even stipulated 14 protective orders require good cause showing
How later courts described this case
- even stipulated 14 protective orders require good cause showing
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
10
MANUEL CAMPA, an individual, Case No.: 8:21-cv-00218 DOC (JDEx)
11
Plaintiff,
12 STIPULATED PROTECTIVE
13 v . ORDER
14 WALMART INC., a Delaware
Corporation, et al.,
15
Defendants.
16
Based on the parties’ Stipulation (Dkt. 14) and for good cause shown, the
17
Court finds and orders as follows.
18
1. 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 pursuing this litigation may
22
be warranted. Accordingly, the parties hereby stipulate to and petition the
23
Court to enter the following Stipulated Protective Order. The parties
24
acknowledge that this Order does not confer blanket protections on all
25
disclosures or responses to discovery and that the protection it affords from
26
public disclosure and use extends only to the limited information or items that
27
are entitled to confidential treatment under the applicable legal principles.
28
1 2. GOOD CAUSE STATEMENT
2 This action involves confidential information from an investigation into
3 alleged misconduct involving multiple third party individuals, and confidential
4 information about third party individuals that implicates the privacy rights of
5 third parties. This action may also include trade secrets, customer and pricing
6 lists and other valuable research, development, commercial, financial, technical
7 and/or proprietary information for which special protection from public
8 disclosure and from use for any purpose other than prosecution of this action is
9 warranted. Such confidential and proprietary materials and information consist
10 of, among other things, confidential business or financial information,
11 information regarding confidential business practices, or other confidential
12 research, development, or commercial information (including information
13 implicating privacy rights of third parties), information otherwise generally
14 unavailable to the public, or which may be privileged or otherwise protected
15 from disclosure under state or federal statutes, court rules, case decisions, or
16 common law. This action also involves medical and psychological records of
17 Plaintiff that are highly sensitive and confidential. Accordingly, to expedite the
18 flow of information, to facilitate the prompt resolution of disputes over
19 confidentiality of discovery materials, to adequately protect information the
20 parties are entitled to keep confidential, to ensure that the parties are permitted
21 reasonable necessary uses of such material in preparation for and in the
22 conduct of trial, to address their handling at the end of the litigation, and serve
23 the ends of justice, a protective order for such information is justified in this
24 matter. It is the intent of the parties that information will not be designated as
25 confidential for tactical reasons and that nothing be so designated without a
26 good faith belief that it has been maintained in a confidential, non-public
27 manner, and there is good cause why it should not be part of the public record
28 of this case.
1 3. ACKNOWLEDGMENT OF UNDER SEAL FILING
2 PROCEDURE
3 The parties further acknowledge, as set forth in Section 14.3, below, that
4 this Stipulated Protective Order does not entitle them to file confidential
5 information under seal; Local Civil Rule 79-5 sets forth the procedures that
6 must be followed and the standards that will be applied when a party seeks
7 permission from the court to file material under seal. There is a strong
8 presumption that the public has a right of access to judicial proceedings and
9 records in civil cases. In connection with non-dispositive motions, good cause
10 must be shown to support a filing under seal. See Kamakana v. City and
11 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
12 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
13 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
14 protective orders require good cause showing), and a specific showing of good
15 cause or compelling reasons with proper evidentiary support and legal
16 justification, must be made with respect to Protected Material that a party seeks
17 to file under seal. The parties’ mere designation of Disclosure or Discovery
18 Mate rial as CONFIDENTIAL does not— without the submission of
19 competent evidence by declaration, establishing that the material sought to be
20 filed under seal qualifies as confidential, privileged, or otherwise protectable—
21 constitute good cause.
22 Further, if a party requests sealing related to a dispositive motion or trial,
23 then compelling reasons, not only good cause, for the sealing must be shown,
24 and the relief sought shall be narrowly tailored to serve the specific interest to
25 be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th
26 Cir. 2010). For each item or type of information, document, or thing sought to
27 be filed or introduced under seal, the party seeking protection must articulate
28 compelling reasons, supported by specific facts and legal justification, for the
1 requested sealing order. Again, competent evidence supporting the application
2 to file documents under seal must be provided by declaration.
3 Any document that is not confidential, privileged, or otherwise protectable in
4 its entirety will not be filed under seal if the confidential portions can be
5 redacted. If documents can be redacted, then a redacted version for public
6 viewing, omitting only the confidential, privileged, or otherwise protectable
7 portions of the document, shall be filed. Any application that seeks to file
8 documents under seal in their entirety should include an explanation of why
9 redaction is not feasible.
10 4. DEFINITIONS
11 4.1 Action: this pending federal lawsuit.
12 4.2 Challenging Party: a Party or Non-Party that challenges the
13 designation of information or items under this Order.
14 4.3 “CONFIDENTIAL” Information or Items: information (regardless
15 of how it is generated, stored or maintained) or tangible things that qualify for
16 protection under Federal Rule of Civil Procedure 26(c), and as specified above
17 in the Good Cause Statement.
18 4.4 Counsel: Outside Counsel of Record and House Counsel (as well
19 as their support staff).
20 4.5 Designating Party: a Party or Non-Party that designates
21 information or items that it produces in disclosures or in responses to discovery
22 as “CONFIDENTIAL.”
23 4.6 Disclosure or Discovery Material: all items or information,
24 regardless of the medium or manner in which it is generated, stored, or
25 maintained (including, among other things, testimony, transcripts, and tangible
26 things), that are produced or generated in disclosures or responses to discovery.
27 ///
28 ///
1 4.7 Expert: a person with specialized knowledge or experience in a
2 matter pertinent to the litigation who has been retained by a Party or its counsel
3 to serve as an expert witness or as a consultant in this Action.
4 4.8 House Counsel: attorneys who are employees of a party to this
5 Action. House Counsel does not include Outside Counsel of Record or any
6 other outside counsel.
7 4.9 Non-Party: any natural person, partnership, corporation,
8 association or other legal entity not named as a Party to this action.
9 4.10 Outside Counsel of Record: attorneys who are not employees of a
10 party to this Action but are retained to represent a party to this Action and have
11 appeared in this Action on behalf of that party or are affiliated with a law firm
12 that has appeared on behalf of that party, and includes support staff.
13 4.11 Party: any party to this Action, including all of its officers,
14 directors, employees, consultants, retained experts, and Outside Counsel of
15 Record (and their support staffs).
16 4.12 Producing Party: a Party or Non-Party that produces Disclosure or
17 Discovery Material in this Action.
18 4.13 Professional Vendors: persons or entities that provide litigation
19 support services (e.g., photocopying, videotaping, translating, preparing
20 exhibits or demonstrations, and organizing, storing, or retrieving data in any
21 form or medium) and their employees and subcontractors.
22 4.14 Protected Material: any Disclosure or Discovery Material that is
23 designated as “CONFIDENTIAL.”
24 4.15 Receiving Party: a Party that receives Disclosure or Discovery
25 Material from a Producing Party.
26 5. SCOPE
27 The protections conferred by this Stipulation and Order cover not only
28 Protected Material (as defined above), but also (1) any information copied or
1 extracted from Protected Material; (2) all copies, excerpts, summaries, or
2 compilations of Protected Material; and (3) any testimony, conversations, or
3 presentations by Parties or their Counsel that might reveal Protected Material.
4 Any use of Protected Material at trial shall be governed by the orders of
5 the trial judge and other applicable authorities. This Order does not govern the
6 use of Protected Material at trial.
7 6. DURATION
8 Once a case proceeds to trial, information that was designated as
9 CONFIDENTIAL or maintained pursuant to this protective order used or
10 introduced as an exhibit at trial becomes public and will be presumptively
11 available to all members of the public, including the press, unless compelling
12 reasons supported by specific factual findings to proceed otherwise are made to
13 the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
14 (distinguishing “good cause” showing for sealing documents produced in
15 discovery from “compelling reasons” standard when merits-related documents
16 are part of court record). Accordingly, the terms of this protective order do not
17 extend beyond the commencement of the trial.
18 7. DESIGNATING PROTECTED MATERIAL
19 7.1 Exercise of Restraint and Care in Designating Material for
20 Protection. Each Party or Non-Party that designates information or
21 items for protection under this Order must take care to limit any such
22 designation to specific material that qualifies under the appropriate standards.
23 The Designating Party must designate for protection only those parts of
24 material, documents, items or oral or written communications that qualify so
25 that other portions of the material, documents, items or communications for
26 which protection is not warranted are not swept unjustifiably within the ambit
27 of this Order.
28 ///
1 Mass, indiscriminate or routinized designations are prohibited.
2 Designations that are shown to be clearly unjustified or that have been made
3 for an improper purpose (e.g., to unnecessarily encumber the case development
4 process or to impose unnecessary expenses and burdens on other parties) may
5 expose the Designating Party to sanctions.
6 If it comes to a Designating Party’s attention that information or items
7 that it designated for protection do not qualify for protection, that Designating
8 Party must promptly notify all other Parties that it is withdrawing the
9 inapplicable designation.
10 7.2 Manner and Timing of Designations. Except as otherwise provided
11 in this Order, or as otherwise stipulated or ordered, Disclosure of Discovery
12 Material that qualifies for protection under this Order must be clearly so
13 designated before the 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 “CO NFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page
19 that contains protected material. If only a portion of the material on a page
20 qualifies for protection, the Producing Party also must clearly identify the
21 protected portion(s) (e.g., by making appropriate markings in the margins).
22 A Party or Non-Party that makes original documents available for
23 inspection need not designate them for protection until after the inspecting
24 Party has indicated which documents it would like copied and produced.
25 During the inspection and before the designation, all of the material made
26 available for inspection shall be deemed “CONFIDENTIAL.” After the
27 inspecting Party has identified the documents it wants copied and produced,
28 the Producing Party must determine which documents, or portions thereof,
1 qualify for protection under this Order. Then, before producing the specified
2 documents, the Producing Party must affix the “CONFIDENTIAL legend” to
3 each page that contains Protected Material. If only a portion of the material on
4 a page qualifies for protection, the Producing Party also must clearly identify
5 the protected portion(s) (e.g., by making appropriate markings in the margins).
6 (b) for testimony given in depositions that the Designating Party
7 identifies the Disclosure or Discovery Material on the record, before the close
8 of the deposition all protected testimony.
9 (c) for information produced in some form other than documentary
10 and for any other tangible items, that the Producing Party affix in a prominent
11 place on the exterior of the container or containers in which the information is
12 stored the legend “CONFIDENTIAL.” If only a portion or portions of the
13 information warrants protection, the Producing Party, to the extent practicable,
14 shall identify the protected portion(s).
15 7.3 Inadvertent Failures to Designate. If timely corrected, an
16 inadvertent failure to designate qualified information or items does not,
17 standing alone, waive the Designating Party’s right to secure protection under
18 this O rder for such material. Upon timely correction of a designation, the
19 Receiving Party must make reasonable efforts to assure that the material is
20 treated in accordance with the provisions of this Order.
21 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
22 8.1. Timing of Challenges. Any Party or Non-Party may challenge a
23 designation of confidentiality at any time that is consistent with the Court’s
24 Scheduling Order.
25 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
26 resolution process under Local Rule 37-1 et seq.
27 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
28 joint stipulation pursuant to Local Rule 37-2.
1 8.4 The burden of persuasion in any such challenge proceeding shall be
2 on the Designating Party. Frivolous challenges, and those made for an
3 improper purpose (e.g., to harass or impose unnecessary expenses and burdens
4 on other parties) may expose the Challenging Party to sanctions. Unless the
5 Designating Party has waived or withdrawn the confidentiality designation, all
6 parties shall continue to afford the material in question the level of protection to
7 which it is entitled under the Producing Party’s designation until the Court
8 rules on the challenge.
9 9. ACCESS TO AND USE OF PROTECTED MATERIAL
10 9.1 Basic Principles. A Receiving Party may use Protected Material that
11 is disclosed or produced by another Party or by a Non-Party in connection with
12 this Action only for prosecuting, defending or attempting to settle this Action.
13 Such Protected Material may be disclosed only to the categories of persons and
14 under the conditions described in this Order. When the Action has been
15 terminated, a Receiving Party must comply with the provisions of section 15
16 below (FINAL DISPOSITION).
17 Protected Material must be stored and maintained by a Receiving Party
18 at a l ocation and in a secure manner that ensures that access is limited to the
19 persons authorized under this Order.
20 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
21 otherwise ordered by the court or permitted in writing by the Designating
22 Party, a Receiving Party may disclose any information or item designated
23 “CONFIDENTIAL” only to:
24 (a) the Receiving Party’s Outside Counsel of Record in this Action,
25 as well as employees of said Outside Counsel of Record to whom it is
26 reasonably necessary to disclose the information for this Action;
27 ///
28 ///
1 (b) the officers, directors, and employees (including House
2 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for
3 this Action;
4 (c) Experts (as defined in this Order) of the Receiving Party to
5 whom disclosure is reasonably necessary for this Action and who have signed
6 the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
7 (d) the court and its personnel;
8 (e) court reporters and their staff;
9 (f) professional jury or trial consultants, mock jurors, and
10 Professional Vendors to whom disclosure is reasonably necessary for this
11 Action and who have signed the “Acknowledgment and Agreement to Be
12 Bound” (Exhibit A);
13 (g) the author or recipient of a document containing the
14 information or a custodian or other person who otherwise possessed or knew
15 the information;
16 (h) during their depositions, witnesses, and attorneys for witnesses,
17 in the Action to whom disclosure is reasonably necessary provided: (1) the
18 depo sing party requests that the witness sign the form attached as Exhibit A
19 hereto; and (2) they will not be permitted to keep any confidential information
20 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit
21 A), unless otherwise agreed by the Designating Party or ordered by the court.
22 Pages of transcribed deposition testimony or exhibits to depositions that reveal
23 Protected Material may be separately bound by the court reporter and may not
24 be disclosed to anyone except as permitted under this Stipulated Protective
25 Order; and
26 ///
27 ///
28 ///
1 (i) any mediators or settlement officers and their supporting
2 personnel, mutually agreed upon by any of the parties engaged in settlement
3 discussions.
4 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
5 PRODUCED IN OTHER LITIGATION
6 If a Party is served with a subpoena or a court order issued in other
7 litigation that compels disclosure of any information or items designated in this
8 Action as “CONFIDENTIAL,” that Party must:
9 (a) promptly notify in writing the Designating Party. Such
10 notification shall include a copy of the subpoena or court order;
11 (b) promptly notify in writing the party who caused the subpoena
12 or order to issue in the other litigation that some or all of the material covered
13 by the subpoena or order is subject to this Protective Order. Such notification
14 shall include a copy of this Stipulated Protective Order; and
15 (c) cooperate with respect to all reasonable procedures sought to be
16 pursued by the Designating Party whose Protected Material may be affected. If
17 the Designating Party timely seeks a protective order, the Party served with the
18 subp oena or court order shall not produce any information designated in this
19 action as “CONFIDENTIAL” before a determination by the court from which
20 the subpoena or order issued, unless the Party has obtained the Designating
21 Party’s permission. The Designating Party shall bear the burden and expense of
22 seeking protection in that court of its confidential material and nothing in these
23 provisions should be construed as authorizing or encouraging a Receiving Party
24 in this Action to disobey a lawful directive from another court.
25 ///
26 ///
27 ///
28 ///
1 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
2 BE PRODUCED IN THIS LITIGATION
3 (a) The terms of this Order are applicable to information produced
4 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
5 information produced by Non-Parties in connection with this litigation is
6 protected by the remedies and relief provided by this Order. Nothing in these
7 provisions should be construed as prohibiting a Non-Party from seeking
8 additional protections.
9 (b) In the event that a Party is required, by a valid discovery
10 request, to produce a Non-Party’s confidential information in its possession,
11 and the Party is subject to an agreement with the Non-Party not to produce the
12 Non-Party’s confidential information, then the Party shall:
13 (1) promptly notify in writing the Requesting Party and the Non-
14 Party that some or all of the information requested is subject to a confidentiality
15 agreement with a Non-Party;
16 (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 reaso nably 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
22 within 14 days of receiving the notice and accompanying information, the
23 Receiving Party may produce the Non-Party’s confidential information
24 responsive to the discovery request. If the Non-Party timely seeks a protective
25 order, the Receiving Party shall not produce any information in its possession
26 or control that is subject to the confidentiality agreement with the Non-Party
27 before a determination by the court. Absent a court order to the contrary, the
28 ///
1 Non-Party shall bear the burden and expense of seeking protection in this court
2 of its Protected Material.
3 12. UNAUTHORIZED DISCLOSURE OF PROTECTED
4 MATERIAL
5 If a Receiving Party learns that, by inadvertence or otherwise, it has
6 disclosed Protected Material to any person or in any circumstance not
7 authorized under this Stipulated Protective Order, the Receiving Party must
8 immediately (a) notify in writing the Designating Party of the unauthorized
9 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
10 Protected Material, (c) inform the person or persons to whom unauthorized
11 disclosures were made of all the terms of this Order, and (d) request such
12 person or persons to execute the “Acknowledgment an Agreement to Be
13 Bound” attached hereto as Exhibit A.
14 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
15 OTHERWISE PROTECTED MATERIAL
16 When a Producing Party gives notice to Receiving Parties that certain
17 inadvertently produced material is subject to a claim of privilege or other
18 prote ction, the obligations of the Receiving Parties are those set forth in Federal
19 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
20 whatever procedure may be established in an e-discovery order that provides
21 for production without prior privilege review. Pursuant to Federal Rule of
22 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect
23 of disclosure of a communication or information covered by the attorney-client
24 privilege or work product protection, the parties may incorporate their
25 agreement in the stipulated protective order submitted to the court.
26 14. MISCELLANEOUS
27 14.1 Right to Further Relief. Nothing in this Order abridges the right of
28 any person to seek its modification by the Court in the future.
1 14.2 Right to Assert Other Objections. By stipulating to the entry of this
2 Protective Order, no Party waives any right it otherwise would have to object to
3 disclosing or producing any information or item on any ground not addressed
4 in this Stipulated Protective Order. Similarly, no Party waives any right to
5 object on any ground to use in evidence of any of the material covered by this
6 Protective Order.
7 14.3 Filing Protected Material. A Party that seeks to file under seal any
8 Protected Material must comply with Local Civil Rule 79-5. Protected Material
9 may only be filed under seal pursuant to a court order authorizing the sealing of
10 the specific Protected Material. If a Party’s request to file Protected Material
11 under seal is denied by the court, then the Receiving Party may file the
12 information in the public record unless otherwise instructed by the court.
13 15. FINAL DISPOSITION
14 After the final disposition of this Action, as defined in paragraph 6,
15 within 60 days of a written request by the Designating Party, each Receiving
16 Party must return all Protected Material to the Producing Party or destroy such
17 material. As used in this subdivision, “all Protected Material” includes all
18 copie s, abstracts, compilations, summaries, and any other format reproducing
19 or capturing any of the Protected Material. Whether the Protected Material is
20 returned or destroyed, the Receiving Party must submit a written certification
21 to the Producing Party (and, if not the same person or entity, to the Designating
22 Party) by the 60-day deadline that (1) identifies (by category, where
23 appropriate) all the Protected Material that was returned or destroyed and (2)
24 affirms that the Receiving Party has not retained any copies, abstracts,
25 compilations, summaries or any other format reproducing or capturing any of
26 the Protected Material. Notwithstanding this provision, Counsel are entitled to
27 retain an archival copy of all pleadings, motion papers, trial, deposition, and
28 hearing transcripts, legal memoranda, correspondence, deposition and trial
1 | exhibits, expert reports, attorney work product, and consultant and expert work
2 | product, even if such materials contain Protected Material. Any such archival
3 | copies that contain or constitute Protected Material remain subject to this
4 | Protective Order as set forth in Section 6 (DURATION).
5 16. VIOLATION
6 Any violation of this Order may be punished by appropriate measures
7 | including, without limitation, contempt proceedings and/or monetary
8 || sanctions.
9
10
1] FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
12
13 | Dated: April 22, 2021
14 ; i 7 □ 7
15
J D. EARLY
16 ited States Magistrate Judge
17
18
19
20
21
22
23
24
25
26
27
28
15
PROTECTIVE ORDER
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 My name is [print or type full name].
5 I live at
6 [print or type full address]. I am working on behalf (or at the direction and
7 engagement) of _________________.
8 I declare under penalty of perjury that I have read in its entirety and
9 understand the Stipulated Protective Order that was issued by the United States
10 District Court for the Central District of California on April 22, 2021 in the case of
11 Manuel Campa v. Walmart, Inc., U.S. District Court Case No. 8:21-cv-00218 DOC
12 (JDEx).
13 I agree to comply with and to be bound by all the terms of this Stipulated
14 Protective Order and I understand and acknowledge that failure to so comply could
15 expose me to sanctions and punishment in the nature of contempt.
16 I solemnly promise that I will not disclose in any manner any information or
17 item that is subject to this Stipulated Protective Order to any person or entity except
18 in str ict compliance with the provisions of this Order.
19 I further agree to submit to the jurisdiction of the United States District Court
20 for the Central District of California for enforcing the terms of this Stipulated
21 Protective Order, even if such enforcement proceedings occur after termination of
22 this action. I hereby appoint [print
23 or type full name] of
24 [print or type full address and telephone number] as my California
25 ///
26 ///
27 ///
28 ///
1 agent for service of process in connection with this action or any proceedings
2 related to enforcement of this Stipulated Protective Order.
3
4 Dated:
5 City and State where sworn and signed:
6 Printed name:
7 Signature:
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28