even stipulated protective 27 orders require good cause showing
How later courts described this case
- even stipulated protective 27 orders require good cause showing
Written by the judges who cited it.
The opinion
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9 UNITED STATES DISTRICT COURT
10 FOR THE CENTRAL DISTRICT OF CALIFORNIA
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PAUL MARTIN, individually and on Case No.: 2:20-CV-08158-DSF-PVCx
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behalf of all others similarly situated,
PROTECTIVE ORDER
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Plaintiffs,
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v.
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ONTEL PRODUCTS
16 CORPORATION, a New Jersey
Corporation,
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Defendant.
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1 1. INTRODUCTION
2 1.1 PURPOSES AND LIMITATIONS
3 Discovery in this action is likely to involve production of confidential,
4 proprietary or private information for which special protection from public
5 disclosure and from use for any purpose other than prosecuting this litigation may
6 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
7 enter the following Stipulated Protective Order. The parties acknowledge that this
8 Order does not confer blanket protections on all disclosures or responses to
9 discovery and that the protection it affords from public disclosure and use extends
10 only to the limited information or items that are entitled to confidential treatment
11 under the applicable legal principles.
12 1.2 GOOD CAUSE STATEMENT
13 Plaintiff Paul Martin alleges that he was confused by one of Defendant Ontel
14 Products Corporation’s (“Ontel”) websites, and as a result of this confusion he
15 purchased two of Defendant’s Artic Air Ultra products instead of one. He also
16 alleges that, because he was confused by the website, he purchased shipping
17 insurance that he did not want. Plaintiff alleges that other Ontel websites through
18 which it sold other products contain substantially similar representations. This is a
19 putative class action.
20 Given these legal issues and factual allegations, and given that this is a
21 putative class action, this action may involve the production of the contact
22 information of third-party consumers who purchased products from Ontel. This
23 action will also likely involve the production of Ontel’s sales figures, including the
24 unit number and dollar value of such sales for various products of Ontel. This
25 information is proprietary to Ontel, not publicly available, and if it were publicly
26 disseminated would cause competitive harm to Ontel, as its competitors would
27 have a detailed window into its sales figures for various products and could
28 potentially use that information to undercut Ontel, or otherwise compete with it.
1 Other discoverable information may include confidential marketing strategies of
2 Ontel, and information regarding its internal business-making processes that would
3 also result in competitive harm to Ontel if it were publicly disclosed.
4 Accordingly, to expedite the flow of information, to facilitate the prompt
5 resolution of disputes over confidentiality of discovery materials, to adequately
6 protect information the parties are entitled to keep confidential, to ensure that the
7 parties are permitted reasonable necessary uses of such material in preparation for
8 and in the conduct of trial, to address their handling at the end of the litigation, and
9 serve the ends of justice, a protective order for such information is justified in this
10 matter. It is the intent of the parties that information will not be designated as
11 confidential for tactical reasons and that nothing be so designated without a good
12 faith belief that it has been maintained in a confidential, non-public manner, and
13 there is good cause why it should not be part of the public record of this case.
14 1.3 ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
15 SEAL
16 The parties further acknowledge, as set forth in Section 12.3, below, that this
17 Stipulated Protective Order does not entitle them to file confidential information
18 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
19 and the standards that will be applied when a party seeks permission from the court
20 to file material under seal.
21 There is a strong presumption that the public has a right of access to judicial
22 proceedings and records in civil cases. In connection with non-dispositive motions,
23 good cause must be shown to support a filing under seal. See Kamakana v. City
24 and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
25 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
26 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective
27 orders require good cause showing), and a specific showing of good cause or
28 compelling reasons with proper evidentiary support and legal justification, must be
1 made with respect to Protected Material that a party seeks to file under seal. The
2 parties’ mere designation of Disclosure or Discovery Material as
3 CONFIDENTIAL does not—without the submission of competent evidence by
4 declaration, establishing that the material sought to be filed under seal qualifies as
5 confidential, privileged, or otherwise protectable—constitute good cause.
6 Further, if a party requests sealing related to a dispositive motion or trial,
7 then compelling reasons, not only good cause, for the sealing must be shown, and
8 the relief sought shall be narrowly tailored to serve the specific interest to be
9 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
10 2010). For each item or type of information, document, or thing sought to be filed
11 or introduced under seal in connection with a dispositive motion or trial, the party
12 seeking protection must articulate compelling reasons, supported by specific facts
13 and legal justification, for the requested sealing order. Again, competent evidence
14 supporting the application to file documents under seal must be provided by
15 declaration.
16 Any document that is not confidential, privileged, or otherwise protectable
17 in its entirety will not be filed under seal if the confidential portions can be
18 redacted. If documents can be redacted, then a redacted version for public viewing,
19 omitting only the confidential, privileged, or otherwise protectable portions of the
20 document, shall be filed. Any application that seeks to file documents under seal in
21 their entirety should include an explanation of why redaction is not feasible.
22 2. DEFINITIONS
23 2.1 Action: This pending federal lawsuit.
24 2.2 Challenging Party: A Party or Non-Party that challenges the
25 designation of information or items under this Order.
26 2.3 “CONFIDENTIAL” Information or Items: Information (regardless of
27 how it is generated, stored or maintained) or tangible things that qualify for
28 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
1 the Good Cause Statement.
2 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
3 their support staff).
4 2.5 Designating Party: A Party or Non-Party that designates information
5 or items that it produces in disclosures or in responses to discovery as
6 “CONFIDENTIAL.”
7 2.6 Disclosure or Discovery Material: All items or information, regardless
8 of the medium or manner in which it is generated, stored, or maintained (including,
9 among other things, testimony, transcripts, and tangible things), that are produced
10 or generated in disclosures or responses to discovery in this matter.
11 2.7 Expert: A person with specialized knowledge or experience in a
12 matter pertinent to the litigation who has been retained by a Party or its counsel to
13 serve as an expert witness or as a consultant in this Action.
14 2.8 House Counsel: Attorneys who are employees of a party to this
15 Action. House Counsel does not include Outside Counsel of Record or any other
16 outside counsel.
17 2.9 Non-Party: any natural person, partnership, corporation, association or
18 other legal entity not named as a Party to this action.
19 2.10 Outside Counsel of Record: attorneys who are not employees of a
20 party to this Action but are retained to represent or advise a party to this Action
21 and have appeared in this Action on behalf of that party or are affiliated with a law
22 firm that has appeared on behalf of that party, and includes support staff.
23 2.11 Party: any party to this Action, including all of its officers, directors,
24 employees, consultants, retained experts, and Outside Counsel of Record (and their
25 support staffs).
26 2.12 Producing Party: A Party or Non-Party that produces Disclosure or
27 Discovery Material in this Action.
28 2.13 Professional Vendors: Persons or entities that provide litigation
1 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
2 demonstrations, and organizing, storing, or retrieving data in any form or medium)
3 and their employees and subcontractors.
4 2.14 Protected Material: Any Disclosure or Discovery Material that is
5 designated as “CONFIDENTIAL.”
6 2.15 Receiving Party: A Party that receives Disclosure or Discovery
7 Material from a Producing Party.
8 3. SCOPE
9 The protections conferred by this Stipulation and Order cover not only
10 Protected Material (as defined above), but also (1) any information copied or
11 extracted from Protected Material; (2) all copies, excerpts, summaries, or
12 compilations of Protected Material; and (3) any testimony, conversations, or
13 presentations by Parties or their Counsel that might reveal Protected Material.
14 Any use of Protected Material at trial shall be governed by the orders of the
15 trial judge. This Order does not govern the use of Protected Material at trial.
16 4. DURATION
17 Once a case proceeds to trial, information that was designated as
18 CONFIDENTIAL or maintained pursuant to this protective order used or
19 introduced as an exhibit at trial becomes public and will be presumptively
20 available to all members of the public, including the press, unless compelling
21 reasons supported by specific factual findings to proceed otherwise are made to the
22 trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
23 (distinguishing “good cause” showing for sealing documents produced in
24 discovery from “compelling reasons” standard when merits-related documents are
25 part of court record). Accordingly, the terms of this protective order do not extend
26 beyond the commencement of the trial.
27 //
28 //
1 5. DESIGNATING PROTECTED MATERIAL
2 5.1 Exercise of Restraint and Care in Designating Material for Protection.
3 Each Party or Non-Party that designates information or items for protection under
4 this Order must take care to limit any such designation to specific material that
5 qualifies under the appropriate standards. The Designating Party must designate for
6 protection only those parts of material, documents, items or oral or written
7 communications that qualify so that other portions of the material, documents,
8 items or communications for which protection is not warranted are not swept
9 unjustifiably within the ambit of this Order.
10 Mass, indiscriminate or routinized designations are prohibited. Designations
11 that are shown to be clearly unjustified or that have been made for an improper
12 purpose (e.g., to unnecessarily encumber the case development process or to
13 impose unnecessary expenses and burdens on other parties) may expose the
14 Designating Party to sanctions.
15 If it comes to a Designating Party’s attention that information or items that it
16 designated for protection do not qualify for protection, that Designating Party must
17 promptly notify all other Parties that it is withdrawing the inapplicable designation.
18 5.2 Manner and Timing of Designations. Except as otherwise provided in
19 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
20 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
21 under this Order must be clearly so designated before the material is disclosed or
22 produced.
23 Designation in conformity with this Order requires:
24 (a) for information in documentary form (e.g., paper or electronic
25 documents, but excluding transcripts of depositions or other pretrial or trial
26 proceedings), that the Producing Party affix at a minimum, the legend
27 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
28 contains protected material. If only a portion of the material on a page qualifies for
1 protection, the Producing Party also must clearly identify the protected portion(s)
2 (e.g., by making appropriate markings in the margins).
3 A Party or Non-Party that makes original documents available for inspection
4 need not designate them for protection until after the inspecting Party has indicated
5 which documents it would like copied and produced. During the inspection and
6 before the designation, all of the material made available for inspection shall be
7 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
8 documents it wants copied and produced, the Producing Party must determine
9 which documents, or portions thereof, qualify for protection under this Order.
10 Then, before producing the specified documents, the Producing Party must affix
11 the “CONFIDENTIAL legend” to each page that contains Protected Material. If
12 only a portion of the material on a page qualifies for protection, the Producing
13 Party also must clearly identify the protected portion(s) (e.g., by making
14 appropriate markings in the margins).
15 (b) for testimony given in depositions that the Designating Party identifies
16 the Disclosure or Discovery Material on the record, before the close of the
17 deposition all protected testimony.
18 (c) for information produced in some form other than documentary and for
19 any other tangible items, that the Producing Party affix in a prominent place on the
20 exterior of the container or containers in which the information is stored the legend
21 “CONFIDENTIAL.” If only a portion or portions of the information warrants
22 protection, the Producing Party, to the extent practicable, shall identify the
23 protected portion(s).
24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
25 failure to designate qualified information or items does not, standing alone, waive
26 the Designating Party’s right to secure protection under this Order for such
27 material.
28 Upon timely correction of a designation, the Receiving Party must make
1 reasonable efforts to assure that the material is treated in accordance with the
2 provisions of this Order.
3 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
4 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
5 designation of confidentiality at any time that is consistent with the Court’s
6 Scheduling Order.
7 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
8 resolution process under Local Rule 37-1 et seq.
9 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
10 joint stipulation pursuant to Local Rule 37-2.
11 6.4 The burden of persuasion in any such challenge proceeding shall be
12 on the Designating Party. Frivolous challenges, and those made for an improper
13 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
14 parties) may expose the Challenging Party to sanctions. Unless the Designating
15 Party has waived or withdrawn the confidentiality designation, all parties shall
16 continue to afford the material in question the level of protection to which it is
17 entitled under the Producing Party’s designation until the Court rules on the
18 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
22 Action only for prosecuting, defending or attempting to settle this Action. Such
23 Protected Material may be disclosed only to the categories of persons and under
24 the conditions described in this Order. When the Action has been terminated, a
25 Receiving Party must comply with the provisions of section 13 below (FINAL
26 DISPOSITION).
27 Protected Material must be stored and maintained by a Receiving Party at a
28 location and in a secure manner that ensures that access is limited to the persons
1 authorized under this Order.
2 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
3 otherwise ordered by the court or permitted in writing by the Designating Party, a
4 Receiving Party may disclose any information or item designated
5 “CONFIDENTIAL” only to:
6 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
7 as employees of said Outside Counsel of Record to whom it is reasonably
8 necessary to disclose the information for this Action;
9 (b) the officers, directors, and employees (including House Counsel) of the
10 Receiving Party to whom disclosure is reasonably necessary for this Action;
11 (c) Experts (as defined in this Order) of the Receiving Party to whom
12 disclosure is reasonably necessary for this Action and who have signed the
13 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
14 (d) the court and its personnel;
15 (e) court reporters and their staff;
16 (f) professional jury or trial consultants, mock jurors, and Professional
17 Vendors to whom disclosure is reasonably necessary for this Action and who have
18 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
19 (g) the author or recipient of a document containing the information or a
20 custodian or other person who otherwise possessed or knew the information;
21 (h) during their depositions, witnesses, and attorneys for witnesses, in the
22 Action to whom disclosure is reasonably necessary provided: (1) the deposing
23 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
24 they will not be permitted to keep any confidential information unless they sign the
25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
26 agreed by the Designating Party or ordered by the court. Pages of transcribed
27 deposition testimony or exhibits to depositions that reveal Protected Material may
28 be separately bound by the court reporter and may not be disclosed to anyone
1 except as permitted under this Stipulated Protective Order; and
2 (i) any mediator or settlement officer, and their supporting personnel,
3 mutually agreed upon by any of the parties engaged in settlement discussions.
4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
5 IN OTHER LITIGATION
6 If a Party is served with a subpoena or a court order issued in other litigation
7 that 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
13 or order is subject to this Protective Order. Such notification shall include a copy
14 of this 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
19 as “CONFIDENTIAL” before a determination by the court from which the
20 subpoena or order issued, unless the Party has obtained the Designating Party’s
21 permission. The Designating Party shall bear the burden and expense of seeking
22 protection in that court of its confidential material and nothing in these provisions
23 should be construed as authorizing or encouraging a Receiving Party in this Action
24 to disobey a lawful directive from another court.
25 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
26 PRODUCED IN THIS LITIGATION
27 (a) The terms of this Order are applicable to information produced by a Non-
28 Party in this Action and designated as “CONFIDENTIAL.” Such information
1 produced by Non-Parties in connection with this litigation is protected by the
2 remedies and relief provided by this Order. Nothing in these provisions should be
3 construed as prohibiting a Non-Party from seeking additional protections.
4 (b) In the event that a Party is required, by a valid discovery request, to
5 produce a Non-Party’s confidential information in its possession, and the Party is
6 subject to an agreement with the Non-Party not to produce the Non-Party’s
7 confidential information, then the Party shall:
8 (1) promptly notify in writing the Requesting Party and the Non-Party
9 that some or all of the information requested is subject to a confidentiality
10 agreement with a Non-Party;
11 (2) promptly provide the Non-Party with a copy of the Stipulated
12 Protective Order in this Action, the relevant discovery request(s), and a reasonably
13 specific description of the information requested; and
14 (3) make the information requested available for inspection by the
15 Non-Party, if requested.
16 (c) If the Non-Party fails to seek a protective order from this court within 14
17 days of receiving the notice and accompanying information, the Receiving Party
18 may produce the Non-Party’s confidential information responsive to the discovery
19 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
20 not produce any information in its possession or control that is subject to the
21 confidentiality agreement with the Non-Party before a determination by the court.
22 Absent a court order to the contrary, the Non-Party shall bear the burden and
23 expense of seeking protection in this court of its Protected Material.
24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
25 If a Receiving Party learns that, by inadvertence or otherwise, it has
26 disclosed Protected Material to any person or in any circumstance not authorized
27 under this Stipulated Protective Order, the Receiving Party must immediately (a)
28 notify in writing the Designating Party of the unauthorized disclosures, (b) use its
1 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
2 the person or persons to whom unauthorized disclosures were made of all the terms
3 of this Order, and (d) request such person or persons to execute the
4 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
5 A.
6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
7 PROTECTED MATERIAL
8 When a Producing Party gives notice to Receiving Parties that certain
9 inadvertently produced material is subject to a claim of privilege or other
10 protection, the obligations of the Receiving Parties are those set forth in Federal
11 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
12 whatever procedure may be established in an e-discovery order that provides for
13 production without prior privilege review. Pursuant to Federal Rule of Evidence
14 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
15 of a communication or information covered by the attorney-client privilege or
16 work product protection, the parties may incorporate their agreement in the
17 stipulated protective order submitted to the court.
18 12. MISCELLANEOUS
19 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
20 person to seek its modification by the Court in the future.
21 12.2 Right to Assert Other Objections. By stipulating to the entry of this
22 Protective Order, no Party waives any right it otherwise would have to object to
23 disclosing or producing any information or item on any ground not addressed in
24 this Stipulated Protective Order. Similarly, no Party waives any right to object on
25 any ground to use in evidence of any of the material covered by this Protective
26 Order.
27 12.3 Filing Protected Material. A Party that seeks to file under seal any
28 Protected Material must comply with Local Civil Rule 79-5. Protected Material
1 may only be filed under seal pursuant to a court order authorizing the sealing of the
2 specific Protected Material at issue. If a Party’s request to file Protected Material
3 under seal is denied by the court, then the Receiving Party may file the information
4 in the public record unless otherwise instructed by the court.
5 13. FINAL DISPOSITION
6 After the final disposition of this Action, as defined in paragraph 4, within
7 60 days of a written request by the Designating Party, each Receiving Party must
8 return all Protected Material to the Producing Party or destroy such material. As
9 used in this subdivision, “all Protected Material” includes all copies, abstracts,
10 compilations, summaries, and any other format reproducing or capturing any of the
11 Protected Material. Whether the Protected Material is returned or destroyed, the
12 Receiving Party must submit a written certification to the Producing Party (and, if
13 not the same person or entity, to the Designating Party) by the 60 day deadline that
14 (1) identifies (by category, where appropriate) all the Protected Material that was
15 returned or destroyed and (2) affirms that the Receiving Party has not retained any
16 copies, abstracts, compilations, summaries or any other format reproducing or
17 capturing any of the Protected Material. Notwithstanding this provision, Counsel
18 are entitled to retain an archival copy of all pleadings, motion papers, trial,
19 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
20 and trial exhibits, expert reports, attorney work product, and consultant and expert
21 work product, even if such materials contain Protected Material. Any such archival
22 copies that contain or constitute Protected Material remain subject to this
23 Protective Order as set forth in Section 4 (DURATION).
24 //
25 //
26 //
27 //
28 //
1 MIOLATION
2 Any violation of this Order may be punished by appropriate measures
3 including, without limitation, contempt proceedings and/or monetary sanctions.
4
5 GOOD CAUSE HAVING BEEN SHOWN BY THE PARTIES’ STIPULATION,
6 IS SO ORDERED.
7 .
8 || Dated: February 17, 2021 fu
° HON. PEDRO V.CASTILLO
10 UNITED STATES MAGISTRATE JUDGE
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [full name], of _________________
5 [full address], declare under penalty of perjury that I have read in its entirety and
6 understand the Stipulated Protective Order that was issued by the United States
7 District Court for the Central District of California on [date] in the case of Martin
8 v. Ontel Productions Corporation, Case No. 2:20-CV-08158-DSF-PVC. I agree to
9 comply with and to be bound by all the terms of this Stipulated Protective Order
10 and I understand and acknowledge that failure to so comply could expose me to
11 sanctions and punishment in the nature of contempt. I solemnly promise that I will
12 not disclose in any manner any information or item that is subject to this Stipulated
13 Protective Order to any person or entity except in strict compliance with the
14 provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District
16 Court for the Central District of California for the purpose of enforcing the terms
17 of this Stipulated Protective Order, even if such enforcement proceedings occur
18 after termination of this action. I hereby appoint __________________________
19 [full name] of _______________________________________ [full address and
20 telephone number] as my California agent for service of process in connection with
21 this action or any proceedings related to enforcement of this Stipulated Protective
22 Order.
23 Date: ______________________________________
24 City and State where signed: _________________________________
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26 Printed name: _______________________________
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28 Signature: __________________________________