, items, or oral or written communications that
15 qualify so that other portions of the material, documents, items, or communications
16 || for which protection is not warranted are not swept unjustifiably within the ambit of
- 17 || this Order.
18 Mass, indiscriminate, or routinized designations are prohibited. Designations
|| that are shown to be clearly unjustified or that have been made for an improper
20 || purpose (e.g., to unnecessarily encumber the case development process or to impose
21 || unnecessary expenses and burdens on other parties) may expose the Designating Party
22 || to sanctions.
23 If it comes to a Designating Party’s attention that information or items that it
24 || designated for protection do not qualify for protection, that Designating Party must
25 || promptly notify all other Parties that it is withdrawing the inapplicable designation.
26 5.2 Manner and Timing of Designations. Except as otherwise provided in
27 ||this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
28 || stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
1 ||under this Order must be clearly so designated before the material is disclosed or
2 || produced.
3 5.3 Designation in conformity with this Order requires:
4 (a) for information in documentary form (e.g., paper or electronic
5||documents, but excluding transcripts of depositions or other pretrial or trial
6||proceedings), that the Producing Party affix at a minimum, the legend
7\|“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
8 ||contains protected material. If only a portion or portions of the material on a page
|| qualifies for protection, the Producing Party also must clearly identify the protected
10 || portion(s) (e.g., by making appropriate markings in the margins).
11 A Party or Non-Party that makes original documents available for inspection
12 |)need not designate them for protection until after the inspecting Party has indicated
13 || which documents it would like copied and produced. During the inspection and before
14|/the designation, all of the material made available for inspection shall be deemed
| 1S “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
16 ||copied and produced, the Producing Party must determine which documents, or
- 17 || portions thereof, qualify for protection under this Order. Then, before producing the
18 || specified documents, the Producing Party must affix the “CONFIDENTIAL legend”
19 ||to each page that contains Protected Material. If only a portion or portions of the
material on a page qualifies for protection, the Producing Party also must clearly
21|}identify the protected portion(s) (e.g., by making appropriate markings in the
22 || margins).
23 (b) for testimony given in depositions that the Designating Party identifies
24 || the Disclosure or Discovery Material on the record, before the close of the deposition
25 || all protected testimony.
26 (c) for information produced in some form other than documentary and for
27 || any other tangible items, that the Producing Party affix in a prominent place on the
28 exterior of the container or containers in which the information is stored the legend
1||““CONFIDENTIAL.” If only a portion or portions of the information warrants
2 || protection, the Producing Party, to the extent practicable, shall identify the protected
3 || portion(s).
4 5.4 Inadvertent Failures to Designate. If timely corrected, an inadvertent
5 || failure to designate qualified information or items does not, standing alone, waive the
6 || Designating Party’s right to secure protection under this Order for such material.
7\| Upon timely correction of a designation, the Receiving Party must make reasonable
8 || efforts to assure that the material is treated in accordance with the provisions of this
9 || Order.
10 || 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
11 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
12 || designation of confidentiality at any time that is consistent with the Court’s
13 || Scheduling Order.
14 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
15 resolution process under Local Rule 37.1 et seq.
16 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
- 17 || joint stipulation pursuant to Local Rule 37-2.
18 6.4 The burden of persuasion in any such challenge proceeding shall be on
19 ||the Designating Party. Frivolous challenges, and those made for an improper
20 || purpose (e.g., to harass or impose unnecessary expenses and burdens on other
|| parties) may expose the Challenging Party to sanctions. Unless the Designating
22\|Party has waived or withdrawn the confidentiality designation, all parties shall
23 ||continue to afford the material in question the level of protection to which it is
24 |lentitled under the Producing Party’s designation until the Court rules on the
25 || challenge.
26 7. ACCESS TO AND USE OF PROTECTED MATERIAL
27 7.1. Basic Principles. A Receiving Party may use Protected Material that is
28 || disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending, or attempting to settle this Action. Such
2 || Protected Material may be disclosed only to the categories of persons and under the
3 || conditions described in this Order. When the Action has been terminated, a Receiving
|| Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
5 Protected Material must be stored and maintained by a Receiving Party at a
6 || location and in a secure manner that ensures that access is limited to the persons
7 || authorized under this Order.
8 7.2 Disclosure _of “CONFIDENTIAL” Information or Items. Unless
9 || otherwise ordered by the court or permitted in writing by the Designating Party, a
10|/Receiving Party may disclose any information or item designated
11 “CONFIDENTIAL” only to:
12 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
13 ||employees of said Outside Counsel of Record to whom it is reasonably necessary to
14 || disclose the information for this Action;
15 (b) the officers, directors, and employees (including House Counsel) of the
16 || Receiving Party to whom disclosure is reasonably necessary for this Action;
17 (c) Experts (as defined in this Order) of the Receiving Party to whom
|| disclosure is reasonably necessary for this Action and who have signed the
19 || “Acknowledgment and Agreement to Be Bound” (Exhibit A);
20 (d) the court and its personnel;
21 (e) court reporters and their staff;
22 (f) professional jury or trial consultants, mock jurors, and Professional Vendors
23 ||to whom disclosure is reasonably necessary for this Action and who have signed the
24 || ‘“Acknowledgment and Agreement to Be Bound” (Exhibit A);
25 (g) the author or recipient of a document containing the information or a
26 || custodian or other person who otherwise possessed or knew the information;
27 (h) during their depositions, witnesses, and attorneys for witnesses, in the
28 || Action to whom disclosure is reasonably necessary provided: (1) the deposing party
1 || requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
2\|not be permitted to keep any confidential information unless they sign the
3 ||“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
4\lagreed by the Designating Party or ordered by the court. Pages of transcribed
5 || deposition testimony or exhibits to depositions that reveal Protected Material may be
6 || separately bound by the court reporter and may not be disclosed to anyone except as
7 || permitted under this Stipulated Protective Order; and
8 (i) any mediator or settlement officer, and their supporting personnel, mutually
9 || agreed upon by any of the parties engaged in settlement discussions.
10 |/8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
11 || PRODUCED IN OTHER LITIGATION
12 If a Party is served with a subpoena or a court order issued in other litigation
13 ||that compels disclosure of any information or items designated in this Action as
2 14/|“CONFIDENTIAL,” that Party must:
15 (a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
- 17 (b) promptly notify in writing the party who caused the subpoena or order
18 || to issue in the other litigation that some or all of the material covered by the subpoena
19 || or order is subject to this Protective Order. Such notification shall include a copy of
this Stipulated Protective Order; and
21 (c) cooperate with respect to all reasonable procedures sought to be
22 || pursued by the Designating Party whose Protected Material may be affected.
23 If the Designating Party timely seeks a protective order, the Party served with
24 || the subpoena or court order shall not produce any information designated in this action
25 ||as “CONFIDENTIAL” before a determination by the court from which the subpoena
26 || or order issued, unless the Party has obtained the Designating Party’s permission. The
27 || Designating Party shall bear the burden and expense of seeking protection in that court
28 || of its confidential material and nothing in these provisions should be construed as
1 || authorizing or encouraging a Receiving Party in this Action to disobey a lawful
2 || directive from another court.
31/9. A_NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
4 || PRODUCED IN THIS LITIGATION
5 (a) The terms of this Order are applicable to information produced by a
|| Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
7\| produced by Non-Parties in connection with this litigation is protected by the
8 || remedies and relief provided by this Order. Nothing in these provisions should be
9|| construed as prohibiting a Non-Party from seeking additional protections.
10 (b) In the event that a Party is required, by a valid discovery request, to
11 |) produce a Non-Party’s confidential information in its possession, and the Party is
12]| subject to an agreement with the Non-Party not to produce the Non-Party’s
13 || confidential information, then the Party shall:
14 (1) promptly notify in writing the Requesting Party and the Non-Party that
15 || some or all of the information requested is subject to a confidentiality agreement with
16 || a Non-Party;
- 17 (2) promptly provide the Non-Party with a copy of the Stipulated Protective
18 ||Order in this Action, the relevant discovery request(s), and a reasonably specific
19 || description of the information requested; and
20 (3) make the information requested available for inspection by the Non-Party,
21 |/if requested.
22 (c) If the Non-Party fails to seek a protective order from this court within 14
23 || days of receiving the notice and accompanying information, the Receiving Party may
24 || produce the Non-Party’s confidential information responsive to the discovery request.
25 || If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
26|}any information in its possession or control that is subject to the confidentiality
27 || agreement with the Non-Party before a determination by the court. Absent a court
28 ||order to the contrary, the Non-Party shall bear the burden and expense of seeking
1 || protection in this court of its Protected Material.
2/110. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
3 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
4||Protected Material to any person or in any circumstance not authorized under this
|| Stipulated Protective Order, the Receiving Party must immediately (a) notify in
|| writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
7 || to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
8 |] persons to whom unauthorized disclosures were made of all the terms of this Order,
9\|and (d) request such person or persons to execute the “Acknowledgment and
10 || Agreement to Be Bound” that is attached hereto as Exhibit A.
11|}11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
12 || PROTECTED MATERIAL
13 When a Producing Party gives notice to Receiving Parties that certain
14 || inadvertently produced material is subject to a claim of privilege or other protection,
15 obligations of the Receiving Parties are those set forth in Federal Rule of Civil
16 || Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
= 17 || may be established in an e-discovery order that provides for production without prior
18 || privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
□□ parties reach an agreement on the effect of disclosure of a communication or
20 information covered by the attorney-client privilege or work product protection, the
|| parties may incorporate their agreement in the stipulated protective order submitted
22 || to the court.
|}12. MISCELLANEOUS
24 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
25 || person to seek its modification by the Court in the future.
26 12.2 Right to Assert Other Objections. By stipulating to the entry of this
27 || Protective Order no Party waives any right it otherwise would have to object to
28 || disclosing or producing any information or item on any ground not addressed in this
|| 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
□□ denied by the court, then the Receiving Party may file the information in the public
8 □□ record unless otherwise instructed by the court.
9113. FINAL DISPOSITION
10 After the final disposition of this Action, as defined in paragraph 4, within 60
|| days of a written request by the Designating Party, each Receiving Party must return
12 || all 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 |lor 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
23 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
24 || reports, attorney work product, and consultant and expert work product, even if such
25 ||materials contain Protected Material. Any such archival copies that contain or
26 || constitute Protected Material remain subject to this Protective Order as set forth in
27 || Section 4 (DURATION).
28
1\/14. VIOLATION
2 Any violation of this Order may be punished by appropriate measures
3 |/including, without limitation, contempt proceedings and/or monetary sanctions.
IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
6 || Dated: _9/4/20
T||_/s/ Mike Haddock
g || Attorneys for Plaintiff(s)
Dated: _9/4/20
10
i /s/ Jeffrey M. Lenkov
12 || Attorneys for Defendant
13
15
16
Al 47
18
ORDER
19
IT IS HEREBY ORDERED THAT THE PROTECTIVE ORDER IS
20
ENTERED PURSUANT TO THE FOLLOWING TERMS:
21
1. A. PURPOSES AND LIMITATIONS
22
Discovery in this action is likely to involve production of confidential,
23
proprietary, or private information for which special protection from public disclosure
24
and from use for any purpose other than prosecuting this litigation may be warranted.
25
Accordingly, the parties hereby stipulate to and petition the Court to enter the
26
following Stipulated Protective Order. The parties acknowledge that this Order does
27
not confer blanket protections on all disclosures or responses to discovery and that
28
1||the protection it affords from public disclosure and use extends only to the limited
2 ||information or items that are entitled to confidential treatment under the applicable
3 || legal principles.
4)/B. GOOD CAUSE STATEMENT
5 This action is likely to involve requests for documents which contain trade
|| secrets, and other valuable research, development, commercial, financial, technical
7 || and/or proprietary information for which special protection from public disclosure and
8 ||from use for any purpose other than prosecution of this action is warranted. Such
9 || confidential and proprietary materials and information consist of, among other things,
|| confidential business or financial information, information regarding confidential
11|| business practices, or other confidential research, development, or commercial
12 |/information (including information implicating privacy rights of third parties),
13 || information otherwise generally unavailable to the public, or which may be privileged
14 || or otherwise protected from disclosure under state or federal statutes, court rules, case
15 decisions, or common law. Accordingly, to expedite the flow of information, to
16 || facilitate the prompt resolution of disputes over confidentiality of discovery materials,
- 17 || to adequately protect information the parties are entitled to keep confidential, to ensure
18 || that the parties are permitted reasonable necessary uses of such material in preparation
19 || for and in the conduct of trial, to address their handling at the end of the litigation, and
20 || serve the ends of justice, a protective order for such information is justified in this
matter. It is the intent of the parties that information will not be designated as
22 || confidential for tactical reasons and that nothing be so designated without a good faith
23 || belief that it has been maintained in a confidential, non-public manner, and there is
24 || good cause why it should not be part of the public record of this case.
C. ACKNOWLEDGEMENT OF PROCEDURE FOR FILING UNDER
26)) SEAL
27 The parties further acknowledge, as set forth in Section 12.3 below, that this
28 || Stipulated Protective Order does not entitle them to file confidential information
1 \/under seal; Local Rule 79-5 sets forth the procedures that must be followed and the
2 || standards that will be applied when a party seeks permission from the court to file
3 || material under seal.
4 There is a strong presumption that the public has a right of access to judicial
5 || proceedings and records in civil cases. In connection with non-dispositive motions,
6 || good cause must be shown to support a filing under seal. See Kamakana vy. City and
|| County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
8 || Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,
9 || 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
10 || cause showing), and a specific showing of good cause or compelling reasons with
proper evidentiary support and legal justification, must be made with respect to
12 || Protected Material that a party seeks to file under seal. The parties’ mere designation
13 ||of Disclosure or Discovery Material as CONFIDENTIAL does not— without the
14|/submission of competent evidence by declaration, establishing that the material
| 1S sought to 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, then
18 || compelling reasons, not only good cause, for the sealing must be shown, and the relief
19 |)sought shall be narrowly tailored to serve the specific interest to be protected. See
20 || Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each
21 item or type of information, document, or thing sought to be filed or introduced under
22 || seal in connection with a dispositive motion or trial, the party seeking protection must
23 || articulate compelling reasons, supported by specific facts and legal justification, for
24 || the requested sealing order. Again, competent evidence supporting the application to
25 || file documents under seal must be provided by declaration.
26 Any document that is not confidential, privileged, or otherwise protectable in
27 ||its entirety will not be filed under seal if the confidential portions can be redacted. If
28 || documents can be redacted, then a redacted version for public viewing, omitting only
1 || the confidential, privileged, or otherwise protectable portions of the document, shall
2\!be filed. Any application that seeks to file documents under seal in their entirety
3 || should include an explanation of why redaction is not feasible.
5 || 2. DEFINITIONS
6 2.1. Action: Charles Churchill v. Dolgen California, LLC, et al.
7 2.2 Challenging Party: a Party or Non-Party that challenges the designation
8 || of information or items under this Order.
9 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how
10 |/it is generated, stored or maintained) or tangible things that qualify for protection
11 |/under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
12 |) Cause Statement.
13 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
14 || their support staff).
| 1S 2.5 Designating Party: a Party or Non-Party that designates information or
16|/items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
18 2.6 Disclosure or Discovery Material: all items or information, regardless
19 || of the medium or manner in which it is generated, stored, or maintained (including,
20 || among other things, testimony, transcripts, and tangible things), that are produced or
21 || generated in disclosures or responses to discovery in this matter.
22 2.7 Expert: a person with specialized knowledge or experience in a matter
23 || pertinent to the litigation who has been retained by a Party or its counsel to serve as
24 || an expert witness or as a consultant in this Action.
25 2.8 House Counsel: attorneys who are employees of a party to this Action.
26 || House Counsel does not include Outside Counsel of Record or any other outside
27 || counsel.
28 2.9 Non-Party: any natural person, partnership, corporation, association, or
1 || other legal entity not named as a Party to this action.
2 2.10 Outside Counsel of Record: attorneys who are not employees of a party to
3 |/this Action but are retained to represent or advise a party to this Action and have
|| appeared in this Action on behalf of that party or are affiliated with a law firm which
5 ||has appeared on behalf of that party, and includes support staff.
6 2.11 Party: any party to this Action, including all of its officers, directors,
7\|employees, consultants, retained experts, and Outside Counsel of Record (and their
8 || support staffs).
9 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
10 || Discovery Material in this Action.
11 2.13 Professional Vendors: persons or entities that provide litigation support
12||services (e.g., photocopying, videotaping, translating, preparing exhibits or
13 || demonstrations, and organizing, storing, or retrieving data in any form or medium)
14 || and their employees and subcontractors.
| 1S 2.14 Protected Material: any Disclosure or Discovery Material that is
Z| designated as “CONFIDENTIAL.”
17 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
18 || from a Producing Party.
19 SCOPE
20 The protections conferred by this Stipulation and Order cover not only
21 || Protected Material (as defined above), but also (1) any information copied or extracted
22 ||from Protected Material; (2) all copies, excerpts, summaries, or compilations of
23 || Protected Material; and (3) any testimony, conversations, or presentations by Parties
24 || or their Counsel that might reveal Protected Material.
25 Any use of Protected Material at trial shall be governed by the orders of the
26 || trial judge. This Order does not govern the use of Protected Material at trial.
27 || 4, DURATION
28 Once a case proceeds to trial, information that was designated as
|| CONFIDENTIAL or maintained pursuant to this protective order used or introduced
2\/as an exhibit at trial becomes public and will be presumptively available to all
3 ||members of the public, including the press, unless compelling reasons supported by
|| specific factual findings to proceed otherwise are made to the trial judge in advance
|/of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
6||showing for sealing documents produced in discovery from “compelling reasons”
|| standard when merits-related documents are part of court record). Accordingly, the
8 || terms of this protective order do not exceed beyond the commencement of the trial.
10|/5. DESIGNATING PROTECTED MATERIAL
11 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
Party or Non-Party that designates information or items for protection under this
13 || Order must take care to limit any such designation to specific material that qualifies
14 || under the appropriate standards. The Designating Party must designate for protection
15 || only those parts of material, documents, items, or oral or written communications that
16 || qualify so that other portions of the material, documents, items, or communications
= 17 || for which protection is not warranted are not swept unjustifiably within the ambit of
18 || this Order.
19 Mass, indiscriminate, or routinized designations are prohibited. Designations
20||that are shown to be clearly unjustified or that have been made for an improper
21 || purpose (e.g., to unnecessarily encumber the case development process or to impose
22 || unnecessary expenses and burdens on other parties) may expose the Designating Party
23 || to sanctions.
24 If it comes to a Designating Party’s attention that information or items that it
25 || designated for protection do not qualify for protection, that Designating Party must
26 || promptly notify all other Parties that it is withdrawing the inapplicable designation.
27 5.2 Manner and Timing of Designations. Except as otherwise provided in
28 || this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
1 || stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
2\lunder this Order must be clearly so designated before the material is disclosed or
3 || produced.
4 5.3 Designation in conformity with this Order requires:
5 (a) for information in documentary form (e.g., paper or electronic
6|/documents, but excluding transcripts of depositions or other pretrial or trial
7\| proceedings), that the Producing Party affix at a minimum, the legend
8 || ““CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend’), to each page that
|| contains protected material. If only a portion or portions of the material on a page
10 || qualifies for protection, the Producing Party also must clearly identify the protected
portion(s) (e.g., by making appropriate markings in the margins).
12 A Party or Non-Party that makes original documents available for inspection
13 ||need not designate them for protection until after the inspecting Party has indicated
2 14 || which documents it would like copied and produced. During the inspection and before
| 1S the designation, all of the material made available for inspection shall be deemed
16 || “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
- 17 ||copied and produced, the Producing Party must determine which documents, or
18 || portions thereof, qualify for protection under this Order. Then, before producing the
19 || specified documents, the Producing Party must affix the “CONFIDENTIAL legend”
20 ||to each page that contains Protected Material. If only a portion or portions of the
material on a page qualifies for protection, the Producing Party also must clearly
22 |lidentify the protected portion(s) (e.g., by making appropriate markings in the
23 || margins).
24 (d) for testimony given in depositions that the Designating Party identifies
25 || the Disclosure or Discovery Material on the record, before the close of the deposition
26 || all protected testimony.
27 (e) for information produced in some form other than documentary and for
28 || any other tangible items, that the Producing Party affix in a prominent place on the
1 ||exterior of the container or containers in which the information is stored the legend
2||“CONFIDENTIAL.” If only a portion or portions of the information warrants
3 || protection, the Producing Party, to the extent practicable, shall identify the protected
4 || portion(s).
5 5.4 Inadvertent Failures to Designate. If timely corrected, an inadvertent
6 || failure to designate qualified information or items does not, standing alone, waive the
7||Designating Party’s right to secure protection under this Order for such material.
8 || Upon timely correction of a designation, the Receiving Party must make reasonable
9 |\ efforts to assure that the material is treated in accordance with the provisions of this
10 || Order.
11/6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
12 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
13 || designation of confidentiality at any time that is consistent with the Court’s
14 || Scheduling Order.
15 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
16 || resolution process under Local Rule 37.1 et seq.
- 17 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
18 || joint stipulation pursuant to Local Rule 37-2.
19 6.4 The burden of persuasion in any such challenge proceeding shall be on
20||the Designating Party. Frivolous challenges, and those made for an improper
|| 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.
27117. ACCESS TO AND USE OF PROTECTED MATERIAL
28 7.1. Basic Principles. A Receiving Party may use Protected Material that is
1 || disclosed or produced by another Party or by a Non-Party in connection with this
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 Receiving
5 || Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
6 Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
8 || authorized under this Order.
9 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
10 |) otherwise ordered by the court or permitted in writing by the Designating Party, a
11|)Receiving Party may disclose any information or item designated
12 || “CONFIDENTIAL” only to:
13 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
14 ||employees of said Outside Counsel of Record to whom it is reasonably necessary to
15 || disclose the information for this Action;
16 (b) the officers, directors, and employees (including House Counsel) of the
- 17 || Receiving Party to whom disclosure is reasonably necessary for this Action;
18 (c) Experts (as defined in this Order) of the Receiving Party to whom
19}| disclosure is reasonably necessary for this Action and who have signed the
20 || “Acknowledgment and Agreement to Be Bound” (Exhibit A);
21 (d) the court and its personnel;
22 (e) court reporters and their staff;
23 (f) professional jury or trial consultants, mock jurors, and Professional Vendors
24 || to whom disclosure is reasonably necessary for this Action and who have signed the
25 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
26 (g) the author or recipient of a document containing the information or a
27 || custodian or other person who otherwise possessed or knew the information;
28 (h) during their depositions, witnesses, and attorneys for witnesses, in the
1 || Action to whom disclosure is reasonably necessary provided: (1) the deposing party
2 || requests that the witness sign the form attached as Exhibit | hereto; and (2) they will
3|/not be permitted to keep any confidential information unless they sign the
4||“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
5|jagreed by the Designating Party or ordered by the court. Pages of transcribed
6 || deposition testimony or exhibits to depositions that reveal Protected Material may be
7 || separately bound by the court reporter and may not be disclosed to anyone except as
8 || permitted under this Stipulated Protective Order; and
9 (i) any mediator or settlement officer, and their supporting personnel, mutually
10 || agreed upon by any of the parties engaged in settlement discussions.
11/8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
12 || PRODUCED IN OTHER LITIGATION
13 If a Party is served with a subpoena or a court order issued in other litigation
14]|that compels disclosure of any information or items designated in this Action as
15 || “CONFIDENTIAL,” that Party must:
16 (d) promptly notify in writing the Designating Party. Such notification
= 17 || shall include a copy of the subpoena or court order;
18 (e) promptly notify in writing the party who caused the subpoena or order
to issue in the other litigation that some or all of the material covered by the subpoena
20 || or order is subject to this Protective Order. Such notification shall include a copy of
this Stipulated Protective Order; and
22 (f) cooperate with respect to all reasonable procedures sought to be
23 || pursued by the Designating Party whose Protected Material may be affected.
24 If the Designating Party timely seeks a protective order, the Party served with
25 || the subpoena or court order shall not produce any information designated in this action
26 || as “CONFIDENTIAL” before a determination by the court from which the subpoena
27 || or order issued, unless the Party has obtained the Designating Party’s permission. The
28 || Designating Party shall bear the burden and expense of seeking protection in that court
1 its confidential material and nothing in these provisions should be construed as
|| authorizing or encouraging a Receiving Party in this Action to disobey a lawful
3 || directive from another court.
41/9. A_NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
5 || PRODUCED IN THIS LITIGATION
6 (b) The terms of this Order are applicable to information produced by a
7\| Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
|| produced by Non-Parties in connection with this litigation is protected by the
9|| remedies and relief provided by this Order. Nothing in these provisions should be
10 || construed as prohibiting a Non-Party from seeking additional protections.
11 (b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
15 (1) promptly notify in writing the Requesting Party and the Non-Party that
16 || some or all of the information requested is subject to a confidentiality agreement with
17 ||a Non-Party;
18 (2) promptly provide the Non-Party with a copy of the Stipulated Protective
19 |/Order in this Action, the relevant discovery request(s), and a reasonably specific
20 || description of the information requested; and
21 (3) make the information requested available for inspection by the Non-Party,
22 || if requested.
23 (c) If the Non-Party fails to seek a protective order from this court within 14
24 || days of receiving the notice and accompanying information, the Receiving Party may
25 || produce the Non-Party’s confidential information responsive to the discovery request.
26 || If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
|| any information in its possession or control that is subject to the confidentiality
28 || agreement with the Non-Party before a determination by the court. Absent a court
1 |lorder to the contrary, the Non-Party shall bear the burden and expense of seeking
2 || protection in this court of its Protected Material.
3|/10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
5 || Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
|| writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
8 || to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
9 || persons to whom unauthorized disclosures were made of all the terms of this Order,
10}|and (d) request such person or persons to execute the “Acknowledgment and
11 || Agreement to Be Bound” that is attached hereto as Exhibit A.
12)|11.. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
13 || PROTECTED MATERIAL
14 When a Producing Party gives notice to Receiving Parties that certain
15 ||inadvertently produced material is subject to a claim of privilege or other protection,
|| the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
17 || Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
18 || may be established in an e-discovery order that provides for production without prior
19 || privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or
21 |}information covered by the attorney-client privilege or work product protection, the
22 || parties may incorporate their agreement in the stipulated protective order submitted
23 || to the court.
24))12. MISCELLANEOUS
25 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
26 || person to seek its modification by the Court in the future.
27 12.2 Right to Assert Other Objections. By stipulating to the entry of this
28 || Protective Order no Party waives any right it otherwise would have to object to
1 || disclosing or producing any information or item on any ground not addressed in this
|| Stipulated Protective Order. Similarly, no Party waives any right to object on any
3 || ground to use in evidence of any of the material covered by this Protective Order.
4 12.3 Filing Protected Material. A Party that seeks to file under seal any
5 || Protected Material must comply with Civil Local Rule 79-5. Protected Material may
6 || only be filed under seal pursuant to a court order authorizing the sealing of the specific
7 || Protected Material at issue. If a Party's request to file Protected Material under seal is
8 || denied by the court, then the Receiving Party may file the information in the public
9 ||record unless otherwise instructed by the court.
10|/13. FINAL DISPOSITION
11 After the final disposition of this Action, as defined in paragraph 4, within 60
12 || days of a written request by the Designating Party, each Receiving Party must return
13 || all Protected Material to the Producing Party or destroy such material. As used in this
14]| subdivision, “all Protected Material” includes all copies, abstracts, compilations,
15 summaries, and any other format reproducing or capturing any of the Protected
16 || Material. Whether the Protected Material is returned or destroyed, the Receiving Party
= 17 || must submit a written certification to the Producing Party (and, if not the same person
18|lor entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
19 || category, where appropriate) all the Protected Material that was returned or destroyed
20||and (2) affirms that the Receiving Party has not retained any copies, abstracts,
compilations, summaries or any other format reproducing or capturing any of the
22 || Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
23 |}archival copy of all pleadings, motion papers, trial, deposition, and hearing
24 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
25 || reports, attorney work product, and consultant and expert work product, even if such
26 ||materials contain Protected Material. Any such archival copies that contain or
27 || constitute Protected Material remain subject to this Protective Order as set forth in
28 || Section 4 (DURATION).
2|/14. VIOLATION
3 Any violation of this Order may be punished by appropriate measures
including, without limitation, contempt proceedings and/or monetary sanctions.
6 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED: 9/10/2020
9 (4p y Wo kz
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HON. ALEXANDER F. MacKINNON
= 11 |! United States Magistrate Judge
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, , [print or type full name], of
4 [print or type full address],
5 || declare under penalty of perjury that I have read in its entirety and understand the
6 || Stipulated Protective Order that was issued by the United States District Court for
7\|the Central District of California on [date] in the case of Charles
8 || Churchill v. Dogen California, LLC, et al., U.S.D.C. Court Case No. CV 19-9883
9 || MWF (AFMx). I agree to comply with and to be bound by all the terms of this
10 || Stipulated Protective Order and I understand and acknowledge that failure to so
11 || comply could expose me to sanctions and punishment in the nature of contempt. I
12 |! solemnly promise that I will not disclose in any manner any information or item that
13 |/is subject to this Stipulation 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 the
16 || Central District of California for the purposes of enforcing the terms of this
17 || Stipulated Protective Order, even if such enforcement proceedings occur after
18 || termination of this action. I hereby appoint
19 [print or type full name] of
20 [print or type full address and telephone
21 || number] as my California agent for service of process in connection with this action
22 || or any proceedings related to enforcement of this Stipulated Protective Order.
23 || Date:
24 || City and State where sworn and signed:
25
26 || Printed Name:
27
28 || Signature: