even stipulated 21 protective orders require good cause showing
How later courts described this case
- even stipulated 21 protective orders require good cause showing
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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REHAMN YOUSSEF, Case No. 5:20-cv-02016 JWH (PVCx)
12
Plaintiff, STIPULATED PROTECTIVE
13 ORDER
v.
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T-MOBILE USA, INC., AND DOES 1
15 THROUGH 30,
16 Defendants.
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1 1. PURPOSES AND LIMITATIONS
2 Discovery in this action is likely to involve production of confidential,
3 proprietary or private information for which special protection from public
4 disclosure and from use for any purpose other than pursuing this litigation may
5 be warranted. Accordingly, the parties hereby stipulate to and petition the
6 Court to enter the following Stipulated Protective Order. The parties
7 acknowledge that this Order does not confer blanket protections on all
8
disclosures or responses to discovery and that the protection it affords from
9
public disclosure and use extends only to the limited information or items that
10
are entitled to confidential treatment under the applicable legal principles.
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2. GOOD CAUSE STATEMENT
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This action is likely to involve medical records, trade secrets, customer
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and pricing lists and other valuable research, development, commercial,
14
financial, technical and/or proprietary information for which special protection
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from public disclosure and from use for any purpose other than prosecution of
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this action is warranted. Such private, confidential, and proprietary materials
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and information consist of, among other things, medical information,
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confidential business or financial information, information regarding
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confidential business practices, or other confidential research, development, or
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commercial information (including information implicating privacy rights of
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third parties), information otherwise generally unavailable to the public, or
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which may be privileged or otherwise protected from disclosure under state or
23
federal statutes, court rules, case decisions, or common law. This action is also
24
likely to involve the private or confidential information of third-parties.
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Accordingly, to expedite the flow of information, to facilitate the prompt
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resolution of disputes over confidentiality of discovery materials, to adequately
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protect information the parties are entitled to keep confidential, to ensure that
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1 the parties are permitted reasonable necessary uses of such material in
2 preparation for and in the conduct of trial, to address their handling at the end
3 of the litigation, and serve the ends of justice, a protective order for such
4 information is justified in this matter. It is the intent of the parties that
5 information will not be designated as confidential for tactical reasons and that
6 nothing be so designated without a good faith belief that it has been maintained
7 in a confidential, non-public manner, and there is good cause why it should not
8
be part of the public record of this case.
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3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
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The parties further acknowledge, as set forth in Section 14.3, below, that
11
this Stipulated Protective Order does not entitle them to file confidential
12
information under seal; Local Civil Rule 79-5 sets forth the procedures that
13
must be followed and the standards that will be applied when a party seeks
14
permission from the court to file material under seal. There is a strong
15
presumption that the public has a right of access to judicial proceedings and
16
records in civil cases. In connection with non-dispositive motions, good cause
17
must be shown to support a filing under seal. See Kamakana v. City and
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County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
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Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
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Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
21
protective orders require good cause showing), and a specific showing of good
22
cause or compelling reasons with proper evidentiary support and legal
23
justification, must be made with respect to Protected Material that a party seeks
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to file under seal. The parties’ mere designation of Disclosure or Discovery
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Material as CONFIDENTIAL does not— without the submission of
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competent evidence by declaration, establishing that the material sought to be
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filed under seal qualifies as confidential, privileged, or otherwise protectable—
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1 constitute good cause.
2 Further, if a party requests sealing related to a dispositive motion or trial,
3 then compelling reasons, not only good cause, for the sealing must be shown,
4 and the relief sought shall be narrowly tailored to serve the specific interest to
5 be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th
6 Cir. 2010). For each item or type of information, document, or thing sought to
7
be filed or introduced under seal, the party seeking protection must articulate
8
compelling reasons, supported by specific facts and legal justification, for the
9
requested sealing order. Again, competent evidence supporting the application
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to file documents under seal must be provided by declaration.
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Any document that is not confidential, privileged, or otherwise
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protectable in its entirety will not be filed under seal if the confidential portions
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can be redacted. If documents can be redacted, then a redacted version for
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public viewing, omitting only the confidential, privileged, or otherwise
15
protectable portions of the document, shall be filed. Any application that seeks
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to file documents under seal in their entirety should include an explanation of
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why redaction is not feasible.
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4. DEFINITIONS
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4.1 Action: this pending federal lawsuit.
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4.2 Challenging Party: a Party or Non-Party that challenges
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thedesignation of information or items under this Order.
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4.3 “CONFIDENTIAL” Information or Items: information (regardless
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of how it is generated, stored or maintained) or tangible things that qualify for
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protection under Federal Rule of Civil Procedure 26(c), and as specified above
25
in the Good Cause Statement.
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4.4 Counsel: Outside Counsel of Record and House Counsel (as well
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as their support staff).
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1 4.5 Designating Party: a Party or Non-Party that designates
2 information or items that it produces in disclosures or in responses to discovery
3 as “CONFIDENTIAL.”
4 4.6 Disclosure or Discovery Material: all items or information,
5 regardless of the medium or manner in which it is generated, stored, or
6 maintained (including, among other things, testimony, transcripts, and tangible
7 things), that are produced or generated in disclosures or responses to discovery.
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4.7 Expert: a person with specialized knowledge or experience in a
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matter pertinent to the litigation who has been retained by a Party or its counsel
10
to serve as an expert witness or as a consultant in this Action.
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4.8 House Counsel: attorneys, as well as their support staff, who are
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employees of a party to this Action. House Counsel does not include Outside
13
Counsel of Record or any other outside counsel.
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4.9 Non-Party: any natural person, partnership, corporation,
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association or other legal entity not named as a Party to this action.
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4.10 Outside Counsel of Record: attorneys who are not employees of a
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party to this Action but are retained to represent a party to this Action and have
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appeared in this Action on behalf of that party or are affiliated with a law firm
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that has appeared on behalf of that party, and includes support staff.
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4.11 Party: any party to this Action, including all of its officers,
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directors, employees, consultants, retained experts, and Outside Counsel of
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Record (and their support staffs).
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4.12 Producing Party: a Party or Non-Party that produces Disclosure or
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Discovery Material in this Action.
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4.13 Professional Vendors: persons or entities that provide litigation
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support services (e.g., photocopying, videotaping, translating, preparing
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exhibits or demonstrations, and organizing, storing, or retrieving data in any
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1 form or medium) and their employees and subcontractors.
2 4.14 Protected Material: any Disclosure or Discovery Material that is
3 designated as “CONFIDENTIAL.”
4 4.15 Receiving Party: a Party that receives Disclosure or Discovery
5 Material from a Producing Party.
6 5. SCOPE
7
The protections conferred by this Stipulation and Order cover not only
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Protected Material (as defined above), but also (1) any information copied or
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extracted from Protected Material; (2) all copies, excerpts, summaries, or
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compilations of Protected Material; and (3) any testimony, conversations, or
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presentations by Parties or their Counsel that might reveal Protected Material.
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Any use of Protected Material at trial shall be governed by the orders of
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the trial judge and other applicable authorities. This Order does not govern the
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use of Protected Material at trial.
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6. DURATION
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Once a case proceeds to trial, information that was designated as
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CONFIDENTIAL or maintained pursuant to this protective order used or
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introduced as an exhibit at trial becomes public and will be presumptively
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available to all members of the public, including the press, unless compelling
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reasons supported by specific factual findings to proceed otherwise are made to
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the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
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(distinguishing “good cause” showing for sealing documents produced in
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discovery from “compelling reasons” standard when merits-related documents
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are part of court record). Accordingly, the terms of this protective order do not
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extend beyond the commencement of the trial.
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1 7. DESIGNATING PROTECTED MATERIAL
2 7.1 Exercise of Restraint and Care in Designating Material for
3 Protection. Each Party or Non-Party that designates information or
4 items for protection under this Order must take care to limit any such
5 designation to specific material that qualifies under the appropriate standards.
6 The Designating Party must designate for protection only those parts of
7 material, documents, items or oral or written communications that qualify so
8
that other portions of the material, documents, items or communications for
9
which protection is not warranted are not swept unjustifiably within the ambit
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of this Order.
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Mass, indiscriminate or routinized designations are prohibited.
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Designations that are shown to be clearly unjustified or that have been made
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for an improper purpose (e.g., to unnecessarily encumber the case development
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process or to impose unnecessary expenses and burdens on other parties) may
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expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items
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that it designated for protection do not qualify for protection, that Designating
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Party must promptly notify all other Parties that it is withdrawing the
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inapplicable designation.
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7.2 Manner and Timing of Designations. Except as otherwise provided
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in this Order, or as otherwise stipulated or ordered, Disclosure of Discovery
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Material that qualifies for protection under this Order must be clearly so
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designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic
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documents, but excluding transcripts of depositions or other pretrial or trial
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proceedings), that the Producing Party affix at a minimum, the legend
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1 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page
2 that contains protected material. If only a portion of the material on a page
3 qualifies for protection, the Producing Party also must clearly identify the
4 protected portion(s) (e.g., by making appropriate markings in the margins).
5 A Party or Non-Party that makes original documents available for
6 inspection need not designate them for protection until after the inspecting
7 Party has indicated which documents it would like copied and produced.
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During the inspection and before the designation, all of the material made
9
available for inspection shall be deemed “CONFIDENTIAL.” After the
10
inspecting Party has identified the documents it wants copied and produced,
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the Producing Party must determine which documents, or portions thereof,
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qualify for protection under this Order. Then, before producing the specified
13
documents, the Producing Party must affix the “CONFIDENTIAL legend” to
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each page that contains Protected Material. If only a portion of the material on
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a page qualifies for protection, the Producing Party also must clearly identify
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the protected portion(s) (e.g., by making appropriate markings in the margins).
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(b) for testimony given in depositions that the Designating Party
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identifies the Disclosure or Discovery Material on the record, before the close
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of the deposition all protected testimony.
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(c) for information produced in some form other than documentary
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and for any other tangible items, that the Producing Party affix in a prominent
22
place on the exterior of the container or containers in which the information is
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stored the legend “CONFIDENTIAL.” If only a portion or portions of the
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information warrants protection, the Producing Party, to the extent practicable,
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shall identify the protected portion(s).
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7.3 Inadvertent Failures to Designate. If timely corrected, an
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inadvertent failure to designate qualified information or items does not,
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1 standing alone, waive the Designating Party’s right to secure protection under
2 this Order for such material. Upon timely correction of a designation, the
3 Receiving Party must make reasonable efforts to assure that the material is
4 treated in accordance with the provisions of this Order.
5 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6 8.1. Timing of Challenges. Any Party or Non-Party may challenge a
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designation of confidentiality at any time that is consistent with the Court’s
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Scheduling Order.
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8.2 Meet and Confer. The Challenging Party shall initiate the dispute
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resolution process under Local Rule 37-1 et seq.
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8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
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joint stipulation pursuant to Local Rule 37-2.
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8.4 The burden of persuasion in any such challenge proceeding shall be
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on the Designating Party. Frivolous challenges, and those made for an
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improper purpose (e.g., to harass or impose unnecessary expenses and burdens
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on other parties) may expose the Challenging Party to sanctions. Unless the
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Designating Party has waived or withdrawn the confidentiality designation, all
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parties shall continue to afford the material in question the level of protection to
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which it is entitled under the Producing Party’s designation until the Court
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rules on the challenge.
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9. ACCESS TO AND USE OF PROTECTED MATERIAL
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9.1 Basic Principles. A Receiving Party may use Protected Material that
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is disclosed or produced by another Party or by a Non-Party in connection with
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this Action only for prosecuting, defending or attempting to settle this Action.
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Such Protected Material may be disclosed only to the categories of persons and
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under the conditions described in this Order. When the Action has been
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1 terminated, a Receiving Party must comply with the provisions of section 15
2 below (FINAL DISPOSITION).
3 Protected Material must be stored and maintained by a Receiving Party
4 at a location and in a secure manner that ensures that access is limited to the
5 persons authorized under this Order.
6 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
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otherwise ordered by the court or permitted in writing by the Designating
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Party, a Receiving Party may disclose any information or item designated
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“CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this Action,
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as well as employees of said Outside Counsel of Record to whom it is
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reasonably necessary to disclose the information for this Action;
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(b) the officers, directors, and employees (including House
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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for
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this Action;
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(c) Experts (as defined in this Order) of the Receiving Party to
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whom disclosure is reasonably necessary for this Action and who have signed
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the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d) the court and its personnel;
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(e) court reporters and their staff;
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(f) professional jury or trial consultants, mock jurors, and
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Professional Vendors to whom disclosure is reasonably necessary for this
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Action and who have signed the “Acknowledgment and Agreement to Be
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Bound” (Exhibit A);
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(g) the author or recipient of a document containing the
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information or a custodian or other person who otherwise possessed or knew
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the information;
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1 (h) during their depositions, witnesses, and attorneys for witnesses,
2 in the Action to whom disclosure is reasonably necessary provided: (1) the
3 deposing party requests that the witness sign the form attached as Exhibit A
4 hereto; and (2) they will not be permitted to keep any confidential information
5 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit
6 A), unless otherwise agreed by the Designating Party or ordered by the court.
7 Pages of transcribed deposition testimony or exhibits to depositions that reveal
8
Protected Material may be separately bound by the court reporter and may not
9
be disclosed to anyone except as permitted under this Stipulated Protective
10
Order; and
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(i) any mediators or settlement officers and their supporting
12
personnel, mutually agreed upon by any of the parties engaged in settlement
13
discussions.
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10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
15 PRODUCED IN OTHER LITIGATION
16 If a Party is served with a subpoena or a court order issued in other
17 litigation that compels disclosure of any information or items designated in this
18 Action as “CONFIDENTIAL,” that Party must:
19 (a) promptly notify in writing the Designating Party. Such
20 notification shall include a copy of the subpoena or court order;
21 (b) promptly notify in writing the party who caused the subpoena
22 or order to issue in the other litigation that some or all of the material covered
23 by the subpoena or order is subject to this Protective Order. Such notification
24 shall include a copy of this Stipulated Protective Order; and
25 (c) cooperate with respect to all reasonable procedures sought to be
26 pursued by the Designating Party whose Protected Material may be affected. If
27 the Designating Party timely seeks a protective order, the Party served with the
28 subpoena or court order shall not produce any information designated in this
1 action as “CONFIDENTIAL” before a determination by the court from which
2 the subpoena or order issued, unless the Party has obtained the Designating
3 Party’s permission. The Designating Party shall bear the burden and expense of
4 seeking protection in that court of its confidential material and nothing in these
5 provisions should be construed as authorizing or encouraging a Receiving Party
6 in this Action to disobey a lawful directive from another court.
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11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
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BE PRODUCED IN THIS LITIGATION
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(a) The terms of this Order are applicable to information produced
10
by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
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information produced by Non-Parties in connection with this litigation is
12
protected by the remedies and relief provided by this Order. Nothing in these
13
provisions should be construed as prohibiting a Non-Party from seeking
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additional protections.
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(b) In the event that a Party is required, by a valid discovery
16
request, to produce a Non-Party’s confidential information in its possession,
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and the Party is subject to an agreement with the Non-Party not to produce the
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Non-Party’s confidential information, then the Party shall:
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(1) promptly notify in writing the Requesting Party and the Non-
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Party that some or all of the information requested is subject to a confidentiality
21
agreement with a Non-Party;
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(2) promptly provide the Non-Party with a copy of the Stipulated
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Protective Order in this Action, the relevant discovery request(s), and a
24
25 reasonably specific description of the information requested; and
26 (3) make the information requested available for inspection by the
27 Non-Party, if requested.
28 (c) If the Non-Party fails to seek a protective order from this court
1 within 14 days of receiving the notice and accompanying information, the
2 Receiving Party may produce the Non-Party’s confidential information
3 responsive to the discovery request. If the Non-Party timely seeks a protective
4 order, the Receiving Party shall not produce any information in its possession
5 or control that is subject to the confidentiality agreement with the Non-Party
6 before a determination by the court. Absent a court order to the contrary, the
7 Non-Party shall bear the burden and expense of seeking protection in this court
8
of its Protected Material.
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12. UNAUTHORIZED DISCLOSURE OF PROTECTED
10 MATERIAL
11
If a Receiving Party learns that, by inadvertence or otherwise, it has
12
disclosed Protected Material to any person or in any circumstance not
13
authorized under this Stipulated Protective Order, the Receiving Party must
14
immediately (a) notify in writing the Designating Party of the unauthorized
15
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
16
Protected Material, (c) inform the person or persons to whom unauthorized
17
disclosures were made of all the terms of this Order, and (d) request such
18
person or persons to execute the “Acknowledgment an Agreement to Be
19
Bound” attached hereto as Exhibit A.
20
13. INADVERTENT PRODUCTION OF PRIVILEGED OR
21 OTHERWISE PROTECTED MATERIAL
22
When a Producing Party gives notice to Receiving Parties that certain
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inadvertently produced material is subject to a claim of privilege or other
24
protection, the obligations of the Receiving Parties are those set forth in Federal
25
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
26
whatever procedure may be established in an e-discovery order that provides
27
for production without prior privilege review. Pursuant to Federal Rule of
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1 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect
2 of disclosure of a communication or information covered by the attorney-client
3 privilege or work product protection, the parties may incorporate their
4 agreement in the stipulated protective order submitted to the court.
5 14. MISCELLANEOUS
6 14.1 Right to Further Relief. Nothing in this Order abridges the right of
7
any person to seek its modification by the Court in the future.
8
14.2 Right to Assert Other Objections. By stipulating to the entry of this
9
Protective Order, no Party waives any right it otherwise would have to object to
10
disclosing or producing any information or item on any ground not addressed
11
in this Stipulated Protective Order. Similarly, no Party waives any right to
12
object on any ground to use in evidence of any of the material covered by this
13
Protective Order.
14
14.3 Filing Protected Material. A Party that seeks to file under seal any
15
Protected Material must comply with Local Civil Rule 79-5. Protected Material
16
may only be filed under seal pursuant to a court order authorizing the sealing of
17
the specific Protected Material. If a Party’s request to file Protected Material
18
under seal is denied by the court, then the Receiving Party may file the
19
information in the public record unless otherwise instructed by the court.
20
15. FINAL DISPOSITION
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After the final disposition of this Action, as defined in paragraph 6,
22
within 60 days of a written request by the Designating Party, each Receiving
23
Party must return all Protected Material to the Producing Party or destroy such
24
material. As used in this subdivision, “all Protected Material” includes all
25
copies, abstracts, compilations, summaries, and any other format reproducing
26
or capturing any of the Protected Material. Whether the Protected Material is
27
returned or destroyed, the Receiving Party must submit a written certification
28
! | to the Producing Party (and, if not the same person or entity, to the Designating
2 | Party) by the 60-day deadline that (1) identifies (by category, where
3 appropriate) all the Protected Material that was returned or destroyed and (2)
4 | affirms that the Receiving Party has not retained any copies, abstracts,
5 compilations, summaries or any other format reproducing or capturing any of
6 | the Protected Material. Notwithstanding this provision, Counsel are entitled to
7 | retain an archival copy of all pleadings, motion papers, trial, deposition, and
8 hearing transcripts, legal memoranda, correspondence, deposition and trial
? exhibits, expert reports, attorney work product, and consultant and expert work
10 product, even if such materials contain Protected Material. Any such archival
I] copies that contain or constitute Protected Material remain subject to this
12 | Protective Order as set forth in Section 6 (DURATION).
13 16. VIOLATION
Any violation of this Order may be punished by appropriate measures
I5 including, without limitation, contempt proceedings and/or monetary
16 sanctions.
17
18 | GOOD CAUSE HAVING BEEN SHOWN BY THE PARTIES’
19 STIPULATION, IT IS SO ORDERED.
20
91 | DATED: April 1, 2021 fi | □ .
22
HON. PEDRO V. CASTILLO
23 United States Magistrate Judge
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-15-
STIPULATED PROTECTIVE ORDEI
1 REHAM YOUSSEF, an individual, Case No. 5:20-cv-02016 JWH (PVCx)
2 Plaintiff,
3 v. EXHIBIT A
4 T-MOBILE USA, INC. and DOES 1
- 30,
5
Defendant.
6
7
EXHIBIT A
8
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
9
I, __________________________ [FULL NAME], of _________________
10
[POSITION AND EMPLOYER], declare that I have read in its entirety and
11
understand the Stipulated Protective Order that was issued by the United States
12
District Court for the Central District of California on [DATE ISSUED] in Reham
13
Youssef v. T-Mobile USA, Inc., Case No. 5:20-cv-02016 JWH (PVCx). I agree to
14
comply with and to be bound by all the terms of this Stipulation and Protective
15
Order and I understand and acknowledge that failure to so comply could expose
16
me to sanctions and punishment in the nature of contempt. I solemnly promise that
17
I will not disclose in any manner any information or item that is subject to this
18
Stipulation and Protective Order to any person or entity except in strict compliance
19
with the provisions of this Order. I further agree to submit to the jurisdiction of
20
the United States District Court for the Central District of California, for the
21
purpose of enforcing the terms of this Stipulation and Protective Order, even if
22
such enforcement proceedings occur after termination of this action.
23
24
25
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27
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1 I declare under penalty of perjury, under the laws of the State of California,
2 that the foregoing is true and correct. Executed this ___, day of ____________,
3 21___, at ___________, _____________.
4
DATED: ______________ BY:
5
Signature
6
Title
7
8 Address
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City, State, Zip
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Telephone Number
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