Opinion

Dan Raines v. Enrich Financial, Inc.

Court: District Court, C.D. California
Filed: Apr 19, 2021
Cited by: 0 cases
Authority: More cited than 17.9%

distinguishing 15 “good cause” showing for sealing documents produced in discovery from 16 “compelling reasons” standard when merits-related documents are part of court 17 record

How later courts described this case

distinguishing 15 “good cause” showing for sealing documents produced in discovery from 16 “compelling reasons” standard when merits-related documents are part of court 17 record
even stipulated protective orders 11 require good cause showing

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DAN RAINES, ) CASE NO. 2:20-cv-07551-JFW-JC

)

Plaintiff, ) MODIFIED STIPULATED

12 ) PROTECTIVE ORDER

v. )

13 ) [CHANGES MADE BY COURT TO

ENRICH FINANCIAL, INC., et ) PARAGRAPHS 1B, 1C,_3, 7.2(h), 8(c),

14 al., ) 9(c), 12.3]

)

15 Defendant. )

) Assigned to: Judge John F. Walter

16 )

)

18 1. A. PURPOSES AND LIMITATIONS

19 Discovery in this action is likely to involve production of confidential,

20 proprietary or private information for which special protection from public

21 disclosure and from use for any purpose other than prosecuting this litigation may

22 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

enter the following Stipulated Protective Order. The parties acknowledge that this

Order does not confer blanket protections on all disclosures or responses to

discovery and that the protection it affords from public disclosure and use extends

only to the limited information or items that are entitled to confidential treatment

under the applicable legal principles.

1 B. GOOD CAUSE STATEMENT

2 This action is likely to involve trade secrets, customer and pricing lists and

3 other valuable research, development, commercial, financial, technical and/or

proprietary information for which special protection from public disclosure and

from use for any purpose other than prosecution of this action is warranted. Such

confidential and proprietary materials and information consist of, among other

things, confidential business or financial information, information regarding

confidential business practices, or other confidential research, development, or

commercial information (including information implicating privacy rights of third

parties), information otherwise generally unavailable to the public, or which may

be privileged or otherwise protected from disclosure under state or federal statutes,

court rules, case decisions, or common law. Accordingly, to expedite the flow of

14 information, to facilitate the prompt resolution of disputes over confidentiality of

15 discovery materials, to adequately protect information the parties are entitled to

16 keep confidential, to ensure that the parties are permitted reasonable necessary uses

17 of such material in connection with this action, to address their handling of such

18 material at the end of the litigation, and to serve the ends of justice, a protective

19 order for such information is justified in this matter. It is the intent of the parties

20 that information will not be designated as confidential for tactical reasons and that

nothing be so designated without a good faith belief that it has been maintained in

a confidential, non-public manner, and there is good cause or a compelling reason

why it should not be part of the public record of this case.

C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

25 SEAL

The parties further acknowledge, as set forth in Section 12.3, below, that this

Stipulated Protective Order does not entitle them to file confidential information

1 under seal. Rather, when the parties seek permission from the court to file material

2 under seal, the parties must comply with Local Civil Rule 79-5 and with any

3 pertinent orders of the assigned District Judge and Magistrate Judge. See, e.g.,

District Judge’s Standing Order, ¶ 9 (Docket No. 9).

There is a strong presumption that the public has a right of access to judicial

proceedings and records in civil cases. In connection with non-dispositive motions,

good cause must be shown to support a filing under seal. See Kamakana v. City and

County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors

Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,

Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

require good cause showing), and a specific showing of good cause or compelling

reasons with proper evidentiary support and legal justification, must be made with

14 respect to Protected Material that a party seeks to file under seal. The parties’ mere

15 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

16 without the submission of competent evidence by declaration, establishing that the

17 material sought to be filed under seal qualifies as confidential, privileged, or

18 otherwise protectable—constitute good cause.

19 Further, if a party requests sealing related to a dispositive motion or trial, then

20 compelling reasons, not only good cause, for the sealing must be shown, and the

relief sought shall be narrowly tailored to serve the specific interest to be protected.

See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For

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

protection must articulate compelling reasons, supported by specific facts and legal

justification, for the requested sealing order. Again, competent evidence supporting

the application to file documents under seal must be provided by declaration. Any

1 document that is not confidential, privileged, or otherwise protectable in its entirety

2 will not be filed under seal if the confidential portions can be redacted. If documents

3 can be redacted, then a redacted version for public viewing, omitting only the

confidential, privileged, or otherwise protectable portions of the document, shall be

filed. Any application that seeks to file documents under seal in their entirety should

include an explanation of why redaction is not feasible.

2. DEFINITIONS

2.1 Action: This pending federal lawsuit.

2.2 Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.

2.3 “CONFIDENTIAL” Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things that qualify for

14 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

15 the Good Cause Statement.

16 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

17 their support staff).

18 2.5 Designating Party: a Party or Non-Party that designates information or

19 items that it produces in disclosures or in responses to discovery as

20 “CONFIDENTIAL.”

2.6 Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,

among other things, testimony, transcripts, and tangible things), that are produced

or generated in disclosures or responses to discovery in this matter.

2.7 Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as

an expert witness or as a consultant in this Action.

1 2.8 House Counsel: attorneys who are employees of a party to this Action.

2 House Counsel does not include Outside Counsel of Record or any other outside

3 counsel.

2.9 Non-Party: any natural person, partnership, corporation, association or

other legal entity not named as a Party to this action.

2.10 Outside Counsel of Record: attorneys who are not employees of a party

to this Action but are retained to represent or advise a party to this Action and have

appeared in this Action on behalf of that party or are affiliated with a law firm that

has appeared on behalf of that party, and includes support staff.

2.11 Party: any party to this Action, including all of its officers, directors,

employees, consultants, retained experts, and Outside Counsel of Record (and their

support staffs).

14 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

15 Discovery Material in this Action.

16 2.13 Professional Vendors: persons or entities that provide litigation

17 support services (e.g., photocopying, videotaping, translating, preparing exhibits or

18 demonstrations, and organizing, storing, or retrieving data in any form or medium)

19 and their employees and subcontractors.

20 2.14 Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”

2.15 Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.

3. SCOPE

The protections conferred by this Stipulation and Order cover not only

Protected Material (as defined above), but also (1) any information copied or

extracted from Protected Material; (2) all copies, excerpts, summaries, or

1 compilations of Protected Material; and (3) any deposition testimony,

2 conversations, or presentations by Parties or their Counsel that might reveal

3 Protected Material other than during a court hearing or at trial. Any use of Protected

Material during a court hearing or at trial shall be governed by the orders of the

presiding judge. This Order does not govern the use of Protected Material during a

court hearing or at trial.

4. DURATION

Once a case proceeds to trial, information that was designated as

CONFIDENTIAL or maintained pursuant to this protective order used or

introduced as an exhibit at trial becomes public and will be presumptively available

to all members of the public, including the press, unless compelling reasons

supported by specific factual findings to proceed otherwise are made to the trial

14 judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing

15 “good cause” showing for sealing documents produced in discovery from

16 “compelling reasons” standard when merits-related documents are part of court

17 record). Accordingly, the terms of this protective order do not extend beyond the

18 commencement of the trial.

19 5. DESIGNATING PROTECTED MATERIAL

20 5.1 Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under

this Order must take care to limit any such designation to specific material that

qualifies under the appropriate standards. The Designating Party must designate for

protection only those parts of material, documents, items or oral or written

communications that qualify so that other portions of the material, documents, items

or communications for which protection is not warranted are not swept unjustifiably

within the ambit of this Order.

1 Mass, indiscriminate or routinized designations are prohibited. Designations

2 that are shown to be clearly unjustified or that have been made for an improper

3 purpose (e.g., to unnecessarily encumber the case development process or to impose

unnecessary expenses and burdens on other parties) may expose the Designating

Party to sanctions.

If it comes to a Designating Party’s attention that information or items that it

designated for protection do not qualify for protection, that Designating Party must

promptly notify all other Parties that it is withdrawing the inapplicable designation.

5.2 Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

under this Order must be clearly so designated before the material is disclosed or

14 produced.

15 Designation in conformity with this Order requires:

16 (a) for information in documentary form (e.g., paper or electronic

17 documents, but excluding transcripts of depositions or other pretrial or trial

18 proceedings), that the Producing Party affix at a minimum, the legend

19 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

20 contains protected material. If only a portion of the material on a page qualifies for

protection, the Producing Party also must clearly identify the protected portion(s)

(e.g., by making appropriate markings in the margins).

A Party or Non-Party that makes original documents available for inspection

need not designate them for protection until after the inspecting Party has indicated

which documents it would like copied and produced. During the inspection and

before the designation, all of the material made available for inspection shall be

deemed “CONFIDENTIAL.” After the inspecting Party has identified the

1 documents it wants copied and produced, the Producing Party must determine

2 which documents, or portions thereof, qualify for protection under this Order. Then,

3 before producing the specified documents, the Producing Party must affix the

“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

portion of the material on a page qualifies for protection, the Producing Party also

must clearly identify the protected portion(s) (e.g., by making appropriate markings

in the margins).

(b) for testimony given in depositions that the Designating Party identifies

the Disclosure or Discovery Material on the record, before the close of the

deposition all protected testimony.

any other tangible items, that the Producing Party affix in a prominent place on the

14 exterior of the container or containers in which the information is stored the legend

15 “CONFIDENTIAL.” If only a portion or portions of the information warrants

16 protection, the Producing Party, to the extent practicable, shall identify the protected

17 portion(s).

18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

19 failure to designate qualified information or items does not, standing alone, waive

20 the Designating Party’s right to secure protection under this Order for such material.

Upon timely correction of a designation, the Receiving Party must make reasonable

efforts to assure that the material is treated in accordance with the provisions of this

Order.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1 Timing of Challenges. Any Party or Non-Party may challenge a

designation of confidentiality at any time that is consistent with the Court’s

Scheduling Order.

1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

2 resolution process under Local Rule 37-1 et seq.

3 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a

joint stipulation pursuant to Local Rule 37-2.

6.4 The burden of persuasion in any such challenge proceeding shall be on

the Designating Party. Frivolous challenges, and those made for an improper

purpose (e.g., to harass or impose unnecessary expenses and burdens on other

parties) may expose the Challenging Party to sanctions. Unless the Designating

Party has waived or withdrawn the confidentiality designation, all parties shall

continue to afford the material in question the level of protection to which it is

entitled under the Producing Party’s designation until the Court rules on the

challenge.

14 7. ACCESS TO AND USE OF PROTECTED MATERIAL

15 7.1 Basic Principles. A Receiving Party may use Protected Material that is

16 disclosed or produced by another Party or by a Non-Party in connection with this

17 Action only for prosecuting, defending or attempting to settle this Action. Such

18 Protected Material may be disclosed only to the categories of persons and under the

19 conditions described in this Order. When the Action has been terminated, a

20 Receiving Party must comply with the provisions of section 13 below (FINAL

DISPOSITION).

Protected Material must be stored and maintained by a Receiving Party at a

location and in a secure manner that ensures that access is limited to the persons

authorized under this Order.

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party,

///

1 Receiving Party may disclose any information or item designated

2 “CONFIDENTIAL” only to:

3 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well

as employees of said Outside Counsel of Record to whom it is reasonably necessary

to disclose the information for this Action;

(b) the officers, directors, and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this Action;

disclosure is reasonably necessary for this Action and who have signed the

“Acknowledgment and Agreement to Be Bound” (Exhibit A);

(d) the court and its personnel;

(e) court reporters and their staff;

14 (f) professional jury or trial consultants, mock jurors, and Professional

15 Vendors to whom disclosure is reasonably necessary for this Action and who have

16 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

17 (g) the author or recipient of a document containing the information or a

18 custodian or other person who otherwise possessed or knew the information;

19 (h) during their depositions, witnesses, and attorneys for witnesses, in the

20 Action to whom disclosure is reasonably necessary provided: (1) the deposing party

requests that the witness sign the “Acknowledgment and Agreement to Be Bound”

form (attached as Exhibit A hereto); and (2) they will not be permitted to keep any

confidential information unless they sign the “Acknowledgment and Agreement to

Be Bound” form (Exhibit A), unless otherwise 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 separately bound by the court

///

1 reporter and may not be disclosed to anyone except as permitted under this

2 Stipulated Protective Order; and

3 (i) any mediator or settlement officer, and their supporting personnel,

mutually agreed upon by any of the parties engaged in settlement discussions.

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

6 IN OTHER LITIGATION

If a Party is served with a subpoena or a court order issued in other litigation

that compels disclosure of any information or items designated in this Action as

“CONFIDENTIAL,” that Party must:

(a) promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;

(b) promptly notify in writing the party who caused the subpoena or order to

issue in the other litigation that some or all of the material covered by the subpoena

or order is subject to this Protective Order. Such notification shall include a copy of

this Stipulated Protective Order; and

17 (c) cooperate with respect to all reasonable procedures sought to be pursued

18 by the Designating Party whose Protected Material may be affected. If the

19 Designating Party timely seeks a protective order, the Party served with the

20 subpoena or court order shall not produce any information designated in this action

21 as “CONFIDENTIAL” before a determination by the court from which the

22 subpoena or order issued, unless the Party has obtained the Designating Party’s

23 permission or unless otherwise required by the law or court order. The Designating

Party shall bear the burden and expense of seeking protection in that court of its

confidential material and nothing in these provisions should be construed as

authorizing or encouraging a Receiving Party in this Action to disobey a lawful

directive from another 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 a Non-

4 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

construed as prohibiting a Non-Party from seeking additional protections.

(b) In the event that a Party is required, by a valid discovery request, to

produce a Non-Party’s confidential information in its possession, and the Party is

subject to an agreement with the Non-Party not to produce the Non-Party’s

confidential information, then the Party shall:

(1) promptly notify in writing the Requesting Party and the Non-Party

that some or all of the information requested is subject to a confidentiality

agreement with a Non-Party;

(2) promptly provide the Non-Party with a copy of the Stipulated

17 Protective Order in this Action, the relevant discovery request(s), and a

18 reasonably specific description of the information requested; and

19 (3) make the information requested available for inspection by the

20 Non-Party, if requested.

21 (c) If the Non-Party fails to seek a protective order from this court within 14

22 days of receiving the notice and accompanying information, the Receiving Party

23 may produce the Non-Party’s confidential information responsive to the discovery

request. If the Non-Party timely seeks a protective order, the Receiving Party shall

not produce any information in its possession or control that is subject to the

confidentiality agreement with the Non-Party before a determination by the court

unless otherwise required by the law or court order. Absent a court order to the

1 contrary, the Non-Party shall bear the burden and expense of seeking protection in

2 this court of its Protected Material.

3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

to retrieve all unauthorized copies of the Protected Material, (c) inform the person

or persons to whom unauthorized disclosures were made of all the terms of this

Order, and (d) request such person or persons to execute the “Acknowledgment and

Agreement to Be Bound” that is attached hereto as Exhibit A.

11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain

inadvertently produced material is subject to a claim of privilege or other protection,

17 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

18 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

19 may be established in an e-discovery order that provides for production without

20 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar

21 as the parties reach an agreement on the effect of disclosure of a communication or

22 information covered by the attorney-client privilege or work product protection, the

23 parties may incorporate their agreement in the stipulated protective order submitted

to the court.

12. MISCELLANEOUS

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.

1 12.2 Right to Assert Other Objections. By stipulating to the entry of this

2 Protective Order, no Party waives any right it otherwise would have to object to

3 disclosing or producing any information or item on any ground not addressed in this

Stipulated Protective Order. Similarly, no Party waives any right to object on any

ground to use in evidence of any of the material covered by this Protective Order.

12.3 Filing Protected Material. A Party that seeks to file under seal any

Protected Material must comply with Local Civil Rule 79-5 and with any pertinent

orders of the assigned District Judge and Magistrate Judge. See, e.g., District

Judge’s Standing Order, ¶ 9 (Docket No. 9). Protected Material may only be filed

under seal pursuant to a court order authorizing the sealing of the specific Protected

Material at issue. If a Party’s request to file Protected Material under seal is denied

by the court, then the Receiving Party may file the information in the public record

14 unless otherwise instructed by the court.

15 13. FINAL DISPOSITION

16 After the final disposition of this Action, as defined in paragraph 4, within 60

17 days of a written request by the Designating Party, each Receiving Party must return

18 all Protected Material to the Producing Party or destroy such material. As used in

19 this subdivision, “all Protected Material” includes all copies, abstracts,

20 compilations, summaries, and any other format reproducing or capturing any of the

Protected Material. Whether the Protected Material is returned or destroyed, the

Receiving Party must submit a written certification to the Producing Party (and, if

not the same person or entity, to the Designating Party) by the 60 day deadline that

(1) identifies (by category, where appropriate) all the Protected Material that was

returned or destroyed and (2) affirms that the Receiving Party has not retained any

copies, abstracts, compilations, summaries or any other format reproducing or

capturing any of the Protected Material. Notwithstanding this provision, Counsel

1 are entitled to retain an archival copy of all pleadings, motion papers, trial,

2 deposition, and hearing transcripts, legal memoranda, correspondence, deposition

3 and trial exhibits, expert reports, attorney work product, and consultant and expert

work product, even if such materials contain Protected Material. Any such archival

copies that contain or constitute Protected Material remain subject to this Protective

Order as set forth in Section 4 (DURATION).

14. VIOLATION

Any violation of this Order may be punished by appropriate measures

including, without limitation, contempt proceedings and/or monetary sanctions.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

DATED: April 8, 2021

13 __/s/ Aidan W. Butler__________

14 Attorneys for Plaintiff

16 DATED: April 8, 2021

/s/ Doron Farid Eghbali________

18 Attorneys for Defendant ENRICH FINANCIAL, INC.

DATED: April 8, 2021

21 /s/ David J. Kaminski__________

Attorneys for Defendant SIMON’S AGENCY, INC.

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED AS MODIFIED.

25 DATED: April 19, 2021

/s/ Jacqueline Chooljian_________

Hon. Jacqueline Chooljian

28 United States Magistrate Judge

1 EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

4 I, _____________________________ [print or type full name], of ___________

5 ____________________ [print or type full address], declare under penalty of

6 perjury that I have read in its entirety and understand the Stipulated Protective

7 Order that was issued by the United States District Court for the Central District

8 of California on April 19, 2021 in the case of Dan Raines v. Enrich Financial, Inc.

9 et al., Case No. 2:20-cv-07551-JFW-JC. I agree to comply with and to be bound

by all the terms of this Stipulated Protective Order and I understand and

acknowledge that failure to so comply could expose me to sanctions and

punishment in the nature of contempt. I solemnly promise that I will not disclose

in any manner any information or item that is subject to this Stipulated Protective

Order to any person or entity except in strict compliance with the provisions of

this Order. I further agree to submit to the jurisdiction of the United States District

Court for the Central District of California for enforcing the terms of this

Stipulated Protective Order, even if such enforcement proceedings occur after

termination of this action. I hereby appoint __________________________ [print

20 or type full name] of _______________________________________ [print or

21 type full address and telephone number] as my California agent for service of

22 process in connection with this action or any proceedings related to enforcement

23 of this Stipulated Protective Order.

24 Date: ______________________________________

25 City and State where sworn and signed: ___________________________

26 Printed name: _______________________________

Signature: __________________________________

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