even stipulated protective orders require 16 good cause showing
How later courts described this case
- even stipulated protective orders require 16 good cause showing
Written by the judges who cited it.
The opinion
1 HOLLAND & KNIGHT LLP
Raymond Y. Kim (SBN 251210)
2 Zachary Frampton (SBN 303225)
400 South Hope Street, 8th Floor
3 Los Angeles, CA 90071
Telephone: 213.896.2400
4 Fax: 213.896.2450
E-Mail: raymond.kim@hklaw.com
5 zac.frampton@hklaw.com
6 Attorneys for Defendant
Hyundai Capital America, Inc.
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 SOUTHERN DIVISION
11 DAVID LEE, ) Case No.: 8:20-cv-01339-CJC-DFM
)
12 Plaintiff, ) [XPRXOXPXOXSXEXDX] STIPULATED
) PROTECTIVE ORDER AND
13 vs. ) CONFIDENTIALITY
) AGREEMENT
14 HYUNDAI CAPITAL AMERICA; )
AND, PATRIOT HYUNDAI OF EL ) Judge Cormac J. Carney
15 MONTE, ) Mag. Judge Douglas F. McCormick
) Complaint Filed: July 24, 2020
16 Defendants. ) Cross-Complaint Filed: Sept. 1, 2020
)
17 )
)
18 )
PATRIOT HYUNDAI OF EL MONTE, )
19 )
Cross-Claimant, )
20 )
vs. )
21 )
HYUNDAI CAPITAL AMERICA, )
22 )
Cross-Defendant. )
23 )
)
24 )
)
25
26
27
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 prosecuting this litigation
5 may 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 his 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.
11 GOOD CAUSE STATEMENT
12 This action is likely to involve confidential, financial, and/or proprietary
13 information for which special protection from public disclosure and from use
14 for any purpose other than prosecution of this action is warranted. Such
15 confidential and proprietary materials and information consist of, among other
16 things, confidential business or financial information, information regarding
17 confidential business practices, or other confidential, commercial information
18 (including information implicating privacy rights of third parties), information
19 otherwise generally unavailable to the public, or which may be privileged or
20 otherwise protected from disclosure under state or federal statutes, court rules,
21 case decisions, or common law. Accordingly, to expedite the flow of
22 information, to facilitate the prompt resolution of disputes over confidentiality
23 of discovery materials, to adequately protect information the parties are
24 entitled to keep confidential, to ensure that the parties are permitted reasonable
25 necessary uses of such material in preparation for and in the conduct of trial, to
26 address their handling at the end of the litigation, and serve the ends of justice,
27 a protective order for such information is justified in this matter. It is the intent
of the parties that information will not be designated as confidential for tactical
1 reasons and that nothing be so designated without a good faith belief that it has been
2 maintained in a confidential, non-public manner, and there is good cause why it
3 should not be part of the public record of this case.
4 ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
5 The parties further acknowledge, as set forth in Section 12.3, below, that this
6 Stipulated Protective Order does not entitle them to file confidential information
7 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
8 the standards that will be applied when a party seeks permission from the court to file
9 material under seal.
10 There is a strong presumption that the public has a right of access to judicial
11 proceedings and records in civil cases. In connection with non-dispositive motions,
12 good cause must be shown to support a filing under seal. See Kamakana v. City and
13 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors
14 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,
15 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require
16 good cause showing), and a specific showing of good cause or compelling reasons
17 with proper evidentiary support and legal justification, must be made with respect to
18 Protected Material that a party seeks to file under seal. The parties' mere designation
19 of Disclosure or Discovery Material as CONFIDENTIAL does not—without the
20 submission of competent evidence by declaration, establishing that the material
21 sought to be filed under seal qualifies as confidential, privileged, or otherwise
22 protectable—constitute good cause.
23 Further, if a party requests sealing related to a dispositive motion or trial, then
24 compelling reasons, not only good cause, for the sealing must be shown, and the
25 relief sought shall be narrowly tailored to serve the specific interest to be protected.
26 See Pintos v. Pacific Creditors Ass'n., 605 F.3d 665, 677-79 (9th Cir. 2010). For
27 each item or type of information, document, or thing sought to be filed or introduced
under seal in connection with a dispositive motion or trial, the party seeking
1 protection must articulate compelling reasons, supported by specific facts and
2 legal justification, for the requested sealing order. Again, competent evidence
3 supporting the application to file documents under seal must be provided by
4 declaration.
5 Any document that is not confidential, privileged, or otherwise
6 protectable in its entirety will not be filed under seal if the confidential portions
7 can be redacted. If documents can be redacted, then a redacted version for
8 public viewing, omitting only the confidential, privileged, or otherwise
9 protectable portions of the document, shall be filed. Any application that seeks
10 to file documents under seal in their entirety should include an explanation of
11 why redaction is not feasible.
12 2. DEFINITIONS
13 2.1 Action: the above-captioned case.
14 2.2 Challenging Party: a Party or Non-Party that challenges the
15 designation of information or items under this Order.
16 2.3 "CONFIDENTIAL" Information or Items: information (regardless
17 of how it is generated, stored or maintained) or tangible things that qualify for
18 protection under Federal Rule of Civil Procedure 26(c), and as specified above
19 in the Good Cause Statement.
20 2.4 Counsel (without qualifier): Outside Counsel of Record and
21 House Counsel (as well as their support staff).
22 2.5 Designating Party: a Party or Non-Party that designates
23 information or items that it produces in disclosures or in responses to discovery
24 as "CONFIDENTIAL."
25 2.6 Disclosure or Discovery Material: all items or information,
26 regardless of the medium or manner in which it is generated, stored, or
27 maintained (including, among other things, testimony, transcripts, and tangible
things), that are produced or generated in disclosures or responses to discovery
1 in this matter.
2 2.7 Expert: a person with specialized knowledge or experience in a matter
3 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
4 expert witness or as a consultant in this Action.
5 2.8 House Counsel: attorneys who are employees of a party to this Action.
6 House Counsel does not include Outside Counsel of Record or any other outside
7 counsel.
8 2.9 Non-Party: any natural person, partnership, corporation, association or
9 other legal entity not named as a Party to this action.
10 2.10 Outside Counsel of Record: attorneys who are not employees of a party
11 to this action but are retained to represent or advise a party to this Action and have
12 appeared in this action on behalf of that party or are affiliated with a law firm which
13 has appeared on behalf of that party, and includes support staff.
14 2.11 Party: any party to this action, including all of its officers, directors,
15 employees, consultants, retained experts, and Outside Counsel of Record (and their
16 support staffs).
17 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
18 Discovery Material in this action.
19 2.13 Professional Vendors: persons or entities, not employed by or affiliated
20 with a Party, that provide litigation support services (e.g., photocopying, videotaping,
21 translating, preparing exhibits or demonstrations, and organizing, storing, or
22 retrieving data in any form or medium) and their employees and subcontractors.
23 2.14 Protected Material: any Disclosure or Discovery Material that is
24 designated as "CONFIDENTIAL."
25 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
26 from a Producing Party.
27
1 3. 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. This Order does not govern the use of Protected Material at
9 trial.
10 4. 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 5. DESIGNATING PROTECTED MATERIAL
22 5.1 Exercise of Restraint and Care in Designating Material for
23 Protection. Each Party or Non-Party that designates information or items for
24 protection under this Order must take care to limit any such designation to
25 specific material that qualifies under the appropriate standards. The
26 Designating Party must designate for protection only those parts of material,
27 documents, items or oral or written communications that qualify so that other
portions of the material, documents, items or communications for which
1 protection is not warranted are not swept unjustifiably within the ambit of this Order.
2 Mass, indiscriminate or routinized designations are prohibited. Designations that are
3 shown to be clearly unjustified or that have been made for an improper purpose (e.g.,
4 to unnecessarily encumber the case development process or to impose unnecessary
5 expenses and burdens on other parties) may expose the Designating Party to
6 sanctions.
7 If it comes to a Designating Party's attention that information or items that it
8 designated for protection do not qualify for protection, that Designating Party must
9 promptly notify all other Parties that it is withdrawing the inapplicable designation.
10 5.2 Manner and Timing of Designations. Except as otherwise provided in
11 this Order, or as otherwise stipulated or ordered, Disclosure or Discovery Material
12 that qualifies for protection under this Order must be clearly so designated before the
13 material is disclosed or produced.
14 Designation in conformity with this Order requires:
15 (a) for information in documentary form (e.g., paper or electronic
16 documents, but excluding transcripts of depositions or other pretrial or trial
17 proceedings), that the Producing Party affix at a minimum, the legend
18 "CONFIDENTIAL" to each page that contains protected material.
19 (b) for testimony given in depositions that the Designating Party
20 identifies the Disclosure or Discovery Material on the record, before the close of the
21 deposition all protected testimony.
22 (c) for information produced in some form other than documentary
23 and for any other tangible items, that the Producing Party affix in a prominent place
24 on the exterior of the container or containers in which the information is stored the
25 legend "CONFIDENTIAL."
26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
27 failure to designate qualified information or items does not, standing alone, waive the
Designating Party's right to secure protection under this Order for such material.
1 Upon timely correction of a designation, the Receiving Party must make
2 reasonable efforts to assure that the material is treated in accordance with the
3 provisions of this Order.
4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
5 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
6 designation of confidentiality at any time that is consistent with the Court's
7 Scheduling Order.
8 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
9 resolution process under Local Rule 37-1 et seq.
10 6.3 Joint Stipulation. Any challenge submitted to the Court shall be
11 via a joint stipulation pursuant to Local Rule 37-2.
12 6.4 The burden of persuasion in any such challenge proceeding shall
13 be on the Designating Party. Frivolous challenges, and those made for an
14 improper purpose (e.g., to harass or impose unnecessary expenses and burdens
15 on other parties) may expose the Challenging Party to sanctions. Unless the
16 Designating Party has waived or withdrawn the confidentiality designation, all
17 parties shall continue to afford the material in question the level of protection
18 to which it is entitled under the Producing Party's designation until the Court
19 rules on the challenge.
20 7. ACCESS TO AND USE OF PROTECTED MATERIAL
21 7.1 Basic Principles. A Receiving Party may use Protected Material
22 that is disclosed or produced by another Party or by a Non-Party in connection
23 with this Action only, for prosecuting, defending or attempting to settle this
24 Action. Such Protected Material may be disclosed only to the categories of
25 persons and under the conditions described in this Order. When the Action has
26 been terminated, a Receiving Party must comply with the provisions of section
27 13 below (FINAL DISPOSITION). Protected Material must be stored and
maintained by a Receiving Party at a location and in a secure manner that
1 ensures that access is limited to the persons 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
7 well 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)
10 of the 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
17 Professional Vendors to whom disclosure is reasonably necessary for this Action
18 and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit
19 A);
20 (g) the author or recipient of a document containing the information
21 or a custodian or other person who otherwise possessed or knew the information;
22 (h) during their depositions, witnesses, and attorneys for witnesses,
23 in the Action to whom disclosure is reasonably necessary provided: (1) the deposing
24 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
25 they will not be permitted to keep any confidential information unless they sign the
26 "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise
27 agreed by the Designating Party or ordered by the court. Pages of transcribed
deposition testimony or exhibits to depositions that reveal Protected Material may be
1 separately bound by the court reporter and may not be disclosed to
2 anyone except as permitted under this Stipulated Protective Order; and
3 (i) any mediator or settlement officer, and their
4 supporting personnel, mutually agreed upon by any of the parties
5 engaged in settlement discussions.
6 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
7 PRODUCED IN OTHER LITIGATION
8 If a Party is served with a subpoena or a court order issued in other
9 litigation that compels disclosure of any information or items designated in this
10 Action as "CONFIDENTIAL," that Party must:
11 (a) promptly notify in writing the Designating Party. Such
12 notification shall include a copy of the subpoena or court order;
13 (b) promptly notify in writing the party who caused the subpoena or
14 order to issue in the other litigation that some or all of the material covered by
15 the subpoena or order is subject to this Protective Order. Such notification
16 shall include a copy of this Protective Order; and
17 (c) cooperate with respect to all reasonable procedures sought to be
18 pursued by the Designating Party whose Protected Material may be affected.
19 If the Designating Party timely seeks a protective order, the Party served with
20 the subpoena or court order shall not produce any information designated in
21 this action as "CONFIDENTIAL" before a determination by the court from
22 which the subpoena or order issued, unless the Party has obtained the
23 Designating Party's permission. The Designating Party shall bear the burden
24 and expense of seeking protection in that court of its confidential material and
25 nothing in these provisions should be construed as authorizing or encouraging
26 a Receiving Party in this Action to disobey a lawful directive from another
27 court.
1 9. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE
2 PRODUCED IN THIS LITIGATION
3 (a) The terms of this Order are applicable to information produced by
4 a Non-Party in this Action and designated as "CONFIDENTIAL." Such information
5 produced by Non-Parties in connection with this litigation is protected by the
6 remedies and relief provided by this Order. Nothing in these provisions should be
7 construed as prohibiting a Non-Party from seeking additional protections.
8 (b) In the event that a Party is required, by a valid discovery request,
9 to produce a Non-Party's confidential information in its possession, and the Party is
10 subject to an agreement with the Non-Party not to produce the Non-Party's
11 confidential information, then the Party shall:
12 1) promptly notify in writing the Requesting Party and the
13 Non-Party that some or all of the information requested is subject to a confidentiality
14 agreement with a Non-Party;
15 2) promptly notify in writing the Requesting Party and the
16 Non-Party that some or all of the information requested is subject to a confidentiality
17 agreement with a Non-Party;
18 3) make the information requested available for inspection by
19 the Non-Party, if requested.
20 (c) If the Non-Party fails to seek a protective order from this court
21 within 14 days of receiving the notice and accompanying information, the Receiving
22 Party may produce the Non-Party's confidential information responsive to the
23 discovery request. If the Non-Party timely seeks a protective order, the Receiving
24 Party shall not produce any information in its possession or control that is subject to
25 the confidentiality agreement with the Non-Party before a determination by the court.
26 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
27 of seeking protection in this court of its Protected Material.
1 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
3 Protected Material to any person or in any circumstance not authorized under
4 this Stipulated Protective Order, the Receiving Party must immediately (a)
5 notify in writing the Designating Party of the unauthorized disclosures, (b) use
6 its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
7 inform the person or persons to whom unauthorized disclosures were made of
8 all the terms of this Order, and (d) request such person or persons to execute
9 the "Acknowledgment and Agreement to Be Bound" that is attached hereto as
10 Exhibit A.
11 10. INADVERTENT PRODUCTION OF PRIVILEGED OR
12 OTHERWISE PROTECTED MATERIAL
13 When a Producing Party gives notice to Receiving Parties that certain
14 inadvertently produced material is subject to a claim of privilege or other
15 protection, the obligations of the Receiving Parties are those set forth in
16 Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
17 modify whatever procedure may be established in an e-discovery order that
18 provides for production without prior privilege review. Pursuant to Federal
19 Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on
20 the effect of disclosure of a communication or information covered by the
21 attorney-client privilege or work product protection, the parties may
22 incorporate their agreement in the stipulated protective order submitted to the
23 court.
24 11. MISCELLANEOUS
25 11.1 Right to Further Relief. Nothing in this Order abridges the right
26 of any person to seek its modification by the court in the future.
27 11.2 Right to Assert Other Objections. By stipulating to the entry of
this Protective Order, no Party waives any right it otherwise would have to
1 object to disclosing or producing any information or item on any ground not
2 addressed in this Stipulated Protective Order. Similarly, no Party waives any right to
3 object on any ground to use in evidence of any of the material covered by this
4 Protective Order.
5 11.3 Filing Protected Material. A Party that seeks to file under seal any
6 Protected Material must comply with Local Civil Rule 79-5. Protected Material may
7 only be filed under seal pursuant to a court order authorizing the sealing of the
8 specific Protected Material at issue. If a Party's request to file Protected Material
9 under seal is denied by the court, then the Receiving Party may file the information in
10 the public record unless otherwise instructed by the court.
11 12. FINAL DISPOSITION
12 After the final disposition of this Action, as defined in paragraph 4, within 60
13 days of a written request by the Designating Party, each Receiving Party must return
14 all Protected Material to the Producing Party or destroy such material. As used in
15 this subdivision, "all Protected Material" includes all copies, abstracts, compilations,
16 summaries, and any other format reproducing or capturing any of the Protected
17 Material. Whether the Protected Material is returned or destroyed, the Receiving
18 Party must submit a written certification to the Producing Party (and, if not the same
19 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
20 (by category, where appropriate) all the Protected Material that was returned or
21 destroyed and (2) affirms that the Receiving Party has not retained any copies,
22 abstracts, compilations, summaries or any other format reproducing or capturing any
23 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
24 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
25 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
26 reports, attorney work product, and consultant and expert work product, even if such
27 materials contain Protected Material. Any such archival copies that contain or
constitute Protected Material remain subject to this Protective Order as set forth in
1 || Section 4 (DURATION).
2 || 13. VIOLATION
3 Any violation of this Order may be punished by appropriate measures
4 || including, without limitation, contempt proceedings and/or monetary sanctions.
6 || ITISSO STIPULATED.
8 || Dated: March 31, 2021 HOLLAND & KNIGHT LLP
9 By: /s/ Zachary C. Frampton
10 Zachary C. Frampton
Attor or Defendant
11 Hyundai Cp endant | Ince.
12
13 Dated: March Z6, 2021 HESS & NGHIEM La
14 By: oS thAde
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Attorneys for Plaintiff David Lee
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3 17|| Dated: March % 2021 LEWIS BRISBOIS BISGAARD & SMITH LLP
18
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20 Pe ata El Monte
21
22 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
23
DATED: _ April 6, 2021
25 | ; + /)
26 ‘VV * * eee
HON. MOUGLAS F. MCCORMICK
United States Magistrate Judge
28
-14-
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, ______________________________________________[print or type full name],
4 of ____________________________________________[print or type full address],
5 declare under penalty of perjury that I have read in its entirety and understand the
6 Stipulated Protective Order that was issued by the United States District Court for the
7 Central District of California on [date] in the case of ___________ [insert formal
8 name of the case and the number and initials assigned to it by the court]. I agree
9 to 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. I further agree to submit to the jurisdiction of the United
15 States District Court for the Central District of California for enforcing the terms of
16 this Stipulated Protective Order, even if such enforcement proceedings occur after
17 termination of this action.
18 I hereby appoint __________________________ [print or type full name] of
19 _______________________________________ [print or type 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 sworn and signed: _________________________________
25
26 Printed name: _______________________________
27
Signature: __________________________________