even stipulated protective orders require good cause 8 showing
How later courts described this case
- even stipulated protective orders require good cause 8 showing
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
DAVID ETTEDGUI, an individual, on Case No. 2:20-cv-08053-MCS(JDEx)
11 behalf of himself and on behalf of all
persons similarly situated, PROTECTIVE ORDER
12
Plaintiff,
13
14 vs.
15 WB STUDIO ENTERPRISES INC., a
corporation; and DOES 1 through 50,
16
inclusive,
17
Defendants.
18
19 Based on the parties’ stipulation (Dkt. 57, 57-1), and for good cause shown,
20 the Court finds and orders as follows.
21 1. PURPOSES AND LIMITATIONS
22
Discovery in this action is likely to involve production of confidential,
23
proprietary or private information for which special protection from public
24
disclosure and from use for any purpose other than pursuing this litigation may be
25
warranted. The parties acknowledge that this Order does not confer blanket
26
protections on all disclosures or responses to discovery and that the protection it
27
affords from public disclosure and use extends only to the limited information or
28
1 items that are entitled to confidential treatment under the applicable legal
2 principles.
3 2. GOOD CAUSE STATEMENT
4 This action is likely to involve trade secrets, financial, technical and/or
5 proprietary information for which special protection from public disclosure and
6 from use for any purpose other than prosecution of this action is warranted. Such
7
confidential and proprietary materials and information consist of, among other
8
things, confidential business or financial information, information regarding
9
confidential business practices, or other confidential research, development, or
10
commercial information (including information implicating privacy rights of third
11
parties), information otherwise generally unavailable to the public, or which may
12
be privileged or otherwise protected from disclosure under state or federal statutes,
13
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 preparation for and in the conduct of trial, to address their
18
handling at the end of the litigation, and serve the ends of justice, a protective order
19
for such information is justified in this matter. It is the intent of the parties that
20
information will not be designated as confidential for tactical reasons and that
21
nothing be so designated without a good faith belief that it has been maintained in
22
23 a confidential, non-public manner, and there is good cause why it should not be
24 part of the public record of this case.
25 3. ACKNOWLEDGMENT OF UNDER SEAL PROCEDURE
26 As set forth below, this Protective Order does not entitle parties to file
27 confidential information under seal; Local Civil Rule 79-5 sets forth the procedures
28 that must be followed and the standards that will be applied when a party seeks
1 permission from the court to file material under seal. There is a strong presumption
2 that the public has a right of access to judicial proceedings and records in civil
3 cases. In connection with non-dispositive motions, good cause must be shown to
4 support a filing under seal. See Kamakana v. City and County of Honolulu, 447
5 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206,
6 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576,
7
577 (E.D. Wis. 1999) (even stipulated protective orders require good cause
8
showing), and a specific showing of good cause or compelling reasons with proper
9
evidentiary support and legal justification, must be made with respect to Protected
10
Material that a party seeks to file under seal. The parties’ mere designation of
11
Disclosure or Discovery Material as confidential does not— without the
12
submission of competent evidence by declaration establishing that the material
13
sought to be filed under seal qualifies as confidential, privileged, or otherwise
14
protectable—constitute good cause.
15
Further, if a party requests sealing related to a dispositive motion or trial,
16
then compelling reasons, not only good cause, for the sealing must be shown, and
17
the relief sought shall be narrowly tailored to serve the specific interest to be
18
protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
19
2010). For each item or type of information, document, or thing sought to be filed
20
or introduced under seal, the party seeking protection must articulate compelling
21
reasons, supported by specific facts and legal justification, for the requested sealing
22
23 order. Again, competent evidence supporting the application to file documents
24 under seal must be provided by declaration.
25 Any document that is not confidential, privileged, or otherwise protectable
26 in its entirety will not be filed under seal if the confidential portions can be
27 redacted. If documents can be redacted, then a redacted version for public viewing,
28 omitting only the confidential, privileged, or otherwise protectable portions of the
1 document, shall be filed. Any application that seeks to file documents under seal in
2 their entirety should include an explanation of why redaction is not feasible.
3 4. DEFINITIONS
4 4.1 Action: David Ettedgui v. WB Studio Enterprises Inc., pending before
5 the United States District Court for the Central District, Case Number 2:20-cv-
6 08053-MCS (JDEx).
7
4.2 Challenging Party: a Party or Non-Party that challenges the
8
designation of information or items under this Order.
9
4.3 “CONFIDENTIAL” Information or Items: information (regardless of
10
how it is generated, stored or maintained) or tangible things that qualify for
11
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
12
the Good Cause Statement.
13
4.4 Counsel: Outside Counsel of Record and House Counsel (as well as
14
their support staff).
15
4.5 Designating Party: a Party or Non-Party that designates information or
16
items that it produces in disclosures or in responses to discovery as
17
“CONFIDENTIAL.”
18
4.6 Disclosure or Discovery Material: all items or information, regardless
19
of the medium or manner in which it is generated, stored, or maintained (including,
20
among other things, testimony, transcripts, and tangible things), that are produced
21
or generated in disclosures or responses to discovery.
22
23 4.7 Expert: a person with specialized knowledge or experience in a matter
24 pertinent to the litigation who has been retained by a Party or its counsel to serve
25 as an expert witness or as a consultant in this Action.
26 4.8 House Counsel: attorneys employed by a party to this Action. House
27 Counsel does not include Outside Counsel of Record or any other outside counsel.
28
1 4.9 Non-Party: any natural person, partnership, corporation, association or
2 other legal entity not named as a Party to this action.
3 4.10 Outside Counsel of Record: attorneys who are not employees of a
4 party to this Action but are retained to represent a party to this Action and have
5 appeared in this Action on behalf of that party or are affiliated with a law firm that
6 has appeared on behalf of that party, and includes support staff.
7
4.11 Party: any party to this Action, including all of its officers, directors,
8
employees, consultants, retained experts, and Outside Counsel of Record (and their
9
support staffs).
10
4.12 Producing Party: a Party or Non-Party that produces Disclosure or
11
Discovery Material in this Action.
12
4.13 Professional Vendors: persons or entities that provide litigation
13
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
14
demonstrations, and organizing, storing, or retrieving data in any form or medium)
15
and their employees and subcontractors.
16
4.14 Protected Material: any Disclosure or Discovery Material that is
17
designated as “CONFIDENTIAL.”
18
4.15 Receiving Party: a Party that receives Disclosure or Discovery
19
Material from a Producing Party.
20
5. SCOPE
21
The protections conferred by this Order cover not only Protected Material
22
23 (as defined above), but also (1) any information copied or extracted from Protected
24 Material; (2) all copies, excerpts, summaries, or compilations of Protected
25 Material; and (3) any testimony, conversations, or presentations by Parties or their
26 Counsel that might reveal Protected Material.
27
28
1 Any use of Protected Material at trial shall be governed by the orders of the
2 trial judge and other applicable authorities. This Order does not govern the use of
3 Protected Material at trial.
4 6. DURATION
5 Once a case proceeds to trial, information that was designated as
6 CONFIDENTIAL or maintained pursuant to this protective order used or
7
introduced as an exhibit at trial becomes public and will be presumptively
8
available to all members of the public, including the press, unless compelling
9
reasons supported by specific factual findings to proceed otherwise are made to the
10
trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
11
(distinguishing “good cause” showing for sealing documents produced in
12
discovery from “compelling reasons” standard when merits-related documents are
13
part of court record). Accordingly, the terms of this protective order do not extend
14
beyond the commencement of the trial.
15
7. DESIGNATING PROTECTED MATERIAL
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7.1 Exercise of Restraint and Care in Designating Material for
17
Protection. Each Party or Non-Party that designates information or
18
items for protection under this Order must take care to limit any such designation
19
to specific material that qualifies under the appropriate standards. The Designating
20
Party must designate for protection only those parts of material, documents, items
21
or oral or written communications that qualify so that other portions of the
22
23 material, documents, items or communications for which protection is not
24 warranted are not swept unjustifiably within the ambit of this Order.
25 Mass, indiscriminate or routinized designations are prohibited. Designations
26 that are shown to be clearly unjustified or that have been made for an improper
27 purpose (e.g., to unnecessarily encumber the case development process or to
28
1 impose unnecessary expenses and burdens on other parties) may expose the
2 Designating Party to sanctions.
3 If it comes to a Designating Party’s attention that information or items that it
4 designated for protection do not qualify for protection, that Designating Party must
5 promptly notify all other Parties that it is withdrawing the inapplicable designation.
6 7.2 Manner and Timing of Designations. Except as otherwise provided in
7
this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material
8
that qualifies for protection under this Order must be clearly so designated before
9
the material is disclosed or produced.
10
Designation in conformity with this Order requires:
11
(a) for information in documentary form (e.g., paper or electronic
12
documents, but excluding transcripts of depositions or other pretrial or trial
13
proceedings), that the Producing Party affix at a minimum, the legend
14
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
15
contains protected material. If only a portion of the material on a page qualifies for
16
protection, the Producing Party also must clearly identify the protected portion(s)
17
(e.g., by making appropriate markings in the margins).
18
A Party or Non-Party that makes original documents available for
19
inspection need not designate them for protection until after the inspecting Party
20
has indicated which documents it would like copied and produced. During the
21
inspection and before the designation, all of the material made available for
22
23 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
24 identified the documents it wants copied and produced, the Producing Party must
25 determine which documents, or portions thereof, qualify for protection under this
26 Order. Then, before producing the specified documents, the Producing Party must
27 affix the “CONFIDENTIAL legend” to each page that contains Protected Material.
28 If only a portion of the material on a page qualifies for protection, the Producing
1 Party also must clearly identify the protected portion(s) (e.g., by making
2 appropriate markings in the margins).
3 (b) for testimony given in depositions that the Designating Party
4 identifies the Disclosure or Discovery Material on the record, before the close of
5 the deposition all protected testimony.
6 (c) for information produced in some form other than documentary
7
and for any other tangible items, that the Producing Party affix in a prominent
8
place on the exterior of the container or containers in which the information is
9
stored the legend “CONFIDENTIAL.” If only a portion or portions of the
10
information warrants protection, the Producing Party, to the extent practicable,
11
shall identify the protected portion(s).
12
7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
13
failure to designate qualified information or items does not, standing alone, waive
14
the Designating Party’s right to secure protection under this Order for such
15
material. Upon timely correction of a designation, the Receiving Party must make
16
reasonable efforts to assure that the material is treated in accordance with the
17
provisions of this Order.
18
8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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8.1. Timing of Challenges. Any Party or Non-Party may challenge a
20
designation of confidentiality at any time that is consistent with the Court’s
21
Scheduling Order.
22
23 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
24 resolution process under Local Rule 37-1 et seq.
25 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
26 joint stipulation pursuant to Local Rule 37-2.
27 8.4 The burden of persuasion in any such challenge proceeding shall be on
28 the Designating Party. Frivolous challenges, and those made for an improper
1 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
2 parties) may expose the Challenging Party to sanctions. Unless the Designating
3 Party has waived or withdrawn the confidentiality designation, all parties shall
4 continue to afford the material in question the level of protection to which it is
5 entitled under the Producing Party’s designation until the Court rules on the
6 challenge.
7
9. ACCESS TO AND USE OF PROTECTED MATERIAL
8
9.1 Basic Principles. A Receiving Party may use Protected Material that is
9
disclosed or produced by another Party or by a Non-Party in connection with this
10
Action only for prosecuting, defending or attempting to settle this Action. Such
11
Protected Material may be disclosed only to the categories of persons and under
12
the conditions described in this Order. When the Action has been terminated, a
13
Receiving Party must comply with the provisions of section 15 below (FINAL
14
DISPOSITION).
15
Protected Material must be stored and maintained by a Receiving Party at a
16
location and in a secure manner that ensures that access is limited to the persons
17
authorized under this Order.
18
9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
19
otherwise ordered by the court or permitted in writing by the Designating Party, a
20
Receiving Party may disclose any information or item designated
21
“CONFIDENTIAL” only to:
22
23 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
24 well as employees of said Outside Counsel of Record to whom it is reasonably
25 necessary to disclose the information for this Action;
26 (b) the officers, directors, and employees (including House Counsel)
27 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
28 (c) Experts (as defined in this Order) of the Receiving Party to whom
1 disclosure is reasonably necessary for this Action and who have signed an
2 Acknowledgment and Agreement to Be Bound.
3 (d) the court and its personnel;
4 (e) court reporters and their staff;
5 (f) professional jury or trial consultants, mock jurors, and Professional
6 Vendors to whom disclosure is reasonably necessary for this Action and who have
7
signed an Acknowledgment and Agreement to Be Bound;
8
(g) the author or recipient of a document containing the information or
9
a custodian or other person who otherwise possessed or knew the information;
10
(h) during their depositions, witnesses, and attorneys for witnesses, in
11
the Action to whom disclosure is reasonably necessary provided: (1) the deposing
12
party requests that the witness sign an Acknowledgment and Agreement to be
13
Bound; and (2) they will not be permitted to keep any confidential information
14
unless they sign the Acknowledgment and Agreement to Be Bound, unless
15
otherwise agreed by the Designating Party or ordered by the court. Pages of
16
transcribed deposition testimony or exhibits to depositions that reveal Protected
17
Material may be separately bound by the court reporter and may not be disclosed
18
to anyone except as permitted under this Protective Order; and
19
(i) any mediators or settlement officers and their supporting personnel,
20
mutually agreed upon by any of the parties engaged in settlement discussions.
21
10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
22
PRODUCED IN OTHER LITIGATION
23 If a Party is served with a subpoena or a court order issued in other litigation
24 that compels disclosure of any information or items designated in this Action as
25
“CONFIDENTIAL,” that Party must:
26
(a) promptly notify in writing the Designating Party. Such notification
27
shall include a copy of the subpoena or court order;
28
1 (b) promptly notify in writing the party who caused the subpoena or
2 order to issue in the other litigation that some or all of the material covered by the
3 subpoena or order is subject to this Protective Order. Such notification shall
4 include a copy of this Protective Order; and
5 (c) cooperate with respect to all reasonable procedures sought to be
6 pursued by the Designating Party whose Protected Material may be affected. If the
7
Designating Party timely seeks a protective order, the Party served with the
8
subpoena or court order shall not produce any information designated in this action
9
as “CONFIDENTIAL” before a determination by the court from which the
10
subpoena or order issued, unless the Party has obtained the Designating Party’s
11
permission. The Designating Party shall bear the burden and expense of seeking
12
protection in that court of its confidential material and nothing in these provisions
13
should be construed as authorizing or encouraging a Receiving Party in this Action
14
to disobey a lawful directive from another court.
15
11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
16
BE PRODUCED IN THIS LITIGATION
17
(a) The terms of this Order are applicable to information produced by
18
a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
19
information produced by Non-Parties in connection with this litigation is protected
20
by the remedies and relief provided by this Order. Nothing in these provisions
21
should be construed as prohibiting a Non-Party from seeking additional
22
23 protections.
24 (b) In the event that a Party is required, by a valid discovery request,
25 to produce a Non-Party’s confidential information in its possession, and the Party
26 is subject to an agreement with the Non-Party not to produce the Non-Party’s
27 confidential information, then the Party shall:
28
1 (1) promptly notify in writing the Requesting Party and the
2 Non-Party that some or all of the information requested is subject to a
3 confidentiality agreement with a Non-Party;
4 (2) promptly provide the Non-Party with a copy of the
5 Protective Order in this Action, the relevant discovery request(s), and a reasonably
6 specific description of the information requested; and
7
(3) make the information requested available for inspection by
8
the Non-Party, if requested.
9
(c) If the Non-Party fails to seek a protective order from this court
10
within 14 days of receiving the notice and accompanying information, the
11
Receiving Party may produce the Non-Party’s confidential information responsive
12
to the discovery request. If the Non-Party timely seeks a protective order, the
13
Receiving Party shall not produce any information in its possession or control that
14
is subject to the confidentiality agreement with the Non-Party before a
15
determination by the court. Absent a court order to the contrary, the Non-Party
16
shall bear the burden and expense of seeking protection in this court of its
17
Protected Material.
18
12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
19
If a Receiving Party learns that, by inadvertence or otherwise, it has
20
disclosed Protected Material to any person or in any circumstance not authorized
21
under this Protective Order, the Receiving Party must immediately (a) notify in
22
23 writing the Designating Party of the unauthorized disclosures, (b) use its best
24 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the
25 person or persons to whom unauthorized disclosures were made of all the terms of
26 this Order, and (d) request such person or persons to execute an Acknowledgment
27 an Agreement to Be Bound.
28
1 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
2
3 When a Producing Party gives notice to Receiving Parties that certain
4 inadvertently produced material is subject to a claim of privilege or other
5 protection, the obligations of the Receiving Parties are those set forth in Federal
6 Rule of Civil\ Procedure 26(b)(5)(B). This provision is not intended to modify
7
whatever procedure may be established in an e-discovery order that provides for
8
production without prior privilege review. Pursuant to Federal Rule of Evidence
9
502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
10
of a communication or information covered by the attorney-client privilege or
11
work product protection, the parties may incorporate their agreement in the
12
stipulated protective order submitted to the court.
13
14. MISCELLANEOUS
14
14.1 Right to Further Relief. Nothing in this Order abridges the right of any
15
person to seek its modification by the Court in the future.
16
14.2 Right to Assert Other Objections. By stipulating to the entry of this
17
Protective Order, no Party waives any right it otherwise would have to object to
18
disclosing or producing any information or item on any ground not addressed in
19
this Protective Order. Similarly, no Party waives any right to object on any ground
20
to use in evidence of any of the material covered by this Protective Order.
21
14.3 Filing Protected Material. A Party that seeks to file under seal any
22
23 Protected Material must comply with Local Civil Rule 79-5. Protected Material
24 may only be filed under seal pursuant to a court order authorizing the sealing of the
25 specific Protected Material. If a Party’s request to file Protected Material under
26 seal is denied by the court, then the Receiving Party may file the information in the
27 public record unless otherwise instructed by the court.
28
I 15. FINAL DISPOSITION
2 After the final disposition of this Action, as defined in paragraph 6, within
3 | 60 days of a written request by the Designating Party, each Receiving Party must
4 || return all Protected Material to the Producing Party or destroy such material. As
> |l used in this subdivision, “all Protected Material” includes all copies, abstracts,
6 compilations, summaries, and any other format reproducing or capturing any of the
7 || Protected Material. Whether the Protected Material is returned or destroyed, the
8 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
'0 (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
Is are entitled to retain an archival copy of all pleadings, motion papers, trial,
6 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
7 and trial exhibits, expert reports, attorney work product, and consultant and expert
13 work product, even if such materials contain Protected Material. Any such archival
19 copies that contain or constitute Protected Material remain subject to this
20 || Protective Order as set forth in Section 6 (DURATION).
1 16. VIOLATION
22 Any violation of this Order may be punished by appropriate measures
23 including, without limitation, contempt proceedings and/or monetary sanctions.
24 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
25
26 || DATED: April 27, 2021 Lb hee 24
97 HN D. EARLY
nited States Magistrateidge
28
□
PROTECTIVE ORDER