distinguishing “good cause” showing for sealing documents 11 produced in discovery from “compelling reasons” standard when merits-related 12 documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for sealing documents 11 produced in discovery from “compelling reasons” standard when merits-related 12 documents are part of court record
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
9
10 MARLOWE CACKIN, individually Case No.: 8:20-cv-02281-JLS (JDEx)
and on behalf of all others similarly
11
situated, STIPULATED PROTECTIVE ORDER
12
Plaintiff, [DISCOVERY MATTER]
13
v.
14 Date: N/A
15 INGERSOLL-RAND INDUSTRIAL Time: N/A
U.S., INC.; and DOES 1 through 20, Magistrate Judge: John D. Early
16 inclusive, Complaint Filed: October 28, 2020
17
Defendants.
18
19
Pursuant to the parties’ Stipulation (Dkt. 19), and for good cause shown, it is
20
hereby found and orders as follows.
21
22 1. A. PURPOSES AND LIMITATIONS
23
Discovery in this action is likely to involve production of confidential,
24
proprietary, or private information for which special protection from public
25
26 disclosure and from use for any purpose other than prosecuting this litigation may
27
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties acknowledge that this
1
2 Order does not confer blanket protections on all disclosures or responses to
3
discovery and that the protection it affords from public disclosure and use extends
4
only to the limited information or items that are entitled to confidential treatment
5
6 under the applicable legal principles. The parties further acknowledge, as set forth
7
in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
8
file confidential information under seal; Civil Local Rule 79-5 sets forth the
9
10 procedures that must be followed and the standards that will be applied when a party
11
seeks permission from the court to file material under seal.
12
B. GOOD CAUSE STATEMENT
13
14 This action is likely to involve private and confidential information regarding
15
Defendant’s current and former employees (including nonparties) as well as
16
Defendant’s trade secrets, commercial, financial, technical and/or proprietary
17
18 information for which special protection from public disclosure and from use for any
19
purpose other than prosecution of this action is warranted. Such confidential
20
21 information consists of, among other things, confidential and private personal
22 information of Defendant’s current and former employees (including nonparties),
23
confidential business or financial information, information regarding confidential
24
25 business practices, or other confidential research, development, or commercial
26 information (including information implicating privacy rights of third parties),
27
information otherwise generally unavailable to the public, or which may be
privileged or otherwise protected from disclosure under state or federal statutes,
1
2 court rules, case decisions, or common law. Accordingly, to expedite the flow of
3
information, to facilitate the prompt resolution of disputes over confidentiality of
4
discovery materials, to adequately protect information the parties are entitled to keep
5
6 confidential, to ensure that the parties are permitted reasonable necessary uses of
7
such material in preparation for and in the conduct of trial, to address their handling
8
at the end of the litigation, and serve the ends of justice, a protective order for such
9
10 information is justified in this matter. It is the intent of the parties that information
11
will not be designated as confidential for tactical reasons and that nothing be so
12
designated without a good faith belief that it has been maintained in a confidential,
13
14 non-public manner, and there is good cause why it should not be part of the public
15
record of this case.
16
2. DEFINITIONS
17
18 2.1 Action: The federal lawsuit, Cackin v. Ingersoll-Rand Industrial U.S.,
19
Inc., Case No.: 8:20-cv-02281-JLS-JDE.
20
21 2.2 Challenging Party: a Party or Non-Party that challenges the designation
22 of information or items under this Order.
23
2.3 “CONFIDENTIAL” Information or Items: information (regardless of
24
25 how it is generated, stored or maintained) or tangible things that qualify for
26 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
27
the Good Cause Statement.
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
1
2 their support staff).
3
2.5 Designating Party: a Party or Non-Party that designates information or
4
items that it produces in disclosures or in responses to discovery as
5
6 “CONFIDENTIAL.”
7
2.6 Disclosure or Discovery Material: all items or information, regardless
8
of the medium or manner in which it is generated, stored, or maintained (including,
9
10 among other things, testimony, transcripts, and tangible things), that are produced or
11
generated in disclosures or responses to discovery in this matter.
12
2.7 Expert: a person with specialized knowledge or experience in a matter
13
14 pertinent to the litigation who has been retained by a Party or its counsel to serve as
15
an expert witness or as a consultant in this Action.
16
2.8 House Counsel: attorneys who are employees of a party to this Action.
17
18 House Counsel does not include Outside Counsel of Record or any other outside
19
counsel.
20
21 2.9 Non-Party: any natural person, partnership, corporation, association, or
22 other legal entity not named as a Party to this action.
23
2.10 Outside Counsel of Record: attorneys who are not employees of a party
24
25 to this Action but are retained to represent or advise a party to this Action and have
26 appeared in this Action on behalf of that party or are affiliated with a law firm which
27
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,
1
2 employees, consultants, retained experts, and Outside Counsel of Record (and their
3
support staffs).
4
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
5
6 Discovery Material in this Action.
7
2.13 Professional Vendors: persons or entities that provide litigation support
8
services (e.g., photocopying, videotaping, translating, preparing exhibits or
9
10 demonstrations, and organizing, storing, or retrieving data in any form or medium)
11
and their employees and subcontractors.
12
2.14 Protected Material: any Disclosure or Discovery Material that is
13
14 designated as “CONFIDENTIAL.”
15
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
16
from a Producing Party.
17
18 3. SCOPE
19
The protections conferred by this Stipulation and Order cover not only
20
21 Protected Material (as defined above), but also (1) any information copied or
22 extracted from Protected Material; (2) all copies, excerpts, summaries, or
23
compilations of Protected Material; and (3) any testimony, conversations, or
24
25 presentations by Parties or their Counsel that might reveal Protected Material.
26 Any use of Protected Material at trial shall be governed by the orders of the
27
trial judge. This Order does not govern the use of Protected Material at trial.
4. DURATION
1
2 Once a case proceeds to trial, information that was designated as
3
CONFIDENTIAL or maintained pursuant to this protective order used or introduced
4
as an exhibit at trial becomes public and will be presumptively available to all
5
6 members of the public, including the press, unless compelling reasons supported by
7
specific factual findings to proceed otherwise are made to the trial judge in advance
8
of the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81
9
10 (9th Cir. 2006) (distinguishing “good cause” showing for sealing documents
11
produced in discovery from “compelling reasons” standard when merits-related
12
documents are part of court record). Accordingly, the terms of this protective order
13
14 do not extend beyond the commencement of the trial.
15
5. DESIGNATING PROTECTED MATERIAL
16
5.1 Exercise of Restraint and Care in Designating Material for Protection.
17
18 Each Party or Non-Party that designates information or items for protection under
19
this Order must take care to limit any such designation to specific material that
20
21 qualifies under the appropriate standards. The Designating Party must designate for
22 protection only those parts of material, documents, items, or oral or written
23
communications that qualify so that other portions of the material, documents, items,
24
25 or communications for which protection is not warranted are not swept unjustifiably
26 within the ambit of this Order.
27
Mass, indiscriminate, or routinized designations are prohibited. Designations
1
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
4
unnecessary expenses and burdens on other parties) may expose the Designating
5
6 Party to 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
10 promptly notify all other Parties that it is withdrawing the inapplicable designation.
11
5.2 Manner and Timing of Designations. Except as otherwise provided in
12
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
13
14 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
15
under this Order must be clearly so designated before the material is disclosed or
16
produced.
17
18 Designation in conformity with this Order requires:
19
(a) for information in documentary form (e.g., paper or electronic
20
21 documents, but excluding transcripts of depositions or other pretrial or trial
22 proceedings), that the Producing Party affix at a minimum, the legend
23
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
24
25 contains protected material. If only a portion or portions of the material on a page
26 qualifies for protection, the Producing Party also must clearly identify the protected
27
portion(s) (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents available for inspection
1
2 need not designate them for protection until after the inspecting Party has indicated
3
which documents it would like copied and produced. During the inspection and
4
before the designation, all of the material made available for inspection shall be
5
6 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
7
documents it wants copied and produced, the Producing Party must determine which
8
documents, or portions thereof, qualify for protection under this Order. Then, before
9
10 producing the specified documents, the Producing Party must affix the
11
“CONFIDENTIAL legend” to each page that contains Protected Material. If only a
12
portion or portions of the material on a page qualifies for protection, the Producing
13
14 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
15
markings in the margins).
16
(b) for testimony given in depositions that the Designating Party identify
17
18 the Disclosure or Discovery Material on the record, before the close of the deposition
19
all protected testimony.
20
21 (c) for information produced in some form other than documentary and for
22 any other tangible items, that the Producing Party affix in a prominent place on the
23
exterior of the container or containers in which the information is stored the legend
24
25 “CONFIDENTIAL.” If only a portion or portions of the information warrants
26 protection, the Producing Party, to the extent practicable, shall identify the protected
27
portion(s).
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
1
2 failure to designate qualified information or items does not, standing alone, waive
3
the Designating Party’s right to secure protection under this Order for such material.
4
Upon timely correction of a designation, the Receiving Party must make reasonable
5
6 efforts to assure that the material is treated in accordance with the provisions of this
7
Order.
8
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
9
10 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
11
designation of confidentiality at any time that is consistent with the Court’s
12
Scheduling Order.
13
14 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
15
resolution process under Local Rule 37.1 et seq.
16
6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
17
18 joint stipulation pursuant to Local Rule 37-2.
19
6.4 The burden of persuasion in any such challenge proceeding shall be on
20
21 the Designating Party. Frivolous challenges, and those made for an improper
22 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
23
parties) may expose the Challenging Party to sanctions. Unless the Designating Party
24
25 has waived or withdrawn the confidentiality designation, all parties shall continue to
26 afford the material in question the level of protection to which it is entitled under the
27
Producing Party’s designation until the Court rules on the challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
1
2 7.1 Basic Principles. A Receiving Party may use Protected Material that is
3
disclosed or produced by another Party or by a Non-Party in connection with this
4
Action only for prosecuting, defending, or attempting to settle this Action. Such
5
6 Protected Material may be disclosed only to the categories of persons and under the
7
conditions described in this Order. When the Action has been terminated, a
8
Receiving Party must comply with the provisions of section 13 below (FINAL
9
10 DISPOSITION).
11
Protected Material must be stored and maintained by a Receiving Party at a
12
location and in a secure manner that ensures that access is limited to the persons
13
14 authorized under this Order.
15
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
16
otherwise ordered by the court or permitted in writing by the Designating Party, a
17
18 Receiving Party may disclose any information or item designated
19
“CONFIDENTIAL” only to:
20
21 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
22 employees of said Outside Counsel of Record to whom it is reasonably necessary to
23
disclose the information for this Action;
24
25 (b) the officers, directors, and employees (including House Counsel) of the
26 Receiving Party to whom disclosure is reasonably necessary for this Action;
27
(c) Experts (as defined in this Order) of the Receiving Party to whom
1
2 disclosure is reasonably necessary for this Action and who have signed the
3
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
4
(d) the court and its personnel;
5
6 (e) court reporters and their staff;
7
(f) professional jury or trial consultants, mock jurors, and Professional
8
Vendors to whom disclosure is reasonably necessary for this Action and who have
9
10 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
11
(g) the author or recipient of a document containing the information or a
12
custodian or other person who otherwise possessed or knew the information;
13
14 (h) during their depositions, witnesses ,and attorneys for witnesses, in the
15
Action to whom disclosure is reasonably necessary provided: (1) the deposing party
16
requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
17
18 not be permitted to keep any confidential information unless they sign the
19
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
20
21 agreed by the Designating Party or ordered by the court. Pages of transcribed
22 deposition testimony or exhibits to depositions that reveal Protected Material may
23
be separately bound by the court reporter and may not be disclosed to anyone except
24
25 as permitted under this Stipulated Protective Order; and
26 (i) any mediator or settlement officer, and their supporting personnel,
27
mutually agreed upon by any of the parties engaged in settlement discussions.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
1
2 PRODUCED IN OTHER LITIGATION
3
If a Party is served with a subpoena or a court order issued in other litigation
4
that compels disclosure of any information or items designated in this Action as
5
6 “CONFIDENTIAL,” that Party must:
7
(a) promptly notify in writing the Designating Party. Such notification shall
8
include a copy of the subpoena or court order;
9
10 (b) promptly notify in writing the party who caused the subpoena or order to
11
issue in the other litigation that some or all of the material covered by the subpoena
12
or order is subject to this Protective Order. Such notification shall include a copy of
13
14 this Stipulated Protective Order; and
15
(c) cooperate with respect to all reasonable procedures sought to be pursued
16
by the Designating Party whose Protected Material may be affected.
17
18 If the Designating Party timely seeks a protective order, the Party served with
19
the subpoena or court order shall not produce any information designated in this
20
21 action 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. The Designating Party shall bear the burden and expense of seeking
24
25 protection in that court of its confidential material and nothing in these provisions
26 should be construed as authorizing or encouraging a Receiving Party in this Action
27
to disobey a lawful directive from another court.
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
1
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
6 produced by Non-Parties in connection with this litigation is protected by the
7
remedies and relief provided by this Order. Nothing in these provisions should be
8
construed as prohibiting a Non-Party from seeking additional protections.
9
10 (b) In the event that a Party is required, by a valid discovery request, to
11
produce a Non-Party’s confidential information in its possession, and the Party is
12
subject to an agreement with the Non-Party not to produce the Non-Party’s
13
14 confidential information, then the Party shall:
15
(1) promptly notify in writing the Requesting Party and the Non-Party
16
that some or all of the information requested is subject to a confidentiality agreement
17
18 with a Non-Party;
19
(2) promptly provide the Non-Party with a copy of the Stipulated
20
21 Protective Order in this Action, the relevant discovery request(s), and a reasonably
22 specific description of the information requested; and
23
(3) make the information requested available for inspection by the Non-
24
25 Party, if requested.
26 (c) If the Non-Party fails to seek a protective order from this court within 14
27
days of receiving the notice and accompanying information, the Receiving Party
may produce the Non-Party’s confidential information responsive to the discovery
1
2 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
3
not produce any information in its possession or control that is subject to the
4
confidentiality agreement with the Non-Party before a determination by the court.
5
6 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
7
of seeking protection in this court of its Protected Material.
8
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
9
10 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
11
Protected Material to any person or in any circumstance not authorized under this
12
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
13
14 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
15
to retrieve all unauthorized copies of the Protected Material, (c) inform the person
16
or persons to whom unauthorized disclosures were made of all the terms of this
17
18 Order, and (d) request such person or persons to execute the “Acknowledgment and
19
Agreement to Be Bound” that is attached hereto as Exhibit A.
20
21 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
22 PROTECTED MATERIAL
23
When a Producing Party gives notice to Receiving Parties that certain
24
25 inadvertently produced material is subject to a claim of privilege or other protection,
26 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
27
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without prior
1
2 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
3
parties reach an agreement on the effect of disclosure of a communication or
4
information covered by the attorney-client privilege or work product protection, the
5
6 parties may incorporate their agreement in the stipulated protective order submitted
7
to the court.
8
12. MISCELLANEOUS
9
10 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
11
person to seek its modification by the Court in the future.
12
12.2 Right to Assert Other Objections. By stipulating to the entry of this
13
14 Protective Order no Party waives any right it otherwise would have to object to
15
disclosing or producing any information or item on any ground not addressed in this
16
Stipulated Protective Order. Similarly, no Party waives any right to object on any
17
18 ground to use in evidence of any of the material covered by this Protective Order.
19
12.3 Filing Protected Material. A Party that seeks to file under seal any
20
21 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
22 only be filed under seal pursuant to a court order authorizing the sealing of the
23
specific Protected Material at issue. If a Party’s request to file Protected Material
24
25 under seal is denied by the court, then the Receiving Party may file the information
26 in the public record unless otherwise instructed by the court
27
13. FINAL DISPOSITION
1
2 After the final disposition of this Action, as defined in paragraph 4, within 60
3
days of a written request by the Designating Party, each Receiving Party must return
4
all Protected Material to the Producing Party or destroy such material. As used in
5
6 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
7
summaries, and any other format reproducing or capturing any of the Protected
8
Material. Whether the Protected Material is returned or destroyed, the Receiving
9
10 Party must submit a written certification to the Producing Party (and, if not the same
11
person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
12
(by category, where appropriate) all the Protected Material that was returned or
13
14 destroyed and (2)affirms that the Receiving Party has not retained any copies,
15
abstracts, compilations, summaries or any other format reproducing or capturing any
16
of the Protected Material. Notwithstanding this provision, Counsel are entitled to
17
18 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
19
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
20
21 reports, attorney work product, and consultant and expert work product, even if such
22 materials contain Protected Material. Any such archival copies that contain or
23
constitute Protected Material remain subject to this Protective Order as set forth in
24
25 Section 4 (DURATION).
26
27
1 VIOLATIONS
2 Any violation of this Order may be punished by any and all appropriate
3 measures including, without limitation, contempt proceedings and/or monetary
4
5 sanctions.
6
7
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
8
° pril 28, Me.
Dated: April 28, 2021
10 D. EARLY
11 nited States Magistrate Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 17
EXHIBIT A
1
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
2
I, _____________________________ [print or type full name], of
3
_________________ [print or type full address], declare under penalty of perjury
4
that I have read in its entirety and understand the Stipulated Protective Order that
5
was issued by the United States District Court for the Central District of California
6
on April 28, 2021 in the case of Cackin v. Ingersoll-Rand Industrial U.S., Inc.,
7
Case No.: 8:20-cv-02281-JLS-JDE. I agree to comply with and to be bound by all
8
the terms of this Stipulated Protective Order and I understand and acknowledge
9
that failure to so comply could expose me to sanctions and punishment in the
10
nature of contempt. I solemnly promise that I will not disclose in any manner any
11
information or item that is subject to this Stipulated Protective Order to any person
12
or entity except in strict compliance with the provisions of this Order.
13
I further agree to submit to the jurisdiction of the United States District
14
Court for the Central District of California for the purpose of enforcing the terms
15
of this Stipulated Protective Order, even if such enforcement proceedings occur
16
after termination of this action. I hereby appoint __________________________
17
[print or type full name] of ________________________________ [print or type
18
full address and telephone number] as my California agent for service of process in
19
connection with this action or any proceedings related to enforcement of this
20
21 Stipulated Protective Order.
22
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25 Printed name: _______________________________
26 Signature: __________________________________
27