even stipulated 14 protective orders require good cause showing
How later courts described this case
- even stipulated 14 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
11 CORE TECHNAE PTE. LTD., a Case No. 8:19-CV-02153-JVS-JDE
Singaporean corporation,
12
Plaintiff, STIPULATION AND PROPOSED
13 v. PROTECTIVE ORDER
14
TROY GROUP, INC, a Delaware
15 corporation and DOES 1-10,
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Defendants.
17
18 Based on the parties’ Stipulation (Dkt. 28), and for good cause shown
19 therein, the Court finds and orders as follows.
20 1. PURPOSES AND LIMITATIONS
21 Discovery in this action is likely to involve production of confidential,
22 proprietary or private information for which special protection from public
23 disclosure and from use for any purpose other than pursuing this litigation may
24 be warranted. Accordingly, the parties hereby stipulate to and petition the
25 Court to enter the following Stipulated Protective Order. The parties
26 acknowledge that this Order does not confer blanket protections on all
27 disclosures or responses to discovery and that the protection it affords from
1 public disclosure and use extends only to the limited information or items that
2 are entitled to confidential treatment under the applicable legal principles.
3
2. GOOD CAUSE STATEMENT
4
This action is likely to involve trade secrets, customer and pricing lists,
5
business strategies, pricing information, information relating to customer
6
orders, and other potentially valuable commercial, financial, technical and/or
7
proprietary information for which special protection from public disclosure
8
and from use for any purpose other than prosecution of this action is
9
warranted. Such confidential and proprietary materials and information
10
consist of, among other things, confidential business or financial information,
11
information regarding confidential business practices, or other confidential
12
research, development, or commercial information (including information
13
implicating privacy rights of third parties), information otherwise generally
14
unavailable to the public, or which may be privileged or otherwise protected
15
from disclosure under state or federal statutes, court rules, case decisions, or
16
common law. Accordingly, to expedite the flow of information, to facilitate the
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prompt resolution of disputes over confidentiality of discovery materials, to
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adequately protect information the parties are entitled to keep confidential, to
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ensure that the parties are permitted reasonable necessary uses of such material
20
in preparation for and in the conduct of trial, to address their handling at the
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end of the litigation, and serve the ends of justice, a protective order for such
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information is justified in this matter. It is the intent of the parties that
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information will not be designated as confidential for tactical reasons and that
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nothing be so designated without a good faith belief that it has been
25
maintained in a confidential, non-public manner, and there is good cause why
26
it should not be part of the public record of this case.
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1 3. ACKNOWLEDGMENT OF UNDER SEAL FILING
2 PROCEDURE
3 The parties further acknowledge, as set forth in Section 14.3, below, that
4 this Stipulated Protective Order does not entitle them to file confidential
5 information under seal; Local Civil Rule 79-5 sets forth the procedures that
6 must be followed and the standards that will be applied when a party seeks
7 permission from the court to file material under seal. There is a strong
8 presumption that the public has a right of access to judicial proceedings and
9 records in civil cases. In connection with non-dispositive motions, good cause
10 must be shown to support a filing under seal. See Kamakana v. City and
11 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
12 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
13 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
14 protective orders require good cause showing), and a specific showing of good
15 cause or compelling reasons with proper evidentiary support and legal
16 justification, must be made with respect to Protected Material that a party
17 seeks to file under seal. The parties’ mere designation of Disclosure or
18 Discovery Material as CONFIDENTIAL does not— without the submission
19 of competent evidence by declaration, establishing that the material sought to
20 be filed under seal qualifies as confidential, privileged, or otherwise
21 protectable—constitute good cause.
22 Further, if a party requests sealing related to a dispositive motion or trial,
23 then compelling reasons, not only good cause, for the sealing must be shown,
24 and the relief sought shall be narrowly tailored to serve the specific interest to
25 be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th
26 Cir. 2010). For each item or type of information, document, or thing sought to
27 be filed or introduced under seal, the party seeking protection must articulate
1 compelling reasons, supported by specific facts and legal justification, for the
2 requested sealing order. Again, competent evidence supporting the application
3 to file documents under seal must be provided by declaration.
4 Any document that is not confidential, privileged, or otherwise
5 protectable in its entirety will not be filed under seal if the confidential portions
6 can be redacted. If documents can be redacted, then a redacted version for
7 public viewing, omitting only the confidential, privileged, or otherwise
8 protectable portions of the document, shall be filed. Any application that seeks
9 to file documents under seal in their entirety should include an explanation of
10 why redaction is not feasible.
11 4. DEFINITIONS
12 4.1 Action: This pending federal lawsuit.
13 4.2 Challenging Party: a Party or Non-Party that challenges the
14 designation of information or items under this Order.
15 4.3 “CONFIDENTIAL” Information or Items: information
16 (regardless of how it is generated, stored or maintained) or tangible things that
17 qualify for protection under Federal Rule of Civil Procedure 26(c), and as
18 specified above in the Good Cause Statement.
19 4.4 Counsel: Outside Counsel of Record and House Counsel (as well
20 as their support staff).
21 4.5 Designating Party: a Party or Non-Party that designates
22 information or items that it produces in disclosures or in responses to discovery
23 as “CONFIDENTIAL.”
24 4.6 Disclosure or Discovery Material: all items or information,
25 regardless of the medium or manner in which it is generated, stored, or
26 maintained (including, among other things, testimony, transcripts, and tangible
27 things), that are produced or generated in disclosures or responses to discovery.
1 4.7 Expert: a person with specialized knowledge or experience in a
2 matter pertinent to the litigation who has been retained by a Party or its
3 counsel to serve as an expert witness or as a consultant in this Action.
4 4.8 House Counsel: attorneys who are employees of a party to this
5 Action. House Counsel does not include Outside Counsel of Record or any
6 other outside counsel.
7 4.9 Non-Party: any natural person, partnership, corporation,
8 association or other legal entity not named as a Party to this action.
9 4.10 Outside Counsel of Record: attorneys who are not employees of a
10 party to this Action but are retained to represent a party to this Action and
11 have appeared in this Action on behalf of that party or are affiliated with a law
12 firm that has appeared on behalf of that party, and includes support staff.
13 4.11 Party: any party to this Action, including all of its officers,
14 directors, employees, consultants, retained experts, and Outside Counsel of
15 Record (and their support staffs).
16 4.12 Producing Party: a Party or Non-Party that produces Disclosure or
17 Discovery Material in this Action.
18 4.13 Professional Vendors: persons or entities that provide litigation
19 support services (e.g., photocopying, videotaping, translating, preparing
20 exhibits or demonstrations, and organizing, storing, or retrieving data in any
21 form or medium) and their employees and subcontractors.
22 4.14 Protected Material: any Disclosure or Discovery Material that is
23 designated as “CONFIDENTIAL.”
24 4.15 Receiving Party: a Party that receives Disclosure or Discovery
25 Material from a Producing Party.
26
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1 5. SCOPE
2 The protections conferred by this Stipulation and Order cover not only
3 Protected Material (as defined above), but also (1) any information copied or
4 extracted from Protected Material; (2) all copies, excerpts, summaries, or
5 compilations of Protected Material; and (3) any testimony, conversations, or
6 presentations by Parties or their Counsel that might reveal Protected Material.
7 Any use of Protected Material at trial shall be governed by the orders of
8 the trial judge and other applicable authorities. This Order does not govern the
9 use of Protected Material at trial.
10 6. DURATION
11 Once a case proceeds to trial, information that was designated as
12 CONFIDENTIAL or maintained pursuant to this protective order used or
13 introduced as an exhibit at trial becomes public and will be presumptively
14 available to all members of the public, including the press, unless compelling
15 reasons supported by specific factual findings to proceed otherwise are made to
16 the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
17 (distinguishing “good cause” showing for sealing documents produced in
18 discovery from “compelling reasons” standard when merits-related documents
19 are part of court record). Accordingly, the terms of this protective order do not
20 extend beyond the commencement of the trial.
21 7. DESIGNATING PROTECTED MATERIAL
22 7.1 Exercise of Restraint and Care in Designating Material for
23 Protection. Each Party or Non-Party that designates information
24 or items for protection under this Order must take care to limit any such
25 designation to specific material that qualifies under the appropriate standards.
26 The Designating Party must designate for protection only those parts of
27 material, documents, items or oral or written communications that qualify so
1 that other portions of the material, documents, items or communications for
2 which protection is not warranted are not swept unjustifiably within the ambit
3 of this Order.
4 Mass, indiscriminate or routinized designations are prohibited.
5 Designations that are shown to be clearly unjustified or that have been made
6 for an improper purpose (e.g., to unnecessarily encumber the case development
7 process or to impose unnecessary expenses and burdens on other parties) may
8 expose the Designating Party to sanctions.
9 If it comes to a Designating Party’s attention that information or items
10 that it designated for protection do not qualify for protection, that Designating
11 Party must promptly notify all other Parties that it is withdrawing the
12 inapplicable designation.
13 7.2 Manner and Timing of Designations. Except as otherwise
14 provided in this Order, or as otherwise stipulated or ordered, Disclosure of
15 Discovery Material that qualifies for protection under this Order must be
16 clearly so designated before the material is disclosed or produced.
17 Designation in conformity with this Order requires:
18 (a) for information in documentary form (e.g., paper or electronic
19 documents, but excluding transcripts of depositions or other pretrial or trial
20 proceedings), that the Producing Party affix at a minimum, the legend
21 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page
22 that contains protected material. If only a portion of the material on a page
23 qualifies for protection, the Producing Party also must clearly identify the
24 protected portion(s) (e.g., by making appropriate markings in the margins).
25 A Party or Non-Party that makes original documents available for
26 inspection need not designate them for protection until after the inspecting
27 Party has indicated which documents it would like copied and produced.
1 During the inspection and before the designation, all of the material made
2 available for inspection shall be deemed “CONFIDENTIAL.” After the
3 inspecting Party has identified the documents it wants copied and produced,
4 the Producing Party must determine which documents, or portions thereof,
5 qualify for protection under this Order. Then, before producing the specified
6 documents, the Producing Party must affix the “CONFIDENTIAL legend” to
7 each page that contains Protected Material. If only a portion of the material on
8 a page qualifies for protection, the Producing Party also must clearly identify
9 the protected portion(s) (e.g., by making appropriate markings in the margins).
10 (b) for testimony given in depositions that the Designating Party
11 identifies the Disclosure or Discovery Material on the record, before the close
12 of the deposition all protected testimony.
13 (c) for information produced in some form other than
14 documentary and for any other tangible items, that the Producing Party affix
15 in a prominent place on the exterior of the container or containers in which the
16 information is stored the legend “CONFIDENTIAL.” If only a portion or
17 portions of the information warrants protection, the Producing Party, to the
18 extent practicable, shall identify the protected portion(s).
19 7.3 Inadvertent Failures to Designate. If timely corrected, an
20 inadvertent failure to designate qualified information or items does not,
21 standing alone, waive the Designating Party’s right to secure protection under
22 this Order for such material. Upon timely correction of a designation, the
23 Receiving Party must make reasonable efforts to assure that the material is
24 treated in accordance with the provisions of this Order.
25 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
26 8.1. Timing of Challenges. Any Party or Non-Party may challenge a
27 designation of confidentiality at any time subject to any Scheduling Order.
1 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
2 resolution process under Local Rule 37-1 et seq.
3 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
4 joint stipulation pursuant to Local Rule 37-2.
5 8.4 The burden of persuasion in any such challenge proceeding shall be
6 on the Designating Party. Frivolous challenges, and those made for an
7 improper purpose (e.g., to harass or impose unnecessary expenses and burdens
8 on other parties) may expose the Challenging Party to sanctions. Unless the
9 Designating Party has waived or withdrawn the confidentiality designation, all
10 parties shall continue to afford the material in question the level of protection
11 to which it is entitled under the Producing Party’s designation until the Court
12 rules on the challenge.
13 9. ACCESS TO AND USE OF PROTECTED MATERIAL
14 9.1 Basic Principles. A Receiving Party may use Protected Material
15 that is disclosed or produced by another Party or by a Non-Party in connection
16 with this Action only for prosecuting, defending or attempting to settle this
17 Action. Such Protected Material may be disclosed only to the categories of
18 persons and under the conditions described in this Order. When the Action has
19 been terminated, a Receiving Party must comply with the provisions of section
20 15 below (FINAL DISPOSITION).
21 Protected Material must be stored and maintained by a Receiving Party
22 at a location and in a secure manner that ensures that access is limited to the
23 persons authorized under this Order.
24 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
25 otherwise ordered by the court or permitted in writing by the Designating
26 Party, a Receiving Party may disclose any information or item designated
27 “CONFIDENTIAL” only to:
1 (a) the Receiving Party’s Outside Counsel of Record in this
2 Action, as well as employees of said Outside Counsel of Record to whom it is
3 reasonably necessary to disclose the information for this Action;
4 (b) the officers, directors, and employees (including House
5 Counsel) of the Receiving Party to whom disclosure is reasonably necessary
6 for this Action;
7 (c) Experts (as defined in this Order) of the Receiving Party to
8 whom disclosure is reasonably necessary for this Action and who have signed
9 the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
10 (d) the court and its personnel;
11 (e) court reporters and their staff;
12 (f) professional jury or trial consultants, mock jurors, and
13 Professional Vendors to whom disclosure is reasonably necessary for this
14 Action and who have signed the “Acknowledgment and Agreement to Be
15 Bound” (Exhibit A);
16 (g) the author or recipient of a document containing the
17 information or a custodian or other person who otherwise possessed or knew
18 the information;
19 (h) during their depositions, witnesses, and attorneys for witnesses,
20 in the Action to whom disclosure is reasonably necessary provided: (1) the
21 deposing party requests that the witness sign the form attached as Exhibit A
22 hereto; and (2) they will not be permitted to keep any confidential information
23 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit
24 A), unless otherwise agreed by the Designating Party or ordered by the court.
25 Pages of transcribed deposition testimony or exhibits to depositions that reveal
26 Protected Material may be separately bound by the court reporter and may not
27 be disclosed to anyone except as permitted under this Protective Order; and
1 (i) any mediators or settlement officers and their supporting
2 personnel, mutually agreed upon by any of the parties engaged in settlement
3 discussions.
4 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
5 PRODUCED IN OTHER LITIGATION
6 If a Party is served with a subpoena or a court order issued in other
7 litigation that compels disclosure of any information or items designated in this
8 Action as “CONFIDENTIAL,” that Party must:
9 (a) promptly notify in writing the Designating Party. Such
10 notification shall include a copy of the subpoena or court order;
11 (b) promptly notify in writing the party who caused the subpoena
12 or order to issue in the other litigation that some or all of the material covered
13 by the subpoena or order is subject to this Protective Order. Such notification
14 shall include a copy of this Stipulated Protective Order; and
15 (c) cooperate with respect to all reasonable procedures sought to be
16 pursued by the Designating Party whose Protected Material may be affected. If
17 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
19 action as “CONFIDENTIAL” before a determination by the court from which
20 the subpoena or order issued, unless the Party has obtained the Designating
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 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
26 BE PRODUCED IN THIS LITIGATION
27 (a) The terms of this Order are applicable to information produced
1 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
2 information produced by Non-Parties in connection with this litigation is
3 protected by the remedies and relief provided by this Order. Nothing in these
4 provisions should be construed as prohibiting a Non-Party from seeking
5 additional protections.
6 (b) In the event that a Party is required, by a valid discovery
7 request, to produce a Non-Party’s confidential information in its possession,
8 and the Party is subject to an agreement with the Non-Party not to produce the
9 Non-Party’s confidential information, then the Party shall:
10 (1) promptly notify in writing the Requesting Party and the Non-
11 Party that some or all of the information requested is subject to a
12 confidentiality agreement with a Non-Party;
13 (2) promptly provide the Non-Party with a copy of the Stipulated
14 Protective Order in this Action, the relevant discovery request(s), and a
15 reasonably specific description of the information requested; and
16 (3) make the information requested available for inspection by the
17 Non-Party, if requested.
18 (c) If the Non-Party fails to seek a protective order from this court
19 within 14 days of receiving the notice and accompanying information, the
20 Receiving Party may produce the Non-Party’s confidential information
21 responsive to the discovery request. If the Non-Party timely seeks a protective
22 order, the Receiving Party shall not produce any information in its possession
23 or control that is subject to the confidentiality agreement with the Non-Party
24 before a determination by the court. Absent a court order to the contrary, the
25 Non-Party shall bear the burden and expense of seeking protection in this court
26 of its Protected Material.
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1 12. UNAUTHORIZED DISCLOSURE OF PROTECTED
2 MATERIAL
3 If a Receiving Party learns that, by inadvertence or otherwise, it has
4 disclosed Protected Material to any person or in any circumstance not
5 authorized under this Stipulated Protective Order, the Receiving Party must
6 immediately (a) notify in writing the Designating Party of the unauthorized
7 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
8 Protected Material, (c) inform the person or persons to whom unauthorized
9 disclosures were made of all the terms of this Order, and (d) request such
10 person or persons to execute the “Acknowledgment an Agreement to Be
11 Bound” attached hereto as Exhibit A.
12 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
13 OTHERWISE 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
16 protection, the obligations of the Receiving Parties are those set forth in
17 Federal Rule of Civil\ Procedure 26(b)(5)(B). This provision is not intended to
18 modify whatever procedure may be established in an e-discovery order that
19 provides for production without prior privilege review. Pursuant to Federal
20 Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on
21 the effect of disclosure of a communication or information covered by the
22 attorney-client privilege or work product protection, the parties may
23 incorporate their agreement in the stipulated protective order submitted to the
24 court.
25 14. MISCELLANEOUS
26 14.1 Right to Further Relief. Nothing in this Order abridges the right of
27 any person to seek its modification by the Court in the future.
1 14.2 Right to Assert Other Objections. By stipulating to the entry of this
2 Protective Order, no Party waives any right it otherwise would have to object
3 to disclosing or producing any information or item on any ground not
4 addressed in this Stipulated Protective Order. Similarly, no Party waives any
5 right to object on any ground to use in evidence of any of the material covered
6 by this Protective Order.
7 14.3 Filing Protected Material. A Party that seeks to file under seal any
8 Protected Material must comply with Local Civil Rule 79-5. Protected
9 Material may only be filed under seal pursuant to a court order authorizing the
10 sealing of the specific Protected Material. If a Party’s request to file Protected
11 Material under seal is denied by the court, then the Receiving Party may file
12 the information in the public record unless otherwise instructed by the court.
13 15. FINAL DISPOSITION
14 After the final disposition of this Action, as defined in paragraph 6,
15 within 60 days of a written request by the Designating Party, each Receiving
16 Party must return all Protected Material to the Producing Party or destroy such
17 material. As used in this subdivision, “all Protected Material” includes all
18 copies, abstracts, compilations, summaries, and any other format reproducing
19 or capturing any of the Protected Material. Whether the Protected Material is
20 returned or destroyed, the Receiving Party must submit a written certification
21 to the Producing Party (and, if not the same person or entity, to the
22 Designating Party) by the 60-day deadline that (1) identifies (by category,
23 where appropriate) all the Protected Material that was returned or destroyed
24 and (2) affirms that the Receiving Party has not retained any copies, abstracts,
25 compilations, summaries or any other format reproducing or capturing any of
26 the Protected Material. Notwithstanding this provision, Counsel are entitled to
27 retain an archival copy of all pleadings, motion papers, trial, deposition, and
1 || hearing transcripts, legal memoranda, correspondence, deposition and trial
2 exhibits, expert reports, attorney work product, and consultant and expert
3 || work product, even if such materials contain Protected Material. Any such
4 || archival copies that contain or constitute Protected Material remain subject to
5 ||this Protective Order as set forth in Section 6 (DURATION).
6 16. VIOLATION
7 Any violation of this Order may be punished by appropriate measures
8 || including, without limitation, contempt proceedings and/or monetary
9 || sanctions.
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11 | FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
12
13 |} DATED: October 23, 2020 gf dL.
14
15 J D. EARLY
nited States Magistrate Judge
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, [print or type full name], of [print
4
or type full address], declare under penalty of perjury that I have read in its entirety
5
and understand the Stipulated Protective Order that was issued by the United States
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District Court for the Central District of California on October 23, 2020 in the case
7
of Core Technae Ptd. Ltd. V. Troy Group, Inc., Case No. 8:19-cv-02153 JVS-
8
JDE . I agree to comply with and to be bound by all the terms of this Stipulated
9
Protective Order and I understand and acknowledge that failure to so comply could
10
expose me to sanctions and punishment in the nature of contempt. I solemnly
11
promise that I will not disclose in any manner any information or item that is
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subject to this Stipulated Protective Order to any person or entity except in strict
13
compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District
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Court for the Central District of California for the purpose of enforcing the terms
16
of this Stipulated Protective Order, even if such enforcement proceedings occur
17
after termination of this action. I hereby appoint [print or type full name] of
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[print or type full address and telephone number] as my
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California agent for service of process in connection with this action or any
20
proceedings related to enforcement of this Stipulated Protective Order.
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Date:
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City and State where sworn and signed:
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Printed name:
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Signature:
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